Have you ever wondered what would happen to your Estate if you and your partner died at the same time?
We sometimes get asked that question when we are preparing Wills for our clients.
Section 65 of the Succession Act provides that where 2 or more people die in circumstances rendering it uncertain which of them survived the other, the younger is deemed to have survived the elder for a period of 1 day.
Section 33B of the Act also provides that “if a disposition of property is made to a person who dies within 30 days after the testator’s death, the Will takes effect as if the person had died immediately before the testator.”
- These provisions were considered and interpreted by the Queensland Court of Appeal in 2015 in the case of Donald v Guillesser.
- In that case, Mr and Mrs Dawson died in a plane crash and it could not be established which one of them had died first. Mr Dawson was six months older than Mrs Dawson. Mr Dawson had left a “will kit” Will in which he left his entire estate to Mrs Dawson. Clause 5 of the Will stated that if Mrs Dawson “predeceased” Mr Dawson then his sister-in-law was to receive half of the estate, his brother was to receive one quarter, and the remaining quarter was to be split between nieces and nephews.
- Mr Dawson’s mother applied to the Court for the entire estate on intestacy on the basis that clause 5 of the Will failed because Mr Dawson’s wife did not actually predecease him.
- Mr Dawson’s mother lost her case. The court decided that because Mr Dawson was older than Mrs Dawson, he was taken to have died first. Mrs Dawson did not survive her husband by 30 days, therefore her gift of the entire estate failed to take effect. Section 33B meant that Mr Dawson’s Will took effect as if Mrs Dawson died immediately before him, and as such, the family members were entitled to the entire estate and not Mr Dawson’s mother.
There are some lessons to be learnt from this case. Firstly, beware of the “will kit” Will. Ambiguities can lead to litigation and the result can be very costly to your estate. Secondly, if you want to ensure that you provide for both partners extended families in the terrible circumstances of both partners dying at the same time, you should ensure that your Wills provide for each other’s families. Otherwise, the eldest persons Will will be followed, which may mean that the younger partner’s family misses out.