Tag Archives: Survivorship

‘Toxic’ survivorship clauses: does your Will contain one?


Do you have a survivorship clause in your Will?  Chances are you do, if you leave assets to someone outright in your Will.  The mischief that these clauses are designed to avoid is this.  If A gives a gift to B in his Will and B dies the day after A, B’s estate will get the gift and it will be B’s Will that decides where A’s gift ends up.  However, in these circumstances, A may have wanted someone else to get the gift instead (A may not like B’s choice of heirs!).  Survivorship clauses are meant to solve this problem.  They also prevent the delay associated with the same money being administered through two separate estates and can reduce the total Inheritance Tax bill on both estates. 
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I recently had the opportunity to visit the ruins of Herculaneum, an ancient city near Naples that, like Pompeii, was destroyed by the eruption of Mount Vesuviusin 79 AD.  While we are familiar with the story of the cities which were destroyed, walking though the restored remains of the city brought home to me the fact that disasters, natural or otherwise, can in fact decimate an entire family.  My thoughts then drifted to what would happen if the family that died together were all without wills.  In BC, we would look to the Survivorship and Presumption of Death Act.  It provides that if two or more people die at the same time (or in circumstances that make it uncertain which of them died first) the law presumes that they died in order of the oldest to the youngest. 

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