A recent British court case showed how important it is to have a properly-drafted Will taking into account all contingencies.
The court had to determine which of two parents had died first. They were found in their bungalow, with no evidence of foul play.
The stakes were high – who got the money? The child or the stepchild?
It was like a movie! Forensic evidence of decomposition, pathologists’ evidence, shipwrecks and World War II air raids were all considered.
Avoid the costs and stress of this and get a properly designed will from an experienced lawyer who will walk you through the process, reduce your stress, and solve all your problems!
Recently, the UK High Court decided a Wills dispute between two stepsisters. The parents, John and Marjorie Scarle, died together from hypothermia almost three years ago.
John’s daughter, Anna Winter, needed to show that Marjorie died first in order to inherit the jointly-owned home and bank account.
Deborah Ann Cutler, Marjorie’s daughter, instead relied on the Presumption of Survivorship. This legal presumption deems that the youngest person was last to die.
Since the court was unable to determine which parent died first, the Presumption of Survivorship applied. Accordingly, Marjorie was deemed to have died after John, resulting in Deborah’s entitlement to the home and bank account.
Presumption of Survivorship exists in most Australian states, and has occasionally been applied. In New South Wales, Section 35 of the Conveyancing Act 1919 (NSW) states:
In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.
Furthermore, to prevent disputes arising in simultaneous death cases, Section 35(1) of the Succession Act 2006 (NSW) provides:
If a disposition of property is made to a person who dies within 30 days after the testator’s death, or, if that or another period for survival appears in the will, within the period appearing in the will, the will is to take effect as if the person had died immediately before the testator.
Accordingly, in simultaneous spouse death cases (unless a Will states otherwise), the Will of the person deemed to have first died will be operational. This may render particular gifts made under the second person’s Will ineffective.
If you need advice about Estate planning, about Estate disputes, or you wish to make a Will, then Martin Bullock Lawyers can assist you. Please call Greg Martin or Jacqueline Wainwright on (02) 9687 9322.