Unfortunately, it is not uncommon for spouses (or other family members) to die in a “common disaster” or tragedy, in which they die at the same time or in circumstances that make it uncertain which of them survived the other. One spouse may also survive the other, but then die mere days later (perhaps from injuries caused by the “common disaster”). If the two spouses have different estate plans, then the question arises: how are each of the estates to be distributed? This may be an issue when dealing with multiple marriages and blended families, where perhaps each spouse has left all or part of their individual estate to the other spouse and their own children, but not to their stepchildren. This arises not just with respect to their wills, but also with respect to jointly registered property, which carries with it a right of survivorship.
Fortunately, the Wills, Estates and Succession Act (“WESA”) simplifies this issue in British Columbia.
WESA provides that if two or more persons die at the same time or in circumstances that make it uncertain which of them survived the other, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other. If two or more persons held property as joint tenants, then unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or joint account as tenants in common with the other or with each of the others.
WESA goes one step further: a person who does not survive a deceased person by five days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person. If two persons hold property as joint tenants, or hold a joint account, and it cannot be established that one of them survived the other by five days, then one half of the property passes as if one person survived the other person by five days, and one half of the property passes as if the other person had survived the first person by five days. Under the wording of WESA, the five-day survival requirement cannot be shortened in a will, but it can be extended.
As a result, in these circumstances each person’s assets (or their “half” of joint property) forms part of their estate and will be distributed as per their estate plan.
The above provisions do not apply to certain insurance monies, which are dealt with under the Insurance Act. For example, unless a contract or declaration provides otherwise, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable as if the beneficiary had predeceased the person whose life is insured.