All About Estates

I will survive, then again, you may survive

 A testator should, for the most part, be able to read and comprehend the terms of his or her Will. Yet even a Will drafted in so called “plain English” may contain a couple of terms or phrases (“issue”, “per stirpes”, “in specie”) with special meaning and/or not used in everyday discourse. Likewise most well-drafted Wills contain a number of clauses the purpose or meaning of which may not be obvious on their face. For instance, the “if she survives me” or “gift-over” drafting required to avoid the application of anti-lapse provisions or the rule in Saunders v Vautier, likely need to be explained to the average lay (i.e. non-estate professional) executor.

Another common clause which warrants an explanation is the clause generally referred to as the “30-day survivorship” clause.

The clause is intended to address the situation of the testator and a beneficiary dying within a short period of time.  Although most frequently used in the case of spouses, the clause may be recommended for any situation involving two related people who are often together (parent and child or adult siblings, for example).  The purpose of the clause is two-fold: to avoid the time and expense of “probating” and administering two estates; and, to address possible inequities where the dispositive provisions of the two Wills are not identical.   For example, let’s say the spouses leave everything to each other in the first instance and on the death of the survivor, the residue goes to their respective children from a prior marriage (or their respective families and/or their preferred charities).  On the death of the first spouse, the surviving spouse gets everything. When the second spouse dies a few days later, his or her children (or other beneficiaries) get everything. In other words, the combined estates of both spouses will be governed solely by the Will of whoever dies last – not generally the outcome either testator would intend or want. (Note that this would generally not be regarded as good estate planning under any circumstance; the patently unfair and random result is simply underscored where the spouses die so close together).

This arbitrary and seemingly unfair result can be avoided by specifying that the surviving spouse’s entitlement is contingent on him or her surviving the testator by at least 30 days. If he or she dies within that period, the contingent beneficiaries of the estate of the first spouse to die will inherit. Likewise, on the death of the surviving spouse, his or her contingent beneficiaries will inherit under his or her estate.

Although the duration can be for any reasonable period, 30 days is most commonly used and was apparently chosen based on studies showing that if a couple dies as a result of the same catastrophic accident or event, the deaths are most likely to occur within 30 days of each other.  In terms of getting on with the administration, 30 days also represents a reasonable delay.

 We saw a real life, albeit not typical, example of the need for the 30-day clause in the bittersweet story of the recent deaths of football legend Doug Flutie’s parents.  According to the media, Dick Flutie died last Wednesday of a heart attack following a long illness.  Doug’s mom, Joan, suffered a fatal heart attack about an hour later.  The couple had been married for 56 years.  “They say you can die of a broken heart and I believe it”, wrote Doug on his Facebook page.   Despite the fact the couple died only hours apart,  if Dick bequeathed assets to Joan and his Will (assuming he had one) did not contain a survivorship clause, such assets would flow to Joan’s estate to be distributed under Joan’s Will (if any).  If Dick died intestate, this same detour via Joan’s estate would apply.

It’s important to note that the “survivorship clause” in a Will differs from the statutory rules regarding survivorship. The latter represent the default rules for determining who died first in circumstances where the order of death is not known (as may occur in an accident or other catastrophic event). Notwithstanding, the two are related in that, depending on the circumstances, by including a survivorship clause in the Will, you may not need to resort to the statutory rules regarding order of death. More on the statutory rules next time.

Thanks for reading.

About Elaine Blades