WillMay 13, 2024by William WongWhat is Surviving Clause (Commorientes Clause) in a Will?

A commorientes clause, as described in the Will, establishes that beneficiaries can only receive gifts if they survive the testator by a specified period, typically 30 days after the testator’s passing. This provision is particularly important in situations where both the testator and beneficiary pass away simultaneously, or when it’s impossible to determine the order of their deaths, such as in accidents.

According to Section 2 of the Presumption of Survivorship Act 1950, when the sequence of deaths is uncertain, the law presumes that individuals died based on age, with the younger person presumed to have survived the elder.

Let’s consider a hypothetical scenario involving a testator named John and his two children, Sarah and Michael. John’s Will includes a commorientes clause, stating that beneficiaries must survive him by 30 days to inherit his assets.

Scenario 1: Sequential Deaths

  • John, Sarah, and Michael are involved in a car accident.
  • Sarah, the younger sibling, passes away instantly, while John and Michael are critically injured.
  • Unfortunately, John succumbs to his injuries after two weeks, while Michael survives for another month before passing away.
  • Since Sarah did not survive John by the required 30 days, according to the commorientes clause, she is deemed to have predeceased him. Thus, Sarah’s share of the inheritance does not pass to her estate but is distributed according to John’s Will, potentially to Michael or other named beneficiaries.

Scenario 2: Simultaneous Deaths

  • John, Sarah, and Michael are involved in an accident, and all three perish at the same moment.
  • Without a commorientes clause, the order of deaths cannot be determined, and under the legal presumption, the younger individuals (Sarah and Michael) would be deemed to have survived the older (John).
  • In this case, if Sarah is younger than Michael, she would inherit John’s assets. However, this outcome may not align with John’s intentions.

If a commorientes clause is included, the deceased beneficiary is deemed to have passed away before the testator. As a result, the gifts are not inherited by the deceased beneficiary but are instead distributed to other beneficiaries named in the Will. Conversely, without a commorientes clause, if the testator and beneficiaries pass away at the same time, the younger beneficiary would inherit the testator’s gifts, which would then become part of their estate. However, such an outcome might not align with the testator’s intentions.

These illustrations demonstrate how a commorientes clause ensures that the distribution of assets reflects the testator’s intentions and prevents unintended consequences in cases of simultaneous or uncertain deaths.

In conclusion, including such a clause in the Will serves to prevent the gifts from becoming part of the estate of a beneficiary who did not survive long enough to receive them. Additionally, it avoids the potential complication of the gifts being transferred twice.

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什么是遗嘱中的生存条款(Commorientes Clause)?

遗嘱中的 “生存条款”(Commorientes Clause)规定,受益人必须在立遗嘱人去世后的30天内存活,才能继承遗产。这种规定在立遗嘱人和受益人同时去世或死亡顺序不确定时很重要,特别是在意外事故中。

根据 1950 年的推定生存法令,第2条的规定,如果不确定死亡顺序,法庭会假设年轻的人比年长的人先去世。


情景 1:相续死亡

  • 他们遇到车祸,莎拉立即死亡,约翰和迈克尔受伤。
  • 两周后,约翰去世,迈克尔还活了一个月。
  • 莎拉没能活到规定的30天,所以按照遗嘱,她被认为比约翰先去世。因此,她的遗产不会给她的家人,而是按约翰的意愿分给迈克尔或其他人。

情景 2:同时死亡

  • 他们一起遇到事故,都死了。
  • 如果没有生存条款,法庭会假设莎拉和迈克尔比约翰先去世。
  • 如果莎拉比迈克尔年轻,她会继承约翰的财产。不过,这可能不是约翰的意愿。





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