-(2012) 17(3) CPLJ 63a Cases and Comment: Cawley & Ors v Lillis [2011] IEHC 515(Laffoy J.

,December 6,
2011) -Page1

Katherine Mahon,
BL
Succession laws.120 of the Succession Act 1965joint tenancysurvivorship
constructive trust
Cawley & Ors v. Lillis
[2011] IEHC 515 (Laffoy J., December 6, 2011)
Facts
As personal representatives and the sole issue of the late Ms Celine Cawley (the deceased)
respectively, and arising out of the administration of the estate of the deceased, the plaintiffs
sought the courts assistance in determining the interest, if any, of the defendant in the properties
owned jointly by the deceased and the defendant and funds standing to the credit of their joint
accounts (the joint assets).
The deceased died testate on December 15, 2008. She was survived by her husband, the
defendant, and her daughter, the third plaintiff. By her last will and testament executed on June
7, 1993 (the will), the deceased appointed the defendant as sole executor thereof and devised
and bequeathed all of her property to the defendant for his sole use and benefit. She also
directed that, should the defendant predecease her or not survive her by 30 days, the first and
second plaintiffs be appointed executors and trustees of her will and that they would hold the
estate upon the trusts set out in the will.
On January 29, 2010, the defendant was convicted by a judge sitting with a jury at the Central
Criminal Court of the manslaughter of the deceased.
The plaintiffs claimed:
1.

2.
3.

The principle underlying s.120(1) of the Succession Act (the 1965 Act) has long been
recognised at common law, namely that it would be contrary to public policy to allow a person
who causes the death of another to benefit from the assets of the deceased, as this would mean
that that person benefited from his or her crime ( Amicable Society for a Perpetual Assurance
Office v Bolland & Ors. [1830] II Dow & Clark 630 ; Cleaver v Mutual Reserve Fund Life
Association [1892] 1 Q.B. 147 ; and In the Estate of Crippen [1911] P. 108 );
By analogy to s.120(5) of the 1965 Act, the defendant should be deemed to have predeceased
the deceased, so that the joint assets should pass to the estate of the deceased;
In the alternative, where the death of one joint tenant was caused by the other joint tenant, the
joint tenancy is severed ( Mahon v Lawlor [2010] IESC 58 ).
The defendant claimed:

1.
2.
3.
1.
2.

The joint tenancy terminated on the death of the deceased caused by the defendants wrong, so
that either:
Subject to the operation of the jus accrescendi , which depended on which of the joint tenants
died first, the defendant has vested property rights in the joint assets which are protected by
Art.40 of the Constitution.
The defendant holds the joint assets on a constructive trust for the estate of the deceased and
himself, or
The joint tenancy in the joint assets was severed, so that the estate of the deceased was entitled
to one-half share thereof and the defendant is entitled to the other one half share.

Relevant provisions

-(2012) 17(3) CPLJ 63a Cases and Comment: Cawley & Ors v Lillis [2011] IEHC 515(Laffoy J.,December 6,
2011) -Page2
Section 120 of the 1965 Act provides at subss.(1) and (5):
1.

2.

A sane person who has been guilty of 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.
Any share which a person is precluded from taking under this section shall be distributed as if
that person had died before the deceased.

Held, in finding that severance did not occur on the death of the deceased but
that one-half share of the joint assets was held by the defendant on a
constructive trust
As the deceased died before the coming into effect of the Land and Conveyancing Law Reform
Act 2009 , the devolution of the legal title of the joint assets of the defendant and the deceased
(the joint assets) is to be determined in accordance with common law principles. The legal
estate in the joint assets accrued to the defendant solely by right of survivorship.
As s.120 of the 1965 Act deals with the distribution of property owned by the deceased, and not
with the distribution of property in which an unworthy potential successor has rights, it would not
be appropriate to determine, by analogy to s.120(5), that the ownership of the joint assets
following the death of the deceased should be determined on the basis that the defendant should
be deemed to have pre-deceased the deceased.
Aside from an obiter dictum in the judgement of the Supreme Court delivered by Finnegan J. in
Mahon v Lawlor , which cited Megarry & Wade on The Law of Real Property , 4th edn (London:
Stevens, 1975) and Challis on Law of Real Property , 3rd edn (London: Butterworth, 1911) to the
effect that a joint tenancy is severed by homicide, there appears to be no authorities in this
jurisdiction addressing the issues arising in this case.
In the absence of legislation empowering the court to interfere with the defendants existing
rights at the date of the deceaseds death, the court has no power or jurisdiction to hold that the
defendant holds the entire interest in the joint assets on trust solely for the estate of the
deceased.
On the death of the deceased, the joint assets became vested in the defendant upon a
constructive trust as to one-half thereof for the defendant in his own right and as to the other
one-half upon the trusts applicable thereto under the deceaseds will (Schobelt v Barber 60
D.L.R. (2d) 519 ; Rasmanis v Jurewitsch (1979) 70 S.R. (N.S.W.) 407) .