Eamonn Lillis case exposes major gaps in law on property

The release of convicted killer Eamonn Lillis from Wheatfield Prison has triggered much comment about the length of the sentence which he served, following his conviction for the manslaughter of his wife Celine Cawley.

In addition to raising questions about sentencing policy, the Lillis manslaughter conviction exposed gaping holes in the law of property in Ireland.

Following Lillis’ criminal conviction, a lengthy and acrimonious legal dispute ensued between Lillis and the family of the late Celine Cawley over property which was jointly owned by the couple. The property in question included the family home in Howth which was owned by the couple as joint tenants.

In the normal course of events, 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.

Therefore, a strict application of the rule of survivorship would have, upon the death of Ms Cawley, vested all of the jointly owned property in Lillis, with the result that he would obtain a substantial windfall from the unlawful killing.

This position was manifestly at odds with the rule at common law that no man should profit, or be 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. The chief cause of this uncertainty was the fact that the principal piece of legislation which governed succession and the inheritability of property in Ireland, the Succession Act 1965, did not make any provision for the transfer of jointly-owned property in cases of unlawful killing. The legislation was silent in terms of identifying who should acquire the jointly-owned property in circumstances where one joint tenant unlawfully kills the other joint tenant.

Thus, the Lillis conviction raised an important question as to whether a convicted killer could use the survivorship rule to acquire all of the jointly owned property for himself?

To many, including the family of Ms Cawley, it seemed patently unjust to allow the survivorship rule to be abused in this manner.

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 on the basis that Lillis ought not to benefit from his own crime.

The case came before the High Court in 2011 where, 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 net effect of the imposition of a 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.

Thus, the survivorship rule was modified by the court in order to prevent Lillis from acquiring Ms Cawley’s share of the jointly-owned property.

The case is important because it highlighted a lacuna in the law relating to the transfer of property interests in cases of unlawful killing.

There was no legislation which could guide the court in this case. Rather, the case put the court in the tricky position of trying to ‘square’ or reconcile the rule of survivorship with the principle that no person should profit, or be unjustly enriched, from his crime.

The Cawley v Lillis litigation demonstrated the acute need for the Oireachtas to legislate to close off this lacuna and to introduce certainty into the law. Unlawful killing is one of the most heinous and tragic crimes. A gap in our succession law only serves to compound further the enormity and trauma which is occasioned by an unlawful killing.

The Cawley v Lillis property dispute was heard in late 2011 and Ms Justice Mary Laffoy explicitly cited the need for legislation on this matter.

Almost four years have elapsed without a legislative response.

This is unacceptable. Any new legislative provision must strike the appropriate balance between two competing legal principles: the killer’s constitutional property rights, which are protected in Articles 40.3 and 43.2 of the Constitution, and the fundamental common law rule that a person should not benefit from his own crime.

Achieving this balance will not be straightforward, but the Oireachtas should not shy away from this task merely because it involves a delicate and complex balancing of rights.

Difficulty does not excuse legislative inertia.

Miriam Keane is a PhD candidate at the Sutherland School of Law UCD and an Irish Research Council Doctoral Scholar. The views expressed are her own.