Estate Planning

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Background
Mr and Mrs Dawson died in an aeroplane crash on 1 October 2012 and it could not be established which one of them had died first. Mr Dawson was six months older than Mrs Dawson. Under Section 65 of the Succession Act 1981 (Qld) (“the Qld Act”), Mrs Dawson, as the younger person, was deemed to have survived Mr Dawson by one day.

This is reflected in NSW by Section 35 of the Conveyancing Act 1919 (NSW) which states:

“In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.”

Mr Dawson left a Will leaving his entire estate to Mrs Dawson. Clause 5 of the Will stated that if Mrs Dawson predeceased Mr Dawson, then his sister-in-law (“the Respondent”) was to receive half of the estate, his brother was to receive one quarter, and the remaining quarter was to be split between nieces and nephews.

The trial judge found that the estate should be administered by the Respondent on the basis of the gifts in clause 5 of the Will, and not on the basis of intestacy.

Construction of Section 33B of the Qld Act
Section 33B of the Qld Act provides that “if a disposition of property is made to a person who dies within 30 days after the testator's death, the will takes effect as if the person had died immediately before the testator”. However, Section 33B does not apply if a contrary intention appears in the Will.

These provisions are mirrored in NSW by Section 35 of the Succession Act 2006 (NSW).  

As highlighted in Desmarchelier v Stone [2005] 2 Qd R 243, “the purpose of the 30 day survivorship rule is to avoid the multiplicity of administration of the same property through several estates which might otherwise occur without unduly delaying the distribution to the beneficiaries”

As the Will expressed no intention that Section 33B should not apply, the Court held that it applies in this case.

Application of Section 33B to the Will

Because Mr Dawson was older than Mrs Dawson, he was taken to have died first. Mrs Dawson did not survive her husband by 30 days, therefore her gift of the entire estate failed to take effect.

The Appellant argued that the gifts in clause 5 of the Will which took effect if Mrs Dawson “predeceased” Mr Dawson, should fail because Mrs Dawson did not die during Mr Dawson’s lifetime, as determined by Section 65 of the Qld Act. She was deemed to have died second. 

The Court rejected this contention, stating “that approach would permit Section 33B no scope for operation at all, and deny the purpose of the provision, namely the avoidance of multiple administrations of the same property … Under Section 65, the deemed survivor is, by virtue of surviving one day longer than the testator, a person who has died within 30 days after the testator’s death. There is no warrant to think that such a person is not caught by Section 33B”.

Conclusion
The Court held that clause 5 of the Will operated as follows:

•    It is a deemed fact under Section 65 that Mrs Dawson died after Mr Dawson.
•    Under Section 33B, Mrs Dawson’s gift in the Will fails because she did not survive Mr Dawson by 30 days.
•    The gifts under clause 5 are enlivened because Mrs Dawson did not survive Mr Dawson by 30 days.

To ensure that both partners’ extended families benefit in the unfortunate event that you and your spouse die together, you should ensure that your Wills provide for each other’s families. Otherwise, as the elder spouse’s Will will be followed, the younger spouse’s family may not be provided for. 

At Rankin Ellison Lawyers we can assist you with these matters.  Please contact us on 1300 727 813 to speak to Andrew Metcalfe regarding your Will.


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