I recently had the opportunity to visit the ruins of Herculaneum, an ancient city near Naples that, like Pompeii, was destroyed by the eruption of Mount Vesuviusin 79 AD. While we are familiar with the story of the cities which were destroyed, walking though the restored remains of the city brought home to me the fact that disasters, natural or otherwise, can in fact decimate an entire family. My thoughts then drifted to what would happen if the family that died together were all without wills. In BC, we would look to the Survivorship and Presumption of Death Act. It provides that if two or more people die at the same time (or in circumstances that make it uncertain which of them died first) the law presumes that they died in order of the oldest to the youngest.
This means that if a married couple have no children and no will, and are killed in the same car accident, then the older person is deemed to have died first. Our intestacy laws will then cause the older spouse’s estate to be gifted to the younger spouse. The couple’s assets, then, would be distributed to the younger spouse’s family, and not to the family of the older spouse. As this does not appeal to many couples who are planning their estates, wills commonly have terms requiring a beneficiary to survive the testator for a certain period of time, say 30 days, before the gift becomes effective.
We should note that the Act referenced above will change with the introduction of the new legislation known as WESA. However, we are still waiting for WESA to become law.
While both Herculaneum and the scenario I depicted of above happen occasionally, fortunately both natural disasters and tragic family accidents are statistically infrequent. Having said that, we plan our futures based upon possible happenstances and the above just points to another reason why it is desirable to have a will and in the appropriate circumstances a more structured estate plan.