In the Estate of GRAHAM WILLIAM DAWSON (DECEASED) AND TERESA VERONICA DAWSON (DECEASED) - [2016] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of GRAHAM WILLIAM DAWSON (DECEASED) AND TERESA VERONICA DAWSON (DECEASED)
[2016] SASC 89
Reasons of Judge Dart a Master of the Supreme Court
20 June 2016
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - GIFTS TO SURVIVORS - MEANING OF SURVIVOR; SURVIVE
Husband and wife died in same motor vehicle accident - order of death uncertain - commorientes - deceased joint tenants of real property - whether a presumption arises in respect of who died first.
Held:
1. No presumption in respect of the order of death arises at common law.
2. Application for declaration and orders dismissed.
Administration and Probate Act 1919 (SA) s 69; Law of Property Act 1922 (UK) s 107(3), referred to.
Wing v Angrave & Ors (1860) H.L.C. 183 at 207; 11 E.R. 397 at 403, applied.
Burton v Camden London Borough Council [2000] 2 AC 399 at 408; Re Eric Leslie Trenaman; Public Trustee v Hartmann [1962] SASR 95; Re John Collett deceased and Re Nancy Collett deceased Unreported decision, Supreme Court of South Australia, Walters J, 9 March 1973; In the Matter of the Estates of Ronald Ross Miller and Ila Gladys Miller Unreported decision, Supreme Court of South Australia, Ross J, 10 October 1958; In the Matter of the Estates of Hans Karl Eugen Schlicker and Rosina Schlicker Unreported decision, Supreme Court of South Australia, Judge Anderson, 29 June 1995, considered.

In the Estate of GRAHAM WILLIAM DAWSON (DECEASED) AND TERESA VERONICA DAWSON (DECEASED)
[2016] SASC 89

This is an application by the executor of the separate deceased estates of Graham William Dawson (“Mr Dawson”) and Teresa Veronica Dawson (“Mrs Dawson”). The plaintiff was appointed executor of each of the deceased estates by the respective wills.
The application is made pursuant to s 69 of the Administration and Probate Act 1919 (SA). That provision permits the Court to provide advice or directions in respect of matters connected with the administration of any estate or the construction of any will.
The plaintiff seeks a declaration that a presumption arises that Mrs Dawson survived her husband. In the event that a declaration was to be made by the Court, a consequential order is sought directing the Registrar-General to record an entry on Certificate of Title Register Book Volume 5742 Folio 240 (“the property”) noting the plaintiff, as executor of the estate of Mrs Dawson, as the registered proprietor of the property.
For the reasons that follow, the Court is not able to make the declaration and order sought by the plaintiff.
Background
Mr and Mrs Dawson were the owners of a residence at 574A Portrush Road Glen Osmond, being the land comprised and described in Certificate of Title Register Book Volume 5742 Folio 240. They held their respective interests in the property as joint tenants.
Mr and Mrs Dawson died as a result of a motor vehicle accident on the Dukes Highway on 9 August 2015. The car in which they were travelling was involved in a head on collision with a semi-trailer. A police officer who attended the scene of the accident reported that both Mr and Mrs Dawson were dead at the time he arrived.
They each left a will in identical form, each leaving their estate to the other and, if the other did not survive them for 30 days, the estate was to go to the same beneficiaries. Of particular relevance to the issue to be determined is clause 2 in each of the wills, which is in the following terms:[1]
[1] Affidavit of John Milton Dawson sworn 12 February 2016 (Exhibit 2A).
Survivorship
Where the order of deaths of any persons named in this Will is uncertain, this Will is to be interpreted as if the deaths have taken place in order from the oldest first to the youngest last.
There is no evidence before the Court as to who of Mr or Mrs Dawson died first. No such evidence is able to be obtained. Mrs Dawson was younger than her husband. The question before the Court is whether clause 2 of the will has the effect of determining the issue of survivorship in respect of the real property.
Survivorship
As mentioned, Mr and Mrs Dawson were each registered proprietors of the property as joint tenants, the effect of which is that each joint tenant is seized of an interest in the whole of the estate.[2] The right of survivorship means simply that, on the death of a joint tenant, the interest of that joint tenant passes by the right of survivorship to any remaining joint tenant or tenants. On the facts of this case, if one of the deceased died before the other, then the whole of that person’s interest in the property passes to that other and falls to be dealt with in the estate of the person who survived the longest.
[2] Burton v Camden London Borough Council [2000] 2 AC 399 at 408.
There is no evidence as to which of the two died first, or whether they died at the same time. No evidence is able to be obtained and therefore it is and will remain uncertain who died first.
We are dealing with the law as to commorientes. In The Principles of the Australian Lands Titles (Torrens) System[3] the learned author said:
The right of survivorship in joint tenancy springs from the unity of interest which exists between joint tenants, joint tenants being said to be seized per my et per tout, that is, each of them has the entire possession as well of every part as of the whole. It follows that, in the case of commorientes, where survivorship cannot be shown, the moieties are transmissible in severalty.
[3] Donald Kerr, The Law Book Company of Australasia Limited (1927).
If the law in respect of commorientes is not displaced, then the moiety each of the deceased held in the property will fall into their respective estates.
The common law position was set out by the Lord Chancellor in Wing v Angrave & Ors.[4]The Court was there considering the position where a husband and wife perished in a shipwreck. No evidence was able to be adduced in respect of who died first. The issue was relevant in respect of their wills, because each had provisions which altered the distribution of the estate depending on who survived the other. The appellants in that case were arguing that it could be presumed that the husband survived his wife. The Lord Chancellor said:[5]
Reference was made to the Code of Napoleon; but, according to our jurisprudence, where the question arises, which of two individuals, who perished by the same calamity, survived, there is no inference of law from age or sex, and the question is to be decided upon the circumstances proved in each particular case … Therefore, till the Judge had come to the conclusion that the circumstances proved established a perfect equipoise, he could not have resorted to the presumption of law, which, in the absence of satisfactory evidence, he is bound to respect. But with us such a question is always from first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative.
[4] (1860) H.L.C. 183 at 207; 11 E.R. 397.
[5] Wing v Angrave & Ors [1860] H.L.C. 183 at 207; 11 E.R. 397 at 403.
In the matter of Re Eric Leslie Trenaman; Public Trustee v Hartmann[6] the Chief Justice said the law in South Australia was the law as laid down in Wing v Angrave & Ors.[7]
[6] [1962] SASR 95.
[7] Re Eric Leslie Trenaman; Public Trustee v Hartmann [1962] SASR 95 at 98.
The Registrar of Probates located, in the records of the Court, details of matters previously considered by the Court.
In Re John Collett deceased and Re Nancy Collett deceased[8] Walters J had to consider an application for directions made by the Deputy Registrar of Probates. The facts in that matter were that husband and wife died in a light aircraft which crashed into the sea off Papua New Guinea. Their bodies were not recovered. They had each left wills and the question of survivorship was a matter that necessarily had to be determined because the will provided for differing outcomes depending on whether a spouse survived for one calendar month or not.
[8] Unreported decision, Supreme Court of South Australia, Walters J, 9 March 1973.
Walters J considered a large number of authorities. His Honour made a number of directions in respect of how the estate was to be dealt with. He proceeded on the basis there was no presumption of law in respect of the order of the deaths of the deceased and there was no sufficient evidence before the Court that would allow the Court to determine the question.
In In the Matter of the Estates of Ronald Ross Miller and Ila Gladys Miller[9] Ross J applied the common law position and ordered that the Registrar-General record an entry on the relevant certificate of title that the trustee became registered proprietor of an estate in fee simple in an undivided moiety in the land in each of the estates of the deceased.
[9] Unreported decision, Supreme Court of South Australia, Ross J, 10 October 1958.
In In the Matter of the Estates of Hans Karl Eugen Schlicker and Rosina Schlicker[10] Judge Anderson directed, in circumstances where the evidence was insufficient to establish whether either of the deceased had died before the other, that the Registrar-General make an entry on the title that the executor as trustee of each estate was entitled to an estate in fee simple in an undivided moiety.
[10] Unreported decision, Supreme Court of South Australia, Judge Anderson, 29 June 1995.
What a consideration of the matters discussed about disclosed is that this Court has consistently applied the common law position that no presumption arises and that, in the absence of evidence about the order of death, the Court will divide real property equally.
The plaintiff contends that the abovementioned authorities should not be followed because they are:
1Distinguishable from the case at bar;
2Based on flawed logic, and
3Based on outdated common law considerations.
There is one matter that should be mentioned before proceeding to deal with this matter. The position as to commorientes has led to many jurisdictions legislating to provide a presumption to be applied when the evidence about the order of death is inadequate. The presumption is that the younger person shall be presumed to have survived the older. Such a statutory presumption was introduced into the English Law of Property Act in 1922.[11] Most Australian states have enacted a similar presumption.
[11] Law of Property Act 1922 (UK) s 107(3)
The Law Reform Committee of South Australia considered the issue in the 1980s. It recommended that legislative reform be undertaken, to avoid the problems arising from the decision in Wing v Angrave & Ors.[12] No such steps have been undertaken.
[12] 88^th Report of the Law Reform Commission of South Australia the Attorney-General; relating to problems of proof of survivorship as between two or more persons dying at the same time in one accident, Law Reform Committee of South Australia (1985).
One consequence of the fact that in England and in most states of Australia there is a statutory presumption as to the order of death is that the common law has not developed in the last 100 years or so.
The first question is whether clause 2 of the will has any effect on the common law position. In my opinion, the answer to that is no. The clause itself states that the purpose of the clause is as an aid to the interpretation of the operation of the will. That is a limited purpose. It does not seek to usurp the common law in respect of survivorship. Even if, on a proper construction of the clause it sought to vary the common law of survivorship, it would not do so.
It is understandable that, from an efficiency and economic standpoint, there are advantages in the property falling into the estate of Mrs Dawson. Notwithstanding that, the court must apply the law, even where that may lead to a less than desirable outcome.
The plaintiff submitted that the earlier cases of this Court referred to are distinguishable from this matter and that they are based on flawed logic. Whilst some of the outlying facts may be distinguishable, at the core of the matter considered in each of them, and in this matter, is the fact that there was no evidence before the Court as to the order of the deaths of the deceased. It is the uncertainty caused by a lack of evidence that is the common feature of each of the cases. For that reason, I do not accept that this matter is distinguishable from the previous cases, nor do I accept that there is any issue of flawed logic.
The third point made by the plaintiff is that the cases rely on outdated common law considerations. The law in this area is difficult, simply because it has been frozen in time. The law has not continued to evolve, as is usually the case. Notwithstanding that, it is not for a judge at first instance to decline to follow common law precedent or attempt to change the common law. That way lies chaos.
In an appropriate case an appellate court might consider the issue and modify the common law approach. Alternatively, the legislature could bring into effect a presumption in the form that exists elsewhere. However, until that happens, it is necessary to apply the common law as it is found in the cases.
There being no presumption available to assist in this matter, the Court is not able to declare that Mrs Dawson survived her husband. Therefore, the declarations and orders sought in the application cannot be made. I will hear the parties as to the appropriate orders to make to facilitate the administration of each deceased estate.