Sat | Jul 20, 2019

Laws of Eve | Who inherits when there are simultaneous deaths?

Published:Monday | July 8, 2019 | 12:27 AM

Some of the most interesting case law relates to issues surrounding death and inheritance. Perhaps that is because the persons who could best explain what the court is being asked to determine – the deceased persons – are not available to give evidence at trial. Judges must, therefore, look to statutes or the common law that prescribe rules or presumptions to assist the court to determine the issues.

Today, I am exploring the interesting issues that arise where two people die at, or nearly at, the same time and at least one of them is entitled to a part or all of the other person’s estate on his or her death. This situation usually emerges after a tragedy, such as an accident, murder, or murder-suicide.

A colleague sent me a link to an online article (step.com) in which it was reported that an elderly couple died together in the home which they owned jointly at the time of their deaths. Although the details are sketchy, the parties had children from previous unions when they got married and had wills that disposed of their interests in the property in different ways. It was reported that the wife left her interest in the property to her husband, and then to her daughter upon his death; and the husband left his interest in the property to his wife, and then to his child upon her death.

The case, which is yet to be determined, involves claims by the wife’s children against the husband’s child to determine the order of their deaths and thereby conclude who should inherit the couple’s home.

NO WILLS

In the case of Nunan v Aylward [2019] VSC 210, the Supreme Court of Victoria was asked to determine the order of death of a couple who was stabbed to death in their home. The background is that the unmarried couple included a man (Tucker), who was survived by three adult children and three minor children who were the product of his relationship with the woman (Aylward). Both Tucker and Aylward died without leaving behind wills.

Tucker’s estate was worth $3.4 million and Aylward’s was worth $120,000. If the court determined that Aylward had died before Tucker, the minor children would share the estate equally with the adult children. If, instead, the court determined that Tucker had died before Aylward, the minor children would inherit $1.2 million more than the adult children.

Even after expert evidence was given on both sides in an effort to determine the order of the deaths, the court found that the sequence was uncertain. For that reason, in reliance on Section 184 of the Law of Property Act 1958, which presumed that the younger of the two persons is deemed to have survived the older person, it was held that Aylward, who was younger, had died after Tucker.

Unlike jurisdictions, such as England (Law of Property Act 1925), Australia (Law of Property Act 1958), and the United States (Simultaneous Deaths Act), Jamaica does not have legislation that deals with the issue of simultaneous deaths. We must, therefore, look to the common law in respect of which, unfortunately, there is no satisfactory presumption position. It is my understanding that, under the common law, we must scrutinise all the circumstances surrounding the deaths to try to identify any evidence that one party survived the other, even by a few moments. Where no such evidence exists, or the evidence is inconclusive, it is unclear what the outcome would be.

Due to the uncertainty at common law, it would be best to enact legislation in Jamaica to address the issue. Until then, it is advisable for the wills of persons who are beneficiaries under each other’s will to include clauses to state what should occur in the event of simultaneous deaths or if one party survives the other by a short period, such as 30 days.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.