When couples think about making Wills together, it’s very common for them to consider the possibility that they could die at the same time. This really isn’t surprising given the dangers that exist in the modern world.
Sadly the idea of making a Will is often stimulated by current affairs such as a terrorist attack, plan cash or a health pandemic. It brings home the realisation that any one of us could be impacted by such a terrible event and forces us to consider what this would mean to our families.
It’s common, when speaking to couples, that they already have a good idea how they would like their Estates to be distributed upon death. However, what is often overlooked is how the order of their deaths could ultimately impact what happens to their Estates.
We are frequently given 3 scenarios by couples at the outset such as:
If person A dies first we’d like this Estate to go to person B
However, if person B dies first then we’d want it to go to person A
But if we die together then we’d want it to go elsewhere
Sounds simple and logical right? Unfortunately, in the context of succession law this leaves some pretty big gaps. In order to address these we need to look at each scenario individually:
Scenario 1 - If person A dies first we’d like this Estate to go to person B
This is the most straightforward scenario of the 3. Upon the death of person A, their Estate is to go in its entirety to person B. So the first question to consider is, will person A’s assets pass under the terms of the Will? Does this person own assets in joint names with someone other than person B? If so, these assets could pass automatically to the co-owner rather than under the Will to person B. Understanding how certain assets will pass upon death is crucial.
Scenario 2 - If person B dies first then we’d want it to go to person A
There is the same issue here as above in scenario 1. However, whilst the couple has set out what they’d like to happen upon the first death, there has been no consideration of what they’d like to happen when the second person dies, such as put in place a substitute Beneficiary.
What if often overlooked here is that if person A died first, then when person B dies they will have already inherited the Estate of person A. So person B is worth the aggregated amount of their joint Estates. The danger here is that person B’s Will now dictates where the value of both Estates ultimately goes and who inherits it. This can cause problems particularly if person B decides to leave everything to someone on their side of the family only.
The recommended approach here is to make sure that both person A and B’s Wills mirror one another, so that the substitute Beneficiaries are exactly the same in each Will. The effect of this means that for succession purposes it doesn’t matter whether person A or B dies first or second. This is because ultimately, once they have both died, the same Beneficiaries will inherit in the same proportions of the remaining Estate at the time of the second death of the couple.
Scenario 3 - If we both die together
We hear this scenario a lot from couples. Firstly, I’d say that this is a pretty unlikely scenario to ever happen. If you think about all the different ways you could die, it would be unusual for you and your partner to go in the same incident let alone at the exact same time. That being said, it is, of course, possible so let’s consider the implications of it.
Without wanting to sound too descriptive, the exact point of your death will occur at a particular point in time and the exact point of your partner’s death will also occur at a particular point in time. So what is really meant when we hear the phrase “if we both die together”?
Does this really mean if person A and person B both die at the same exact point or does this mean if they die in the same incident? What about if they were in the same incident and person A died and then person B died an hour or a week later in hospital?
If person A’s Will simply said “I give everything to person B” then person B would inherit even though they only survived person A by an hour. This means that person B’s Will dictates who inherits the combined value of both Estates.
One way to address this issue is to include a ‘survivorship provision’ in each of the Wills. This would mean that a Beneficiary only inherits if they survive the deceased by a certain period of time (usually 28 days).
The ‘Commorientes Rule’
But what does the law say if you can’t determine whether person A or person B actually died first from the same incident? How is this scenario applied to their wills? This is a very interesting question and one that has been historically been dealt with by Court cases going as far back as 1793. The Courts have ruled that there should be no presumption about which person died first unless there is evidence establishing the order of death. However, this was far from ideal particularly if there was no evidence available. Therefore a law was introduced in 1926 to create a presumption called the ‘Commorientes Rule’. The Commorientes Rule makes provision for where two or more people die in the same circumstance and their order of death cannot be ascertained. For the purposes of dealing with their ownership of any property, the Rule presumes that the deaths occurred in order of seniority, so that the eldest is deemed to have died first and the youngest last. Applying the Commorientes Rule to our earlier scenario, if person A was aged 60 at death and person B was 59, then if they both died in an incident and it was impossible to say who died first, then the law would presume that person A died first. This would mean that person B would inherit from person A’s Will (unless there was a survivorship clause as discussed above).
Cover all Eventualities with Wellbeing Services' Will Writing Service
The scenarios outlined here are just a few of the issues that can arise when making a Will. At Wellbeing Services, we write hundreds of Wills each year and understand the importance of using a professional Will writing service that can help you navigate these types of issues.
If you haven’t made a Will yet and are not really sure where to start you can speak to one of our Will advisors and discuss your particular circumstances and see how we can help. We’re a member of The Society of Will Writers and offer fixed-fee pricing on all our Will writing services.