In the Estate of SIEGFRIED PETER THIEL AND CELIA MARY THIEL (DECEASED) - [2017] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of SIEGFRIED PETER THIEL AND CELIA MARY THIEL (DECEASED)
[2017] SASC 1
Reasons for Decision of The Honourable Justice Stanley
25 January 2017
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - WHAT INTEREST PASSES - JOINT TENANCY AND TENANCY IN COMMON - JOINT TENANCY
Siegfried Peter Thiel and Celia Mary Thiel were husband and wife. They died in a motor vehicle accident on the Eyre Highway approximately 37 kilometres west of Iron Knob on 29 August 2014. The evidence of the circumstances of their death is insufficient to determine which of them survived the other. At the time of their deaths Siegfried and Celia Thiel were registered as the proprietors as joint tenants of an estate in fee simple in the whole of the land comprised in Certificate of Title Volume 5321 Folio 210 situated at 32 Cunliffe Street, Macclesfield, on which stood a dwelling house and shed.
By his will Siegfried left his entire estate to Celia, but if she failed to survive him he left 80 per cent of his estate in equal shares to his children; 10 per cent to the Seventh Day Adventist Reform Movement; five per cent to Helen Buschheuter and five per cent to Esther Willson. Siegfried appointed Celia and his daughter Rebecca Christine Thiel as the executors and trustees of his estate.
By her will Celia left her entire estate to Siegfried, but if he failed to survive her she left 80 per cent of her estate in equal shares to her children; 10 per cent to the Seventh Day Adventist Reform Movement; five per cent to Helen Buschheuter and five per cent to Esther Willson. Celia appointed Siegfried and her son Benjamin Peter Thiel as the executors and trustees of her estate.
Issues arise in relation to the dispositions in wills of the commorientes. Issues also arise concerning the operation of the rules of intestacy.
Held, per Stanley J:
1. The evidence is insufficient to establish that either of Siegfried Peter Thiel deceased or Celia Mary Thiel both late of 32 Cunliffe Street Macclesfield in the State of South Australia deceased died before the other (at [3]).
2. The land comprised in Certificate of Title Register Book Volume 5321 Folio 210 being the house property situated at and known as 32 Cunliffe Street Macclesfield aforesaid is not subject to any disposition contained in the will of the said Siegfried Peter Thiel deceased or the will of the said Celia Mary Thiel deceased (at [1]).
3. The plaintiffs Rebecca Christine Thiel in her capacity as the executor of the will of the said Siegfried Peter Thiel deceased and Benjamin Peter Thiel in his capacity as the executor of the will of the said Celia Mary Thiel deceased are entitled to administer the said land as on an intestacy on behalf of the next of kin of the said Siegfried Peter Thiel deceased and the said Celia Mary Thiel deceased and that the persons entitled to share in the distribution of the said land are as to one moiety thereof the next of kin of the said Siegfried Peter Thiel deceased and as to the other moiety thereof the next of kin of the said Celia Mary Thiel deceased (at [1]).
4. The Registrar-General record an entry on the said Certificate of Title Register Book Volume 5321 Folio 210 for an application to be made by the said Rebecca Christine Thiel to become registered proprietor of an estate in fee simple in one undivided moiety as the executor of the will of the said Siegfried Peter Thiel deceased or otherwise in the estate of the said Siegfried Peter Thiel deceased and an application by the said Benjamin Peter Thiel to become registered proprietor of an estate in fee simple in one undivided moiety as the executor of the will of the said Celia Mary Thiel deceased or otherwise in the estate of the said Celia Mary Thiel deceased (at [1]).
5. The costs of this action as adjudicated between solicitor and client be paid out of the estates of the said Siegfried Peter Thiel deceased and the said Celia Mary Thiel deceased in equal shares (at [1]).
6. The plaintiffs and any interested person may apply for further orders or directions (at [1]).
In Re Smith [1956] NZLR 992; Re Pechar [1969] NZLR 574; Re Beynon [1901] P 141; Re Rowland [1963] Ch 1; Hickman v Peacey [1945] AC 304; Re Comfort [1947] VLR 237, discussed.
Re Kennedy [2000] 2 IR 571; Underwood v Wing 43 ER 655; Wing v Angrave (1860) 8 HLCas 183; Re Trenaman [1962] SASR 95; Burton v Camden London Borough Council [2000] 2 AC 399; Reasons of Deputy Master Olsson, Supreme Court of South Australia, Action No. 460 of 1963; Unreported, Supreme Court of South Australia, Ross J, 10 October 1958; Unreported, Supreme Court of South Australia, Judge Anderson, 29 June 1995; Unreported, Supreme Court of South Australia, Judge Lunn, 13 January 2012, considered.

In the Estate of SIEGFRIED PETER THIEL AND CELIA MARY THIEL (DECEASED)
[2017] SASC 1
STANLEY J.
Introduction

On 28 October 2016 I made the following orders:
1. THE COURT DECLARES that the evidence is insufficient to establish that either of Siegfried Peter Thiel deceased or Celia Mary Thiel both late of 32 Cunliffe Street Macclesfield in the State of South Australia deceased died before the other.
2. THE COURT ADVISES AND DIRECTS that in the events that have happened:
(a)     The land comprised in Certificate of Title Register Book Volume 5321 Folio 210 being the house property situated at and known as 32 Cunliffe Street Macclesfield aforesaid is not subject to any disposition contained in the will of the said Siegfried Peter Thiel deceased or the will of the said Celia Mary Thiel deceased; and
(b)     The plaintiffs Rebecca Christine Thiel in her capacity as the executor of the will of the said Siegfried Peter Thiel deceased and Benjamin Peter Thiel in his capacity as the executor of the will of the said Celia Mary Thiel deceased are entitled to administer the said land as on an intestacy on behalf of the next of kin of the said Siegfried Peter Thiel deceased and the said Celia Mary Thiel deceased and that the persons entitled to share in the distribution of the said land are as to one moiety thereof the next of kin of the said Siegfried Peter Thiel deceased and as to the other moiety thereof the next of kin of the said Celia Mary Thiel deceased.
3. THE COURT ORDERS that:
(a)     The Registrar-General record an entry on the said Certificate of Title Register Book Volume 5321 Folio 210 for an application to be made by the said Rebecca Christine Thiel to become registered proprietor of an estate in fee simple in one undivided moiety as the executor of the will of the said Siegfried Peter Thiel deceased or otherwise in the estate of the said Siegfried Peter Thiel deceased and an application by the said Benjamin Peter Thiel to become registered proprietor of an estate in fee simple in one undivided moiety as the executor of the will of the said Celia Mary Thiel deceased or otherwise in the estate of the said Celia Mary Thiel deceased.
(b)     The costs of this action as adjudicated between solicitor and client be paid out of the estates of the said Siegfried Peter Thiel deceased and the said Celia Mary Thiel deceased in equal shares.
(c)     The plaintiffs and any interested person may apply for further orders or directions.
My reasons for doing so follow.
Factual background
Siegfried Peter Thiel and Celia Mary Thiel were husband and wife. They died in a motor vehicle accident on the Eyre Highway approximately 37 kilometres west of Iron Knob on 29 August 2014. The evidence of the circumstances of their death is insufficient to determine which of them survived the other. At the time of their deaths Siegfried and Celia Thiel were registered as the proprietors as joint tenants of an estate in fee simple in the whole of the land comprised in Certificate of Title Volume 5321 Folio 210 situated at 32 Cunliffe Street, Macclesfield, on which stood a dwelling house and shed.
By his will Siegfried left his entire estate to Celia, but if she failed to survive him he left 80 per cent of his estate in equal shares to his children, Rebecca Christine Thiel, Benjamin Peter Thiel, Joanna Louise Thiel and Amos Karl Thiel; 10 per cent to the Seventh Day Adventist Reform Movement; five per cent to Helen Buschheuter and five per cent to Esther Willson. Siegfried appointed Celia and his daughter Rebecca Christine Thiel as the executors and trustees of his estate.
By her will Celia left her entire estate to Siegfried, but if he failed to survive her she left 80 per cent of her estate in equal shares to her children; 10 per cent to the Seventh Day Adventist Reform Movement; five per cent to Helen Buschheuter and five per cent to Esther Willson. Celia appointed Siegfried and her son Benjamin Peter Thiel as the executors and trustees of her estate.
Commorientes
The Latin commorientes refers to two or more people who die, often in a common disaster, in circumstances where there is uncertainty as to the order of their deaths.[1] The cases dealing with commorientes are a catalogue of family tragedy with victims dying by motor vehicle accident,[2] fire,[3] murder,[4] shipwreck,[5] massacre,[6] gas poisoning,[7] exploding bombs,[8] and in one case strawberries and cream laced with arsenic.[9]
[1]    Mee, Commorientes, Joint Tenancies and the Law of Succession, Northern Ireland Legal Quarterly Vol. 56 p 171.
[2]    Re Kennedy [2000] 2 IR 571.
[3]    In Re Smith [1956] NZLR 992.
[4]    Re Pechar [1969] NZLR 574.
[5]    Re Rowland [1963] Ch 1.
[6]    Re Beynon [1901] P 141.
[7]    Re Trenaman [1962] SASR 95.
[8]    Hickman v Peacey [1945] AC 304.
[9]    Re Comfort [1947] VLR 237.
Issues arise in relation to the dispositions in wills of the commorientes. Issues also arise concerning the operation of the rules of intestacy. The common law position is that when the order in which two persons die cannot be satisfactorily determined, neither is deemed to have survived the other, with the result that their estates cannot benefit from each other. At common law the fact of survivorship, i.e. that a person has survived another, must be established affirmatively by evidence and, in the absence of proof, the law will not accept that either party survived the other. The law relating to survivorship in South Australia is propounded in Underwood v Wing,[10] affirmed by the House of Lords in Wing v Angrave[11] and followed by this Court in Re Trenaman.[12]The rule is illustrated in Wing v Angrave.[13] A husband and wife perished in a shipwreck. The husband left his property to his wife and, in the event that his wife died in his lifetime, the property was to pass, given the deaths of other potential beneficiaries, to Wing. Similarly, Wing was to benefit under the wife’s will if the husband was to die in her lifetime. However, because of the circumstances in which they had died, it was impossible for Wing to prove affirmatively either that the wife had died during the husband’s lifetime or vice versa. Therefore he was unable to benefit under either spouse’s will.
[10] 43 ER 655.
[11] (1860) 8 HLCas 183.
[12] [1962] SASR 95.
[13] (1860) 8 HLCas 183.
The difficulty in this case arises from the fact that Siegfried and Celia Thiel were each registered proprietors of real property as joint tenants. As joint tenants they were each seized with an interest in the whole of the estate.[14] The right of survivorship provides that on the death of a joint tenant, the interest of that tenant passes by the right of survivorship to any remaining joint tenant or tenants. As was observed by the author of The Principles of the Australian Lands Titles (Torrens) System:[15]
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.
[14] Burton v Camden London Borough Council [2000] 2 AC 399 at 408.
[15] Kerr, The Principles of the Australian Lands Titles (Torrens) System, 1927 Law Book Company p 460.
Accordingly, in the case of commorientes, the moiety of each of the deceased held in the property will fall into their respective estates.
In these circumstances it is appropriate that the court declare that the wills of the deceased fail to have any dispositive effect and order the Registrar-General to record an entry on the Certificate of Title that the executor as trustee of each estate is entitled to an estate in fee simple in an undivided moiety and order that the estates of the deceased persons be administered as if on an intestacy. This was the approach taken by Deputy Master Olsson (as he then was) in Re Arnold[16] where it was impossible to say which of the joint tenants died first. It was held their respective estates each took an undivided moiety in the jointly owned land and it was treated as passing on an intestacy and not under the terms of the wills.
[16] Reasons of Deputy Master Olsson, Supreme Court of South Australia, Action No. 460 of 1963.
This was the approach taken in this Court by Ross J in In the Matter of The Estates of Ronald Ross Miller and Ila Gladys Miller,[17] by Judge Anderson in the matter of The Estates of Hans Karl Eugen Schliker and Rosina Schliker[18] and by Judge Lunn in In Re the Estates of Robert Brian Johnston and Dorothy Ann Johnston (Deceased).[19]
[17] Unreported, Supreme Court of South Australia, Ross J, 10 October 1958.
[18] Unreported, Supreme Court of South Australia, Judge Anderson, 29 June 1995.
[19] Unreported, Supreme Court of South Australia, Judge Lunn, 13 January 2012.
For these reasons I made the orders set out above.