A macabre consideration of a Wills variation problem

June 9, 2017 4:00 am Published by Leave your thoughts

It is trite and settled law in Canada that a murderer cannot benefit from the will or intestacy of their victim. This gem of a rule will be referred to as the murderer-beneficiary rule for the purposes of this blog. The murderer-beneficiary rule is very infrequently challenged in court, leaving with it large grey zones that give legal minds a fun thought exercise to debate where the lines ought to be drawn. I hope you’ll indulge me as I try to find the boundaries of the rule myself.

It is my sincerest wish that you never find this blog to be remotely useful.

Where the law sits now

Fenotti Estate (re) is a fairly recent murderer-beneficiary case out of Vancouver. Judge Hinkson gave reasons explaining why murderers fail when they make claims against their victims estate, either by will or by intestacy. In that context, he confirmed that the long-standing common law rule on murderer-beneficiaries still applies, notwithstanding the statutory provisions of intestacy.

Hinkson cites Justice Wilson in the 1959 case of Baumann v. Nordstrom. In that case, a man was killed by a house fire set by his widow. She was at the time an escaped inmate of the provincial mental hospital, and she did not appreciate the nature and quality of her act. Wilson agreed that she lacked the capacity for criminal intent, and declined to remove her from her deceased husband’s estate.

The distinction was drawn on a line of criminal intent. Actions without the necessary intent did not attract the same forteiture of the estate that actions with criminal intent did.

Of course, it’s never that simple

There are a few different levels of criminal intent. Intent can be general or specific, it can be imputed or transferred. Some crimes don’t even need intent – criminal neglect (such as failing to provide food for a dependent child) brings with it its own levels or moral culpability and criminal sanction that may have the murder-beneficiary rule applied regardless of intentions.

By way of example, first degree murder, second degree murder and manslaughter all involve one person killing another, but what changes and makes some murderers more morally culpable than others is the kind of intent behind the act. Pre-meditated murder involves more thought and intent than a sudden intent to kill, which in turn has more intent than manslaughter (an intent to harm coupled with reasonably foreseeable death).

The court has given it some consideration, and has also determined that manslaughter is sufficient to invoke the murderer-beneficiary rules in Worobel Estate v Worobel. In that particular case, the beneficiary was charged with first degree murder but pleaded guilty to manslaughter, likely meaning that the killing has higher levels of intent than other manslaughters.

But there are different kinds of intent even within manslaughter. One particular version known as “Unlawful act manslaughter” only requires the person to do something illegal that objectively has a chance at bodily harm, which then leads to death R v Creighton. If someone accidentally caused the will-maker’s death while doing something illegal, and didn’t foresee that chance of death, should they still be struck from the will?

Picture a single-mother and her only daughter robbing a bank. The daughter goes to shoot her gun in the air to intimidate the hostages, but she trips, and a stray bullet kills her mother. The daughter is found guilty of unlawful act manslaughter, but does she inherit her mother’s estate? I can’t help but imagine the court would debate the question on whether or not the murderer-beneficiary rule should apply to such a clearly accidental death, where the murderer had no intention to profit from the killing.

Joint Tenancies and the Right of Survivorship

If properly done, joint tenancies contain a “right of survivorship” whereby if one joint tenant dies, the remaining joint tenant gets their interest in the property. This is commonly found with spouses on title to their house. The court has recognized that murdering a joint tenant will end (or “sever”) both the joint tenancy and the right of survivorship, and the property will be divided into equal shares, held as tenants in common.

What about multiple joint tenants? The court has yet to consider the consequences of murdering one, but not another, joint tenant. Let’s say four people own a property together as joint tenants, and person one murders person two. Does that sever the entire joint tenancy, such that everyone now owns 25%, and the victim’s interest goes to their estate?

Or, does it only sever the murderer’s interest alone, leaving a 75/25 split – 25% to the murderer, and the remaining two surviving tenants sharing a joint tenancy over the remaining 75%?

There are more unanswered questions we could continue to ask.

The Tontine Scheme

The tontine is an old insurance scheme which has become the subject of much popular fiction. While traditional tontines involved an investment of capital in exchange for a share of an annuity, the more fictionalized version usually involves a group of persons having a locked treasure chest filled with riches, to be awarded to the person who outlives the rest.
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The fictional stories usually revolve around one person murdering the others in order to guarantee or accelerate being the last one living, and thus receiving the legal interest. Since the scheme is not commonly considered by Canadian courts, one’s mind must wander to the various considerations. Unlike a joint tenancy, where parties have equal access to using the object (such as a house) the beneficial use of the tontine does not arrive until the death of all but one party.

Being last alive is not quite a “right of survivorship” but more of a condition precedent to receipt of goods. From pure speculation, I imagine that tontine would wind up in the hands (or the estate) of the last living person who did not murder another member of the tontine.

Aiding and Abetting murder

Some of you who are too clever by half and a few shades of malicious may be thinking “but how can I profit off of this?” If you have a sibling, you might consider counselling them to murder your parents. Not only does your share of the inheritance come so much sooner, but your sibling loses their share in the process – potentially doubling the benefits for you.

Before this article spawns a murder spree, I would like to briefly mention that in the eyes of the law, aiding or abetting a murder holds the same legal significance as actually pulling the trigger. If this is the outcome you wish, you’ll have to wait for your sibling to spawn the idea on their own!

Concluding thoughts

While the law around beneficiaries murdering testators is confusing and filled with unanswered questions, it will likely stay that way. If you need help writing or probating a will, give our office a call and set up an appointment. If you need help defending yourself from a criminal charge, we will refer you to a criminal lawyer.

Derrick Murphy is a summer student with TNG Legal Services MDP.

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This post was written by Derrick Murphy