Clause 30.—(PRESUMPTION OF SURVIVOR SHIP IN RESPECT OF CLAIMS TO PROPERTY.) (Hansard, 19 February 1964)

§ Lady Tweedsmuir
I beg to move, in page 20, line 23, to leave out "such deaths shall" and to insert "then".
Perhaps it would be for the convenience of the House if we discussed with this Amendment the Amendment in page 20, line 25, leave out from 1309 "property" to end of line 27 and insert: (a) where the persons were husband and wife, it shall be presumed that neither survived the other; and (b) in any other case, it shall be presumed that the younger person survived the elder.

Mr. Deputy-Speaker
Yes, if it is agreeable to the House.

§ Lady Tweedsmuir
The Clause provides that, where two persons have died in circumstances suggesting that they died simultaneously, or rendering it uncertain which, if either of them, survived the other, such deaths shall, for purposes affecting succession, be presumed to have occurred in order of the persons' seniority, so that the younger shall be deemed to have survived the elder. A similar provision was made for England by Section 184 of the Law of Property Act, 1925. In England, however, the presumption that the younger person survived the elder is not now raised if the two persons were an intestate and his or her spouse. Section 1 of the Intestates' Estates Act, 1952, which introduced a new scheme of intestate succession, excluded the presumption of survivorship in cases where an intestate and his spouse died together.
The reason is that if the statutory presumption had applied in cases where the persons concerned were intestate and the spouse was younger than the intestate, the relatives of that spouse would benefit from the special provisions made by the 1952 Act to the exclusion of the relatives of the intestate. Naturally, the same argument applies in Scotland.
If the Clause is enacted as it stands and the husband and his younger wife die together in an accident, the wife will be presumed to have survived her husband and her estate will benefit to the extent of the provisions made by the Bill for the surviving spouse. However, the wife is dead and her benefits under the Bill form part of her estate and go to the persons entitled to share in it. These persons are likely to be members of her family and, therefore, the presumption of survivorship may, where the persons involved are husband and wife, result in the husband's estate passing out of his family and into the wife's family.
1310 This result is likely to be contrary to the wishes of the intestate who, in such circumstances, would not wish his own family to be excluded. The purpose of the Amendment is to exclude the presumption of survivorship where the persons involved are husband and wife.

§ Mr. Ross
This raises a complex position, for this could give rise to rather strange anomalies. The noble Lady mentioned only one case and, if we had time, we could go deeply into this matter. While it is all very well for her to say that we should make this change and speak about the effect it will have in cases of intestacy, the Clause applies to testate as well as intestate succession.
The question also arises if the husband and wife were second husband and wife and there are all sorts of complications which could arise in relation to the definition which we are given. It may be that we have raised as many problems as we have solved by this definition, which is now before us for the first time.
Perhaps in this connection, it be convenient, Mr. Deputy-Speaker, if we considered, at the same time, the Amendment standing in my name and the names of my hon. Friends, also to line 23, after "shall", to insert: in the absence of reasonable probability to the contrary.

Mr. Deputy-Speaker
Yes. That will be convenient.

§ Mr. Ross
The Clause reads: Where two persons have died in circumstances indicating that they died simultaneously or rendering it uncertain which, if either, of them survived the other"— and then we get the first Amendment and the word "then "and the Clause continues with the second Government Amendment, which reads: (a) where the persons were husband and wife, it shall be presumed that neither survived the other; and (b) in any other case, it shall be presumed that the younger person survived the elder. The words that trouble me are "or rendering in uncertain" because, by the strict definition of those words, what will happen in a case where one cannot be absolutely sure? In other words, one must achieve certainty, otherwise these provisions apply.
1311 There may be circumstances in which there might be reasonable probability. It was explained in Committee that an older person might be accompanied by a younger person. The older person might be hale and hearty and able to swim while the younger one might, perhaps, be in failing health and unable to swim. It would be wrong to assume, in that case, that the younger person would survive the elder and I suggest that there could be no certainty about it. That is why I suggest the inclusion of the words: in the absence of reasonable probability to the contrary". Even if we accept the noble Lady's Amendment it would be wise to include the words I suggest because the court would have more discretion in making a presumption about surviving persons. This question of presuming in regard to a younger person surviving an older one is an unwarrantable assumption to have to make in all the circumstances.

§ Lady Tweedsmuir
The Clause raises a presumption of survivorship where two persons die in circumstances which either indicate that they died simultaneously or render it uncertain which of them died first. Under existing law, which admits of no such presumption, a person who makes a claim which depends on the survivorship of one person over another has to be able to prove that survivorship, and if he cannot do so his claim fails. It would allow the presumption that the younger person survived the elder to apply only in the absence of reasonable probability to the contrary". It does not say what happens where there is such a reasonable probability.
9.15 p.m.
The hon. Member referred to the case, which he cited in Committee, of a man who was a strong swimmer and was last seen throwing his child, aged six months, into the water and then diving after it. This is a very lugubrious subject. Both bodies were recovered later, but did not reveal which died first. There might be a reasonable probability, in those circumstances, that the father survived the child, but the court might not be prepared to hold that his survivorship was established.
1312 The Clause as it stands would deal with that situation—though I admit that it does so in an arbitrary fashion—because it would raise the presumption that the child survived the father. I suggest to the hon. Member for Kilmarnock (Mr. Ross) that if the Amendment were accepted this presumption would be excluded by the existence of the word "probability", and we would be back exactly to where we started from with, perhaps, the possibility of no claims against the estate being established. I therefore recommend the House not to accept the Amendment.

§ Mr, Millan
The noble Lady has not answered the other point raised by my hon. Friend about what happens in the case of testate succession. The two people concerned might each have made wills leaving money to the other. What happens in those cases? Are those provisions completely voided by this Clause? I am now talking about husband and wife, neither of whom, under paragraph (a), is presumed to survive the other. When each has made a will providing for the other spouse, what happens to such provisions? Are they completely voided, or does one transfer one estate to the other, or what happens? Again, what happens when the husband leaves a will but the wife does not, or the wife leaves a will and the husband does not?

§ The Solicitor-General for Scotland
Where both spouses have died testate—let us say, in a disaster at sea—the position is that under the will of each it cannot be established that the conditions are satisfied under which the other would have taken, let us say, as legatee. Accordingly, the alternative provisions in each will would then take effect.
Let me give an example. Suppose the husband who had, in these circumstances, died simultaneously with his wife, had left everything he possessed to his wife, in the event of his wife surviving, and, failing her, then to his children. If it were impossible to establish the condition under which the wife took the legacy, the second part would then take effect. I should also mention that, in Scotland, the fact that the presumption does not apply in the case of the simultaneous accident to husband and wife means that jus relicti or jus relictae will not have 1313 effect; there will not be a passage of those rights that will be claimable by the representative on behalf of the other.