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Home | Blog | Simultaneous deaths and survivors

A husband and wife died together in a motor vehicle accident. It could not be determined which of them died first or last.

At the time of their death the couple owned a property in Macclesfield. It was held as joint tenants, which meant the entire property was owned by both of them and subject to the right of survivorship.

The right of survivorship that exists when properties are owned jointly, or as joint tenants, means that if one or more joint owners die then the whole of the property automatically passes to the surviving joint owners. This is because each owner owns 100% of the property. This is different to property held as tenants in common, where each owner owns a distinct share of the property, for example, half each.

But what if the survivor cannot be determined?

The Supreme Court of South Australia had to consider this question again recently. It was confirmed that where two or more persons die and the order of deaths cannot be determined that the ownership of the property is severed. In other words, instead of each of them owing 100% of the property, it got severed (i.e. split in half) so that a share of the property would fall into each owner’s respective estates.

Ordinarily the husband’s share of the property would be distributed in accordance with his will and the wife’s share of the property would be distributed in accordance with her will.

However, in this case, each of their wills specified that if the other ‘failed to survive’ them then their estate would be given to various people. As it could not be determined that she failed to survive him or that he failed to survive, their wills failed to have any effect in this regard.

Therefore, the Court held that each of their estates were to be distributed in accordance with the rules of intestacy. The rules of intestacy are laws set out in legislation that specify who inherits from a person who dies without a will or a will that disposes of all their estate.

It is quite possible that the laws of intestacy meant that people other than who they wanted would be inheriting from them.

It is important to seek legal advice from lawyers who specialise in drafting wills to make sure that your intentions are followed as best as possible, even in unforeseen and unlikely circumstances.

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