Meet the law that says you’re dead when you’re not
One of the more unusual quirks of the law is buried away in section 35 of the Succession Act 2006. It relates to what happens when a person who inherits from another person’s will dies shortly after them.
Say a husband dies on 1st June. He leaves all his money to his wife, now his widow. But the widow then dies on 29th June. Even though she outlived him by 29 days, section 35(i) says she does not inherit the money because she is legally classified as having died before him. The law says a recipient of an inheritance has to live 30 days longer than the deceased in order to inherit. So the wife is classified by law as having been dead for those 29 days she was still alive.
The inheritance therefore bypasses her, and goes to the next person in the husband’s will. However if the widow had lived just two more days and died 31 days after her husband, she would inherit her late husband’s estate and it will be added to her estate and distributed according to her will.
The reason behind the quirky rule lies in the administration of succession law. Another oddity is that if a husband and wife die simultaneously, say in a car or plane crash, the younger is deemed to have died second and their will applies.
Wills specialist in Stacks Law Firm, Joshua Crowther, says wills can get complicated with blended families. Say the husband who dies on 1st June is married to a second spouse, but he has children from his previous wife. His will says his second spouse inherits, but if she fails to survive him it then goes to his children. The second spouse has her own children and her will says the same thing. Let’s say his second spouse dies 29 days after him – his children do inherit. But if she dies 31 days after him his children miss out – his estate will end up going to the second spouse’s children pursuant to her will.
“A will can stipulate that a person needs to survive for a different period of time such as 100 days to inherit, or it can exclude section 35 entirely, but if nothing is mentioned then the 30 day rule applies,” said Mr Crowther.
With family structures becoming more complicated it would be wise to get expert legal advice when drawing up your will. With property prices soaring, more and more wills are being challenged as relatives, defactos or dependents fight over who inherits the home or investment property.