Commorientes and Survivorship

Graham and Teresa Dawson were involved in a head on collision with a semi-trailer in August 2015; both died at the scene of the accident.

Graham and Teresa left identical wills leaving their estate to the other and, if the other did not survive them for 30 days, the estate was to go to the same beneficiaries. Of particular relevance to the issue to be determined is clause 2 in each of the wills, which is in the following terms:


Where the order of deaths of any persons named in this Will is uncertain, this Will is to be interpreted as if the deaths have taken place in order from the oldest first to the youngest last.

There is no evidence as to whether Graham or Teresa died first; Teresa was younger than her husband. The executor sought a declaration from the court that a presumption arises that Teresa survived her husband; and in that event have the home transferred to the executor.

Graham and Teresa owned a house as joint tenants at 574A Portrush Road Glen Osmond, the right of survivorship means that, on the death of a joint tenant, the interest of that joint tenant passes by the right of survivorship to any remaining joint tenant or tenants. In this case, if one of the deceased died before the other, then the whole of that person’s interest in the property passes to that other and falls to be dealt with in the estate of the person who survived the longest.

In some jurisdictions common law principles still determine the general approach to the problem of proof of death. This matter was heard in South Australia where in cases of commorientes (where two or more persons dying at about the same time, usually in the same event, but in circumstances in which it is impossible to determine the order of death) it is to be decided upon the circumstances of each particular case having regard to all probabilities. Therefore, the burden of proof lies on the person asserting survivorship.

Many jurisdictions legislated to provide a presumption to be applied when the evidence about the order of death is inadequate that the younger person shall be presumed to have survived the older. As a consequence of this statutory presumption the common law has not developed in a century.

The court found that clause 2 of the will is an aid to the interpretation of the operation of the will and does not seek to usurp the common law in respect of survivorship.

The Court could not find a presumption to assist in this matter, and dismissed the application.

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