Tue | Nov 24, 2020

Correction about simultaneous deaths

Published:Monday | July 29, 2019 | 12:24 AM

There was an error in my article, ‘Who inherits when there are simultaneous deaths?’, that was published on June 10, 2019. Thanks to my colleague, I now know that, since 1968, Jamaica has had legislation that specifically answers the question (in some situations) of who is presumed to have passed away first when there is uncertainty surrounding the deaths of two or more persons.

Section 2 of the Law Reform (Commorientes*) Act states:

“In all cases where, after the 27th December, 1968, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall for all purposes affecting title to property, be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder.”

(* – Commorientes means simultaneous deaths.)

There you have it. Where there is uncertainty as to which person died first, under Jamaican law, it will be presumed that the older person passed away first. However, you should note that the act states that this presumption arises “for all purposes affecting title to property”.

It should also be borne in mind that the act creates a presumption, and presumptions can be rebutted by evidence to the contrary. If, for example, two persons die in a car accident, but an eyewitness is able to say that the driver groaned before passing away, while the passenger never moved at all, although the driver may be the older of the two, a court would be likely to find that the passenger passed away first.

This act will also not provide the answer when the determination of the order of deaths is relevant for purposes unrelated to title to property. For example, in a case where both the insured and the beneficiary under a life insurance policy pass away and it is uncertain who passed away first, this act could not be relied upon. Instead, in this scenario, it would appear that we would have to resort to the uncertain position at common law (which I explained in the previous article).

It should be emphasised that, in anticipation of challenges of this nature, creative draftsmanship may make it possible to confirm the person to whom the proceeds of the policy is to be paid in the event of the simultaneous deaths of the insured and the beneficiary. For example, a life insurance policy may include a primary and a secondary or contingent beneficiary, in which case, the secondary beneficiary will receive the life insurance proceeds if the primary beneficiary is deemed to have died before the insured. Alternatively, a policy could make provision for the insured’s estate to receive the proceeds of the policy in the event that the named beneficiary actually, or is deemed to have, passed away before the insured.

From the perspective of estate planning, it is always advisable to avoid having your estate as the beneficiary of your life insurance policy. There are many reasons for this, including the fact that the proceeds of the policy will not be immediately available to your loved ones after you pass away.

Although the issue of simultaneous deaths may not often arise, examples do exist, so when drafting your will or purchasing life insurance policies, it is helpful to bear that possibility in mind. It would also be useful to consider expanding the types of cases to which the act applies.

n 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.