A recent high Court case has been reported concentrating on a dispute that arose amongst family members when their parents died “together”. This is an issue that, although rare, can cause difficulties when it happens. The significant point is “how assets are to be distributed if it has proved impossible to tell which of two people died first”. You could see this situation arising as a result of an accident or, simply, if death occurred at the same time but, for tax reasons or for legal reasons, it is necessary to determine which person was the first to die.
Historically, the general rule is that where two or more people have died simultaneously or where it has been impossible to determine the order of death, the presumption is that the elder of the two died first. Of course, this presumption can be rebutted by evidence, as necessary.
In a recently recorded case, an elderly couple died at their home, where it was determined that the cause of death was hypothermia. Due to the cause of death, it was impossible to tell which of the couple died first. The historical rule, called Commorientes, came into play and the elder was deemed to have died first. This meant that the gentleman died before his wife. Difficulties arose due to the fact that each had children from former marriages and, because of the Commorientes Rule, one branch of the family did not received what they felt was their inheritance.
Clearly, this caused a great deal of wrangling, it resulted in litigation over a long period of time and incurred large legal fees for the arties involved. If a properly drafted Will had been in place for this couple these issues might have been avoided. This is, therefore, another instance where the making of a Will can answer many unanswered questions and lead to a more satisfactory and prompt conclusion to the administration of an estate. Although used infrequently, the Commorientes Rule can cause division within a family where a Will may not.