What if a couple die at the same time?

There is often confusion about what happens to (Queensland) estate assets where a couple has died more or less at the same time.

Depending on what the wills say, the position is clarified under Queensland’s Succession Act (“the Act”) quite nicely, though as usual the devil is in the detail.

By section 65 of the Act, where it cannot be certain who died second, the younger person is taken to have survived the elder for a day for all purposes affecting the title to property. Those words have been underlined for a reason, as this section is limited to matters affecting the title to property.

As a result, if (for example) a home is owned by Sid and Nancy as joint tenants. Sid is 3 months older than Nancy. In Sid’s will, he gives his estate to his father, Johnny. In Nancy’s, she gives her estate to her two brothers, Paul and Steve, provided that they survive her.

Sid and Nancy die in circumstances where it is unclear who died first. Sid is taken to have died first, meaning that his interest in the home is transferred to Nancy under the joint tenancy. Then Nancy’s brothers – Paul and Steve – will get the house from Nancy’s estate. Sid’s father (Johnny) misses out.

So then what happens if one of Nancy’s brothers dies two days after Nancy? Well that is where section 33B steps in. It provides that if Paul or Steve die within 30 days of Nancy, then they are taken to have died before Nancy. So if Paul died within a month after Nancy, then Steve would get the house from Nancy’s estate. If Paul had died 31 days after Nancy, then his estate would receive half of the house.

So these things can have fairly devastating consequences, and thought has to be given to them in estate planning. For estate planning matters, please contact Jessica Murray or Peter Muller at our office on 5574 0111.