We have recently been involved in the tragic matter of In the Estate of Graham William Dawson (Deceased) and Teresa Veronica Dawson (Deceased)  SASC 89 where a husband and wife were involved in a motor vehicle accident in which they both died. The car in which they were travelling was involved in a head on collision with a semi-trailer. There was no evidence as to which of the two died first, or whether they died at the same time. It will therefore remain uncertain who died first.
- One of their assets was their main residence. They held their respective interests in this property as joint tenants. They each left mirror image wills which identified beneficiaries in the event the survivor of them did not survive the other by 30 days. Of particular relevance was clause 2 in each of the wills which states: “Where the order of deaths of any persons named in this Will is uncertain, this Will is to be interpreted as if the deaths have taken place in order from the oldest first to the youngest last.”
The practical problem we were faced with was how to deal with the jointly held property where there is the presence of an identical clause containing a presumption of death based upon age in each of the two deceased’s wills. That is, could we rely on the presumption contained in the wills to sever the joint tenancy and subsequently deal with the property in accordance with the will of the youngest?
- In this matter we were faced with the law as to commorientes. In The Principles of the Australian Lands Titles (Torrens) System the learned author said: The right of survivorship in joint tenancy springs from the unity of interest which exists between joint tenants, joint tenants being said to be seized per my et per tout, that is, each of them has the entire possession as well of every part as of the whole. It follows that, in the case of commorientes, where survivorship cannot be shown, the moieties are transmissible in severalty.
Accordingly, if the law in respect of commorientes is not displaced, then the moiety each of the deceased held in the property will fall into their respective estates.
The presumption of survivorship of the younger has been legislated in some Australian jurisdictions. No such legislation currently exists in South Australia. The Law Reform Committee of South Australia considered the issue in the 1980s. It recommended that legislative reform be undertaken, but no such steps have been undertaken.
- In this matter, a question to be determined by His Honour was whether clause 2 of the will has any effect on the common law position. His Honour held: In my opinion, the answer to that is no. The clause itself states that the purpose of the clause is as an aid to the interpretation of the operation of the will. That is a limited purpose. It does not seek to usurp the common law in respect of survivorship. Even if, on a proper construction of the clause it sought to vary the common law of survivorship, it would not do so.
Ultimately, in this matter it was held that no presumption in respect of the order of death arises at common law. The Court ordered that the Registrar-General record an entry on the Certificate of Title on application to be made by the executor to be registered as the proprietor of an estate in fee simple in an undivided moiety in the parcel of land comprised in the said Certificate of Title in each of the estates of the said deceased persons.
- This particular case has provided the profession with a useful summary of the common law position in respect of commorientes and interestingly, even His Honour has stated that “In an appropriate case an appellate court might consider the issue and modify the common law approach. Alternatively, the legislature could bring into effect a presumption in the form that exists elsewhere. However, until that happens, it is necessary to apply the common law as it is found in the cases.” It is also the author’s view that the Law Reform Committee of South Australia reconsider the common law position in respect of commorientes and whether legislative reform be undertaken. In this particular case there would have been clear advantages in the property falling in to the estate of the younger.
- Michael Giglio – Adelta Legal
 Donald Kerr, The Law Book Company of Australasia Limited (1927).
 In the Estate of Graham William Dawson (Deceased) and Teresa Veronica Dawson (Deceased)  SASC 89 at 25.
 In the Estate of Graham William Dawson (Deceased) and Teresa Veronica Dawson (Deceased)  SASC 89 at 29.