The new statute Wills, Estates and Succession Act (“WESA”) will come into force on March 31, 2014. WESA is going to have a profound impact on succession law, including the law governing survivorship.
Under the soon-to-be old law, in a common accident where it is impossible to tell who died first, the law arbitrarily presumed that the older person has died before the younger person. This presumption can cause an unfair result. For example, if a couple died in a plane crash, which made it impossible to determine who died first, the old law would presume that the younger spouse survived the older spouse. This means that the younger spouse’s heirs or beneficiaries may end up inheriting both the younger spouse’s estate and a portion of or even all of the older spouse’s estate.
WESA abolishes that arbitrary presumption. Under WESA, in a common accident where it is impossible to determine the sequence of death, each person is presumed to have survived the other. As such, in the same example, for the purpose of the wife’s estate, the wife is deemed to have survived the husband (the husband is deemed to have predeceased the wife for all estate purposes). For the purpose of the husband’s estate, the husband is deemed to have survived the wife (the wife is deemed to have predeceased the husband for all estate purposes). The result is that their respective estates will be passed to their respective heirs or beneficiaries in accordance with the intestacy rules or their respective Wills. Any assets the couple held as joint tenants would be deemed to be held instead as tenants in common upon the occurrence of such a common accident.
WESA also adopts a mandatory five-day survivorship rule. This means that if a person fails to survive the deceased by five days, then that person is deemed to have died before the deceased. Using the same example, if the wife died instantly at the plane crash, but the husband survived the wife for only 4 days and died in the hospital, then for the purpose of the wife’s estate, the husband is still deemed to have died before the wife. This five-day survivorship period is mandatory under WESA. A will-maker cannot shorten that period in the Will, but can expand it. The normal practice is to have a 30-day survivorship period, which is still advisable under WESA.