SURVIVORSHIP AND PRESUMPTION OF DEATH ACT

[RSBC 1996] CHAPTER 444

Contents

1 — Definitions

1 In this Act:

"court" means the Supreme Court;

"instrument" includes the Wills Act;

"interested person" means

(a) any person who is or would be affected by an order made under this Act,

(b) the next of kin of the person in respect of whom an order is made or for whom an order is applied, and

(c) a person who holds property of the person in respect of whom an order is made or for whom an order is applied.

2 — General presumptions

2 (1) Except as provided in subsections (2), (3) and (4), if 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, those deaths are, for all purposes affecting the title to property, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older.

(2) This section is subject to section 72 of the Insurance Act.

(3) Subject to a contrary intention appearing by the instrument, if

(a) an instrument contains a provision for the disposition of property operative in any one or more of the following cases, namely, if a person designated in the instrument

(i) dies before another person,

(ii) dies at the same time as another person, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(b) the designated person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,

then, for the purpose of that disposition, the case for which the instrument provides is deemed to have occurred.

(4) Subject to a contrary intention appearing by the will, if

(a) a will contains a provision for a substitute personal representative operative in any one or more of the following cases, namely, if an executor designated in the will

(i) dies before the testator,

(ii) dies at the same time as the testator, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(b) the designated executor dies at the same time as the testator or in circumstances that make it uncertain which of them survived the other,

then, for the purpose of probate, the case for which the will provides is deemed to have occurred.

(5) If a contract of accident insurance or of sickness insurance, or both, provides for the payment of money on the death by accident of the person insured and the person insured and a beneficiary perish in the same disaster, it is presumed, in the absence of evidence to the contrary, that the beneficiary died first.

3 — Presumption of death

3 (1) If, on the application of an interested person under the Rules of Court, the court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,

(b) the applicant has no reason to believe that the person is living, and

(c) reasonable grounds exist for supposing that the person is dead,

the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.

(2) An order made under subsection (1) must state the date on which the person is presumed to have died.

(3) Any interested person may, with leave of the court, apply to the court for an order to vary, amend, confirm or revoke an order made under subsection (1).

(4) An order, or a certified copy of an order, declaring that a person is presumed to be dead for all purposes or for the purposes specified in the order, is proof of death in all matters requiring proof of death for those purposes.

4 — Duty of personal representative

4 If an order has been made declaring that a person is presumed to be dead for all purposes or for the purpose of distributing his or her estate, and the personal representative of the person presumed to be dead subsequently believes or there are reasonable grounds for the personal representative to believe that the person is not in fact dead, the personal representative must not deal after that with the estate or the remaining estate unless the presumption of death is confirmed by a further order made under section 3.

5 — Status of property if deceased later found alive

5 (1) If a person who is presumed to be dead is, in fact, alive, any of his or her property that has been distributed in reliance on an order made under section 3, and not in contravention of section 4, is deemed to be a final distribution and to be the property of the person to whom it has been distributed as against the person presumed to be dead.

(2) Subject to subsection (1), if a person who is presumed to be dead is found by the court to be alive, the court may, on the application of any interested person, by order, give directions the court considers appropriate respecting the property of the person found to be alive and its preservation and return.

6 — Status of property if deceased in fact dead

6 If a person who is presumed to be dead is, in fact, dead, any of his or her property that has been distributed in reliance on an order made under section 3 is deemed to be a final distribution and to be the property of the person to whom it has been distributed as against any person who would otherwise be entitled if the order made under section 3 had not been made.

7 — Appeals

7 Any interested person may appeal an order made under this Act to the Court of Appeal.