LawTalk Blog

Simultaneous deaths - what happens when two Will makers with common beneficiaries die at the same time?

Simultaneous deaths - what happens when two Will makers with common beneficiaries die at the same time?

The word "commorientes" means simultaneous deaths and although it is almost unheard of (there is certainly no Court case where that has actually been cited to have occurred), the term is also used in circumstances where the order of 2 deaths is unclear or where deaths occur as a result of a common disaster.

If the order of two deaths is uncertain there can be significant issues when dealing with the legal consequences.

Scenario – husband and wife die in the same accident

Say a husband (Harry) and his wife (Wanda) both die in an accident. They have used “mirrored” Wills which provide that if they are not survived by their spouse then their children benefit from their entire estate.

The problem is that no-one can prove who died first and therefore it cannot be established who “failed to survive”. A well drafted Will by a solicitor can avoid this issue by including a provision deeming the eldest to have died first if this type of scenario arises.

What happens with jointly owned property?

It is also important to understand the mechanics of how jointly owned property is dealt with after both owners die. Usually it is the survivor who inherits the entire property after the death of a joint owner (it is not something that passes through the deceased's estate or can be gifted by their Will). In this circumstance, it does not make any difference whether the surviving party has survived for years or only for seconds.

If a survivor inherits a formerly jointly owned property and then dies, it will be their estate that benefits from the property. The risk is obvious when put into practice.

What if both deceased have children from a previous relationship?

Say that Harry and Wanda had owned property jointly but each also had grown children from previous marriages. If Harry dies before Wanda, by a few seconds or even years, then Wanda inherits the property and upon her death the property passes to her estate.

In that situation the Inheritance (Family Provision) Act does not necessarily allow the children of Harry to make a claim to the estate. Similarly, if Wanda dies before Harry, then the property passes to Harry's estate and it would be his children who may inherit whereas Wanda's children could be prevented from making a claim.

Because no one can predict who may die first it is important to have a Will professionally prepared to ensure there are no nasty surprises.

Yes, it can become a complex puzzle.  But, it will still be easier to deal with it all now rather than your family members dealing with it as part of a deceased estate.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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