Bill 28: Simultaneous Deaths

The proposed new British Columbia Wills, Estates and Succession Act, will reform British Columbia law in respect of survivorship when two or more people die simultaneously or within a few days of each other.

As I wrote in a previous post, lawyers frequently put clauses in wills saying that a beneficiary must survive the testator for a certain period of time (often 30 days) in order to receive an inheritance. The purpose of this clause is to prevent assets going from one estate to another in case both people die together, for example, in a car accident.

But when two people hold a joint bank account with right-of-survivorship, or hold land in a joint tenancy, then if one outlives the other for even a very short time, the asset goes entirely to the survivor, and then under the survivor’s will. If no one knows who died first, the youngest is deemed to have survived the eldest. If the two joint account owners or joint tenants have different beneficiaries in their wills, or perhaps do not have wills, then who gets the assets is determined by the hazard of which of the joint owners died first. (I wrote about this issue here.)

Similar problems can occur when the annuitant and beneficiary of a Registered Retirement Savings Plan die within a short time of one another.

Division 2 of the proposed new law reform the rules, by requiring a beneficiary to survive the person from whom he or she inherits property by at least five days. For example, if a will does not provide for a longer period, the beneficiary must outlive the testator by at least five days. If not, the beneficiary is considered to have died before the testator. Similarly, the beneficiary of a Registered Retirement Savings Plan would need to survive the annuitant for at least five days to receive the Plan benefits.

There are similar proposed rules for joint tenants or joint account owners. For example, if there are two joint tenants who die within five days of each other, then instead of the property going to the one who survived for a very short time, a one-half interest would belong to the estate of each. The effect would be that if the joint tenants had different beneficiaries in their wills, one-half would go to the beneficiaries of the will of one joint tenant, and the other half to the beneficiaries of the other.

These proposed changes will not apply to life insurance policies.