If the unthinkable were to happen and both parents die at the same time, say in a car or plane crash, what happens in regard to their wills?
In most cases, parents would leave their estate first to their spouse, then to their children. However, what if they have children from previous relationships? What if they are childless, and the will of one spouse directs their home to go to her sister, while her partner's will states it should go to his parents?
This type of complexity arises more often than one would think, particularly with more people having blended families which include children from different relationships.
Fortunately, the law has a solution for this situation, even if it may not always make sense in the real world.
How the law determines the beneficiaries of an estate when both parents die simultaneously
The Succession Act 2006 states that if both parents die at the same time, for example in an accident, the younger partner is deemed to have died second, and it is their will that applies.
This means the younger person would inherit any estate left to them by the elder partner, such as the family home and assets. It also means that the beneficiaries of the younger person's will are entitled to the estate.
Wills can be affected by the time between the deaths of the partners
Section 35 of the Succession Act contains a quirk that can effectively deem one partner to be dead, even if they are actually still alive. This is what happens when a person inherits assets from another person's will, but dies shortly after them.
For instance, say a wife lives for 29 days after her husband is killed in a car crash. He left all his estate to her in his will, but because she does not outlive him by 30 days as required by section 35(i) of the Succession Act, she is legally classified as having died before him.
The section states that a beneficiary of a will must live 30 days longer than the testator in order to inherit. So, here's the twist: the wife who died 29 days after her husband is classified by law as having been dead for those 29 days, even though she was actually still alive.
If, however, the wife lived more than 30 days after her husband died, she would inherit his estate, which would then be added to her will and be passed to her beneficiaries.
Complex family structures require expert will advice
With family structures becoming ever more complicated, it is wise to get expert legal advice when drawing up a will. A wills specialist can identify the potential pitfalls of a will in the context of your particular circumstances. They can also ensure that if both parents were to die at the same time, their estate would be distributed according to their wishes.
For example, a lawyer can draw up a will that states if both parents die at the same time, it excludes the application of section 35 of the Succession Act. Or they can adjust the outsurviving period to be shorter or longer.
Why seek specialist advice on wills?
With ever more wills in Australia being challenged, it's best to make yours as legally watertight and specific as possible, covering all circumstances.
On the other hand, if you feel you've been unfairly left out of a will, an experienced lawyer who specialises in wills could find grounds for challenging it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
