Presumption of Order of Death in Simultaneous Death Cases

If two people die together, and it cannot be determined who was the first to die, what happens? If they were entitled to all or part of the other’s estate, does the law step in to determine who died first?

In Re Tucker; Nunan v Aylward [2019] VSC 210, the Supreme Court of Victoria recently answered these questions in circumstances where a couple were stabbed to death in their home, and there was contradicting evidence about who was the first to die.

Facts: Gregory John Tucker (“Mr Tucker”) and his domestic partner, Korinne Aylward (“Ms Aylward”), were murdered on 8 December 2013. Mr Tucker and Ms Aylward both died without a Will. Mr Tucker’s estate was estimated to be worth $3.4 million dollars, and Ms Aylward’s estate was estimated to be worth $120,000. Both died intestate.

The issue of who was first to die was a critical issue in this case due to the operation of the Intestacy Provisions in the Administration and Probate Act 1958 (Victoria), which provided that:

• if Ms Aylward was the first to die, the estate would be distributed equally between the couple’s three minor children, and Mr Tucker’s three adult children from a previous relationship; but
• if Mr Tucker was the first to die, the couple’s three minor children would receive approximately $1.2 million more than the adult children.

Relatives of the couple applied to the Supreme Court of Victoria for a determination of who died first, for the purpose of determining what should happen to their respective estates.

Orders Sought: Mr Tucker’s adult children sought a declaration that Mr Tucker had survived Ms Aylward. Ms Aylward’s mother, on behalf of the deceased couple’s three minor children, opposed the application and sought a declaration applying the presumption in section 184 of the Property Law Act 1958 (Victoria), with the effect that (as the older person) Mr Tucker had died first.

As a result of discussions at mediation, the parties submitted a ‘global’ settlement for the Court’s approval (as it affected the rights of the minor children) which included:

• an agreement about the order of death;
• a proposed division of Mr Tucker’s estate and Ms Aylward’s estate (adjusted in favour of the adult children); and
• full releases from all parties from any further claims, including family provision claims under the Part IV of the Administration and Probate Act 1958 (Victoria).

The Court informed the parties that a determination was required about the order of death before any settlement could be approved, and ordered them to provide evidence for the purpose of making that determination. The Court also appointed an independent party to represent the interests of the minor children, and provide confidential advice to the Court.

Expert Evidence: In response to the orders of the Court, Mr Tucker’s adult children provided expert medical evidence which indicated that:

• Mr Tucker had remained upright and had moved around after he was stabbed;
• Ms Aylward had moved very little after she was stabbed; and
• the damage to Ms Aylward’s heart was of greater severity/extent,

and concluded that it was probable that Ms Aylward had died before Mr Tucker.

Ms Aylward’s mother provided expert evidence that it could not be determined who died first. This evidence concluded that:

“…it cannot be stated with any degree of certainty who died first in this case, given the lack of certainty in what order the stabbings were sustained, the order in which the various organs of the body were injured, and how each person was affected by the injuries. Even assuming all the wounds were first sustained by Ms Aylward and then Mr Tucker sustained all his injuries, it remains entirely possible for Ms Aylward to have died after Mr Tucker.”

The Law: Where simultaneous deaths occur, and the deceased persons are beneficiaries of each other’s estates, it is necessary for the order of death to be determined so that the estates can be administered. The statutory presumption in relation to the order of death only applies where the Court determines the order of death is uncertain (see Re Comfort (1947) VR 237, Re Brush (1962) VR596 and Re Zappullo (1966) VR 390. 1).

In Victoria, section 184 of the Property Law Act 1958 (Victoria) provides:

“Presumption of survivorship in regard to claims to property

In all cases where, after the second day of December One thousand and nine hundred and twenty five, 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), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

The Decision of the Court: The Court held that the order of death of Mr Tucker and Ms Aylward was uncertain, and applied the presumption in section 184 of the Property Law Act 1958 (Victoria) with the effect that Mr Tucker (as the older person) had died first.

The Court however refused to approve the proposed settlement, noting that it had not been provided with sufficient evidence to enable it to do so. The Court ordered the parties to proceed with the administration of the respective estates of Mr Tucker and Ms Aylward, and noted that those beneficiaries (being adult children) who wished to claim further provision should do so through the usual procedure under Part IV of the Administration and Probate Act 1958 (Victoria).

Relevance in Tasmania: The corresponding legislation in Tasmania, which contains the same presumption as the Victorian legislation, is section 2 of the Presumption of Survivorship Act 1921 (Tasmania).

“Presumption of survivorship
In all cases where two or more persons have died in circumstances rendering it uncertain which of them survived, their deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be presumed to have survived the elder.”

Although the issue of order of deaths would have still arisen, and required determination by the Court, if Mr Tucker and/or Ms Aylward had completed Wills setting out their wishes for the distribution of their respective estates, this matter could have been dealt with more simply and avoided the high legal costs that were incurred (the Court recorded that the costs to date of the adult children in this case were $85,000.00).

While this is an unusual situation, it highlights the importance of couples making a plan for what should happen to their estate when they die. This is particularly important where one or both have children from a previous relationship.

Kimberley Martin B.A. LL B (Hons)
Partner
Worrall Moss Martin Lawyers
kimberley.martin@wmm.com.au

Ashleigh Furminger B.A. LL B.
Lawyer
Worrall Moss Martin Lawyers
ashleigh.furminger@wmm.com.au