Unlawful Killing of a Joint Tenant

Unlawful killing of a joint tenant John Tarrant* In circumstances where one joint tenant unlawfully kills another joint tenant the case law is consistent in providing a legal response to deny the wrongdoer from benefiting from the killing. However, in achieving that objective different responses have been applied including severance of the joint tenancy at law or in equity or the imposition of a constructive trust. The author examines the case law in the United States, Australia, England, Canada and New Zealand and argues that there are difficulties with the responses of the courts because in some circumstances they are too generous to felons and in other circumstances they are unfair to victims. To overcome these difficulties the author advocates for a legal response whereby the victim is assumed to still be alive and the felon retains the right to sever the joint tenancy. Introduction Our legal system is concerned to ensure that a person does not benefit if they are responsible for the killing of another person.1 Often the issue that arises is that the felon stands to benefit under the terms of the will of their victim. In some circumstances they might also benefit from an insurance policy or because they hold property as a joint tenant with their victim. The need for the development of rules arose in the late nineteenth century when the common law rule that provided that convicted felons forfeited their property rights to the Crown was abolished.2 The law has developed rules to prevent a killer from benefiting from the killing and the rules that have been developed are referred to in the United States as the slayer rule and in the Commonwealth as the forfeiture rule.3 The purpose of this article is to examine how these rules apply when one joint tenant is responsible for killing another joint tenant. The issue of what legal response is appropriate in the circumstances creates unique problems because upon the death of a joint tenant the rights of the surviving joint tenants are enlarged. This occurs automatically under the rules of survivorship which are a key aspect of a joint tenancy. If a joint tenant is responsible for the death of another joint tenant then they stand to benefit from the survivorship rule unless another legal response deprives them of that benefit. The critical question is how best to deprive a felon of that benefit. Various responses are available including the use of a constructive trust, an automatic severance of the joint tenancy, either at law or in equity, or some other outcome arrived at * SJD LLM LLB(Hons) BSc(Grad) BCom BA GradDipEd, DipFinMangt, GradDiplTax; Senior Lecturer, Law School, University of Western Australia. 1 See Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147. 2 For a discussion of the English feudal doctrines of attainder, forfeiture, corruption of blood and escheat and the introduction of the Forfeiture Act 1870, see A Reppy, ‘The Slayer’s Bounty — History of Problem in Anglo-American Law’ (1942) 19 NYULQR 229. 3 For a discussion of the history and operation of the forfeiture rule see Troja v Troja (1994) 33 NSWLR 269. 224 Unlawful killing of a joint tenant 225 by making an assumption, for example that the felon died before the victim even if the felon is in fact still alive. Cases that have adopted these various alternatives will be examined in this article. The specific issue of how the law should respond when one joint tenant kills a co-tenant has only received limited judicial consideration in England, Australia, Canada and New Zealand. However, in the United States the issue has received significant judicial consideration and has been the subject of legislation in many jurisdictions.4 The issue continues to be the subject of ongoing debate in the United States primarily because there are different legislative provisions in different jurisdictions and the legislative provisions have not always been drafted with clarity.5 The operation of the forfeiture rule to joint tenancies has also been the subject of recent discussion in Canada6 but has received little attention in England7 and Australia.8 The issue has usually been examined only as part of the wider application of the forfeiture rule. The purpose of this article is to examine the application of the forfeiture rule to property held under a joint tenancy. When one joint tenant kills another the issue arises as to whether the forfeiture rule should apply at all. For example, complications can arise if the relevant litigation is commenced before the person is convicted or if they have been convicted but an appeal is pending. In some cases the courts will be concerned to limit the operation of the forfeiture rule in circumstances where the killing followed a lengthy period of violence by the victim towards the felon and that the killing is therefore, to some extent at least, justified or able to be seen in a different light. Legislation has been enacted in some 4 For a list of the statutes see J J Olenn, ‘Til Death Do Us Part: New York’s Slayer Rule and In re Estates of Covert’ (2001) 49 Buff L Rev 1341 at 1341 n 3. 5 See K S Berk, ‘Mercy Killing and the Slayer Rule: Should the Legislatures Change Something?’ (1992) 67 Tul L Rev 485; G C Blackwell, ‘Property: Creating a Slayer Statute Oklahomans Can Live With’ (2004) 57 Okla L Rev 143; D A Farber, ‘Courts, Statutes, and Public Policy: The Case of the Murderous Heir’ (2000) 53 SMULR 31; J W Fisher II, ‘Joint Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights’ (1988) 91 W Va L Rev 267; C K Goldberg, ‘Estate of Castiglioni: Spousal Murder and the Clash of Joint Tenancy and Equity in California Community Property Law’ (1997) 33 Idaho L Rev 513; J W Hampton, ‘The Need for a New Slayer Statute in North Carolina’ (2002) 24 Campbell L Rev 295; C Kramer, ‘Guilty by Association: Inadequacies in the Uniform Probate Code Slayer Statute’ (2003) 19 NYL Sch J Hum Rts 697; J G Sherman, ‘Mercy Killing and the Right to Inherit’ (1993) 61 U Cin L Rev 803; and ‘Disposition of Property Held in Joint Tenancy When One Cotenant causes the Death of the Other’ (1957) 41 Minn L Rev 639. 6 See C Triggs, ‘Against Policy: Homicide and Succession to Property’ (2005) 68 Sask L Rev 117. For earlier comment in Canada, see N M Tarnow, ‘Unworthy Heirs: The Application of the Public Policy Rule in the Administration of Estates’ (1980) 58 Can Bar Rev 582 at 594–8. 7 See T K Earnshaw and P J Pace, ‘Let the Hand Receiving it be Ever so Chaste’ (1974) 37 MLR 481 at 488–92; and T G Youdan, ‘Acquisition of Property by Killing’ (1973) 89 LQR 235 at 248–56. 8 See J L Toohey, ‘Killing the Goose that Lays the Golden Eggs’ (1958) 32 ALJ 14 at 18; D Mendes da Costa, ‘Co-ownership Under Victorian land Law — Part III’ (1962) 3 MULR 433 at 435–9; and K Mackie, ‘The Forfeiture Rules: The Destination of Property Interests on Homicide’ (1997) 2 Newc L R 30 at 43–5. For an examination of the forfeiture rule generally see A Dillon, ‘When Beneficiary Slays Benefactor: The Forfeiture “Rule” Should Operate as a Principle of the General Law’ (1998) 6 APLJ 254. 226 (2008) 15 Australian Property Law Journal jurisdictions to provide courts with discretion in these circumstances.9 These issues are beyond the scope of this article and will not be considered. This article is divided into three parts. The first part examines the development of the constructive trust theory, advocated by Ames,10 as the appropriate response when a joint tenant kills another joint tenant. The contribution made by Ames is important because he examined the forfeiture rule in cases of joint tenancies before any court considered the issue. In part two the development of the law in the United States and the Commonwealth will be examined. The purpose of the analysis is to highlight the different approaches that can be taken and to outline the current state of the law in the Commonwealth. In part three the limitations of the existing approaches will be outlined in the context of the fairness of the outcome to each of the joint tenants. A new model will be advocated and it will be argued that the new model provides a fair outcome with minimal disruption to the law of property. Key aspects of the model are that the interest in the property held by the victim does not lapse on their death and the felon retains a right to sever the joint tenancy. I The origins of the constructive trust theory The constructive trust theory in relation to situations where one joint tenant kills another joint tenant was first advocated by Ames in 1897.11 Ames was primarily concerned with cases ‘in which one person killed another in order to acquire, by descent or devise, the property of his victim’.12 Ames examined a number of cases including the New York decisions of Riggs v Palmer13 and Ellerson v Westcott.14 In Riggs, decided in 1889, a 16-year-old youth killed his grandfather to prevent his grandfather from altering his will under which the grandson was a significant beneficiary. A majority of the Court of Appeals of New York agreed with the judgment of Earl J that the devise and bequest in the will be declared ‘ineffective to pass title to him’.15 This appeared to suggest that legal title did not pass to the grandson. But in 1896 in Ellerson the Court of Appeals of New York explained that the decision in Riggs should not be interpreted as meaning that legal title did not pass. All the judges of the court agreed with the judgment of Andrews CJ that Riggs was authority for the proposition that a court of equity will intervene to deprive a felon ‘of the benefit of the devise’.16 That is, the legal title passes according to the will but the felon is prevented from enforcing their legal rights. 9 See Forfeiture Act 1982 (UK); Forfeiture Act 1991 (ACT); Forfeiture Act 1995 (NSW). Law reform has been proposed in Tasmania: see Tasmania Law Reform Institute, The Forfeiture Rule Final Report No 6, December 2004. For comment of the Forfeiture Act 1982 (UK), see P H Kenny, ‘Forfeiture Act 1982’ (1983) 46 MLR 66. 10 J B Ames, ‘Can a Murderer Acquire Title by his Crime and Keep it?’ (1897) 45 Am L Reg 225. 11 Ibid. 12 Ibid, p 226. 13 115 NY 506 (1889). 14 148 NY 149 (1896). For further discussion of both Riggs and Ellerson see A Reppy, ‘The Slayer’s Bounty — In New York — Part I’ (1945) 20 NYULQR 270; and A Reppy, ‘The Slayer’s Bounty — In New York — Part II’ (1945) 20 NYULQR 424. 15 Riggs v Palmer 115 NY 506 (1889) at 515. 16 Ellerson v Wescott 148 NY 149 (1896) at 154. Unlawful killing of a joint tenant 227 Based on these decisions of the Court of Appeals of New York, Ames offered his view on how the law should respond if one joint tenant killed another joint tenant. Ames noted that in a joint tenancy each joint tenant ‘has a vested interest in a moiety of the land so long as he lives, and a contingent right to the whole upon surviving his fellow’.17 Importantly Ames suggested that the felon, by taking away the vested interest of the deceased, ‘must hold that as a constructive trustee for the heir of [the deceased]’18 and because it was impossible to know which joint tenant would have outlived the other, ‘equity would doubtless give the innocent victim the benefit of the doubt’19 and assume that they would have lived longer. Accordingly Ames concluded that upon the ultimate death of the felon, the entire equitable interest should pass to the estate of the joint tenant who had been unlawfully killed.20 It is important to note that in the model proposed by Ames no property right is ever taken from the felon. Equity has simply assumed that the victim would have lived longer than the felon. That assumption does lead to an alteration of the property rights. In a two-person joint tenancy the vested property right held by the innocent victim continues in existence and is held on trust by the felon. Thus during his or her lifetime the felon will hold their own vested property right for their own benefit and hold the deceased’s property right for the benefit of the deceased’s estate. When the felon eventually dies the felon’s property right lapses in the usual way consistent with the death of a joint tenant. The only property right left is the victim’s property right which the felon held on trust. Accordingly, on the death of the felon the victim’s estate is entitled to the benefit of that property right. Ames developed his constructive trust model for use in cases of one joint tenant killing another before any court considered the issue. The following section examines a number of cases in the United States and the Commonwealth that can be contrasted with the model advocated by Ames. II The development of the law A The United States The decisions in different jurisdictions in the United States have varied significantly.21 This is partly due to some jurisdictions adopting the Uniform Probate Code, some enacting different legislation and some relying solely on common law rules. As no dominant position has yet prevailed a number of cases will be examined to demonstrate the variety of outcomes that have been arrived at. It is not suggested that any of these cases represent the position that should be adopted in Commonwealth jurisdictions. The cases only demonstrate the possible responses of the law to the killing of a joint tenant. Some cases consider specific legislation affecting one joint tenant killing another joint tenant. 17 18 19 20 21 Ames, above n 10, at 238. Ibid (emphasis added). Ibid. Ibid. See W M McGovern Jr, ‘Homicide and Succession to Property’ (1969) 68 Mich L Rev 65. 228 (2008) 15 Australian Property Law Journal In Welsh v James22 the Supreme Court of Illinois held that a husband who murdered his wife was entitled to retain the whole interest in property that he was entitled to as the surviving joint tenant. There was to be no alteration of established property law principles. However, in Bradley v Fox23 the Supreme Court of Illinois reversed this position. Davis J rejected the approach taken in Welsh and considered that it was incumbent upon the court ‘to consider the issue anew, and evolve a proper rationale’.24 Davis J held that the unities of interest, title, time and possession were destroyed by the act of one joint tenant killing another joint tenant and extinguished the right of survivorship.25 The felon therefore ‘retained only the title to his undivided one-half interest in the property in dispute as a tenant in common with the heir-at-law of [the] deceased’.26 In Duncan v Vassaur27 Davison J, delivering the judgment of the Supreme Court of Oklahoma, came to the same conclusion after noting the different outcome in different jurisdictions.28 Davison J concluded that ‘the most equitable solution of the question is to hold that by the murder, the joint tenancy is separated and terminated . . . [and] the joint tenancy is changed to a tenancy in common’.29 The Court of Appeals of Kansas has adopted the same position30 which was affirmed by the Supreme Court of Kansas.31 In Maine Savings Bank v Bridges32 the Supreme Judicial Court of Maine arrived at the same conclusion after considering the effect of § 2-803(b) of Maine’s Probate Code.33 The Code provides that any joint tenant ‘who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and the felon has no rights of survivorship’. By contrast to the approach to sever the joint tenancy, the application of the constructive trust theory has led in many cases to the felon ultimately losing their entire interest in the property at the time of their eventual death. In Saltares v Kristovich34 Aiso J noted that although there was a division of authority: the weight of authority, including the more recent cases, statutes and publications of legal writers, holds that where one joint tenant intentionally and unlawfully causes the death of his joint tenant, the surviving joint tenant immediately becomes a 22 408 Ill 18 (1951). 23 7 Ill 2d 106 (1955). For comment on the case see ‘Property — Murder by Joint Tenant Extinguishes Right of Survivorship’ (1956) 5 De Paul L Rev 316. 24 Ibid, at 112. 25 Ibid, at 118. 26 Ibid. 27 550 P 2d 929 (1976). 28 Ibid, at 930–1. 29 Ibid, at 931. 30 Shields v Shields 1 Kan App 2d 688 (1977). 31 Shields v Shields 224 Kan 604 (1978). 32 431 A 2d 633 (1981). See also Snortland v Mercer 311 NW 2d 36 (1981). 33 For details of legislation in other US jurisdictions, see Miller v Sencindiver 166 W Va 355 (1981) at 357–8; Olenn, above n 4; and J W Wade, ‘Acquisition of Property by Wilfully Killing Another — A Statutory Solution’ (1936) 49 Harv Law Rev 715. 34 6 Cal App 3d 504 (1970). Unlawful killing of a joint tenant 229 constructive trustee of the entire property for the benefit of the predeceasing joint tenant’s heirs or estate, subject to his right to a life interest in one-half of the property.35 Aiso J concluded that this was the position in California. This model has the same effect as the model advocated by Ames but is expressed differently. Under this model the entire interest is held by the felon and imposed with a trust and a new property right of a life estate is granted to the felon. Upon the death of the felon the life estate would lapse and the victim’s estate would be entitled to the whole property. Importantly under this model the felon is deprived of his or her pre-existing interest in the property by the imposition of a trust in favour of the victim’s estate. It will be recalled that Ames arrived at the same effective outcome without creating any additional property rights and without imposing a trust on the felon’s interest in the property. Under the model advocated by Ames the victim’s vested right did not lapse on their death, instead their rights were held on trust by the felon. Accordingly no life estate needed to be created in favour of the felon and the felon continued to hold and enjoy his or her pre-existing right. The felon’s ongoing right to the property was the same as their pre-existing right. Equity simply assumed that the felon would have died before the victim and kept the victim’s right alive so that the victim’s estate would benefit from the inevitable death of the felon. At no time is the felon deprived of a right or granted a new right in the form of a life estate. It appears to be implicit in the Ames model that the felon cannot sever the joint tenancy after the death of the victim. The District of Columbia Court of Appeals adopted the severance approach in 1995 in Gallimore v Washington36 but Schwelb J delivered a strong dissenting judgment that effectively advocated the Ames model. Schwelb J noted that the resolution of the problem of one joint tenant killing another joint tenant requires the accommodation of two long-established legal maxims. The first is to prevent a wrongdoer making a gain from their own wrong and the second is that equity abhors forfeitures.37 Schwelb J noted the trial judge’s comments that when one joint tenant kills another the victim’s ability to survive the felon ‘has been snuffed out at the hands of the [felon]’.38 By converting the joint tenancy to a tenancy in common the felon is granted a one-half interest in the property which the trial judge noted ‘rewards the defendant for his act of murder by giving him a definite interest in the property’.39 The trial judge concluded that ‘this new certainty, in contrast to the prior possibility, is, in fact, a new property interest’.40 Schwelb J concluded that the approach of the majority ‘awards Gallimore substantially more than he would have had if he had not killed the decedent’.41 Schwelb J favoured the approach outlined by the American Law Institute in the Restatement of Restitution which is that where one joint tenant kills Ibid, at 516. 666 A 2d 1200 (1995). Ibid, at 1211. Washington v Gallimore 122 Daily Wash L Rptr 1125 at 1133, cited in Gallimore v Washington 666 A 2d 1200 (1995) at 1212. 39 Ibid. 40 Ibid. 41 Gallimore v Washington 666 A 2d 1200 (1995) at 1213. 35 36 37 38 230 (2008) 15 Australian Property Law Journal another joint tenant the felon ‘takes by survivorship the whole legal interest in the property, but he can be compelled to hold the entire interest upon a constructive trust for the estate of his co-tenant, except that he is entitled to one-half of the income for life’.42 The position taken by Schwelb J is effectively the same as that advocated by Ames but expressed in the same manner as Aiso J in Saltares discussed above. As Schwelb J observed, the model ‘places the murderer in a position equivalent to the one he would have occupied if he had not committed the murder and if he had died first’.43 A more drastic approach is reflected in legislation in West Virginia which operates so that a joint tenant who kills another joint tenant is regarded as having died before the innocent victim. The West Virginia Code provides by § 42-4-2 that ‘the money or the property to which the person so convicted would otherwise have been entitled shall go to the person or persons who would have taken the same if the person so convicted had been dead at the date of death of the one killed’. Initially in Miller v Sencindiver44 the Supreme Court of Appeals of West Virginia held that the section did not apply to one joint tenant killing another joint tenant and also held that the ‘interposition of equitable doctrines applicable to common law entitlements in real property, although possible, seems to us not appropriate’.45 However in Lakatos v Billotti46 the Supreme Court of Appeals of West Virginia held that the decision in Miller was wrong and that the West Virginia Code does apply when one joint tenant kills another joint tenant. Maynard J, delivering the decision of the court, opined that the effect of the statute was that ‘upon the death of the victim, the total estate held in a joint tenancy passes in its entirety to the person or persons who would have taken the same if the slayer had predeceased the victim’.47 It is to be noted that the wording of the Code is such that at the time of the death of the victim it is assumed that the felon is already dead. Accordingly there is no scope for the felon to enjoy a life estate until the time of their death. The entire property passes to the victim pursuant to the joint tenancy based on the statutory assumption that the felon dies before the victim. Finally, in Iowa, § 633.535 of the Iowa Code provides that a joint tenant who kills another joint tenant ‘which affects their interests so that the share of the decedent passes as the decedent’s property has no rights by survivorship’. In Thomann v Thomann48 the Supreme Court of Iowa noted that the statute was ‘not a model of clarity’49 because the legislation appeared to assume that the victim had a share that passed to the felon. In fact under a joint tenancy there is no separate share that passes from one joint tenant to another. Ternus J, delivering the judgment of the court, concluded that ‘the legislature must have intended that one joint tenant’s murder of the other joint tenant severs the joint 42 43 44 45 46 47 48 49 American Law Institute, Restatement (First) of Restitution, § 188 (1937). Gallimore v Washington 666 A 2d 1200 (1995) at 1214. 166 W Va 355 (1981). Ibid, at 362. 203 W Va 553 (1998). Ibid, at 557. 649 NW 2d 1 (2002). Ibid, at 6. Unlawful killing of a joint tenant 231 tenancy and creates a tenancy in common’.50 The court went on to reject any notion that there was scope for the recognition of a constructive trust over the felon’s share of the property. Ternus J held that ‘the legislature has made a policy decision to deny a joint tenant who causes the death of his co-tenant only his accretive interest in the joint tenancy property’.51 The decisions in the United States clearly do not provide for a unified outcome where one joint tenant kills another joint tenant. The decisions that have been examined from the United States have covered four different legal responses. Firstly, cases that suggest the existing rules of property should be applied and therefore the felon obtains the whole interest in the property. Secondly, cases that hold that a joint tenancy is severed by the killing of one joint tenant by another joint tenant. Thirdly, cases that impose a constructive trust rather than a severance of the joint tenancy. In some of these cases the felon only enjoys a life interest in the property. Fourthly, cases that assume the felon is dead and deny the felon even a life interest. The legislative provisions also highlight different policy decisions in different jurisdictions. The different common law and legislative outcomes highlight the difference of opinion on how to give effect to the desire to prevent a joint tenant from benefiting from their wrong in circumstances where they kill a co-tenant. Despite these different outcomes the benefit we gain from the significant number of cases in the United States is the ability to identify the possible legal responses and evaluate their effectiveness. B The Commonwealth Outside of the United States the issue was first considered in Australia in 1927,52 followed by Canada in 1957,53 New Zealand in 196954 and finally in England in 1984.55 Despite the significant number of different outcomes in the United States, the outcomes in the Commonwealth have been limited to a severance at law, a severance in equity or the use of a constructive trust to hold the property on trust but without an express severance. This latter outcome is essentially one step short of an equitable severance but has essentially the same financial effect. No court in the Commonwealth has deprived a felon of their entire interest in the property and no court has granted a felon only a life interest. 1 Australia Initially the response of the courts in Australia was to sever the joint tenancy at law and proceed on the basis that the joint tenancy had been converted to a tenancy in common. This was the approach adopted by Napier J in Re Barrowcliff56 where a husband had killed his wife. Napier J held that in ‘default of any authority to the contrary’ the husband could be prevented from benefiting either by ‘an exception to the right of survivorship, or that the 50 51 52 53 54 55 56 Ibid, at 7. Ibid, at 8. Re Barrowcliff [1927] SASR 147. Re Pupkowski (1957) 6 DLR (2d) 427. Re Pechar (decd) [1969] NZLR 574. Re K [1985] Ch 85; [1985] 1 All ER 403. [1927] SASR 147. 232 (2008) 15 Australian Property Law Journal unlawful homicide of one joint tenant by the other effects a severance of the joint tenancy’.57 Ultimately Napier J considered that a severance of the joint tenancy was appropriate and held that the property passes ‘as though these co-owners had been tenants in common’.58 Napier J appears to have reached his conclusion without being referred to the constructive trust model advocated by Ames. However, in arriving at the severance option, Napier J adopted a model that has ultimately become one of the dominant models in the United States, as outlined earlier, and has been expressly adopted by legislation in some jurisdictions in the United States. However, the severance at law approach did not find favour in New South Wales. In Re Thorp59 Jacobs J expressly rejected the approach taken by Napier J in Re Barrowcliff. However, it should be noted that Jacobs J had the benefit of the first edition of the highly regarded US treatise, Scott on Trusts which was first published in 1939, some considerable time after Napier J decided Re Barrowcliff in 1927. Douglas Clarke killed his wife, Nancy Clarke and then committed suicide. The applicant, who was executor of both wills, lodged various documents with the Registrar-General. As a result the issue arose as to whether the title to their jointly held property should pass to Mr Clarke in circumstances where he had killed Mrs Clarke. Accordingly Jacobs J was not called upon to determine whether any trust was to be imposed to deprive Mr Clarke of his whole share of the property with a life estate, or that Mr Clarke hold half the property on trust for Mrs Clarke’s estate or any other variation. The only issue was whether the legal title passed to Mr Clarke and that the registered title should be altered to reflect the change. Jacobs J held that ‘where one joint tenant kills another, whether or not that act is felonious, the legal title passes to the surviving joint tenant’.60 He noted Scott’s discussion of the decisions in the United States and the ‘difficult question whether a murderer should be permitted to keep half the property and should be chargeable as constructive trustee of the other half or whether he should be deprived of the whole of the property’ and a ‘third possibility, whether he should be chargeable as constructive trustee of the whole of the property subject to a beneficial interest in himself for life of one-half of the property’.61 Jacobs J did not have to consider which of these possible outcomes was preferable. Commenting on the public policy that a wrongdoer should not gain from their wrong in these circumstances Jacobs J opined only that ‘it seems to me that the only way in which this can be done is by raising of a constructive trust’.62 Jacobs J expressed no opinion on how the constructive trust should be used. In Rasmanis v Jurewitsch63 Street J, like Jacobs J in Re Thorp, favoured the imposition of a constructive trust. Rasmanis involved two parcels of land both held as joint tenancies. Importantly one property was held jointly by the victim and the felon while the second property was held jointly by the victim, 57 58 59 60 61 62 63 Ibid, at 151. Ibid. (1961) 80 WN (NSW) 61. Ibid, at 65. Ibid, at 63. Ibid. (1968) 88 WN (Pt 1) (NSW) 59. Unlawful killing of a joint tenant 233 the felon and an innocent third party. Street J noted Jacob J’s reference to the first edition of Scott on Trusts and then made his own reference to the second edition of Scott on Trusts. Street J held that in relation to the three-person joint tenancy the estate of the victim did not obtain any benefit. Instead the innocent third joint tenant would benefit. This was achieved by holding that ‘the felon and the third party joint tenant hold the land as joint tenants at law, but on trust for themselves as equitable tenants in common in the share of one-third to the felon and two-thirds to the third party’.64 In relation to the two-person joint tenancy Street J held that the felon held his sole legal estate to the land on trust ‘for himself and the legal representatives of his victim as equitable tenants in common in equal shares’.65 Critical to Street J’s decision was his view that public policy ‘requires deprivation of the felon; it does not require compensation to the victim’.66 Although that is true it is submitted that in determining what rule should apply the court should look at the position of the felon after the rule is applied. In this case the felon was given a one third interest in the property to replace his whole interest in the property which he had previously shared with two others. Street J did not acknowledge that this left the felon in a better position than the victim. The result favoured by Street J also deprived the innocent third joint tenant of their rights of survivorship. Although they continued to hold the property as joint tenants at law the tenancy was severed in equity and thus the felon’s equitable third share would not lapse upon the death of the felon. The decision in Rasmanis was subject to an appeal. Although in Rasmanis v Jurewitsch67 the appeal was dismissed, Jacobs JA suggested a slightly different approach to that taken by Street J in Rasmanis. Street J had rejected a severance at law but favoured a severance in equity which would be given effect to by the use of a constructive trust. In contrast Jacobs JA wished to avoid severance wherever possible. Jacobs JA was concerned not to ‘add a new category of severance by homicide’.68 A severance would not be necessary in a two person joint tenancy because the result could be achieved by imposing a constructive trust whereby half the interest in the property was held on trust for the victim’s estate. But in a three person joint tenancy Jacobs JA held that a severance in equity was necessary.69 Jacobs JA held that upon the killing of the victim the two surviving joint tenants continued as the only joint tenants at law and that the enlargement of the interest of the felon was one-sixth.70 He also held that ‘the felon has the chance of enlargement of his estate by the other one-sixth accruing to him on the death of the third joint tenant’.71 This reasoning led Jacobs JA to conclude that this entire one-third interest needed to be severed so that the felon could never benefit from it. In severing this interest Jacobs JA agreed with Street J that this interest must go to the innocent third party. Where he differed from 64 65 66 67 68 69 70 71 Ibid, at 63. Ibid, at 64. Ibid, at 63. [1970] 1 NSWR 650 (Rasmanis (No 2)). Ibid, at 652. Ibid. Rasmanis v Jurewitsch [1970] 1 NSWR 650 at 652. Ibid. 234 (2008) 15 Australian Property Law Journal Street J was that he did not see any reason why ‘the joint tenancy between the felon and the third joint tenant should be severed’.72 However, because this point had not been the subject of the appeal the severance ordered by Street J took effect. Accordingly the position in New South Wales is that there is no automatic severance, at law or in equity, in a two-person joint tenancy. A limited severance is required where there are more than two joint tenants. In Queensland the severance approach of Napier J in Re Barrowcliff initially found favour and was accepted as the correct approach in Re Schieb.73 The defendant had been convicted of the manslaughter of her husband. Her counsel conceded that she could not benefit from the property held under a joint tenancy and agreed that the joint tenancy be severed and the land held as tenants in common. The severance approach was expressly approved by Hanger J in Kemp v The Public Curator of Queensland74 in preference to the equitable approach.75 However, in the later decision of Re Stone76 McPherson J favoured the equitable approach adopted in New South Wales in both Re Thorp and Rasmanis. In favouring the equitable approach McPherson J noted that it had the advantage of certainty in regards to the legal title.77 This approach was also preferred most recently in Queensland by Atkinson J in Re Nicholson.78 2 Canada In Canada in Re Pupkowski79 Macfarlane J did not have to decide whether an act of murder would sever a joint tenancy but suggested that a severance at law might be the appropriate response.80 However, in Schobelt v Barber81 Moorhouse J favoured the use of a constructive trust whereby, in a two-person joint tenancy, the felon would hold the property on trust equally for himself and the estate of the victim. Moorhouse J rejected any notion that the court should assume that the victim died after the felon and suggested that such an outcome ‘could only be accomplished by legislation’.82 Moorhouse J concluded that a constructive trust where the benefit of the property was held equally for the felon and the victim’s estate ‘more closely meets the demands of justice on the facts present than any other avenue open to me’.83 The decision in Schobelt was followed by Osler J in Re Gore.84 Despite these developments, in Novak v Gatien85 Hunt J without reference 72 73 74 75 76 77 78 79 80 81 82 83 84 85 Ibid, at 653. (1931) QWN 17. [1969] Qd R 145. Ibid, at 149. [1988] 1 Qd R 351. Ibid, at 352. [2004] QSC 480; BC200409705 at [10]. See also Public Trustee v Evans (1985) 2 NSWLR 188; Ekert v Mereider (1993) 32 NSWLR 729; and Neubacher v Good (2003) 11 BPR 20,877; [2003] NSWSC 379; BC200302129 at [10]. (1957) 6 DLR (2d) 427. See R St J Macdonald, ‘Real Property — Joint Tenancy — Murder of One Tenant by Another — Share of the Survivor’ (1957) 35 Can Bar Rev 966. Ibid, at 430. (1967) 60 DLR (2d) 519. Ibid, at 524. Ibid. (1971) 23 DLR (3d) 534. (1975) 25 RFL 397. Unlawful killing of a joint tenant 235 to Schobelt, or any other authority, held that the killing of one joint tenant by another ‘immediately severed the joint tenancy and created a tenancy in common’.86 However, in the following year in Re Dreger87 Estey CJHC applied the constructive trust approach of Schobelt noting that such an approach was ‘now settled law’.88 This approach is now consistently applied in Canada.89 3 New Zealand When the issue first arose in New Zealand in Re Pechar (decd)90 Hardie Boys J had the benefit of the previous decisions in both Australia and Canada. Hardie Boys J expressly rejected the severance at law approach and held that: throughout the murderer’s natural life one half of the income arising from the property is held in trust for the deceased wife’s estate . . . and upon his death and the realisation of the jointly held estate, one half should go to the estate of [the felon] and the other half to the estate of his late wife.91 In 1997 the New Zealand Law Commission reviewed succession laws in cases of homicide.92 As part of the report the commission also examined the operation of the forfeiture rule in cases of joint tenancy. After noting the current state of the law in the Commonwealth the commission preferred ‘the broad justice of simply treating the killer as having predeceased the victim’.93 It is not clear why this is considered to be broad justice. It certainly is a simple solution and successfully deprives a felon of their rights of survivorship and any ability to enjoy the property during their life time. In a three-person joint tenancy the effect of this approach is that the whole interest in the property would accrue to the innocent third joint tenant. With the victim actually dead, and the felon deemed to be dead, the third joint tenant has their rights enlarged by the survivorship rule. 4 England When the issue first came before an English court in Re K94 the severance approach was adopted rather than the constructive trust approach. Vinelott J referred to both Scholbert and Re Pechar but not to any of the Australian cases. This is somewhat surprising given that the issue had received more judicial attention in Australia and had reached an intermediate appellant court 86 87 88 89 90 91 92 93 Ibid, at 398. (1976) 69 DLR (3d) 47. Ibid, at 60. See Merkley v Proctor (1989) 33 ETR 175; and Singh Estate v Barjrangie-Singh (1999) 29 ETR (2d) 302. [1969] NZLR 574. Ibid, at 587. New Zealand Law Commission, Succession Law: Homicidal Heirs, Report 38, Wellington, 1997. Ibid, p 13. The same recommendation was made by the Property Law and Equity Reform Committee. See The Effect of Culpable Homicide on Rights of Succession, Report 24, Wellington, 1976, at para 13(c). Law reform has not been proposed in Australia but the Law Reform Commission of Western Australia did make reference to severance by homicide in their report Joint Tenancy and Tenancy in Common, Project No 78, Perth, 1994, p 41. [1985] Ch 85; [1985] 1 All ER 403. 94 236 (2008) 15 Australian Property Law Journal in New South Wales.95 In Re K a wife had killed her husband in circumstances where she had been the victim of considerable domestic violence over several years. The issue was whether the forfeiture rule applied in the circumstances of the case and if it did whether there should be relief from forfeiture under the Forfeiture Act 1982 (UK). Vinelott J noted that counsel for the wife had conceded that the effect of the killing was ‘to sever the joint tenancy in the proceeds of sale and in the rents and profits until sale’.96 Vinelott J concluded that the desired outcome under English law since 1925 was ‘more simply reached by treating the beneficial interest as vesting in the deceased and the survivor as tenants in common’.97 In Dunbar v Plant98 Mummery LJ expressly approved of the concession made in Re K. In Dunbar one joint tenant had assisted another joint tenant to commit suicide. They owned a property as joint tenants but after the suicide the house had been sold and one issue in the case was who had the rights to the proceeds. Mummery LJ noted that it was ‘not in dispute that the forfeiture rule . . . applied to effect a severance of the beneficial joint tenancy’ and that the defendant ‘was therefore entitled to an equal half share in the proceeds as tenant in common’.99 It is important to note a significant difference between land ownership in the United Kingdom under the Law of Property Act 1925 (UK) (the Act) and the position in the other jurisdictions that have been examined. Pursuant to s 1(6) of the Act tenancy in common can no longer exist in a legal form. Accordingly land held by co-owners is held as legal joint tenants subject to a trust for sale. The co-owners can hold as either equitable joint tenants or equitable tenants in common. As a result Vinelott J referred to the beneficial interest being held as tenants in common in Re K and Mummery LJ referred to the severance of the ‘beneficial joint tenancy’. Both of these decisions suggest that the severance that occurs as a result of the forfeiture rule is an equitable severance which is consistent with the position in Australia. However, no constructive trust is needed in England because the interests are already subject to a trust.100 Despite these differences the current position in Australia, Canada, New Zealand and England is that in two-person joint tenancies the land is held on some form of trust for the victim’s estate and the felon in equal shares. In some cases there will be a severance in equity so that they hold as equitable tenants in common and in other cases the land will be held on trust in equal shares. It is submitted that these outcomes benefit the felon by providing for an immediate division of the property in equity. Such an outcome can also provide the felon with a better outcome than the victim in three-person joint tenancies. Importantly the position in England has been arrived at in two cases where 95 Rasmanis v Jurewitsch [1970] 1 NSWR 650. 96 Re K [1985] Ch 1 85 at 100. 97 Ibid. An appeal to the Court of Appeal was dismissed although the joint tenancy issue was not an issue on appeal. See Re K [1986] Ch 180. 98 [1998] Ch 412; [1997] 4 All ER 289. 99 Ibid, at Ch 418. 100 Since 1996 the interests of legal joint tenants are held as trusts of land under the Trusts of Land and Appointment of Trustees Act 1996 (UK). Beneficiaries can continue to hold as either equitable joint tenants or equitable tenants in common. Unlawful killing of a joint tenant 237 concessions were made by counsel. As a result the issue has not been fully argued and not fully explored in a court in England. In Australia the only appellant court to explore the issue granted the felon a superior interest to the victim. It is submitted that that is a very undesirable outcome. No ultimate appellant court has considered the issue in Australia, Canada, New Zealand or England. Accordingly it is possible that a different approach may be adopted in the future by an ultimate appellant court. One of the issues with the current approach is that the felon receives an equitable interest immediately the unlawful killing occurs. It is submitted that it is neither necessary nor desirable to do this. Prior to the killing the felon has a vested interest in the property which includes a right to sever the joint tenancy. The purpose of the following section is to advocate a model that preserves all of the rights of the felon but, importantly, assumes that the victim is still alive. If the felon wishes to sever the joint tenancy then the felon will be free to do so. If the felon fails to sever the joint tenancy before he or she dies then the other joint tenants stand to benefit. III A single model for all joint tenancies The cases demonstrate that the intention in each case is to ensure that a felon does not benefit from killing a joint tenant. However, the courts have differed in how best to obtain that objective. In all cases some form of assumption is being made and various rights are being protected or forfeited by the approach that is adopted. For example, where the joint tenancy is severed in equity into equal shares there is an assumption that it is just to convert their identical interest in the property into a tenancy in common. This is a pragmatic approach that results in the joint tenants having an identical interest prior to the killing and an identical interest after the killing. But what this approach fails to take account of is that the victim lost their rights of survivorship and the felon is given the benefit of an automatic severance of the joint tenancy in equity. In other cases the desired outcome is achieved by making an assumption about the order of death of the joint tenants. One option is to assume the felon is dead and that the felon died before the victim. Another approach is to assume that the victim is still alive and that the felon can continue to enjoy a life interest in the property. Under this approach when the felon dies the whole interest is enjoyed by the victim’s estate. It is submitted that none of these approaches is to be preferred. The automatic severance approach is too generous to the felon because it gives the felon a definite interest in the property. A further difficulty with the severance approach, whether at law or in equity, is that if there are more than two joint tenants the victim’s estate is denied any benefit from the severance.101 As discussed earlier this can lead to an unfair result because the victim’s estate receives nothing. An assumption that the felon is dead is too generous to the victim because the felon is denied a right to sever the joint tenancy. The approach of providing a felon with a life interest is also problematic because 101 This is the case under both the approach of Street J in Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 and the alternative approach of the appeal court in Rasmanis v Jurewitsch [1970] 1 NSWR 650. 238 (2008) 15 Australian Property Law Journal it denies the felon their right to sever the joint tenancy. It is submitted that though a felon should not benefit from a killing, this is not a justification for denying a felon their right to sever the joint tenancy. What is required is an approach that denies the felon any benefit and denies the felon the minimum number of rights. The solution should provide not only for cases where there are only two joint tenants but also for those cases where there are more than two joint tenants. It is submitted that the approach that achieves these objectives is for equity to assume that the victim is still alive and therefore recognise the continuance of the joint tenancy in equity. Consistent with the model proposed by Ames, the right held by the victim passes at law under the survivorship rules but is held on trust equally by the surviving joint tenants. Where the model differs from the approach advocated by Ames is that, under this model, the felon is not denied their right to sever the joint tenancy after the death of the victim. Any surviving joint tenant, including the executor of the victim’s estate, could sever the joint tenancy. If there were three joint tenants, as was the case in Rasmanis, any tenant could sever the joint tenancy and the victim would then receive a third of the property and not receive less than the felon. If a felon kills another joint tenant and then dies before severing the joint tenancy then the remaining joint tenants would benefit from the death of the felon. In a two-person joint tenancy the whole property would go to the victim. A difficulty still arises in relation to cases where there are three or more joint tenants. Care needs to be taken to ensure that innocent joint tenants are not denied their rights. The proposed model does prevent then from obtaining a benefit from the death of the victim. However, they should still stand to benefit from the death of the felon. It is proposed that a severance take place immediately after the felon dies and, importantly, after the felon’s interest lapses under the survivorship rules. In a three-person joint tenancy the victim’s rights will be held on trust jointly by the two surviving joint tenants including the felon. If the felon then dies before severing the joint tenancy his or her interest will lapse and the interests held by the estate of the victim and the innocent third party will equally benefit from the death of the felon. At this point it is fair to the third party to automatically sever the joint tenancy. If it was not severed then the whole interest would pass to the victim’s estate if the third party did not sever the joint tenancy before they died. This would be unfair because the model assumes that the victim is still alive so the only person at risk of losing their joint tenancy rights is the third party. The automatic severance acts to protect the rights of the third party. The timing of the severance is critical. If the severance takes place at the time of the death of the victim the felon obtains a benefit. If the severance did not take place immediately after the death of the felon then the innocent third party is at risk of losing their interest if they die before acting to sever the joint tenancy. Of course the innocent third party would be entitled to sever the joint tenancy at any time. After the felon has killed the victim the innocent third party might very well take the view that they would prefer to sever the joint tenancy so as not to benefit the felon if they were to die before the felon. However, consistent with Rasmanis (No 2), they should not be denied their right to continue with the joint tenancy if that is their desired position. Unlawful killing of a joint tenant 239 The model also overcomes the unfairness inherent in the Restatement model where the felon obtains only a life interest in the property and the whole property passes to the victim upon the felon’s death. Fellows102 is critical of the Restatement approach because it adopts the fiction ‘that the slayer died without exercising the right to sever’.103 She concludes that nothing in the nature of joint tenancy property warrants the model advocated by the Restatement.104 Fellows notes that the law ‘cannot completely rectify the harm caused by the killing’ and the role of the law should be to ‘lessen the property transfer disruption caused by the killing’.105 That is precisely what the model advocated here is designed to achieve. Although some disruption to the property rules is inevitable if the felon is to be denied a benefit, that disruption should be kept to a minimum and produce the fairest outcome. In summary the proposed model comprises four key aspects. First, the victim is assumed to be still alive. Secondly, no assumption is ever made about the death of the felon. Thirdly, the surviving joint tenants, including the felon, are never denied the right to sever the joint tenancy. Fourthly, there is no need for the court to sever the joint tenancy except in cases where there are more than two joint tenants and where it would be fair to sever the joint tenancy immediately after the death of the felon and after the rights of the felon have lapsed under the survivorship rules. IV Conclusion Given the nature of joint tenancies there are unique problems that arise in determining appropriate rules to deprive a felon of any benefit when they kill a co-tenant. The cases that have been analysed show that many alternative solutions are available. The decisions in the Commonwealth suggest that in a typical two-person joint tenancy the choice is simply between an automatic severance of the joint tenancy, at law or in equity, or the imposition of a constructive trust whereby the property is held equally for the felon and the estate of the victim. There is little practical difference between these two alternatives because under both approaches the value of the property is split between the felon and the victim’s estate. But the model advocated by Ames, and the decisions analysed from the United States, demonstrate that other alternatives are available that produce different results. It has been argued above that the solutions adopted in the Commonwealth are too generous to felons especially in cases of three-person joint tenancies. In three-person joint tenancy cases the felon will always retain an interest whereas the victim loses their entire interest. A limited severance will operate to ensure the felon’s interest is not enlarged by the interest previously held by the victim. But this still seems unfair because the victim has been denied the ability to outlive the felon. The model proposed in part three is designed to overcome this unfairness. The advocated legal response is that equity should assume that the felon would have died before the victim. This assumption is given effect to, not by deeming that the felon is dead, but by keeping the 102 103 104 105 M L Fellows, ‘The Slayer Rule: Not Solely a Matter of Equity’ (1986) 71 Iowa L Rev 489. Ibid, at 517. Ibid, at 518. Ibid, at 522. 240 (2008) 15 Australian Property Law Journal victim’s property right alive. The felon retains their right to sever the joint tenancy at any time before their own death. If they fail to do so their interest will lapse in the usual way and the interest of the victim, and any surviving joint tenants, will be enlarged. The attractiveness of the various solutions available will differ from one person to another based on individual notions of fairness and justice. In many respects this explains the different outcomes in the United States including the different legislative approaches adopted. Ultimately the solution in the Commonwealth may be found in legislative reform as advocated in New Zealand. It is submitted that any proposed reform should carefully consider all of the alternatives and adopt a solution that provides a fair outcome while at the same time limiting the rights that are taken from the felon. The New Zealand model, by assuming that the felon is dead, denies the felon their right to sever the joint tenancy. It is difficult to see why all rights need to be taken from a person when the intention is simply to ensure that they do not gain a benefit. The development of this issue since the late nineteenth century suggests that this issue is far from resolved. Only one case involving a three-person joint tenancy has come before the courts and it is arguable that the result produced an unfair outcome. The law is likely to develop further either through the common law or statute. The purpose of this paper has been to both highlight the current state of the law and to advocate a possible way forward.