Occasionally, circumstances can arise where couples die simultaneously or under circumstances that make it difficult to determine the sequence of death, such as an accident.
Whilst this is tragic for the families of the deceased, it also creates an interesting legal problem, as the order of death is relevant when we look at the distribution of estates.
In Victoria, where a couple die simultaneously or the order of death cannot be determined, there is a legal presumption that the older of the two died first. This means that the youngest person in a relationship is the ‘survivor’ of the two.
This legal presumption is found in Section 184 of the Property Law Act 1958 (Vic) which clearly states:
‘in cases where …. two or more people have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall … for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.
Whilst this might seem inconsequential during the grieving process, in reality, the operation of this presumption could have a significant impact on an estate distribution from a succession law perspective. This is particularly so in cases where there are assets which are not jointly owned, a relationship may be a second or third marriage or domestic partnership and there are children who have survived from a previous relationship.
What happens to the jointly-owned property?
Where there is jointly owned property (such as real estate or bank accounts), the asset will pass first to the ‘survivor’ (the younger of the two) and then be dealt with in their estate, either in accordance with their Will, or if they did not leave a Will, pursuant to the operation of the rules of intestacy (more below).
Does it matter if there is a Will?
If the parties have made mirror Wills (Wills that distribute their estates in the same way), distribution would not be controversial.
However, there are often cases when distribution can be more complex, especially in cases where the survivor did not leave a Will setting out their intentions. In such cases, an administrator would need to distribute the estate in accordance with the rules of intestacy, found in Part IVA of the Administration and Probate Act 1958, and which set out how an estate is to be distributed if there is no valid Will. The distribution of the estate will depend on which relatives, if any, survived the deceased and can vary greatly depending on the family structure.
Avoid the mess
The best way to ensure your wishes are always upheld and to minimise any problems for your loved ones is to ensure you have a valid Will, which, if properly drafted, will consider future possibilities and problems and can be structured accordingly. Your Will should be reviewed regularly, and particularly at the time of important life events (marriage, separation, divorce, birth of a child, or change of assets).
Contact one of our lawyers on (03) 9646 4477 should you wish to discuss your Will and estate planning generally.
