Adrian Corbould: Who dies first? In estate matters, this is very, very important.

Hello, I’m Adrian Corbould, Accredited Specialist in Wills & Estates at Turnbull Hill Lawyers with the Battle of Wills series. We talk about contested estates and estate matters generally.

The majority of couples own real estate and some property jointly. That means that they both own it and there’s no distinguishable division of ownership, so they may own the matrimonial home together jointly.

What happens if both owners die at the same time or it cannot be determined their order of death? I’ll give you an example. Me and my wife, let’s say we don’t have any children, let’s say we own a property jointly, let’s say we both die in a plane crash and it cannot be determined the order of our deaths, let’s say in my Will I leave my assets to my brother, let’s say in her Will she leaves her assets to her sister. Who gets what? Does my brother get the house or does her sister get the house? Luckily this has been resolved by Section 35 of the Conveyancing Act in New South Wales that says that as to any matters determining property, the order of death is the younger is deemed to survive the older.

Let’s say my wife’s older than me, it will be deemed that she died first and I died second, which would mean, as we’ve discussed in jointly-owned property when someone dies, their share goes to the surviving joint owner even if it’s by a matter of minutes. Her share passes to me. Then my Will be the Will that determines who gets the property. I leave it to my brother. My brother gets it.

This is a very broad-brush application of this law, but basically, the principle is where issues involving property need to be determined, the order of death where it cannot be determined what that order was, is that the younger survives the older.

I hope this has been of some interest to you. Talk again next time.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2023 Doyles Guide. Both were also listed in the 2022, 2021, 2020 and 2019 guides.

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