Survivorship is concerned with the factual question of determining the order of death in a common disaster between family members .
Much of estate law is based on a body of law and statutes that govern the law of succession- the transfer of personal wealth after death, and the rules relating to Survivorship form part of this body of law.
Under estate law a gift in a will to a beneficiary who has predeceased the will maker will causes that gift to lapse and fall into the estate residue, and to the surviving residual beneficiaries.
Thus the law developed under estate law that the younger person is presumed to have survived the older person and thus the estate of the younger person would inherit.
The difficulty that arose over the years in common fatalities is that under the Insurance Act, the beneficiary is presumed to have predeceased the insured person . This presumption applies today and is found S 83 Insurance Act and s 130 for accident and sickness insurance.
This obvious conflict in the two approaches gave rise to legal conflict and WESA set out to change it by bringing the law more into conformity with the approach of the Insurance act.
Survivorship Rules Under WESA:
- In situations where it is unclear as to the order of death as to who survived who will be determined as if each deceased person is presumed to have survived the other or others;
- The aforesaid presumption may be opted out of by expressing a contrary intention in another document, preferably a will, but WESA contemplates an expanded definition to include deeds, trusts, insurance policy, pension, power of appointment documents such as Powers of Attorney.;
- 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;
- There is a mandatory 5 day survival; requirement in order to inherit, otherwise the person is presumed to have predeceased the other
- The 5 day mandatory also applies to posthumous births ( baby conceived but is born after death of will maker)