Survivorship, not always as simple as Outwit, Outplay, Outlast or even just Outlive

Posted on Nov 27, 2019 by Liam Tobin   |   Categories: Wills & Estates

A last will and testament functions to allow a person to direct the roles of executor and beneficiary of the estate of the deceased to particular persons that survive them. However, the question of whether a person has legally survived the willmaker can be impacted upon by several factors and be surprisingly complex and has recently come before the Supreme Court of NSW.

Time Periods

Much of the legislative requirements for survival are contained in the Succession Act 2006 (NSW) (“the Act”). Section 35 of the Act confirms that Beneficiaries must survive the willmaker by 30 days, unless the will provides for a different period of survival, or contains a contrary intention in the document. If a person does not survive for this prescribed period they are treated under the will as if they had died immediately before the willmaker.

Simultaneous Death

In cases where two persons have died in circumstances where it is not possible to determine who passed away first, section 35 of the Conveyancing Act 1919 (NSW) dictates that for the purposes of determining the survivor for property titles, the deaths are presumed to take place in order of seniority, with the younger deemed to have survived the elder person.

Intestate estates

Section 107 of the Act imposes a different obligation on the survivors of a person who passes away without a will, referred to as “intestate”.

A person will not be regarded as having survived an intestate unless the person is born before the intestate’s death and survives the intestate by at least 30 days, or the person is born after the intestate’s death after a period of gestation in the uterus that commenced before the intestate’s death and survives the intestate for at least 30 days after birth. This rule is relaxed if it would result in the estate passing to the Government.

Recent Ruling

The Supreme Court of NSW was recently tasked with dealing with issues of survivorship and the intentions of the willmaker in the case of Re Lapalme; Daley v Leeton [2019] NSWSC 1072 and attempting to identify the intentions of the willmaker.

The last will and testament left assets to be divided between ‘those grandchildren as shall survive me and attain the age of 18 years….” At the time that the will was made Ms Lapalme had one grandchild, with two more born prior to her passing, and two more born following her death prior to the Court addressing the case.

In determining whether the grandchildren born in the period after the death of the willmaker but before the hearing were beneficiaries, the Court found that where the beneficiaries were identified by way of description, the presumption is that the persons who fulfil that description as at the date of execution of the document take the gift. However, that presumption is displaced where the beneficiaries are listed as a class of beneficiaries, in which case all persons in that class of persons at the date of death of the willmaker shall be considered to be beneficiaries.

The Court took the view that it was improbable that it was the willmaker’s intention to exclude those grandchildren born after her death, and as such beneficiaries born after the death of the willmaker were treated as surviving her.

The Court further found that the class of persons would not remain open for eternity, and closes once the first grandchild met the condition in the will of attaining 18 years of age.

A grandchild who had been conceived but not yet born as at the date that the class was closed was found to also be included as a beneficiary.

The above points confirm the importance of documenting testamentary intentions in a last will and testament. If you have any queries relating to ensuring that your current document properly contains your intentions, or preparing a new will document, contact Liam Tobin at Baker Love Lawyers.