Professor John Mee:

I regret the fact that there is the complication but I would say yes. In relation to land, however, it is a bit different. I can see what the Bill would look like. If I had to draft it I would get rid of that discretion: I would make provision for an automatic half share and say that in cases of land where the section 30 prohibition comes in the court can determine what benefit it thinks the killer got from getting around that section 30 prohibition on severance, and that the court can make an order accordingly. It is messy but what can one do? Section 30 is an unpredictable thing but it is in there. Legislators could get rid of it and I would be all in favour of that.

If the Bill does not get rid of section 30 then one could deal with it in the way I have suggested. AdVIC would be getting some of what it wants in this regard around cases involving a house - one of the most important elements in such cases - and something that the court decided was a benefit would be taken off the killer, or sometimes he or she would get less than one half. This would focus on the issue of prevention of benefit, which is what this is all about. It is just hard to pin down what the benefit is but we do not want to give the killer the benefit just because it is hard to pin down.

There are other expert views on this, but my view is that this would not be unconstitutional if it was just to focus on the prevention of benefits from homicide, which is in the Title of the Bill. Nobody thinks a killer should get a benefit from the homicide but nobody thinks that they should forfeit their constitutional right. This would be easy from a theoretical perspective if there was no section 30 and the share would just be 50:50. Section 30, however, creates complications.

Ms Justice Laffoy's opinion on the facts of the Cawley vLillis case was that there was not any benefit to the killer. On the facts of that case the killer would have got the half share. In another case where the killer was much older or where there had been an attempt to sever the joint tenancy before the death it could be difficult to work in practice but I am not sure what else one can do in this regard because section 30 is there. There is a lesson in that: section 30 is in statute but nobody else in all of the other jurisdictions has it. Sometimes we just get ideas and enact legislation that is totally different from everywhere else. It then complicates our law unnecessarily.