Conundrums facing Estate Trustees in Murder-Suicide Cases

By Dickson Appell
Conundrums facing Estate Trustees in Murder-Suicide Cases

Conundrums Facing Estate Trustees in Murder-Suicide Cases


Who died first, second, third …?

When faced with a situation of murder-suicide, the commonplace assumption is, of course, is that the murderer died last. However, the order of deaths should not be presumed; survivorship is a fact to be determined. Where the Court can determine, on a balance of probabilities, the order of death, section 55 of the Succession Law Reform Act has no application.

In Re Missirlis, three members of a family were found dead, all having been shot. The father killed the wife and child; the question was the order of death. Under the statute in effect at the time, in circumstances where it was uncertain who died first, there was a presumption deeming the younger to survive the older. Currently, s.55 of the Succession Law Reform Act states that where it cannot be determined with certainty who died first, each person is deemed to have died before the other. The presumption can be rebutted by a preponderance of the evidence of the order of death.

In Re Missirlis, three different pathologists performed autopsies on the bodies of the deceased (one pathologist per body). All pathologists had extensive autopsy experience. Each opined that death for each victim and the murderer had to have been near-instantaneous. However, the court accepted the evidence of a neurosurgeon who opined (relying on the pathologist reports) that the wife died near-instantly, that there was a good possibility the child lived for some time, and that the father died within a matter of seconds. These findings laid the ground for determining who inherited pursuant to the “slayer rule.”

Who Inherits: The Slayer Rule

The murderer Does Not Inherit

It is trite to state that a murderer should not profit from their crime. Commonly known as the “slayer rule,” this principle was first established by the English Court of Appeal in Cleaver v Mutual Reserve Fund Life Assn. in 1891, the Court stating:

That the person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy. But this doctrine ought not to be stretched beyond what is necessary for protection of the public.

The Supreme Court of Canada re-affirmed this principle in 2002 in Oldfield v Transamerica Life Insurance Co. of Canada, stating:

The public policy rule at issue is that a criminal should not be permitted to profit from crime. Unless modified by statute, public policy operates independently of the rules of contract. For example, courts will not permit a husband who kills his spouse to obtain her life insurance proceeds, regardless of the manner in which the life insurance contract was worded.

Is a Criminal Conviction Necessary? What about Degrees of Criminality?

In a murder – suicide where the murderer does not survive, a criminal conviction is not necessary to apply the slayer rule. A civil court may decide on a balance of probabilities the order of deaths, then determine who inherits.

There is no difference of application of the slayer rule between degrees of criminal acts. That is, a conviction of manslaughter gives rise to the slayer rule as does a first-degree murder conviction. This was affirmed by the Supreme Court in 1895 in Lundy v Lundy.

James Lundy killed his wife, Clementina, and was convicted of manslaughter. Under Clementina’s will, James received a devise of land. The question was whether the murderer’s brother, Joseph Lundy, was entitled to the land.

The Court of Appeal distinguished murder from manslaughter on the basis of whether the crime was premeditated. However, the majority of the SCC disagreed, holding that the principle against benefiting from wrongdoing applies regardless of premeditation. The Court cited Cleaver, stating that it made the case for barring profit from any criminal acts.

Further on this point, a murder committed on “compassionate grounds” also falls under the slayer rule: Jollimore Estate.

Are there any exceptions?

The only exception to the slayer rule is if the murderer is found not criminally responsible (“NCR”). This can be decided in civil court if the murderer has deceased. The key case is Dhingra v Dhingra, where the Ontario Court of Appeal distinguished moral culpability:

It seems to me that if a person found not criminally responsible on account of mental disorder is not “morally responsible” for his or her act, there is no rationale for applying the rule of public policy. That rule is founded in the theory that people should not profit from their crimes or, more broadly, by their own wrongs. Section 16 and Part XX.1 of the Criminal Code deny that the NCR accused has committed a crime or can be held legally responsible for any wrongdoing.

If a murderer is to be found insane at the time of committing the wrongful act, the evidence must be sufficient. In Re Dreger, a murder-suicide case, the executors of the perpetrator and the victim brought an application for directions. They submitted evidence of the deceased murderer husband’s mental state, including affidavit evidence from: the homicide investigator; the husband’s friend; the wife’s aunt; and from the husband’s doctor, as to the nature of the crime and the husband’s state of mind. While the husband was suffering from some mental condition, there was no evidence to support a finding that he was insane at the time he killed his wife. Accordingly, the husband was not entitled to any proceeds under his wife’s will, and his next of kin likewise had no entitlement.

To be continued…..