In South African law, a beneficiary can only inherit if they are alive at the time of the testator's death. If multiple individuals die in the same incident, establishing the order of death is crucial in determining inheritance. If the order cannot be determined, the court may use probabilities or assume simultaneous death. If the latter is assumed, the executor will distribute the inheritance according to the intestate set of rules, unless the testator made provisions in their Will for such a scenario.

Introduction

In this blog post, we will examine the legal implications when both the deceased and their beneficiary die at the same time in a disaster, such as a shipwreck, plane crash, or motor accident. Under South African law, a beneficiary can only inherit if they were alive at the time of the deceased's death. If this cannot be established, the law presumes that the deceased and their beneficiary died simultaneously. Hence, it is necessary to determine whether the beneficiary is eligible to inherit.

ESTABLISHING THE ORDER OF DEATH

In the unfortunate event that the deceased and their beneficiary pass away simultaneously, it becomes necessary to establish the order of death to determine whether the beneficiary is entitled to inherit. However, different countries have different rules on how to determine who died first.

Under South African law, there is no presumption that the younger person survived the older. Instead, it must be proven on the balance of probabilities who survived or died first. If there is no proof to the contrary, the law presumes that the persons died simultaneously.

In the event of a dispute over who died first, the executor or an aggrieved person may seek an order from the High Court to determine the order of deaths. For example, in the case of Liberty Group Ltd v Cornelius N.O and Another [2022] ZANCHC 66, Liberty applied to the court for a court order to determine the order of death.
The case involved Mr PB, who took out a life policy on his own life with Liberty and nominated Mrs DB as the beneficiary. Both were involved in a motor vehicle accident on 8 January 2018 and tragically passed away. Liberty paid out the proceeds of the life policy, amounting to R1,379,515.72, to the executor in the deceased estate of Mrs DB.

However, Liberty later discovered that Mrs DB's time of death was recorded as 00h15 while that of Mr PB was indicated at 03:10 on the same day. As a result, Liberty disputed the pay out of the life policy to Mrs DB's estate, arguing that she died before Mr PB. This became the point of dispute.

If Mrs DB indeed died before Mr PB, Liberty must succeed with their claim for the repayment of the proceeds for it to be paid to the executor of Mr PB's estate. If not, the claim was to be dismissed, and Mrs DB's estate would retain the payment.

The court emphasised that a person can only inherit from another if he or she is alive at the other's death. Therefore, it was crucial to establish who died first. The court applied the principle that the balance of probabilities must be determined for the court to answer the question of who died first.

The court considered the following facts: Officer W from the South African Police Service (SAPS) testified that she was one of the two SAPS members who arrived first on the accident scene. Officer W could only see the top of Mr PB's head, but he did not move or make any sound. She heard Mrs DB making soft snoring noises and felt for her pulse, finding a faint pulse. When she felt again shortly afterwards, she could not detect any pulse. During cross-examination, Mr T, an emergency care practitioner employed by the Department of Health, confirmed that he could not dispute Officer W's statement that she and her partner were the first responders at the scene, as he was not there at the time that she was. He also confirmed that he could not dispute Officer W's statement that she felt Mrs DB's pulse, and that Mrs DB made "gargling sounds". Mr T conceded that the most damage to the vehicle was where Mr PB was seated. Sergeant N, another member of the SAPS, testified that the earlier certified time of death recorded for Mr PB was because it took longer to extract his body from the wreckage. The side of the car in which he was seated was under the truck with which the car collided. After considering all the evidence, the court accepted Officer W's evidence and found that Mr PB died first. Consequently, the proceeds of the policy on Mr PB's life, paid out by Liberty, belonged to Mrs DB's estate.

Order of death cannot be established

If the court is unable to establish the order of death, then neither the beneficiary nor the deceased can inherit from one another. Instead, the inheritance will fall under the rules of South African intestate succession law. Therefore, to avoid the uncertainty that can arise if you and your beneficiary die at the same time, it's important to make provisions in your Will for such a scenario.

Conclusion

In conclusion, determining the order of death in South African law is crucial in establishing who inherits from whom in the case several people die in the same disaster. If the order cannot be established, an application to the high court may be made to determine the issue. In the Liberty Group v Cornelius case, the court held that the order of death would be determined on the balance of probabilities. 

If the court is unable to establish the order of death, the presumption is that the deceased and their beneficiary died simultaneously, and neither can inherit from the other. 

In such cases, the inheritance will devolve according to the intestate succession rules. It is therefore important to make provisions in one's Will for such scenarios, including substitute beneficiaries to avoid intestacy.

Case link:

http://www.saflii.org/za/cases/ZANCHC/2022/66