I am often asked the question by clients when taking Will instructions – What happens to my estate if my spouse and I both die at the same time?
Unfortunately, this is a morbid reality which can arise in situations where multiple parties die in unforeseeable circumstances – such as a car accident, home invasion or plane crash.
My initial advice is that you should always have a substitute Executor/s and substitute Beneficiaries in the event that those you have appointed at first instance predecease you. However, if you and your spouse’s substitute Executors and Beneficiaries are not the same – this can cause issues if you were to both die at the same time.
In circumstances where spouses die without Wills and at the same time – as was the circumstances in the case of Re Tucker; Nunan v Aylward  VSC 210 – complex, lengthy and costly court proceedings can arise.
Facts of the case – Re Tucker; Nunan v Aylward  VSC 210
Gregory John Tucker and his de facto partner Korinne Aylward were murdered on 8 December 2013. They both died intestate (died without making Wills). Gregory’s estate was estimated to be worth $3.4 million dollars, and Korinne’s was estimated to be worth $120,000.
In this case, the issue of who was first to die was a critical issue due to the operation of the Intestacy Provisions in the Administration and Probate Act 1958 (Victoria), which provided that:
if Korinne was deemed the first to die, the estate would be distributed equally between the couple’s three minor children, and Gregory’s three adult children from a previous relationship;
but if Gregory was deemed the first to die, the couple’s three minor children would receive approximately $1.2 million more than the adult children.
An Application was made by the adult children of Gregory seeking a Declaration that he had survived Korinne and therefore the estate should be divided equally between the 6 children (minor and adult children).
The Application was opposed by the guardian of Gregory and Korinne’s minor children who relied on the presumption in section 184 of the Property Law Act 1958 (Victoria) being that – where a Court cannot determine through medical evidence, or other evidence which is available as to which party died first – the presumption is that the older person of the two is presumed to have died first. Gregory was the oldest of the two parties and therefore it was opposed on the basis that it should be deemed that he died first.
The Decision of the Court
The Court held that the order of death of Gregory and Korinne was uncertain, and applied the presumption in section 184 of the Property Law Act 1958 (Victoria) with the effect that Gregory (as the older person) had died first.
The Court ordered the parties to proceed with the administration of the respective estates of Gregory and Korinne, and noted that those beneficiaries (being adult children) who wished to claim further provision should do so through the usual procedure under Part IV of the Administration and Probate Act 1958 (Victoria). The Court recorded that the costs of the adult children, in this case, were $85,000.00.
Relevance in Queensland
The corresponding legislation in Queensland, which contains the same presumption as the Victorian legislation, is section 65 of the Succession Act 1981 (Qld) which states that:
“Where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder for a period of 1 day”.
In simple terms, the presumption of survivorship applies in Queensland; that the elder of the two is deemed to have died first (by one day).
The case above highlights the importance of couples making a plan for what should happen to their estate when they die. This is particularly important where one or both have children from a previous relationship.
We have a dedicated Wills and Estates Team that can assist you with your Enduring Power of Attorney, Wills and Estate planning.
Please call us on 3345 4388 if we can assist you.
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