When Family Members Die Together: Who Inherits from Whom?

Authored by Radhia Razali

Few matters are as difficult to handle as an estate where more than one member of a family has died in the same incident. A road accident on the way back to the kampung, a house fire, a boating accident. The family left behind is dealing with two funerals at once, and sooner or later someone has to ask a question that feels almost indecent in the circumstances: which of them died first? The answer can decide whether a share of the family property stays with one side of the family or passes to the other.

The Rule in Section 2

The provision is section 2 of the Presumption of Survivorship Act 1950 (Act 205), which reads:

“In all cases where two or more persons die in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court) for all purposes affecting the title to property be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder.”

Put simply, if nobody can say who died first, the law treats the older person as having died first. The younger person is deemed to have survived, even if only for a moment, and that moment is enough for the younger person to inherit. The Act applies throughout Malaysia, including Sabah and Sarawak.

A Father, a Son, and Two Estates

A person can only inherit from someone who dies before him. Take a father and his adult son, married but without children, who are both killed in the same crash. Because the son is younger, he is presumed to have outlived his father, and his share of the father’s estate vests in him. A moment later, in the eyes of the law, the son also dies, and that share passes with the rest of his estate to his own heirs, including his widow.

Part of the father’s property therefore ends up with his daughter in law, while his own widow and other children receive less than they otherwise would. Families are often surprised, and sometimes upset, to learn this. It is worth explaining early and carefully, because the outcome is set by statute and not by anyone’s choice. The same applies between a husband and wife: the younger spouse is deemed to have survived, and the older spouse’s entitlement passes to the younger spouse’s relatives.

Only When the Evidence Runs Out

The rule does not apply simply because two people died in the same accident. The Act is concerned with uncertainty. Post mortem reports, hospital records, the police report or the account of someone at the scene may well show who died first, and where one victim died on the spot and the other in hospital hours later, there is usually no uncertainty at all. Where the evidence does establish the order, it decides the matter and the presumption never comes into play.

Our Act is drafted in substantially the same terms as section 184 of England’s Law of Property Act 1925, and the English decisions on it are useful guidance. In Hickman v Peacey [1945] AC 304, several people were killed when a bomb struck the house they were sheltering in. It was argued that they had died at the same instant, so that nobody survived anybody. The House of Lords held that, as the order of death could not be proved, the presumption applied.

What the Presumption Does Not Do

The section operates only “for all purposes affecting the title to property”. It is a rule for deciding who takes what, and not a general finding about the sequence of deaths. It is also expressly subject to any order of the court.

Nor does it deal with people who are missing. Whether a person who has disappeared can be presumed dead is a separate question under the Evidence Act 1950, which generally requires that the person has not been heard of for seven years. And, most usefully for families, the presumption gives way to what the deceased actually provided for in a will.

The Position for Muslim Families

The Distribution Act 1958 does not apply to the estates of Muslims, whose succession is governed by Islamic law. Under faraid, an heir must be shown with certainty to have been alive when the deceased died. Where the order of death is unknown, the generally accepted position is that neither inherits from the other, and each estate passes directly to that person’s own heirs.

For a Muslim father and son, therefore, none of the father’s estate would pass through the son to the son’s widow. Such families should seek proper advice on the faraid distribution rather than assume the statutory presumption applies. Similar caution is needed for natives of Sabah and Sarawak, whose estates are also outside the Distribution Act 1958.

Planning Ahead with a Survivorship Clause

A will can displace the presumption altogether. The usual tool is a survivorship clause, under which a beneficiary takes only if he or she survives the testator by a fixed period, often 30 days, with someone else named to take if not. There is then no need to establish who died first, and the same assets do not have to go through two rounds of administration.

The wording needs care. In Re Rowland [1963] Ch 1, a husband’s will provided a gift over if his wife’s death should “precede or coincide with” his. The couple were lost at sea and nobody could say when either died. The Court of Appeal held that coincidence had not been proved, the statutory presumption applied, and the estate went down the younger wife’s side of the family, precisely what the husband had tried to prevent. A fixed survival period would have avoided this. The same thinking applies to insurance nominations, jointly held assets and trusts.

A Final Word

The statement going around is correct so far as it goes. Where it cannot be determined who died first, Malaysian civil law presumes that the older person died first. The rule is, however, a fallback for when the evidence runs out, it is confined to property, and it does not reflect the position under faraid.

Most people never think about this until it is too late. For families who often travel together, a short conversation with a lawyer and a well drafted will can make sure that, if the worst does happen, the property goes where they would have wanted it to go.

Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com