It is high time that the Oireachtas acted to remedy the deficiencies in the Succession Act 1965 in relation to property which is held under a joint tenancy. Property which is held under a joint tenancy is subject to the rule of survivorship, meaning that the last surviving joint tenant becomes automatically entitled to the property absolutely. It is a "last man standing" rule.
However, the rule of survivorship runs aground where one joint tenant is found to have unlawfully killed, or attempted to kill, another joint tenant. The ensuing difficulties are born from the fact that at common law it is recognised that no person shall take advantage of, or accrue a benefit from, his own wrongdoing. The potential for conflict between the rule of survivorship and the rule that a person should not be unjustly enriched because of his own wrongful actions was fully realised in the Cawley v Lillis litigation.
Eamonn Lillis was convicted of the manslaughter of his wife, Celine Cawley. The property and related interests owned by Ms Cawley can be divided into two distinct categories: property which was owned solely by Ms Cawley and secondly, property which was held with her husband, Lillis, as joint tenants.
In relation to the property held solely by Ms Cawley, the law, through section 120 of the Succession Act 1965, dealt sufficiently with the inheritability of this type of property. Although Ms Cawley’s will bequeathed all of her solely owned property to her husband, the provisions of section 120 of Succession Act 1965 operated to bar Lillis from inheriting this property as he had been convicted of Ms Cawley’s manslaughter. But what of the second type of property: that held by Ms Cawley jointly, as a joint tenant, with Lillis? Should the rule of survivorship operate to allow him to take this property absolutely, thereby becoming unjustly enriched from his crime?
The question as to whether Lillis could benefit from the rule of survivorship exposed a gaping hole in the certainty of the law in this area. How do you square the rule of survivorship with the legal principle that a person should not accrue a benefit from his crime?
On a strict application of the survivorship rule, upon Ms Cawley's death, all property held by the couple as joint tenants became vested, automatically, in Lillis. Therefore, the property, which had been held under joint tenancy, did not form part of the estate of Ms Cawley and consequently fell outside the parameters of section 120 of the Succession Act 1965. A rigorous adherence to this rule of survivorship seemed to many, including Ms Cawley's family, to be manifestly unjust. And so the Cawley v Lillis litigation was born. In this case, Ms Cawley's personal representatives applied to the High Court for a modification of the survivorship rule in relation to the jointly owned property held by the couple on the basis that Lillis ought not to benefit from his own crime.
Ultimately, Ms Justice Mary Laffoy ruled that the right of survivorship operated such that legal title to the jointly owned property vested in Lillis, but that he held Ms Cawley's share on trust for her estate. The upshot of the imposition of the trust was that Lillis was deemed to be entitled to half of the jointly owned property, with Ms Cawley's share accruing to her estate. Arguably, the result in the case struck the right balance between the property rights of Lillis and the public policy goal of preventing an individual from profiting from his crime.
To deprive Lillis of the entirety of the jointly owned property might have appealed to populist notions of “justice” and “punishment”, but it would, most likely, have been in breach of the constitutional protection afforded to property, in Articles 40.3 and 43.2. Furthermore, the criminal law had sanctioned Lillis for his unlawful conduct in killing Ms Cawley. He had been convicted of manslaughter and sentenced to six years and 11 months imprisonment. It would be draconian, and doubly punitive, to suggest that he should also be deprived entirely of the property which he co-owned as a joint tenant with his wife. A full deprivation of all ownership rights in a joint tenancy situation would be an unjust attack on the property rights of Lillis.
The result in Cawley v Lillis, in respect of the assignment of property interests, was fair and reasonable. Nonetheless, the case would never have reached the High Court had the law, on the operation of joint tenancies in situations of unlawful killing, been sufficiently clear and precise.
The case, which was heard in 2011, demonstrated the acute need for the Oireachtas to take positive steps, in the form of legislation, to make legal provision for the transfer of property interests in such scenarios. Indeed, Ms Justice Mary Laffoy explicitly cited the need for legislation on this matter. Three years have passed and there has been no legislative response. The Oireachtas must set its mind to this task, and promptly.
Miriam Keane is a PhD candidate at the Sutherland School of Law UCD and an Irish Research Council Doctoral Scholar. She lectures in English Public Law at UCD. The views expressed are her own.