When a person dies and an asset is held jointly with another party, the joint asset passes to the surviving party by right of survivorship. Some examples may be a home where the deceased and their surviving spouse are registered on title as joint tenants or a bank account held jointly by the deceased and their surviving spouse or other family member. Joint assets do not go through probate and are passed directly to the survivor.

 

The Wills, Estates and Succession Act (WESA) which came into force on March 31, 2014, deals with what happens if two persons die simultaneously and it is unclear who predeceased the other.

 

Section 5 of WESA states:

 

5  (1) If 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

 

(2) If

 (a) two or more persons hold property as joint tenants, or hold a joint account, and

(b) both or all of them die at the same time or in circumstances that make it uncertain which of them survived the other or others,

 

unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each of the others.

 

Furthermore, WESA implements a 5-day survivor rule as set out in Section 10 below:

 

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.

 

(3) This section does not apply to the appointment of a personal representative in a will.

 

(4) Nothing in this section affects the law of resulting trusts.

 

 

Deborah A. Todd
Deborah A. Todd