Rónán Mullen (Independent) | Oireachtas source

Cuirim fáilte roimh an Aire. It is my pleasure to second Senator Quinn's timely and necessary amendment to the Succession Act 1965.I take this opportunity to compliment my colleague, Senator Quinn, who is always so thoughtful in the legislative initiatives he brings forward. His proposals always are rooted in the need to address people's experience of things that are happening and to seek to bring fairness in some way. That is what the law should be about at all times; it should be relevant to the situations that arise in life and which affect people and when the law is not doing justice, it needs to be amended. Senator Quinn is quite right to bring forward this amending legislation and it deserves immediate support.

The common law injunction preventing one from benefiting from one's own wrongdoing has a long and distinguished lineage. Captured in the maxim, ex turpi causa non oritur actio, that is, from a dishonourable cause an action does not arise, this prohibition was cited by the renowned Lord Chief Justice, Lord Mansfield, in the 1775 case Holman v.Johnson, in which that jurist set the rationale for what is known as the "illegality doctrine". He stated:

The objection [to permitting a wrongdoer to benefit from his wrongful actions] is founded in general principles of policy ... The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes.

The laws of contract and of equity always have upheld principles that seek not to assist those who, to use the words from the law of equity, do not approach the court with clean hands.

The statutory law in this jurisdiction relevant to the Bill is set out in section 120 of the Succession Act. In particular, the conviction of a defendant for manslaughter has clear implications in respect of the distribution of the estate of the deceased by virtue of the application of section 120 which provides:

A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.

As Senator Quinn has stated, a more modern consideration of these concepts is to be found in the decision of the Irish High Court in Cawley v.Lillis of 2011. This unfortunate case, as Members will recall, concerned the manslaughter of a wife by her husband at their house in north Country Dublin. In the Cawley case, while Ms Justice Laffoy acknowledged the long-standing principle of the common law I mentioned earlier, she accepted that where assets were jointly owned: "The resolution of those issues primarily turns on the application of established principles of law and equity in the area of real property law, which is highly technical, rather than the exercise of discretion by the Court." Consequently, the law is not entirely clear where property is jointly owned.

In the United Kingdom, the position is more clearly set out by the operation of statute. The courts in the United Kingdom have a statutory power, under the Forfeiture Act 1982, to order the forfeiture of joint interests in property in cases where a person has unlawfully killed another. Megarry and Wade, in their leading work, The Law of Real Property, explained the impact of those provisions in the British law and I think it is useful for Members if I set out their summary as follows:

One consequence of the rule that no one may benefit in law from his own crime, is that, in general, if one joint tenant criminally kills another, the killer cannot take any beneficial interest by survivorship. This rule of public policy, commonly known as the "forfeiture rule", applies to cases of deliberate and intentional homicide, [where] the killing is murder, manslaughter or aiding and abetting a suicide. It has not been conclusively settled in England whether the application of the rule causes the automatic severance of the joint tenancy or whether a constructive trust is imposed to prevent the killer from obtaining any benefit from his crime. Where there are just two joint tenants, the answer will be the same on either view.

Without engaging in an analysis of the distinction between the application of a constructive trust or the severance of a tenancy, it is sufficient to note that Ms Justice Laffoy determined that joint tenancy accrued to the husband who was guilty of his wife's manslaughter but that half of the property was held in constructive trust for the wife's estate. The judge opined in the court, in a comment that would be obiterrather than binding, that: "The issues raised in these proceedings demonstrate that, ideally, there should be legislation in place which prescribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner." It is in light of these dicta that I welcomed this legislation as both timely and necessary.

I commend Senator Quinn's careful drafting of the Bill. It is my view that he has taken a balanced approach and has acknowledged the constitutional protection afforded to property rights that the public policy considerations demand. The Bill correctly proceeds on the basis that the constitutional rights in Article 43.2.2° are not absolute. Indeed, this is addressed in other comments of Ms Justice Laffoy in the Cawley case. Article 43.2.2° limits individuals' property rights in the "exigencies of the common good". This is the case where compulsory purchase orders can be made over land, it should be a fortiori the case where a person seeks to make a material gain over the estate of a deceased, having brought about that person's death. This Bill is measured, well founded in the long-standing precepts of the law and proportionate to the objective to be achieved. It deserves the cross-party support of the House. I note this is a matter that is under consideration by the Law Reform Commission. Members of the Oireachtas, and Senator Quinn more than once, have found themselves in a position where they really have anticipated the work the Government ought to have done itself already.