Lord knows how many times estate lawyers have to explain why, in wills, (and notaries) they and their peers insert those apparently foreboding, peculiar to the untrained-eye words:

"I give all my fortune to that wonderful lawyer Lloyd Duhaime provided he survive me for thirty (30) days."

These clauses strike those who draft wills a first time as legalese or  lawyer thingies, the usefulness of which is not readily apparent.

These clauses are designed to minimize legal process (and probate fees or estate taxes) where two persons otherwise related and who are often together (such as husband and wife or parent and child), are ultimately involved in a catastrophic accident, common disaster or for whatever other reason, die the one soon after the other.

survivorship countdown clockThe old case law uses the example of a couple being swept off a ship at sea by a single wave and neither is ever recovered.

Say Mr. Bobby Sue, 47 years old, and his wife Mrs. Sue Bobby, 41 years old are enjoying their new convertible on a country road just South of Ottawa.

Bang!

They get nailed on Highway 17, T-boned by a drunk driver pulling out of a country road without looking both ways. They both die in the ensuing ball of fire and there's no way to know who died first.

At first glance, the statutes set up a model of confusion. Taking the example of the Canadian province of British Columbia, the 2010 version of the Survivorship and Presumption of Death Act:

"[S]ubject to §72 of the Insurance Act ... 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, those deaths are, for all purposes affecting the title to property, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older."

Simple enough: the older is presumed to have died before the younger.

But what does §72 of the same jurisdiction's Insurance Act say (as of August 2010)?

"Unless a contract or a declaration otherwise provides, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survive the other, the insurance money is payable ... as if the beneficiary had predeceased the person whose life is insured."

To the untrained eye, there appears to be discordant treatment of related persons in the event of an accident which takes two lives.

The answer: as to estate circumstances other than life insurance assets, the Survivorship Act applies.

In Hickman, a house in London was hit by a German bomb on September 14, 1940. Five people were known to have been in the bomb shelter and from the pieces that emerged from the rubble, all five died. Several of the dead had wills which gifted to other of the victims, words such as "if she survives me".

The court had but one way to resolve the flow of estates and that was to apply the statute and presume that they died in order of seniority, the oldest first and so on and so forth.

The 30-day survivor clause prevents this legal gymnastics altogether by simply excluding a beneficiary if she or he does not make it to the 30th day.

Where a presumption of the prior death of the oldest applies, as in a common accident or disaster of testator and beneficiary, or where a victim of that accident lingers only to die soon thereafter, the estate lawyer is set to double his fees as the estate of Mr. Bobby-Sue has to be probated to Mrs. Sue-Bobby (fees and estate taxes x 1) and then that estate, once safely parked into the estate of Mrs. Sue-Bobby must then be probated to Mrs. Sue-Bobby's heirs (fees and estate taxes x 2).

The other very real possibility is that there may even be two different executors: both eligible for executor fees on Mr. Bobby Sue's assets.

In law, two consecutive trusts have to be created and the first, that of the estate of Mr. Bobby-Sue, really only to be used to briefly hold the assets for the purposes of probate over to the ultimate destination: the estate of Mrs. Sue Bobby. And where a trust is created one can find the tax man latched on.

A $8,000 job becomes an $16,000 job as fees are paid twice on Mr. Bobby Sue's assets: a first time as they are passed to Mrs. Bobby Sue and a second time as they continue their journey on to the heirs of Mrs. Sue-Bobby.

The 30-day lawyer thingie prevents the requirement to probate assets where within 30 days, the beneficiary does not, in any event, survive the testator long enough to enjoy those assets (which would be tied up in probate anyway).

Why 30 days? Medical reason holds that if a person survives 30 days after an accident, they are not likely to die soon thereafter.

The interval can be longer or shorter.

Some lawyers use this phrase for all will clauses which gift over an asset or some share of the estate. Others only use it when the testator and the beneficiary live together or are otherwise often together.

These clauses do have the potential to save considerable monies payable to third-parties, estate "vultures" as it were: the tax agency, probate authorities and even estate lawyers.

They come with little risk in a well-considered estate plan as such a clause usually kicks in only in rare circumstances and within a will where the testator's alternate beneficiaries are identified. In these rare cases where the 30-day survivorship clause is invoked, the difference is that the alternate beneficiary (the next down the line in the will) receives the assets directly and without having to wait and pay for the estate to pass in transit through probate.

Like anything in a will, if it is there, it will be given life by the Court if challenged. So be careful with this clause as it will have consequences which, especially in a complex estate, may be unintended and otherwise devastating to a testator's true intentions. A trained wills and estate lawyer is always the best option especially one who can survive you by 30 days.

Ah-hem?

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