CR292
Onus of proof

Beneficiary having killed the life assured – insurer raising defence that no-one can benefit from his or her own unlawful act – onus on insurer to prove that the killing was unlawful– State not proceeding with a prosecution – insurer not allowed to wait indefinitely.

Background

The life assured was covered under a funeral plan underwritten by a life assurer but administered by a bank. He died of what was described in the death certificate as unnatural causes, and his wife, the complainant, was the beneficiary in his estate.

According to a police report the deceased had died of a stabwound to his chest, apparently inflicted by the complainant during the course of an argument between them. The bank, as administrators of the scheme, denied liability, relying on the well-established legal principle that no one may derive a benefit from his or her own unlawful act.

Assessment

To succeed with such a defence the insurer would bear the onus. It would have to prove that the complainant had been unlawfully responsible for the deceased’s death, in other words that the killing was carried out either intentionally, which would amount to murder, or negligently, which would amount to culpable homicide, and in any event that she was not acting in self defence.

It was established that following the stabbing incident certain charges, presumably murder or culpable homicide, had been brought against the complainant. These were subsequently withdrawn but the police had indicated that she may well be charged again.

The problem was that it was more than a year after the deceased’s death that the complainant lodged her claim, and that further time passed thereafter because nothing further seemed to be happening about recharging the complainant.

While a conviction would have put an end to the issue, the proof of an unlawful killing did not of course require a conviction in a criminal court. For this reason there was nothing that precluded the office from proceeding to deal with the claim, although it felt that if the insurer wished to rely on the outcome of a prosecution it should be allowed a reasonable time to await developments.

Because the question whether the complainant would be charged again remained unanswered, however, and because so much time had already gone by, the office informed the insurer that matters could not be left unresolved indefinitely. If the insurer wanted the office to wait for a criminal charge to be prosecuted, it was for them to show that the complainant would still be charged, what the charge would be, and when the trial was expected to commence. If they could not supply this information they should at least ask the prosecuting authority to do so, and if a delay was expected the prosecuting authority should also be requested to explain the reason for it.

It was stressed that the onus was on the insurer to provide this information and if it was not submitted within a reasonable time, which in the absence of the abovesaid information had already elapsed, the office would have to deal with the claim on the material before it.

Although the bank did not agree, the insurer did. The insurer accepted that the claim on the policy could not be delayed indefinitely, and that they would have to consider on the evidence in their possession whether or not their defence was sustainable.

Result

After further discussion the insurer decided to admit liability notwithstanding the views of the bank concerned.

DMcK
October 2009