This report recommends a new rule to cover the case in which property is to go to B on A’s death and there is doubt which of them died first. The Alberta Survivorship Act currently provides that in cases of doubt the older of the two will be deemed to have died first. This report proposes a new rule that B, the beneficiary, would be deemed to have died first unless it can be proved that he survived A by five days. This focus on what most donors would want to happen. A gift is made to benefit the donee, and if the donee dies before receiving it, that intention is defeated. Deeming the beneficiary to have died first will give effect to what most donors would want by channelling the property into the donor’s estate and thus to those who would take under the donor’s will or intestacy. The five-day period is chosen to cover most cases of common disaster without delaying the administration of estates. It avoids increased estate administration costs. Exceptions to five-day survivorship requirement include: where a statute or instrument manifests contrary intention. In probate, where a will designates a substitute for an executor, the first designated executor will be deemed to have died first if the deaths of that executor and the testator occur at the same time or in an uncertain sequence. This presumption is reversed in the case of the donee of a power of appointment and if the deaths are simultaneous or of uncertain sequence, the donee will be deemed to have outlived the donor.
Final Report
Back to Publication SearchSurvivorship, Final Report 47
Resource Details
Publication No: | 47 |
FORMAT: | Publications |
TAGS: | survivorship, donee, disaster, Survivor, common, donor, beneficiary, estate, will |
FILE: | fr047.pdf |