In a situation where two or more persons die simultaneously in an accident or under similar circumstances, the order of their deaths may be critical in determining who is to receive any jointly held property after death. This is particularly so in the cases of spouses or family members who pass away at the same time owning property together.
The order of death is important because property (real or personal) which is held jointly and cannot be gifted or disposed of via will and must pass on to the other joint holder by operation of the presumption of ‘survivorship’. Thus, the order in which two or more persons die may affect which side of the family any jointly held property will fall, which could include houses, cars and even funds held jointly in bank accounts.
The way in which the order of deaths is determined is set out in legislation by each State, but are all fairly uniform. In most cases, the order of death is to be determined by the order of seniority in that the younger is deemed to have survived the elder. In cases where two deceased own joint property together, the interest of the senior deceased person will revert to the estate of the younger person.
- NSW, s.35 Conveyancing Act 1919 (NSW).
- QLD, s. 65 Succession Act 1981 (QLD)
- VIC, s.184 Property Law Act 1958 (VIC)
- TAS, s.2 Presumption of Survivorship Act 1921 (TAS)
- NT, s.217 Law of Property Act 2000 (NT)
In Western Australia. s.120 Property Law Act 1969 (WA) provides, among other things, any property owned jointly and exclusively by two or more of the persons so dying, shall devolve as if it were owned by them when they died as tenants in common in equal shares.
In the ACT, s.49P Administration and Probate Act 1929 (ACT) provides that where two or more persons die at the same time the property of the benefactor devolves as if the benefactor had survived the beneficiary and had died immediately after the beneficiary.
Provisions such as these underscore the importance of having a will in place. It also highlights the need to carefully consider whether one holds real property with others based on “joint tenants” or “tenants in common”. See our article here on the differences.