The importance of the order of death

The importance of the order of death

By Gunnar Dahl and Natasha Louw

Two or more persons often die in the same calamity.  Think of a ship sinking, an airplane crashing, or a motor vehicle collision.  The order of death can have important consequences.  The following example illustrates the point:

A mother (Noreen), aged 50, and son (David), aged 16, both died when the plane on which they were travelling crashed, killing all of the passengers and crew.  Noreen’s testament provided that she left her entire estate to David, provided that he survived her, but to her mother (the son’s maternal grandmother) if he (David) did not survive her.  If Noreen had died first, David would inherit her estate (for a brief period of time), and in practice David’s intestate heirs would inherit Noreen’s estate.  If David died first, or if they died simultaneously, the grandmother would inherit Noreen’s estate. 

A mother (Noreen), aged 50, and son (David), aged 16, both died when the plane on which they were travelling crashed, killing all of the passengers and crew.  Noreen’s testament provided that she left her entire estate to David, provided that he survived her, but to her mother (the son’s maternal grandmother) if he (David) did not survive her.  If Noreen had died first, David would inherit her estate (for a brief period of time), and in practice David’s intestate heirs would inherit Noreen’s estate.  If David died first, or if they died simultaneously, the grandmother would inherit Noreen’s estate. 

In Deceased Estate James Scarle v Deceased Estate Marjorie Scarle, a decision of a High Court in England, on 13 August 2019, similar facts were adjudicated.  James (aged 79) and Marjorie (aged 69) were married to each other.  Each had a daughter from a previous marriage.

James and Marjorie were found dead in their house in Essex.  Postmortem examinations determined that both had succumbed to hypothermia (a decrease in body temperature that if not treated timeously leads to death). Their bodies were found in different rooms in the house, and only after they had been dead for several days.

James’ daughter, Anna Winter, would benefit financially if Marjorie had died first; and Marjorie’s daughter, Deborah Cutler, would benefit financially if James had died first.

Anna had facts on her side, as Marjorie had serious pre-existing medical conditions (a brain haemorrhage and stroke), she needed a wheelchair outside of the house, and her condition had recently deteriorated further.  In addition, when James and Marjorie’s bodies were found, the decomposition of Marjorie’s was more advanced.

Deborah had a law on her side, as the (English) Law of Property Act of 1925 provides that if “two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court) … be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

Deborah also had some facts on her side: although James was Marjorie’s carer, a neighbour gave evidence that James’ health had recently deteriorated.  In addition, Deborah had expert evidence that the decomposition rate of the bodies could have been affected by different temperatures in the relevant two different rooms. 

In a very close call Deborah won.  Anna just failed to overcome the statutory presumed order of death.

How would a South African court decide regarding similar facts?  The leading case, Ex Parte Graham, was decided in 1963 in Durban.  The facts in that case are provided in the example at the beginning of this article.  The Judge considered presumptions dating from antiquity regarding the order of death in the event of uncertainty, in particular the presumptions that if a parent and child die in the same catastrophe, if the child is under the age of puberty, the child died first, and if the child had reached the age of puberty, the parent died first.  The Judge rejected the presumptions:  

I do not believe that it is either necessary or desirable slavishly to follow such completely artificial reasoning in these modern times.  In any event, it must be remembered that the general rule is that there is no presumption.

Such disputes can be avoided by careful drafting in one’s testament.  Unless a client has a different requirement, we expand the meaning of “predecease” to include to die simultaneous with or within a specified number of days (for example 30 days) of the death of the testator.

Also in this issue:

More quotes from Voltaire

The South African spanking case

Raising the middle finger

The Paradise Papers

Stick to the contract