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Which Will is used when my Spouse and I die together?

What happens when spouses die at the same time or within a short time of each other?

In circumstances where it cannot be established which party died first

In Queensland, section 65 of the Succession Act 1981 provides that in circumstances where it cannot be established which person died first, the younger person is deemed to have survived the elder by one day. This situation is not uncommon if spouses pass away together, for example, in a car accident or plane crash.

Effect of section 33B if a beneficiary dies within 30 days of the testator

Unless a contrary provision is stated in the Will, section 33B of the Succession Act 1981 (Qld) has the effect that if a beneficiary under a Will dies within 30 days of the testator’s death, the Will takes effect as if the beneficiary had died immediately before the Testator.

How does this affect my Will?

The practical effect of sections 65 and 33B is that a gift to the deceased younger spouse will usually fail:

  • under section 65 the younger spouse is deemed to have survived the older spouse by one day;
  • the effect of section 33B is that the younger spouse (who is deemed to have survived the older spouse by one day under section 65) died within 30 days of the older spouse, therefore the Will of the older spouse takes effect as if the younger spouse had died immediately before the older spouse;
  • any gift to the younger spouse fails as the younger spouse is deemed to have predeceased the testator/older spouse (section 33B).  (See Donald v Guillesser [2015] QCA 92)

In such a circumstance, it is necessary that the older spouse has carefully considered and well-drafted substitute beneficiary clauses in their Will to ensure their estate is distributed in accordance with their wishes. If the Will does not provide for any successor beneficiaries the estate will be distributed in accordance with the rules of intestacy.

How Bell Legal Group can help?

The experienced team at Bell Legal Group will discuss your estate planning wishes with you and draft your Will to ensure your wishes can be carried out considering all circumstances.

Avoid costly and time-consuming litigation by ensuring your Will is well-drafted. For information and assistance on any estate planning or estate administration matter, please contact a member of our experienced Wills, Trusts and Estate Planning Team at Bell Legal Group on (07) 5597 3366 or email law@belllegal.com.au.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.