Beneficiaries Must Now Outlive the Deceased By 5 Days to Inherit Under WESA

As recently reported, a husband and wife who died within 15 hours of each other after 70 years of marriage, would under the laws of WESA, not inherit from the other, as there is now a requirement that the beneficiary MUST survive the deceased for at least five days.

This is not all that radical a change in the practice of wills drafting , given that most will maker’s execute wills wherein there is a 30 day survival requirement .

From a factual point of view it is  relatively common that parties die at the same time or in circumstances where it is uncertain which of them survive the other or others .Most disasters for example are such situations.

WESA repealed section 2 of the former Survivorship and Presumption of Death act ,and renamed it Presumption of Death act, and sets out new survivorship rules in part 2,  sections 5– 11  of the WESA .

The previous statute had been the law for many decades  and often conflicted with provisions of the insurance act.

Generally speaking the previous law was that where it was uncertain as to who survived the other, it was presumed that the  younger person survived the older person(s)

Aside from the requirement that a beneficiary must now outlive the deceased by five days,  a summary of the changes relating to survivorship  and priority of beneficiaries is as follows:

(1)               in common disaster, situations or in other circumstances where it is uncertain who sur­vives the other or others, rights to property will be determined as if each deceased person is presumed to have survived the other or others;

(2)               each person is permitted to opt out of the presumption by expressing a contrary intention in any document;

(3)               if joint tenants die simultaneously, their joint tenancy will be converted to a tenancy in common so their respective estates will benefit from their shares of the jointly held property;

(4)               if a person fails to survive another for at least five days, that person is deemed to have predeceased the other (except for any rights as personal representative);

(5)               the five-day survival period is applicable to posthumous births, such that if a baby is con­ceived before an intestate’s death but is born and lives at least five days, that baby is considered to have been alive at the death of the intestate; and

(6)               a person cannot opt out of the five-day survival period.



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