Commorientes - A law frozen in time

Commorientes is a Latin term.  It refers to a situation where two or more people die, often in a common accident, and there is uncertainty about the order of deaths. 

There have been two recent cases in South Australia, both involving motor vehicle accidents, which have raised concerns about how these situations should be dealt with in an estate planning context.

The difficulty with commorientes is best explained by considering the recent case of Siegfried Peter Thiel and Celia Mary Thiel (Deceased) [2017] SASC 1. Mr & Mrs Thiel died in a motor vehicle accident on the Eyre Highway and authorities were unable to determine which of them had died first. Mr & Mrs Thiel owned a property at Macclesfield as joint tenants. In his will, Mr Thiel left his entire estate to Mrs Thiel but if she failed to survive him, then he left 80% of his estate to his children in equal shares and 20% to other beneficiaries. Mrs Thiel had a will with similar terms.

The court held that because they were unable to establish who survived who then the wills failed to have any dispositive effect. The result of this was that the jointly owned property passed under the intestacy rules, rather than under the terms of the will. In this instance the property was therefore divided between the children and the other beneficiaries missed out.

Earlier decisions of the courts in respect of commorientes establish the common law position, where it is necessary to establish affirmatively who survived who. A clause in the will with a presumption that the eldest is presumed to have survived the youngest is not sufficient to override this common law position. 

So how should a will be structured in order to avoid these issues?

The 28 day survivorship clause

Most experienced will drafters will insert clauses stating that the spouses must survive each other by 28 days. In the event that the spouse does not survive by 28 days then the substitute beneficiaries will stand to inherit. In some accidents, such as in the Thiel case, it may not be possible to establish that the wife did not survive the husband but in most cases it would be possible to establish that the wife did not survive the husband by 28 days, thus allowing the substitute beneficiaries to inherit.

However, a 28 day provision does not solve the problem with property held as joint tenants.

Owning property as joint tenants

Owning property as joint tenants means that each person owns an interest of the whole of the property, i.e. all joint tenants have an equal undivided right. A right of survivorship applies meaning that on the death of one of the joint tenants the property passes by survivorship to the surviving joint owner(s). The nature of the right of survivorship means that a property owned as joint tenants does not fall into a deceased’s estate and is therefore not governed by the terms of the deceased’s will.

Unfortunately this method of joint ownership (which is most common between a husband and wife) proves difficult where it cannot be established who survived who.

The reason that property owned as joint tenants passes under the intestacy rules in commorientes cases is to resolve the conflict between the right of survivorship and testamentary disposition, therefore effectively nullifying both. he right of survivorship does not apply in these situations as there is no certain survivor. As we’ve discussed above, a testamentary disposition of property owned under a joint tenancy is not effective as the property does not form part of the estate. On that basis, the only possible option for the Court to take is to treat the property on the basis of an intestacy situation.

In light of the above it is important to discuss the effect of commorientes with clients when preparing their wills. If the intestacy rules would not adversely affect the end result, then the advice to the client may be to do nothing further. However, where the intestacy rules would result in an outcome the clients are trying to avoid, further advice and options will be required.

Examples where this might be particularly important include:

  • where there are children who are bankrupt or have addictions and therefore provision is to be made for the grandchildren to inherit, rather than the deceased’s child;
  • where a deceased wishes to provide for step children as opposed to their own children (whom they may be estranged from);
  • where a will maker wishes to leave gifts to charity or to people not included in the intestacy rules such as a godchild, niece or nephew; or
  • where a will maker particularly wants to exclude a person(s) who would otherwise benefit under the intestacy rules.

As each clients’ circumstances are different this needs to be considered on a case by case basis by a lawyer who is experienced in the area of wills and estate planning.

Other states in Australia have passed legislation which deals with this anomaly but South Australia so far has failed to do so. This means that South Australian court cases in this area  are still being decided on common law principles established in cases, such as Wing v Angrave [1860] 8 HL Cas 183, dating back to 1860!

Mellor Olsson are advocating for change in this area and has representatives on the Succession Law Committee and the Property Law Committee within the Law Society of South Australia who are trying to instigate change.  Should you wish to discuss this issue further, please contact our committee representatives, Jenny Tummel (Succession Law) or Philip Page (Property Law).

Practice Area: Wills & Estates

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