It is often the case that when a person executes a will, they do so with the intention or rather the presumption that he/ she will predecease the relevant heirs.

However, life is for the most part, unpredictable and in the case of an accident or event which causes the “simultaneous” death of both the testator and the relevant heir; provision may be required for the devolving of the respective estate thereafter.

Overview

Ordinarily in order for an heir to inherit in respect of a will they must have survived the testator. This is required in order for the rights conferred upon them in terms of the will to properly transfer. If an heir does not survive a testator, they do not acquire any of the rights bequeathed to them in respect of the relevant will and therefore none of the respective benefits will fall within their estate.

In order to deal with the devolving of an estate after the simultaneous death of a testator and an heir; other jurisdictions rely on principles such as considering the younger of the two to have survived the older. This allows for the transfer of the rights in terms of the relevant will to transfer onto the younger of the two, in the case of simultaneous death and for the estate to then devolve accordingly.

However, this principle is not existent in South African Law. Instead South African law considers both parties to have died simultaneously. In other words, with no party surviving the other; there will be no transfer of rights, as per the relevant will, from the testator to the deceased heir in that instance.

If provision is not made for instances of simultaneous death, ambiguity is created in respect of how the benefits which were ordinarily due to the now deceased heir, in terms of the relevant will, is to devolve.

For the most part, this may be remedied by the inclusion of a simultaneous death clause within the constructs of the will. Often, couples who are entering into a marriage or who have been married, opt for the inclusion of same in order to deal with the possibility of the simultaneous death of both the spouses.

It is however, important to have the necessary clauses constructed correctly so as to avoid any further ambiguity or unforeseen complications.

Conclusion

It is difficult, that when dealing with the drafting of a will, that one considers every relevant possibility in respect of circumstances which may arise in the future. In saying that, it is specifically important that one obtain the necessary and relevant legal advice in respect of prevailing legal principles when drafting a will.

Contact an attorney at SchoemanLaw Inc for your legal needs.

Written by Raeesa Ebrahim Atkinson, Attorney, SchoemanLaw Inc