1. INTRODUCTION
17.1 There are some pivotal questions which may need to be addressed before the estate of a deceased, or supposedly deceased, person can be administered. They include whether the testator or intestate or, perhaps, a beneficiary is in fact dead; if so, when the deceased person died; and, in the event of a common calamity involving both the testator (or intestate) and a beneficiary, which of them died first.
17.2 Lee explains the significance of an early determination of the fact of death in the administration of estates:1
The first thing any intending executor, administrator or well-wishing intermeddler should do, before actually engaging in the affairs of a person believed to be dead, is to verify the fact of death. An applicant for a grant must state the date of death of the deceased and produce evidence of death.2 Normally the applicant will be able to produce a death certificate but if not, its absence must be accounted for; and if the exact date of death is not known, the circumstances of the death must be stated.3 This will be easy to do if the deceased dies with others on a common calamity, for instance in a shipwreck or an air disaster, or if a court in another jurisdiction has accepted evidence of death. Death has been defined by s 45 of the Transplantation and Anatomy Act 1979 as having occurred where there has been an irreversible cessation of circulation of blood in the body or an irreversible cessation of all functions of the brain. [some notes omitted]
2. PROOF AND PRESUMPTION OF DEATH
(a) Introduction
17.3 If there is no death certificate verifying the death of the testate or intestate, a court may infer from all the facts presented to it that the person has died. In such a case the court will give leave to the applicant to swear an affidavit deposing to the death. The court will not, however, infer that the death occurred at a particular time, nor will it infer that one person survived another where more than one person connected with an estate has disappeared.
17.4 Where the court is unable to draw the inference of death from the facts given in evidence, the court may have to resort to the presumption of death, which is less of a presumption of fact than it is a displacement of the presumption of continuance of life. The presumption of death was described in Axon v Axon4 in the following terms:5
If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.
In that case, a husband disappeared because his wife was attempting to serve him with a maintenance order. The Court refused to presume his death on the basis that there was a reason why he had not been heard from.
17.5 The case lays down the principle that there is no presumption that death occurred at any particular time before the proceedings, even if the proceedings take place long after the seven year period has expired. The presumption is only to the effect that, at the time of the proceedings in question, the person is presumed to be dead.
17.6 Lee explains:6
Even if the court does infer that a person is dead, it will not infer that the death occurred at a particular time; or that one person survived another, where more than one have disappeared ... the court does not presume death as such; it gives leave to the applicant to swear death, after considering the factual circumstances deposed to.7 [some notes omitted]
17.7 In succession law there are two occasions when the court might be called upon to declare the death of a person on the basis of the presumption of death: where a beneficiary cannot be found and where a testator or intestate is missing.
(b) Missing beneficiary
17.8 The court might be called upon to declare the death of a person on the basis of the presumption of death where it is desired to distribute the estate of a deceased person, but, after reasonable attempts to contact a beneficiary, the beneficiary cannot be found. In such a situation, the court presumes that the beneficiary died before the deceased testator or intestate. The presumption can be rebutted only by evidence that the beneficiary survived the deceased: the presumption of continuance of life is insufficient. In Re Benjamin,8 for instance, the testator died in June 1893. One of the testator’s sons, who was a beneficiary under his father’s will, had disappeared less than a year before his father’s death. Joyce J said:9
I am clearly of opinion that the onus is on those claiming under him to prove that he survived the testator. In my opinion, therefore, the trustees are at liberty to distribute. I am anxious, however, not to do anything which would prevent his representative from making any claim if evidence of his death at any other time should be subsequently forthcoming. I shall not therefore, declare that he is dead ...
The Court ordered that the testator’s estate be distributed on the footing that the testator’s son had not survived him.10
17.9 A Benjamin order was also made in Re Green’s Will Trusts.11 In that case, the testatrix’s son went missing in January 1943 during a wartime bombing raid. The testatrix continued to believe that her son was alive and, by her will dated 10 February 1972, she bequeathed certain property to him. The testatrix died in 1976. Her trustees sought various declarations, including one to the effect that her son had predeceased her.
17.10 Rather than make a declaration that the son had died, the Court made a Benjamin order. Nourse J made the following observation:12
My impression is that in recent years the practice of the court has been to make a Re Benjamin order and not a declaration [of death].
The Court ordered that the trustees be at liberty to administer the estate on the footing that the testatrix’s son had predeceased her.
(c) Missing testator or intestate
17.11 The other case where the presumption of death may be required is where those entitled under the will or intestacy of a person show that that person has been missing and not been heard from for a long time, and a grant of probate or letters of administration of the estate is sought on the basis that the missing person has died. The court requires sufficient evidence relating to the person’s disappearance to enable it to come to a conclusion that a grant is warranted. Any presumption of death that the court makes is rebuttable if evidence later shows the person to be alive.
(d) An alternative approach to the presumption of death
17.12 An alternative to the presumption articulated in Axon v Axon13 is a statutory provision which fixes a date of death. The formula used in the United States Uniform Probate Code §1-107(5) has this effect. Twenty-six States of the United States of America have adopted the Code.14 A typical State’s version of the Code is South Dakota’s which has adopted the Code without significant modification:15
(5) An absentee who has not been seen or heard from for a continuous period of five years, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead and is presumed to have died at the end of the period.
17.13 In the Uniform Probate Code provision, the person must have been missing for only a period of five years, and not seven years as required by the common law presumption of death. The second part of the presumption – that death is presumed to have taken place at the end of the five year period – conflicts with the English policy enshrined in Re Benjamin.16 It might be questioned, too, whether a statutory five year presumption would be irrebuttable.
17.14 It is also unclear from the Uniform Probate Code provision who is entitled to make the presumption. It would be inappropriate for an intending personal representative to be able to make the presumption. The matter would have to go to the probate court and whatever evidence is in existence would be placed before the Registrar or Judge for determination. A rigid time provision might be seen as inconsistent with a discretionary jurisdiction.
17.15 If §1-107(5) of the Uniform Probate Code were applied to the facts of Re Benjamin, it would produce the opposite result to the decision in that case. The son who disappeared in 1892 would be presumed to have died in 1897, with the result that his estate would have taken under the will of the father who died in 1893.
3. SURVIVORSHIP
| QLD | 65, 33(1), 35(2) | WA19 | 119, 120 |
| ACT | 49P | NT | 64 |
| VIC17 | 184 | TAS20 | 2 |
| NSW18 | 35 | UK21 | 184 |
| SA | 72E | NZ22 | 3 |
(a) Introduction
17.16 If it is known that two or more people are dead and even if it is known what the cause of death for each was, it may not be clear from the known facts which people survived the others. The case law does not help in this situation as there is no presumption of law as to survivorship in relation to such people.23 There is, for example, no presumption that they died at the same time or that the eldest died first. Hardingham, Neave and Ford note:24
The question is one of fact, depending wholly on evidence, and if the evidence does not establish the survivorship of one of the parties, the law will treat it as a matter incapable of being determined. The onus of proof is on the person asserting the affirmative. [note omitted]
17.17 The Ontario Law Reform Commission has noted that the issue of survivorship in these circumstances, was:25
... dealt with by the general procedural rule that claimants must prove the facts necessary to establish their claims. If no beneficiary could establish the order of death in support of the claim, the property of the deceased would be awarded to his next-of-kin.
This principle could lead to unsatisfactory outcomes. For example:26
... the failure of a claimant to prove that the deaths had occurred in a certain order could lead to the property of a testator being distributed in a manner that she would certainly have opposed. [note omitted]
(b) The statutory presumption of survivorship according to seniority
17.18 Obviously it is desirable for the law to provide a solution to the problem of the succession of property in circumstances where it is not known which of a number of people died first. In an attempt to overcome the deficiency in the case law, a number of jurisdictions have introduced a statutory provision to the effect that the more senior person died first. For more than two persons, the deaths are presumed to have occurred in order of seniority.
17.19 For example, section 65 of the Succession Act 1981 (Qld), reads:
Presumptions of survivorship and death
Subject to this Act, where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), 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 for a period of 1 day.
Thus, if a husband and wife died in circumstances rendering the order of their deaths uncertain, the younger would be presumed to have survived the older. Alternatively, if a parent and a child died in such circumstances, the child would be presumed to have survived the parent. In this case the presumption that the younger survived the elder seems at odds with the policy of the court demonstrated in Re Benjamin27 that the beneficiary is presumed to have predeceased the testator or intestate.
17.20 Provisions similar to the Queensland provision are found in New South Wales, Victoria and Tasmania.28
17.21 The words in the provision “(subject to any order of the court)” have been held not to confer on the court a power to depart from the tenor of the provision on the grounds of fairness or justice.29 One interpretation of the phrase led Bennett J in Re Lindop30 to the view:31
The effect of the words is to enable the court, although the circumstances in which the persons have died are such as to make it uncertain which survived, to receive evidence upon the question, and, if the evidence is such as to displace the statutory presumption, to act upon that evidence. I do not think these words give ... a discretion to the court to disregard the statutory presumption if the court came to the conclusion that it would be unfair or unjust to act upon it. It seems to me that the meaning I think ought to be given to the words is a possible one and it gives rise to no difficulty.
17.22 After reviewing a number of judicial attempts to give meaning to the words Adam J in Re Brush32 expressed the view that:33
... at best ... if they mean anything at all they add nothing to the section, and at worst ... they are simply meaningless. [The section] would not suffer, I think, by their now being omitted.
17.23 Section 65 of the Succession Act 1981 (Qld) is unique among the existing provisions in providing that the younger should be deemed to survive the elder “for a period of one day”. Because Queensland has a thirty day survivorship rule,34 section 65 has a very narrow operation. It is really applicable only to property held as joint tenants.35
17.24 Under the wording of the provisions containing the statutory presumption of survivorship by seniority it is not necessary to determine that the parties died as a result of a common calamity.36 It does not have to be shown that the deaths were consecutive for the statutory presumption to be invoked – the presumption applies even where an inference can be drawn that the deaths were simultaneous.37
(c) Negative results of the statutory presumption based on seniority
17.25 The Ontario Law Reform Commission has observed that although the presumption was clear and easy to administer:38
... it was arbitrary and could produce capricious, if not harsh, results. The rule would disinherit the living relatives or beneficiaries of the more senior of the commorientes ...
For those jurisdictions which do not have a 30 day [or other period] survivorship provision, there is the further complexity of double succession. For example, if a husband and wife were involved in an accident – one dying immediately and the other within hours or a few days of the first – the brief period of actual survivorship would produce two quick successions.39 In Queensland this difficulty is avoided by the operation of the 30 day survivorship provision.40
(d) Application of the statutory presumption to presumed deaths
17.26 There has been judicial disagreement about whether a provision to the effect of section 65 of the Succession Act 1981 (Qld) applies where one of the deaths is presumed under the common law. In Re Albert41 and Halbert v Mynar,42 the view was taken that an equivalent section did not apply where one of the deaths was presumed. But in Hickman v Peacey,43 in Re Watkinson44 and in Estate of Dixon,45 the contrary view was taken.
17.27 In the New South Wales case of Halbert v Mynar,46 it was held that section 35 of the Conveyancing Act 1919 (NSW) (which is in similar terms to the Queensland provision) does not apply to presumed – as opposed to proved – deaths. It has also been held in Victoria that section 184 of the Property Law Act 1958 (Vic) does not apply to presumed deaths.47 Similar reasoning would appear to apply to the Queensland and Australian Capital Territory provisions, and to the New Zealand provision.
17.28 In Halbert v Mynar,48 the testator and his daughter disappeared without trace during a journey by car in 1972. Extensive inquiries did not yield any information on the cause of their disappearance or even whether they died. The testator’s wife died in 1973 leaving a will. Probate of the husband’s will was granted on presumption of death in 1979. The testator’s will made provision for both his wife and daughter.
17.29 Those interested in the estate of the daughter submitted that the daughter should be found to have survived the testator. Those interested in the estate of the wife sought a declaration that the testator had predeceased his wife, arguing that her estate should take under her husband’s will.
17.30 Waddell J considered section 35 of the Conveyancing Act 1919 (NSW), and held that the section applied only to proved, and not to presumed, deaths.49 This meant that the order and timing of the deaths of the father and daughter remained undecided. In the absence of proof that either the wife or daughter survived the testator, the estate could not be distributed in accordance with the provisions of the will.
17.31 The principal problem in restricting the provision to proved deaths only, is that doing so may leave the parties without a decision, as happened in Halbert v Mynar itself. However, if Benjamin orders had been sought in that case, it may be that the wife’s estate could have been distributed on the basis that her husband and daughter had predeceased her, and that the husband’s estate could have been distributed on the basis that his wife and daughter had predeceased him.
17.32 Justice Waddell’s judgment in Halbert v Mynar is relevant to all jurisdictions where the operative words of the statutes apply where “two or more persons have died”.
17.33 In Halbert v Mynar, Waddell J referred to the surprising consequences – identified by Lush J in Re Albert – that would follow if the rule about the presumption of survivorship were applied when one of the deaths was proved only by the use of the seven year presumption.50 Lush J had observed:51
The section will always lead to the result that the younger survived the older so that in a case in which the precise date of death of the older is known, the younger will be presumed to survive even if he has not been heard of for 50 years before the date of the death of the older.
The undesirable consequences to which Lush J referred were premised on applying the traditional statutory provision, rather than the modified provision that is found in Western Australia, New Zealand and Australian Capital Territory (discussed below). They were also premised on applying the traditional rule without the thirty day survivorship rule that applies in Queensland (discussed below) and which has been recommended by the National Committee.52
17.34 If the presumption that a beneficiary predeceased a testator were adopted, and extended to cases where there was a presumed death, the person who had disappeared many years earlier would be presumed to have predeceased the testator who died later, notwithstanding that the testator may be the older of the two.
17.35 Even if the Queensland provision were extended to cases where there was a presumed death, the effect – having regard to the thirty day survivorship rule – would be that, except in relation to property held as joint tenants, there would have to be evidence that the younger survived the elder for thirty days to give the result outlined by Lush J. In the absence of that evidence, the estate of the elder would be distributed as if the younger had predeceased him or her.
(e) Alternative statutory schemes for the distribution of estates
17.36 In order to avoid possible injustice resulting from the statutory presumption of survivorship according to seniority, some jurisdictions have adopted alternative approaches for the distribution of property where there is doubt as to who survived whom, in lieu of or in addition to the statutory presumption of survivorship by seniority.
(i) Spouses – distribution of estates separately
17.37 In South Australia, in relation to an intestate and his or her spouse who die within 28 days of each other, and where it is uncertain which spouse survived the other, the estate of each is to be distributed as if the spouse had not survived the intestate.53 Thus the estate of each would be distributed separately. In South Australia there is no statutory presumption of survivorship. Section 72E of the Administration and Probate Act 1919 (SA) provides:
There is a similar provision in the Northern Territory – again operating only in relation to an intestate and his or her spouse – but not limited to a non-survival period such as the 28 day period in South Australia.54
(ii) General provision – two or more persons dying, property to devolve as if each testator/intestate survived the other person for a time
17.38 In New Zealand55 , Western Australia56 and the Australian Capital Territory57 the legislation includes provisions which are more general than those in South Australia and the Northern Territory, but which have the same effect. They cover testate and intestate estates and are not limited to circumstances in which spouses die. For example, section 120(a) of the Property Law Act 1969 (WA) reads:
Devolution of property in cases of simultaneous deaths
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others –
(a) the property of each person so dying shall devolve and if he left a will it shall take effect, unless a contrary intention is shown by the will, as if he had survived the other person or persons so dying and had died immediately afterwards; ...
Instead of a presumption that the younger survived the older, property of the “benefactor” devolves as if the benefactor had died immediately after the “beneficiary”.58
(iii) General provisions – beneficiary not surviving testator/intestate for 30 days, property to devolve as if beneficiary died before testator/intestate
17.39 Section 32 of the Succession Act 1981 (Qld) reads:
Lapse of benefit where beneficiary does not survive testator by 30 days
(1) Unless a contrary intention appears by the will, where any beneficial disposition of property is made to a person who does not survive the testator for a period of 30 days the disposition shall be treated as if that person had died before the testator and, subject to this Act, shall lapse.
(2) A general requirement or condition that a beneficiary survive the testator is not a contrary intention for the purposes of this section.
A similar provision in relation to intestate estates appears in section 35(2) of the Succession Act 1981 (Qld).
17.40 With the exception of property held by persons as joint tenants, the effect of the thirty day rule – which the National Committee has previously recommended be adopted59 – is that where two people die in circumstances covered by the provision, and each is a beneficiary under the will of the other, the younger will not take unless there is evidence that he or she survived the elder by thirty days.
(iv) Property held under joint tenancy – to devolve as if held by tenants in common
17.41 In Western Australia,60 the Australian Capital Territory61 and New Zealand62 property held by persons as joint tenants63 is to devolve as if it had been held by them in equal shares as tenants in common. For example, section 120(d) of the Property Law Act 1969 (WA) reads:
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others – ...
(d) any property owned jointly and exclusively by 2 or more of the persons so dying, other than property so owned by them as trustees, shall devolve as if it were owned by them when they died as tenants in common in equal shares; ...
The effect of these provisions is that the estate of the younger person does not receive the windfall that results from the presumption of survivorship by seniority in Queensland under section 65 of the Succession Act 1981 (Qld) and in jurisdictions with a similar provision.
17.42 In Queensland, there is no thirty day rule in relation to the vesting of property in a surviving joint tenant. The effect of the Queensland survivorship provision is that the younger person is deemed to survive the elder, with the result that any property held by them as joint tenants will automatically vest in the estate of the younger of them.
(f) The devolution of property in specific situations
17.43 Section 120 of the Property Law Act 1969 (WA) contains a number of provisions relating to the devolution of property in particular situations where two or more persons have died in a common calamity or in circumstances where it is not certain who survived the other or others.
(i) The devolution of property the subject of gift made in anticipation of death
17.44 Section 120(b) of the Property Law Act 1969 (WA) provides:
(ii) The devolution of proceeds of insurance
17.45 Section 120(c) of the Property Law Act 1969 (WA) provides:
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others – ...
(c) if the life of a person so dying is insured under any policy of life or accident insurance, and any other person or persons so dying would be entitled (otherwise than under a will or on the intestacy of any person) to the proceeds payable under the policy or any part of the proceeds if he or they survived the person so insured, the proceeds shall, unless a contrary intention is shown by the instrument governing the distribution of the proceeds, be distributed as if the person so insured had survived every other person so dying and had died immediately afterwards; ...
A similar provision is in section 3(c) of the Simultaneous Deaths Act 1958 (NZ).64
(iii) Devolution of property that is left to the survivor of a class of persons
17.46 Section 120(e) of the Property Law Act 1969 (WA) provides:
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others – ...
(e) where, under any will or trust or other disposition, any property would have passed, whether in consequence of section 33 of the Wills Act 1837 of the United Kingdom Parliament or otherwise to any of 2 or more possible beneficiaries (being persons who have so died) if any of them could be shown to have survived the other or others of them, then, unless a contrary intention is shown by the will, trust or disposition, it takes effect as if the property were given to those possible beneficiaries as tenants in common in equal shares, and the property devolves accordingly, but this paragraph does not apply in any case to which paragraph (c) or paragraph (f) applies; ...
17.47 Section 120(e) of the Property Law Act 1969 (WA) covers the situation where a testator leaves a sum of money on trust to pay the income to A, B and C during their joint lives in equal shares as tenants in common and the capital to the last to survive. If A predeceases the testator and B and C survive the testator for more than 30 days but die in a common calamity, section 120(e) provides that the estates of B and C take in equal shares, whereas the effect of section 65 of the Succession Act 1981 (Qld) would be that the estate of the younger of B and C would take the entire estate.
17.48 Section 3(e) of the Simultaneous Deaths Act 1958 (NZ) is in virtually identical terms to section 120(e) of the Property Law Act 1969 (WA).
(iv) Devolution of the right to exercise a power of appointment where the power is conferred on the survivor of a class of persons
17.49 Section 120(f) of the Property Law Act 1969 (WA) reads:
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others – ...
(f) where a power of appointment could have been exercised in respect of any property by any of 2 or more persons so dying if any of them could be shown to have survived the other or others of them, unless a contrary intention is shown by the instrument creating the power, the power may be exercised as if an equal share of that property had been set apart for appointment by each of those persons, and as if each of those persons had the power of appointment in respect of the share of the property so set apart for appointment by him, and that share shall devolve in default of appointment by him in the manner in which the property would have devolved in default of appointment by him if he had been the survivor of those persons, but this paragraph does not apply in any case to which paragraph (c) applies; ...
This provision relates to powers of appointment which could have been exercised by any of two or more persons. A similar provision is found in section 3(f) of the Simultaneous Deaths Act 1958 (NZ).
(v) Antilapse
17.50 Section 120(h) of the Property Law Act 1969 (WA) provides:
Where, after 6 December 1962, 2 or more persons have died at the same time or in circumstances that give rise to reasonable doubts as to which of them survived the other or others –
(h) where the persons so dying include a testator and one or more of his issue, however remote, then for the purpose of section 33 of the Wills Act 1837 of the United Kingdom Parliament where that section applies, the testator shall be deemed to have survived all his issue so dying and to have died immediately afterwards, and accordingly, unless a contrary intention is shown by the will, a devise or bequest by the testator to any of his issue who so dies or has already dies in the testator’s lifetime –
(i) lapses unless any of the donee’s issue, other than the persons so dying, is living at the time of the death of the testator;
(ii) takes effect in accordance with the provisions of section 33 of the Wills Act 1837 of the United Kingdom Parliament if any such other issue of the donee is living at that time; ...
4. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
17.51 The National Committee considered whether:
(1) it is necessary or desirable to change the common law presumption of death to fix the date of a presumed death;
(2) in light of the thirty day survivorship rule recommended by the National Committee and the availability of Benjamin orders, there is a need to deal with the order of deaths of people who die or are presumed to have died in circumstances where it is uncertain as to who survived the other (apart from dealing with the deaths of joint tenants);
(3) if yes to (1):
- there should be a presumption of survivorship in the model legislation to the effect that the younger is presumed to have survived the elder by a day as in section 65 of the Succession Act 1981 (Qld); or
- the property of each person should devolve as if he or she had survived the other person so dying and had died immediately afterwards (in which case the beneficiary is presumed to have predeceased the testator);
(4) if a statutory presumption of survivorship according to seniority is to be included in the model legislation, it should be extended to cover presumed deaths, as well as actual deaths;
(5) the model legislation should specify that, where the persons who have died in these circumstances held property as joint tenants, the property devolves as if they had owned it as tenants in common in equal shares as in section 120(d) of the Property Law Act 1969 (WA) and section 49P(2) of the Administration and Probate Act 1929 (ACT);
(6) if yes to (5), a thirty day rule should apply, so that the property will devolve as if the persons had held it as tenants in common in equal shares unless it is proved that one joint tenant survived the other by thirty days (to avoid arguments that one survived the other by a matter of minutes);
(7) the model legislation should include a provision relating to the devolution of the proceeds of an insurance policy under section 120(c) of the Property Law Act 1969 (WA);
(8) the model legislation should include a provision relating to the devolution of property that is left to the survivor of a class of persons, to the effect of section 120(e) of the Property Law Act 1969 (WA);
(9) the model legislation should include a provision relating to the devolution of a power of appointment that is conferred on the survivor of a class of persons, to the effect of section 120(f) of the Property Law Act 1969 (WA);
(10) the model legislation should include an antilapse provision to the effect of section 120(h) of the Property Law Act 1969 (WA);
(11) the provisions discussed in this chapter should be expressed to be subject to a contrary intention, whether in the will or elsewhere.
5. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
(a) Fixing the date of presumed deaths
17.52 In light of the National Committee’s views on other aspects of the presumption of death, it did not consider further the possibility of altering that presumption in favour of a legislative provision which would fix the date of a presumed death.
(b) Survival period of 30 days
17.53 The National Committee considered that it may be appropriate that any presumption should include the requirement that to take under a will or under the relevant intestacy rules, the person must “survive the testator by a period of 30 days”, rather than simply presuming the person to be “living at the time of the death of the other person”. This would correspond with the thirty day survivorship period that the National Committee has already recommended in relation to beneficiaries’ entitlement to take under a will.65
(c) Thirty day survivorship rule and Benjamin orders
17.54 The National Committee was of the view that there should be a statutory enactment of the Re Benjamin principle to overcome the situations where Benjamin orders are not sought through ignorance of their availability. It was suggested that it might be desirable for Benjamin orders to be subject to some of the restrictions that apply to distributions made where a grant of probate has been made on the presumption of death.66
17.55 In relation to the situation where people die or have died in circumstances where it is uncertain who survived the other, the National Committee was of the view that a provision to the effect of section 120(a) of the Property Law Act 1969 (WA) was not necessary given that the same result could be achieved by a 30 day survivorship rule and a statutory enactment of the rule in Re Benjamin. The 30 day survival provision simplifies the problem of proof where it is not clear whether a beneficiary survived the testator by a few minutes or even a few days. Where the beneficiary is issue of the testator any surviving issue of that issue will take as long as they survive for a period of thirty days.
17.56 The National Committee queried, but did not decide, whether a statutory enactment of Re Benjamin should also cover the situation where the date of death of the beneficiary was known, but not that of the testator or intestate.
(d) Presumption of death based on seniority
17.57 Despite the availability of Benjamin orders and the 30 day rule, the National Committee was of the view that there is still a need to deal with the order of deaths of people who die or are presumed to have died in circumstances where it is uncertain as to who survived the other.
17.58 The National Committee was of the view that there should be a presumption of survivorship to the effect that the younger is presumed to have survived the elder by a day such as appears in section 65 of the Succession Act 1981 (Qld).
(e) Presumed deaths and actual deaths
17.59 The National Committee did not consider further whether, if a statutory presumption of survivorship is to be retained, it is to be extended to cover presumed deaths, as well as actual deaths.
(f) The devolution of property where deceased persons held property jointly
17.60 The National Committee considered whether legislation should specify that, where persons who have died in circumstances where it is uncertain who survived the other or others held property as joint tenants, the property devolves as if they had owned it as tenants in common in equal shares as in Western Australia under section 120(d) of the Property Law Act 1969 (WA). The National Committee believed that the Western Australian approach could lead to a fairer result.
(g) The devolution of the proceeds of an insurance policy
17.61 The National Committee was of the view that it would be necessary to consult with the insurance industry before adopting a position on the adoption of such a provision in the model legislation.
(h) The devolution of property that is left to the survivor of a class of persons
17.62 The National Committee was in favour of adopting a provision to the effect of section 120(e) of the Property Law Act 1969 (WA).
(i) The devolution of a power of appointment that is conferred on the survivor of a class of persons
17.63 The National Committee was in favour of adopting a provision to the effect of section 120(f) of the Property Law Act 1969 (WA).
(j) Antilapse
17.64 The National Committee did not consider a provision to the effect of section 120(h) of the Property Law Act 1969 (WA) necessary in light of its previous recommendations. Previously, the National Committee recommended the adoption of the modern form of the anti-lapse rule with a few refinements.67 Queensland already has the modern anti-lapse rule in section 33 of the Succession Act 1981 (Qld).
Proposal 89
The model legislation should include a provision, based on section 65 of the Succession Act 1981 (Qld) or section 120(i) of the Property Law Act 1969 (WA) encompassing the seniority rule, that is, that the younger is presumed to have survived the elder, to cover situations not covered by the operation of the provisions referred to above.
Proposal 90
The model legislation should include a provision to the effect that the above suggested provisions are to be subject to a contrary intention that appears, whether in the will or elsewhere.
Questions for discussion
17.1 If a statutory presumption of survivorship is to be retained, should it be extended to cover presumed deaths, as well as actual deaths?
17.2 Should the model legislation include a provision to the effect of section 120(b) of the Property Law Act 1969 (WA)?
17.3 Should the model legislation include a provision to the effect of section 120(c) of the Property Law Act 1969 (WA)?
17.4 Should the provision in the model legislation based on section 120(d) of the Property Law Act 1969 (WA) be subject to the 30 day rule?
17.5 Should the provision in the model legislation based on section 120(e) of the Property Law Act 1969 (WA) be subject to the 30 day rule?
17.6 Should the provision in the model legislation based on section 120(f) of the Property Law Act 1969 (WA) be subject to the 30 day rule?
17.7 Should a gift to the survivor of a class of persons be deemed to be a gift to all such persons in equal shares? If so, should it be subject to the 30 day rule?
17.8 Should the statutory enactment of Re Benjamin be expressed to apply in a case where the order of deaths is uncertain because the date of death of the testator (or intestate), rather than that of a beneficiary, is unknown?
Footnotes
1. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 845.
2. For example, in Queensland, see Rules of the Supreme Court 1900 (Qld) O 71, r 11(1), 27(1).
3. For example, in Queensland, see Rules of the Supreme Court 1900 (Qld) O 71, r 11(2), 27(2).
4. (1937) 59 CLR 395.
5. Id per Dixon J at 405.
6. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 846.
7. Lee refers to Re Jackson (1902) 87 LT 747.
8. [1902] 1 Ch 723.
9. Id at 726.
10. Ibid.
11. [1985] 3 All ER 455.
12. Id at 463.
13. See para 17.4 of this Discussion Paper.
14. See R A Stein, “Probate Reformation: The Impact of the Uniform Laws” (1997) 23 The Probate Lawyer 1, 14 n. 53 and correspondence to Dr Peter Handford from Professor J H Langbein, Uniform Law Commissioner (Connecticut) and member of the Joint Editorial Board for the Uniform Probate Code, 14 May 1999.
15. South Dakota Code 1994 § 29A-1-107 «http://www.law.cornell.edu/ uniform/probate» (February 1999).
16. See para 17.8 of this Discussion Paper.
17. Property Law Act 1958 (Vic).
18. Conveyancing Act 1919 (NSW).
19. Property Law Act 1969 (WA).
20. Presumption of Survivorship Act 1921 (Tas).
21. Law of Property Act 1925 (UK).
22. Simultaneous Deaths Act 1958 (NZ).
23. People who died in a common disaster were traditionally referred to as “commorientes”.
24. I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed 1989) at para 3602.
25. Ontario Law Reform Commission, Report, Administration of Estates of Deceased Persons (OLRC 1991) at 128.
26. Ibid.
27. See para 17.8 of this Discussion Paper.
28. Conveyancing Act 1919 (NSW) s 35; Property Law Act 1958 (Vic) s 184; and Presumption of Survivorship Act 1921 (Tas) s 2.
29. Re Lindop [1942] Ch 377; Re Brush [1962] VR 596. I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed 1989) at para 3602 refer to the words as “obscure”.
30. [1942] Ch 377.
31. Id at 382.
32. [1962] VR 596.
33. Id at 601.
34. Succession Act 1981 (Qld) s 32(1) (wills), s 35(2) (intestacy). See paras 17.39-17.40 of this Discussion Paper for a discussion on the 30 day survivorship rule.
35. See the discussion of joint tenancies at para 17.41-17.42 of this Discussion Paper.
36. Hickman v Peacey [1945] AC 304 per Viscount Simon at 314-315.
37. Id at 319 and see I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed 1989) at para 3602.
38. Ontario Law Reform Commission, Report, Administration of Deceased Estates (OLRC 1991) at 129.
39. The problem could have been avoided if both spouses had wills which provided that a beneficiary must survive the testator by a certain period as a condition to taking the benefit under the will.
40. Succession Act 1981 (Qld) s 32(1) (wills), 35(2) (intestacy).
41. [1967] VR 875.
42. [1981] 2 NSWLR 659.
43. [1945] AC 304 per Viscount Simon LC at 314-315.
44. [1952] VLR 123.
45. (1969) 90 WN (NSW) 469.
46. [1981] 2 NSWLR 659.
47. Re Albert [1967] VR 875.
48. [1981] 2 NSWLR 659.
49. Waddell J followed the Victorian decision in Re Albert [1967] VR 875, and declined to follow the New South Wales decision of Helsham J in Estate of Dixon (1969) 90 WN (NSW) 469. In Re Albert, Lush J at 879-880 cited a number of anomalies that would result if the presumption about survival of the younger were applied to cases where one of the deaths was presumed.
50. [1981] 2 NSWLR 659 at 667-668.
51. Re Albert [1967] VR 875 at 879.
52. See notes 581 and 587 of this Discussion Paper.
53. Administration and Probate Act 1919 (SA) s 72E.
54. Administration and Probate Act (NT) s 64.
55. Simultaneous Deaths Act 1958 (NZ) s 3(1)(a).
56. Property Law Act 1969 (WA) s 120(a).
57. Administration and Probate Act 1929 (ACT) s 49P.
58. The Western Australian and New Zealand provisions allow an expression of a contrary intention to be effective.
59. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997) at 76; New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R 85, 1998) at para 6.47.
60. Property Law Act 1969 (WA) s 120(d).
61. Administration and Probate Act 1929 (ACT) s 49P(2).
62. Simultaneous Deaths Act 1958 (NZ) s 3(d).
63. The transfer of property upon death to the surviving joint owner of property is not a testamentary act on the part of the deceased person. Where the joint owner dies, the survivor is not regarded as having succeeded to the property of the deceased person. See I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed 1989) at para 106.
64. Note that in Ontario a provision to the same effect is in separate legislation (Insurance Act, RS0 1980 c 218, s 192 and 272, referred to in Ontario Law Reform Commission, Report, Administration of Estates of Deceased Persons (OLRC 1991) at 129, note 5).
65. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997) at 76.
66. See para 4.2 of this Discussion Paper.
67. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997) at 90.
