## Wednesday, November 30, 2016

### Counting the Days: How to Calculate the Five-Day Survival Period in Section 10 of the Wills, Estates and Succession Act

Section 10 of the Wills, Estates and Succession Act provides for a 5-day survival before a person may inherit from another. For example, if in your will you leave your estate to your spouse, then she must survive you for a period of at least five days (although you may specify a longer survival period in your will).  Similarly, if you and your spouse hold your residence as joint tenants, then for either of you to acquire the whole of the property by right-of-survivorship, the survivor must outlive the other by at least five days. Otherwise, in the case of a joint tenancy, if both joint tenants die within five days of each other, then one-half interest passes through the estate of each co-owner.

Section 10 (1) and (2) read as follows:

10  (1) A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.
(2) If 2 or more persons hold property as joint tenants, or hold a joint account, and
(a) in the case of 2 persons, it cannot be established that one of them survived the other by 5 days,
(i) one half of the property passes as if one person survived the other person by 5 days, and
(ii) one half of the property passes as if the other person referred to in subparagraph (i) had survived the first person referred to in subparagraph (i) by 5 days, and
(b) in the case of more than 2 persons, it cannot be established that at least one of them survived the others by 5 days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the persons had survived.
How are the five days calculated?

The calculation of the five days was considered in reasons for judgment on November 1, 2016, in Todoruk v. British Columbia (Land Titleand Survey Authority), 2016 BCSC 2241. Mrs. Grant died without a will on January 12, 2016 at 4:12 am. She did not have a will. Her husband, Mr. Grant died on January 17 at 1:40 p.m. If he survived her for 5 days, then Mrs. Grant’s estate forms part of Mr. Grant’s estate, and will be distributed in accordance with his will. If not, then Mr. Grant would be considered to have died before her for the purpose of succession of her wealth, and would go to some of her relatives in accordance with the provisions for person’s dying without a will.

Mr. Justice Dley considered three different methods of calculating the time between their deaths as follows:

[7]            Mr. Lund [counsel for the executor of Mr. Grant’s will] submits that there are three ways to calculate the time between the respective deaths:
i) First is by counting the hours. That would result in five days nine hours 28 minutes;
ii) Second, if clear days are counted, as expressed in s. 25(4) of the [Interpretation] Act, then January 13 becomes the first day and only four days had passed when Mr. Grant died; or
iii) Third, if the calculation is not to be expressed in clear days, then s. 25(5) applies, with the exclusion of the first day but inclusion of the last day, resulting in an interval of five days.
Mr. Justice Dley rejected both the first method, involving counting hours, and the third method, requiring five clear days between the two deaths, and held that the second method applied. Accordingly, the date of Mrs. Smith’s death (January 12) is excluded in the calculation of the five days, but the date of death of Mr. Smith (January 17) is included on the basis that he was still alive on the fifth day.

In the result, Mr. Smith survived Mrs. Smith by necessary five days, and her estate will form part of her husband’s estate to be distributed in accordance with his will.