Adult Child Murders Mother - Slayer Rule applied to disentitle from inheritance

Re Fenotti Estate, 2014 BCSC 1533

Ethel Fenotti passed away and left four adult children:  Susan, Jerome, Wade, and Richard.  Sadly, that same day, Richard was arrested for her murder.  

The administrator of the estate, and the Petitioner in the action, David Griffiths, and all four of the children signed a deed of arrangement which set out the manner in which the residue of Ms. Fenotti’s estate was to be distributed.  It was agreed that Richard’s share on intestacy would be held by a law firm pending directions from court. 

Richard later pleaded guilty to second degree murder of his mother and the judgement may be found here, R v. Shields, 2013 BCSC 1485.  He was sentenced to life imprisonment without eligibility of parole for 8 years, 10 months. 

Mr. Griffiths applied to the court for directions and the court addressed the issue of whether Richard is still entitled to a share of the residue of the Estate of his mother in accordance with the Estate Administration Act, which has since been repealed by the Wills, Estates and Succession Act (WESA).  The court applied what is known as the Slayer Rule - a doctrine which prohibits a murderer from retaining an interest in the property of their victim's estate.

    The Estate Administration Act was repealed by s. 191(1) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, effective March 31, 2014. However, as the Deceased's death occurred prior to that date, the Estate Administration Act is the operative legislation to be considered in this case. Section 84 of the Estate Administration Act provided that:

84        If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person's estate must be distributed per stirpes among the issue.

    As to the first question, the petitioner referred me to the decision of Mr. Justice LoVecchio of the Alberta Court of Queen's Bench in Re Bowlen (Estate)2001 ABQB 1014207 D.L.R. (4th) 175. In that case, a woman had murdered her parents. Both parents left wills under which the daughter would receive bequests. The personal representative of the estates of the parents applied for advice and directions as to who was entitled to receive the interest that the culpable daughter would have received from the estates.

10     In obiter dicta at para. 17 of his reasons, Mr. Justice LoVecchio, relying on earlier decisions in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147, 56 J.P. 180 (C.A.), and Garbe v. Alberta (Public Trustee)[1999] 5 W.W.R. 69664 Alta. L.R. (3d) 103 (Surr. Ct.), held:

[17] The rule of public policy which excludes the criminal has also been applied to exclude all claiming under the criminal, unless they have alternative or independent rights. In order to take under these independent or alternative rights, the person exercising the right must have clean hands. [Footnote omitted.]

11     His statement as to the existence of a rule of public policy preventing a criminal from benefitting from his or her crime is supported by a line of authority in this province, to which LoVecchio J. did not refer.

12     In In re Medaini Estate[1927] 2 W.W.R. 38, 38 B.C.R. 319 (S.C.), Mr. Justice Murphy heard an application, brought by the administrator de bonis non of the estate of Mary P. Medaini, for directions as to whether, in the case of an intestacy, a murderer is entitled to share in the distribution of the estate of the murdered person.

13     Murphy J. held, at 39:

The English Courts have decided that a murderer can take nothing under the will of his victim. The decisions are based upon public policy. I can see no reason why the principle is not applicable to cases of intestacy. The reason assigned in some American decisions for refusing to deprive a murderer of benefits accruing to him under the intestacy of his victim is that to do so would be to contravene the express provisions of the Statutes of Distribution. This reason would be equally valid in the case of a will which also depends upon a statute for its validity. The Wills Act, R.S.B.C., 1924, ch. 274, declares that the will speaks from the death of the testator. The English decisions binding on me have overridden this provision in the case of a murderer. There is nothing which makes the Statutes of Distribution more sacrosanct than the Wills Act. If public policy is a good ground for overriding the latter, it is equally so for acting likewise in regard to the former. I, therefore, hold the murderer takes nothing under the intestacy.

14     In Baumann v. Nordstrom (1959), 30 W.W.R. 385[1959] B.C.J. No. 42 (S.C.), Mr. Justice Wilson, as he then was, considered a case where a man was killed by a fire which destroyed his dwelling. He left no will. His widow, an inmate of the provincial mental hospital, had set the fire that killed him. Acting through her committee, she attempted to claim her statutory share of his estate. Her claim was opposed by a daughter of the man from a previous marriage.

15     At 386, Wilson J. adverted to two propositions that were accepted by both counsel before him:

1. That if her crime, whether murder or arson, killed her husband she cannot inherit and the rule is the same on an intestacy as it would be if the property had been willed to her. See In re Sigsworth; Bedford v. Bedford [1935] 1 Ch 89, 104 LJ Ch 46.

2. That if at the time she set the fire she was insane within the meaning of the M'Naghten rules there was no crime and she may inherit. See In re Pitts; Cox v. Kilsby[1931] 1 Ch 546, 100 LJ Ch 284; and In re Houghton [1915] 2 Ch 173, 84 LJ Ch 726.

16     Wilson J. held, at 396, that the defendant wife, when she set the fire, "did not then appreciate the nature and quality of her act or know that it was wrong." Accordingly, she was entitled to inherit.

17     A majority of the British Columbia Court of Appeal, in reasons for judgment reported at 34 W.W.R. 556 and 27 D.L.R. (2d) 634, did not find it necessary to review the finding as to the defendant's insanity, but allowed the appeal of the matter on the ground that the trial judge was without jurisdiction to determine by way of originating summons, or other civil proceeding, whether or not a person had committed a crime.

18     In reasons for judgment reported at [1962] S.C.R. 147 and 37 W.W.R. 16, the Supreme Court of Canada allowed the appeal and dismissed the cross appeal, thereby restoring the decision of the trial judge. Mr. Justice Ritchie, for the majority on the issue, stated at 156 that:

The rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law, and although some doubts have been raised as to whether this rule overrides the statute law as to the distribution of the estate of an intestate (see In re Houghton, Houghton, v. Houghton [[1915] 2 Ch. 173 at 176]), the better view appears to me to be that it applies to such cases (see In re Pitts, Cox v. Kilsby [[1931] 1 Ch. 546 at 550], Whitelaw v. Wilson [(1934), 62 C.C.C. 172 at 177], and Re Estate of Maud Mason [[1917] 1 W.W.R. 32931 D.L.R. 305]). As Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [[1892] 1 Q.B. 147, 61 L.J.Q.B. 128]... at p. 156 said:

It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.

19     The decision of the Supreme Court of Canada in Nordstrom v. Baumann (as it is indexed in the Supreme Court Reports) is dispositive of the issue raised in the first question posed by the petitioner, and I therefore answer that question in the negative.