When a beneficiary dies before the testator even for one second, it is clear that he/she will not be entitled to receive the inheritance. The next surviving substitute beneficiary will inherit as shown in the diagram. This is easily determined by referring to the time of death of the beneficiary against the time of death of the testator.
There are a few unique situations:
- The testator and a younger beneficiary died at the same time or it cannot be determined who died first such as in an accident; or
- The testator and an older beneficiary died at the same time or it cannot be determined who died first such as in an accident; or
- The testator and a beneficiary of the same age died at the same time or it cannot be determined who died first such as in an accident; or
- The testator and a beneficiary (whether same age or older or younger) died at the same time or it cannot be determined who died first such as in an accident but with a commorientes clause in the Will.
Let’s go discuss each of these.
1) The testator and a younger beneficiary died at the same time or it cannot be determined who died first such as in an accident.
Under the Presumption of Survivorship Act 1950 it states that the younger person will be deemed to have survived the older (in other words, the older dies first; or the younger survives).
By applying the above, the younger beneficiary is said to survive the testator and therefore is able to inherit from the testator. In this case the beneficiary’s estate will receive the inheritance.
Husband & Wife case for example:
2) The testator and an older beneficiary died at the same time or it cannot be determined who died first such as in an accident.
Applying the same Act mentioned above, the older beneficiary will be said to have predeceased the testator thus his estate will not be receiving the inheritance. The substitute beneficiary of the older beneficiary named in the testator’s will or if there is no substitute beneficiary, the residue beneficiary will be entitled.
3) The testator and a beneficiary of the same age died at the same time or it cannot be determined who died first such as in an accident.
Using the same Act, there is a need to determine when who is born earlier or later to determine who is older in age. The answer lies in either (1) or (2) above.
4) The testator and a beneficiary (whether same age or older or younger) died at the same time or it cannot be determined who died first such as in an accident but with a commorientes clause (also known as a survivorship clause) in the will.
Where there exists a commorientes clause in the will, the provisions in the Presumption of Survivorship Act shall not apply.
What is a commorientes clause and how does it work?
The commorientes clause is written as follows:
“In the event any of the beneficiaries does not survive by thirty days, he/she shall be treated as having predeceased me”. The number of days stated above can be amended to be shorter or longer.
The intention of including such a clause in a will is to prevent the gift from being part of the estate of a beneficiary who did not survive long enough to enjoy the gift. It is also not possible to state the most appropriate number of days to be stated, simply because no one knows when the beneficiary will die.
The diagram below illustrates how the clause operates.
So, if the beneficiary does not survive the testator for more than the period stated, he/she will be treated as having died before the testator and the share of the testator’s estate that was bequeathed will be distributed to the substitute beneficiary of the assets or fall under the residuary estate. Thus, it is important for your client to include a commorientes clause if he wants to prevent his hard-earned assets from going to an unintended beneficiary’s hands such as a brother in law!
As a Professional Rockwills Estate Planner, you may advise your clients to include a commorientes clause in their Will.
Conclusion
This clause overrides the legal presumption in the Presumption of Survivorship Act 1950 and it helps your client to exert a certain control over his assets, so that if the main beneficiary dies shortly after him, the assets will not pass according to the main beneficiary’s own will or intestacy, but according to your client’s intention.
**Please refer to the Q&A below for your further clarification
Commonly asked Questions
- What is a Commorientes Clause?
It is a clause in a Will which states that a beneficiary must survive for a given period of time (30 days recommended) for the gift to take effect. If the beneficiary dies within the stated period, then the gift will fail and will be distributed to the Substitute Beneficiary/ies as named by the Testator in his Will. Such a clause is important to secure the benefits of the Substitute Beneficiary/ies. - Why it is not advisable for the survivor period to be too long?
Despite the freedom for the client to decide on the length of time the beneficiary must survive, it is not advisable for it to be too long. This is because distribution by the executor cannot be done to the beneficiary until the expiry of the period stated in the commorientes clause. For example, the testator died in February 2019 and probate was obtained in July 2019, the executor settled all the debts and taxes of the testator by October 2019 and was ready to distribute in November 2019. However, the commorientes clause stated that the beneficiary must survive him by 365 days. Due to this, the executor can only establish who the beneficiary is in March 2020, after 365 days of the death of the testator, and distribute the bequest accordingly.
Now you understand more about the commorientes clause! But some of you may be wondering whether it is necessary to include such a Clause if the intended Substitute Beneficiary of both husband and wife is the same person?
Stay tuned for our next Circular to find out the answer!!
Disclaimer: This article is given purely for information drawn from other sources and Rockwills make no representations, express or implied, thereon and shall not be responsible for the accuracy of such information.