Survivance Flashcards
When can it be presumed that the deceased has died?
Not been known alive for 7years (1977 act)
Common law - when he would have been 100
What standard of proof is utilised to determine whether someone is deceased?
Balance of probabilities
Common calamity survivorship presumptions
Two people - younger survived the elder
Married couple - neither survived the other
Where one party had destination over in favour of the younger and someone else and the younger dies intestate, presumed that younger died first
What did SLC recommend?
Survivorship - 5 days
Most testators would not want their property to pass to someone who would only get to retain it for a couple of days, just a waste. Issue where beneficiary might dispose of property
Where 2 people die simultaneously, presumed that neither survived the other
What if more than 2 people under s31?
Calculated in groups of two eg 2 parents according to age, 2 children, then youngest child
Drummond’s JF V LA
Whole family died in Blitz. Before 1964, needed actual proof of survivable
Mitchell’s Executrix
Husband and wife and one of daughters killed in crash. Survived by 2 daughters and child of deceased daughter. Vesting took place when mother died. Couldn’t prove she had died though so son couldn’t take.
Ross’s JF v Martin
Mutual wills, 2 sisters said to my sis or charity. Couldn’t prove the other had predeceased so couldn’t go to charity. Such a pain. Intestacy as legacy failed
Lamb v Lord Adv
Action brought by sister of old woman, who had died along with her husband in a fire. Evidential burden higher than balance of probs? No! Evidence highlighted that old poorly man v likely to have died first, longer exposure to smoke
Issues with current law
Cohabitants with destinations over will suffer (goes to family of the younger, deffo not what testator would have wanted.
Destinations over don’t apply because you can’t prove that one survived or died!
Most people don’t want estate to pass to someone who only lived for 2/3 days.
Beneficiary could dispose of property
Younger surviving elder is quite random and arbitrary
England and Wales
28 days
Ireland
Deemed simultaneous death
France
Deemed simultaneous death
Germany
Deemed simultaneous death
EU regs
People dying in common calamity don’t get claim to estate of others who die alongside them
