It is a sad reality that the spectre of what has come to be called a “common disaster” often drives estate planning. So, for example, a young couple leaving their kids with their parents while they enjoy a second honeymoon may feel the need to finally make wills. And while the risk to their mortality remains extremely low, it is nonetheless the remote prospect of dying together in a plane crash that likely drives their decision.

It makes sense, then, for any drafting lawyer to explain what happens if the couple dies together.

Part IV of the Succession Law Reform Act is the shortest “part” of the statute, titled “Survivorship.” Section 55(1) reads as follows:

Where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person, or any property of which he or she is competent to dispose, shall be disposed of as if he or she had survived the other or others.

It is this clause that drives the near universal “thirty day” clause governing whether a residual beneficiary (often a spouse) will be considered the “survivor.”

Special care needs to be given to jointly held assets. Section 55(2) of the SLRA states:

Unless a contrary intention appears, where two or more persons hold legal or equitable title to property as joint tenants, or with respect to a joint account, with each other, and all of them die at the same time or in circumstances rendering it uncertain which of them survived the other or others, each person shall be deemed, for the purposes of subsection (1), to have held as tenant in common with the other or with each of the others in that property [emphasis added].

Although intuitive, this is an instance of severance of joint tenancy that exists outside of the usual categories as set out in Hansen v. Hansen Estate.

The bottom line is that the alternate gifts in the Will really do matter and will kick in with respect to just about every asset. Special care must be given to examine and consider the common disaster scenario, especially in the context of blended families and second marriages, to avoid unintended consequences. It will be helpful to clients to be given illustrations. (… and thanks to S.T.M. Smith for the last-minute blog idea!).

David Morgan Smith