The Washington state Court of Appeals has reinstated the probate claim of a criminally insane man who stabbed his mother to death, saying the killing may not have been “willful” as the state's “slayer statute” requires.

Joshua Hoge is confined to a mental hospital after pleading not guilty by reason of insanity to the murders of his mother and brother in June 1999. He has been diagnosed with chronic schizophrenia and Capgras syndrome, a rare psychiatric disorder which causes him to have the delusional belief that people in his life have been replaced by impostors.

Washington's slayer statute bars “any person who participates ... in the willful and unlawful killing of any other person” from receiving any benefit from the death of the decedent and a trial judge ruled that Hoge could not inherit from Pamela Kissinger's estate because he killed her “willfully.”

But the appeals court said the judge erred in relying on the modern criminal code, which defines “willfulness” as “acting knowingly” in the commission of a crime. The proper test, the opinion said, was that of New York Life Insurance v. Jones, 541 P.2d 989 (1975), in which the state Supreme Court “defined willfully for purposes of the slayer statute to mean 'intentionally and designedly.'”

Since the Jones standard requires a higher degree of culpability than the criminal code, Judge C. Kenneth Grosse wrote,

We are then left with the question of the degree to which Hoge’s delusion prevented him from forming the intent to kill. This factual determination is best left to the trial court and further psychiatric evidence.

The decision, however, was only a partial victory for Hoge, who said the slayer statute did not apply to him as a matter of law. The criminal court's finding that he was criminally insane, he argued, means he was not convicted as a “slayer.”

“That may be true, but '[a] criminal conviction is not a sine qua non to application of the slayer’s act,'” Grosse said. “The slayer statute is not penal. It is to be construed broadly to effect the state’s policy that no person shall be allowed to profit by his own wrong-doing.”

The appellate judge also noted an “apparent inconsistency” in the Jones decision -- while making “intent” part of the test for willfulness, the Supreme Court also said a showing of intent could “be aided by the presumption that a person is presumed to have intended the usual and ordinary consequences of his acts.”

In West Virginia, the executor of a woman who was killed by her mentally ill son recently filed a suit seeking a court declaration that the killer cannot inherit any of her assets. The state's slayer law applies to a “person who has been convicted of feloniously killing another,” but no precedent addresses whether it applies to a criminally insane killer.

Hoge attacked Kissinger, 49, her son James Kissinger, 19, and her boyfriend Walter Williams in Williams's Seattle home. Williams survived ax wounds to his scalp.

By Matthew Heller
12/5/07