Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The Bill we are debating on Second Stage this evening seeks to amend the Civil Liability Act 1961 by putting a new Part into that Act. The new Part would set out a statutory mechanism that would have the effect of prohibiting people from inheriting assets from the estate of persons whom they have killed. In the law at present there is a partial remedy for that problem contained within section 120 of the Succession Act. However, other issues, in particular how they relate to joint tenancies held by individuals, are not covered at present in statute.

Before dealing with the substance of the Bill I wish to state at the outset that the Civil Liability Act that was enacted by the Houses of the Oireachtas in 1961 was remarkable legislation. It is very sophisticated legislation that was designed to deal with the issues of civil liability, concurrent wrongdoers, survivorship of actions by people who have died and it also deals with actions that can be taken by dependants of persons who have died. It was remarkable legislation, which has been commented on throughout the legal world as being legislation of great sophistication. When it was introduced in 1960 by the Minister of State at the time, Mr. Haughey, it received widespread approval from Opposition leaders such as Mr. Costello and Mr. Tom O’Higgins was also a Member of Dáil Éireann at the time.

Part of the reason it is legislation of such sophistication is that it was drafted by one of the most pre-eminent legal academics of the 20th century, Dr. Glanville Williams. I am slightly hesitant about introducing legislation that is going to amend that remarkable legislation but the House and individuals can rest assured that the only way in which the Civil Liability Act will be amended is through the insertion of this proposed section to specifically deal with the issue of individuals seeking to inherit from the estates of persons whom they have killed.

It is important to note that the legislation has its origins in a tragic event in December 2008 involving the brutal killing of a woman by her husband. In February 2010, the man was convicted of her manslaughter. Like many married couples in Ireland, they owned their family home as joint tenants. It is important for the purpose of this debate to be aware of the meaning of a joint tenancy as it applies to property owners. If two, three, four or more people own property as joint tenants, the most distinctive feature of that ownership is the rule of survivorship, under which the share of an owner who dies vests in the remaining owners, which continues until only one owner remains. Its effect in the context of those tragic events in 2008 was that after the woman died, her interest in the joint tenancy automatically vested in her husband who had been convicted of her manslaughter. All Members will agree that that is wrong under the principle that one ought not be able to profit or benefit from a wrongful act. In that instance, the man was able to do so. Thereafter, the family of the unfortunate deceased woman brought proceedings to the High Court seeking to disqualify the husband from gaining full ownership of the family home. The case was heard by Ms Justice Laffoy, one of the finest judges we have had in this country, who recognised that his entitlement to inherit the joint tenancy under the rule of survivorship could not be eroded because there was no statutory provision which would allow that. However, she came up with an ingenious method to circumvent the entitlement, whereby she stated that the interest of the wife in the family home would be held in trust by the man for the benefit of the wife's family. Importantly, she also commented that the issue should be addressed in legislation and that the Oireachtas needed to act.

The Law Reform Commission produced an excellent report on the issue in 2015. A significant amount of research on the issue was carried out and the practices in other jurisdictions were considered. The commission put forward several recommendations and proposed statutory provisions which form the basis of the Bill.

The Bill seeks to give effect to the legal principle that one should not be able to benefit from one's wrongful act. If enacted, it would ensure that a person responsible for the murder, manslaughter or attempted murder of a joint tenant would have that joint tenancy severed such that the rule of survivorship would no longer operate. If an application was brought by an interested party, a court would be entitled to sever the joint tenancy and determine the amount and value of the offender's interest in the property. The court could decide the offender had no interest in the property, was entitled to the 50% interest he or she held under the joint tenancy or should be granted a level beyond that. In so deciding, the court must take several factors into account, such as whether the victim had children, the financial obligations and responsibilities of the offender, the nature and gravity of the offence and the extent to which the offender displayed a lack of concern for the victim. It would be entitled to consider all relevant factors in determining what was just and equitable for the purpose of calculating the value and amount of the offender's interest in the estate.

Section 120(1) of the Succession Act 1965 provides a statutory prohibition on individuals inheriting from the estate or assets of persons for whose murder or manslaughter they are responsible. The Bill proposes the insertion of section 46B into the Civil Liability Act 1965, which would reformulate and broaden the statutory prohibition in section 120 of the Succession Act. The current section does not cover insurance policies or certain other assets which do not come within the narrow definition currently provided. Under the Bill, a person convicted of murder, attempted murder or manslaughter would be precluded from taking any share of the property or estate of their victim. There is no concern in that regard as it simply reformulates and broadens section 120.

The Minister of State, Deputy Andrew Doyle, who is present, will state that the Government is concerned by section 46B(3), which provides that the rule "shall not apply to any person who aids, abets, counsels or procures the commission of an offence". I am prepared to listen to such concerns. We will not fall out over it. The priority should be to enact the substantive part of the legislation. We will discuss the details of the Bill on Committee Stage. However, we must recognise that the Law Reform Commission believed it inappropriate to include aiding and abetting as an offence which would invoke the operation of this proposed legislative scheme. It is also important to note that section 7 of the Criminal Law Act 1997 provides that "Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender." A person involved in aiding or abetting a murder is liable to be prosecuted for such crime as a principal offender. That is the only contentious part of section 46B.

Section 46C implements the recommendations of chapter 2 of the Law Reform Commission report. It provides an express statutory prohibition on an offender obtaining the benefit of the right of survivorship and that the joint tenancy between an offender and victim shall be severed from the date on which the offence was committed. That is the central part of the legislation. It is imperative that the joint tenancy is severed and that the rule of survivorship does not operate because the offender would otherwise be able to inherit the estate of his or her victim.

Section 46C(2) provides that where proceedings are brought under this part of the Act it shall be the responsibility of the court to make an order that is just and equitable. As I stated, the court is required to make an order determining the amount and value of the offender's interest in the property, which may be more or less than or equal to half of the interest in the property. A feature of joint tenancy is that the property is owned equally. If two people are joint tenants, they generally each have the right to 50% of the property. The court would determine whether an offender had an entitlement to any share of the estate. As I stated, several factors may be taken into account by the court in that determination, such as the direct or indirect contributions of the offender or victim to the jointly-held property. Such offenders and victims are often married or may have children together and in such instances that would be taken into account.

The age and financial needs of any dependant or any children of the victim will also be taken into account. That will have to be an important factor for any court considering the matter. The court should also take into account the age, financial needs and obligations of the offender. The court should take a series of factors into account when this application is brought.

I may not have mentioned it but the people who can bring this application are referred to in the legislation as interested persons. They are the personal representatives or executors of the estate of the deceased and are entitled to succeed under the estate of the deceased his or her dependants or close family members.

The other part of the legislation that is interesting and novel is section 46E, which deals with the civil nature of proceedings under this Part. This legislation primarily deals with events that are, on one level, criminal offences; people who kill other people commit criminal offences. It is not always the case, however, that individuals who kill other people are held to account before our criminal courts. Sometimes individuals are prosecuted and acquitted, notwithstanding the fact that they may be guilty. On other occasions, there simply is not enough evidence to prosecute a person for a serious criminal offence such as murder or manslaughter. That happens in this jurisdiction, and it happens in every jurisdiction throughout the world.

We need to recall, however, that this legislation comes under the Civil Liability Act. It provides a civil remedy to people who believe the offender should not benefit from the intentional killing performed by that offender on the victim. Consequently, since it is a civil remedy, the civil standard of proof should apply. The civil standard of proof is that something has to be proved on the balance of probabilities. That is different from the criminal standard of proof, which is that it has to be proven beyond all reasonable doubt. There may be occasions when individuals who have killed somebody have not been convicted or have not been prosecuted for a crime. However, that should not stop interested persons from bringing applications under this Act to prevent the person they regard as the offender inheriting under the rules of joint tenancy or the rules under the will. It will mean that if the court is satisfied the individual bringing the application will have put evidence before it establishing, on the balance of probabilities, the person was killed through the intentional act of the other person, that does not make them a criminal but it does hold them civilly liable.

I thank the Acting Chairman for the time and I hope to get the support of the House in respect of this legislation.

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