Comparative analysis of commorientes – a South African perspective: Part 1
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Professor in Private law, University of Pretoria

50 Volume 1 2017 pp 36-59
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’n Vergelykende analise van commorientes - Suid-Afrikaanse perspektief
Die gelyktydige afsterwe van ’n familie, of lede van ’n gesin as gevolg van ’n katastrofiese gebeurtenis, het ’n direkte invloed op die aanwysing van begunstigdes en die bereddering van die oorledenes se boedels. Dit blyk dat natuurrampe en ander rampe aan die toeneem is. Die gelyktydige dood van families en verwante kan ’n geskil ontketen oor die verdeling van die boedels (van persone wat gelyktydig gesterf het). Hierdie artikel speek ‘gelyktydige afsterftes’ en die uitwerking daarvan op die erfreg oor ’n wye front aan. Die term    word ontleed en die leerstuk word bespreek soos dit gemanifesteer het in die Romeinse siviele reg en die resepsie daarvan in die Romeins-Hollandse reg. Daarteenoor word die leerstuk in die Engelse gemeenregtelike jurisdiksies bespreek en vergelyk met die Romeins gebaseerde siviele reg wat Europese stelsels beïnvloed het. Die verskillende benaderings om ‘gelyktydige sterftes’ te bewys, word bespreek. Waar die Anglo-Amerikaanse stelsels die volgorde van sterftes reguleer deur wetgewing (siviele kodes) en gebruik maak van sekere vermoedens in die geval van onsekerheid oor die spesifieke volgorde, volg die Engelse gemeenregtelike jurisdiksies die benadering dat die volgorde van dood ’n feitevraag is wat telkens in die lig van die omstandighede wat gelei het tot die dood, bewys en beantwoord moet word. Die volgorde van dood op ’n oorwig van waarskynlikhede te bewys.
Die historiese aanloop tot hedendaagse benadering en die invloed daarvan op die Suid-Afrikaanse reg word onder die loep geneem. Uit enkele Suid-Afrikaans gerapporteerde hofsake oor die onderwerp, blyk dit dat die ‘tradisionele gemenereg’ gevolg word en dat die volgorde van dood ’n feitevraag is. Wetgewing wat in ander jurisdiksies in die loop van die twintigste eeu geïmplementeer is om voorsiening maak vir ’n vermoedens van gelyktydige afsterftes, word toegelig. Daar word aangetoon dat statutêre ontwikkelings in ander gemeenregtelike jurisdiksies hoofsaaklik ten doel het gesamentlike eiendomsreg    te reguleer. Ander ontwikkelings hou verband met klousules wat vir substitusie voorsiening maak (in geval van vooroorledenes) en ‘gelyktydige afsterf’ klousules wat deur testateurs gebruik word by die verlyding van testamente. Ten slotte word ’n kritiese evaluering van die verskillende stelsels gedoen en aangetoon dat Suid-Afrika nie ’n behoefte het aan hervorming nie en waarskynlik die billikste en regverdige benadering van ‘hy wat beweer moet bewys’ volg.
1 Introduction
Simultaneous deaths of spouses or family members are neither rare nor unique.1  In the current age of globalisation where long distance travel has become commonplace, the chances of common disaster claiming an entire family have increased.2Shared tragedies, where unfortunate victims die instantaneously include car accidents, fires, massacres, plane crashes and explosions.3  Nature also makes for catastrophes such as floods, earthquakes and volcanic eruptions, which have led to the simultaneous demise of thousands of people.4  Whenever, two or more related people die in the same accident or common disaster, and the order of deaths is uncertain (i.e. which person died first), the issue of simultaneous death arises in relation to dispositions in their wills or concerning the operation of the rules of intestacy.
People who died in the same accident or catastrophe are called  , a term which originates from Latin.5  From a law of succession perspective, family members are likely to benefit people who are related to them (their loved ones).6  To inherit from a person, the beneficiary must have outlived (survived) the deceased person.7  If the order of deaths is unknown or cannot be established, it might have far reaching consequences for the possible testate or intestate beneficiaries.8
Problems associated with the sequence of the deaths (of victims) are not novel and have existed from the beginning of humanity.9  Ascertaining the sequence of deaths where several people died during war or as result of a natural disaster has always been problematic. The chaos that normally in the aftermath of such disaster reigns complicates the issue as one is often left with very little evidence of what precisely happened during the demise of people.10  The following remarks made during the 1940’s by Tracy and Adams evince of the long-standing problems concerning the simultaneous death of related people:11
Almost daily, newspapers recount the details of another auto-mobile accident or airplane crash in which numerous persons are killed - a common disaster.    Lawyers must search for evidence, frequently hard to obtain, and then must face difficult questions of relevancy, materiality, and probative value, since in almost all cases where any evidence is available it is wholly circumstantial.12
Although the  doctrine is a universal concept recognised across legal systems,13  there are material differences between the approach adopted by on the one hand, the Roman civil law (and later the Roman Dutch law), which regulated the order of deaths through codes (legislation and civil codes),14  and, on the other hand, the common-law jurisdictions (influenced by English common law) which based their approach to ‘simultaneous deaths’ on precedents from case law to determine the sequence of death.15
Present day principles of law of succession on ‘simultaneous death’ have become a complex and intertwined set of rules,16and reflect different approaches which, understandably, sometimes result in confusion and anomalies.17  In this contribution the origin, history and differences of approached to the doctrine as manifested in civil and common law jurisdictions are investigated. The diverse approaches (and developments) in different systems are identified and compared.18  In addition, the impact of joint tenancies and common calamity clauses are considered in the context of simultaneous deaths.19  The current state of the    doctrine in South African law is discussed critically and appropriate reform proposed will be considered.20
2 Requirements for Death and Survivorship in the Law of Succession
In all legal systems, two universal requirements have to be met for both testate and intestate succession to become operative.21  Firstly, there must be a deceased person22  and, secondly, the beneficiaries of the deceased must be alive at the time of  .23  As the estate only falls open  ) and rights vest () upon the death of a person,24  the division of the estates of several persons that have fallen open more or less at the same time, the interpretation of their wills or the application of the rules of intestate succession impacts on the distribution of their estates.25  The establishment of the exact time of death,26  consequently, becomes crucial - particularly when the devolution of assets depends upon the order of death on the one hand, and the determination of survivorship on the other.27  Once a disaster or tragedy (in the context of the law of succession) has occurred and it has been established that there were several deaths, the sequence of deaths of related people become of the utmost importance for survivors.28  In    the moment of death was explained as follows:29  ‘Death occurs precisely when life ceases and does not occur until the heart stops beating and respiration ends. Death is not a continuous event and is an event that takes place at a precise time.’ Corbett and others explain it as follows:30
Succession is conditional on survivorship. No person can succeed as an heir or legatee unless he or she survives the deceased person. One who has predeceased or died simultaneously with the deceased person cannot take any benefits from the estate; the will, however, may specifically provide that such person’s estate may benefit.’
Determination of the facts (who died first and who survived) is, however, only the first step of a comprehensive exercise to establish the status of the deceased and also, at the same time, to establish the survival and standing of potential heirs in terms of the testate or intestate succession.31
3 Origin of ‘Simultaneous Deaths’ and ‘Commorientes’ Doctrines
The term  is universally used across legal systems, to describe people who died simultaneously (in the same disaster or catastrophe).32  The origin of the word lies in the Latin word    (die together).33  Kinsella explains    as the phenomenon of several persons respectively entitled to inherit from one another, who die simultaneously in the same event (such as a shipwreck), without any possibility of ascertaining who died first.34  The Latin word    is found in one text of  , while similar words, such as  are mentioned in other texts to refer to people who died due to the same accident.35
‘Simultaneous deaths’ and    have been used and are still used as synonyms in both civil law and common law jurisdictions. Although the literal interpretation of ‘simultaneous death’ means that people died together (factually at the same time), it is apparent that the term    is not only used in a literal sense but also to refer to persons who died in the same event or catastrophe (common disaster).36  Chapman explains it as follows:37
The terms ‘common disaster,’ ‘same accident,’ ‘common calamity,’ ‘same catastrophe,’ and similar terms - are used to indicate the event which has ended the lives of two or more persons and made it necessary to determine which if any survived. The terms are broad enough to include anything from death in battle or by murder, to death in flood, fire or shipwreck.
A present-day denotation of the word confirms that it is still used as a broad concept,38  to indicate those who died at the    as well as being applicable to situations where several persons die in the    (the phenomenon of people dying in the same (related) circumstances).39  The term is, furthermore, also used to refer to situations where there is    about who survived or who died first, often due to the fact that there is no evidence as to what the sequence of death was.40
Although the specific word    is used only once,41  it is generally accepted that the origin of the ‘principle of simultaneous death’ lies is Justinian’s  .42  Hohmann refers to the relevant manuscripts in the43
For similar reasons, presumptions establishing a sequence of death for parents and children dying together cannot claim to have a firm probabilistic foundation either. In some cases, the parents are presumed to have died before the children (D.34.5.9[10].1; D.34.5.9[10].4; D.34.5.22[23]), and in others, the reverse is presumed (D.23.4.26; D.34.5.9[10].4; D.34.5.23[24]). The cutoff [sic] point at which the presumption switches is the reaching of puberty, which in Roman law marked the coming of age and was set at twelve for girls and at fourteen for boys.
4 Historical Approaches to ‘Commorientes’
In essence, the foremost difference between Roman civil law, as reflected in the  and uncodified English common law, lies in the approach to the    (order of death).44  Roman law applied presumptions to establish the sequence of death, while English common law required factual proof of the exact order and applied the ‘no presumption rule’.45  If there is proof of the order of death, the distribution of the estates will follow that sequence. However, if the order of deaths is ‘uncertain’, the methods of determining survivorship by means of presumptions based on the relative strength of the parties - as opposed to proof of death by evidence - can lead to different results for instituted beneficiaries.46  For example: If A and B are heirs of each other and the younger of the two deceased persons, A, is presumed to have survived the older, B, the estate of the presumed first deceased, B, would be channelled through the presumed survivor, A, barring the beneficiaries of the presumed predeceased, B, to inherit from the first deceased.47  If there is no presumption, A and B, would be regarded as having died simultaneously and they will not be beneficiaries of one another.
4 1 ROMAN LAW ‘PRESUMPTION OF SURVIVORSHIP’
As seen above the Roman law used presumptions, explained in    to establish the sequence of deaths.48Characteristic of the Roman manuscripts is that it discloses several tailor-made presumptions to establish the order of death when simultaneous deaths due to a common cause had occurred.49  The order of deaths is based on different status significances,50  namely relationship, physical strength, age and gender of the departed persons.51  Nótári and Papp, in their discussion of the old Justinian manuscripts, conclude:52
With regard to the regulation of inheritance from each other of persons who died in a common event / common disaster Roman law textbooks state, that [sic] the following:  
Despite the ‘situation specific presumptions’, it is important to note that the presumptions in the    (although based on age and gender) were applicable in circumstances where there was ‘uncertainty’. Phrases such as: ‘If it  which of them died first’ and ‘but  , the question becomes difficult,’ indicate the broader principle which Derrett refers to when he explains the underlining principles of Roman law:53
The Romans had a regard for the likelihood in the situation under discussion; and where the doubt was as to what course should be taken they adhered to that which was most practical. True to this outlook we find numerous discussions belonging to the topic  which assume that two persons die at the same time or about the same time in the same disaster, in all of which the first question asked is whether one survived.
As will be discussed below, the broader principle of ‘uncertainty’ is also reflected in later Continental codes influenced by the Roman law.54
4 2 ROMAN DUTCH LAW PRESUMPTIONS
The presumptions known in Roman law were received into the Roman Dutch Law.55  Voet refers (amongst other presumptions) to the presumption of simultaneous death when a freeman and his son die in a shipwreck together.56  He also refers to the ‘general presumption’ that if people die together (in the same catastrophe),57  no one is deemed to have survived the other unless it is proved otherwise.58  This presumption (that neither survived the other) became known as the ‘no survivorship rule’.59  The reception of this doctrine from Roman law sometimes seems to be ambiguous and one must keep in mind the following remark by Derrett:60
It is little wonder that the countries of the civil law tradition have not spoken with one voice on this subject. The Roman law was complicated, and, illustrated with these few examples in Justinian’s Digest, not entirely perspicuous and decisive. It left a good deal of room for judicial equity, which hampers the descendants of the jurists who do not share their atmosphere or their skill.
Although the Roman Dutch scholars managed to merge Roman law with some legal concepts taken from the traditional Germanic customary law of the Netherlands, they themselves abandoned Roman-Dutch law when they placed themselves under the code of the usual Continental type.61  The Dutch, however, had introduced the legal system of their state to their colonies.62  In this way, the Dutch variety of the European  came to be applied in South Africa, Scotland and Sri Lanka and forms the foundation of South African law (of succession).63  As will be discussed below, neither Roman nor Roman Dutch law influenced the simultaneous deaths-doctrine in the South African context.64
4 3 CONTINENTAL CODIFICATIONS ON ‘COMMORIENTES’
Most continental jurisdictions received the civil law doctrine on  from ancient Rome and retained it by codification.65  The early application of the principles is explained by Chapman:66
As illustrations of the way in which the civilians decided these cases, we find that in 1572 the Parliament of Paris dealing with survivorship in the Massacre of St. Bartholomew, decided that parents would be slain before their children because the slayers would regard them as the more dangerous. In 1629 a mother and her daughter, aged four years, were drowned in the Loire, the Parliament of Paris held that it would be presumed that a child of such tender years died first.67  In 1658 a father and son were slain in the battle of the Dunes and on the same day the daughter became a nun and therefore civilly dead at the same hour the battle began. The court held that the son should be decided to have survived.68
The  , enacted in1804, showed similarities with the Roman law approach towards ‘simultaneous deaths’. It provided for a complex set of presumptions where persons who were entitled to inherit from one another, had died in the same catastrophe.69  The following rules were applied when it was not possible to ascertain who had died first: If all persons were over 60 years of age, the youngest is presumed to have survived; if they are all under 15 years of age, the eldest is presumed to have survived; if they are between 15 and 60 years of age, the male is presumed to have survived, provided there is a difference of age of not more than one year; or if they are all males or all females the youngest is presumed to have survived.70
Yntema explains the outline of the Code:71
The theoretical refinement of the modern civil law, however deeply indebted for its inspiration to the Roman sources, is largely post-Roman, and its symmetrical organization in the Code Napoleon and succeeding modern codifications is the product of scholastic attainments or at least interest in synthetic analysis, that neither the Roman jurists nor the English judges customarily displayed.
The Code was originally introduced into areas under French control such as Belgium, Luxembourg and parts of Western Germany, either in the form of (i) simple translation of the provisions or (ii) sometimes with considerable modifications. The influence of the    was diminished at the turn of the 20th century by the introduction of the moderated    (1838),72  the    (1900)73  and, the  (1907).74  The reason why the detailed rules of the French law were not adopted in other continental jurisdictions is that they were regarded as to complicated.75  The Dutch, German, Swiss and Austrian law adopted a presumption of ‘no survivorship’.76  Derrett explains:
Although the approach (to use presumptions) is retained, the presumption was simplified. Germany, Switzerland and Greece have remained faithful to the fundamental Roman concept, and have enacted the simple rule that simultaneous death is presumed. As we have seen, the rule that neither is understood to have survived the other amounts in fact to a presumption of simultaneous death. As we saw at the outset this solution causes serious problems when property is limited to pass upon a survival or non-survival or predecease.
According to Derrett, the aim of the provisions was to reproduce the logically most reasonable state of facts, rather than to settle the financial standing as fairly as possible.77  The variation (modification) adopted in these jurisdictions was to the effect that, if the sequence of death is ‘uncertain’, the presumption is that people died at the same time. France continued using a highly complicated casuistic system to establish who died first, until 2001.78
Since 2001, France has also recognised a presumption that the persons involved in a common disaster, died simultaneously (similar to other Germanic countries).79  Apart from initially finding favour in European civil law systems, presumptions based on the    were also adopted in, for example, Louisiana and some territories in Canada.80
4 4 ENGLISH COMMON LAW BEFORE 1925
As mentioned above, the English common law followed a different approach towards establishing the order of deaths. The traditional common law of England has always refused to indulge any guessing as to survivorship and has enforced the well-known rule ‘he who affirms must prove’.81  The following remark, from a law of succession perspective, was made in the  82
The sinking of the Lusitania, the flood at Johnstown, the San Francisco earthquake, the fire that destroys a home in the night - all present variations of the perplexing enigma: ‘Who dies first in a common disaster?’ Unable to answer the riddle, but faced with the necessity of determining the devolution of property,.83
The influence of the Roman civil law on law of succession in England and Wales has not been significant,84  and at no time did it form part of it.85  Sir Henry Maine, in his book Ancient Law, explained the possibility of Roman law influence as follows:86
The early ecclesiastical chancellors contributed to it, from the Canon Law, many of the principles which lie deepest in its structure. The Roman Law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta we often find entire texts from the    imbedded, with their terms unaltered, though their origin is never acknowledged.
The traditional common law position (proof requirement) was long established in case law such as,87  and  88, where any presumption to establish the sequence of death was rejected. These cases became acknowledged as authoritative on the position of.89  Although the ‘no presumption rule’ differs in theory from the ‘no survivorship presumption’, it has, by implication, the same result. As was explained in  90  the rule that became established in English law, was that those who found a right upon a person having survived a particular period must establish that fact affirmatively by evidence (proof).91  If the order of death could not be established, the victims were regarded as having died simultaneously.
The traditional English common law approach (as it was before 1925) was followed in most American states and can be best clarified with reference to the 1934 case  92
(i) There is no presumption either of survivorship or of simultaneous death;93
(ii) there is no presumption of survivorship from difference in age, sex or even relative strength;94
(iii) proof of the facts and circumstances concerning the survival of one or the other must be put forward;95
(iv) the party asserting survivorship has the burden of proving it.96
The application of no presumption results in the    by the courts that the deceased all died at the same time.97However, if the order of death can be proved by the sequence in which the deceased persons died, that sequence will determine the distribution of the estate. When the order of death remains ‘uncertain’, a presumption will not facilitate the order of death. This might result in the claimant being unable to inherit from the departed,  98
Although the common-law principle was replaced in England by section 184 of the    1925, this common-law approach is currently still followed in jurisdictions such as South Africa and Northern Ireland.99
5 Developments on ‘Commorientes’ After 1925
5 1 ENGLAND - LEGISLATION
As seen in the previous paragraph, when the order of death was in dispute in traditional common law jurisdictions, the person who asserts the sequence of deaths, had to prove same.100  This evidentiary burden often led to a state of affairs where courts are required to make a ruling (often with very little evidence to assist them) on the order of deaths.101  This sometimes led to cautious judgements. Contributing to the problem with simultaneous deaths was the property regime known as joint tenancies.102  Helmholz explains simultaneous deaths of joint tenants to property:103
The common law joint tenancy is very old, going back at least to the thirteenth century. In its main features, it has exhibited a remarkable durability. As the preferred form of common ownership in earlier English law, the joint tenancy's existence was presumed over a tenancy in common in cases where there was doubt about which had been created.
In estate law, joint tenancy is a special form of ownership by two or more persons of the same property.104  The individuals ( joint tenants) share equal ownership of the property and have the equal, undivided right to keep or dispose of the property. Joint tenancy createa right of survivorship.105  Conway and Bertsche explain the predicament that arises with simultaneous deaths as follows:106
The problem presented when two or more persons die in a common disaster, there being no evidence as to the order of death, is an intricate one, not easily solved without recourse to arbitrary rules of law.
When the sequence of death was doubtful, due to scanty evidence, the courts (as it did in the    case),107  tend to lean towards accepting the proof that the victims did not die together.108  England, therefore, reverted to legislation. The Law Reform Committee of South Australia explains this development:109
A number of jurisdictions decided that reform was called for. The relevant reforming legislation while partly aimed at ensuring that the unsatisfactory result in    case would be avoided, appears to have been principally aimed at doing away with the difficulties of proof of survivorship. Under the provisions introduced into a large number of common law jurisdictions (but not in South Australia), a presumption was introduced that deaths occur in order of seniority.
Zadnik states that ‘[l]egislation was to save unnecessary applications to the Court for orders presuming deaths where, for instance, the deceased have been drowning together.’110  The English legislature adopted legislation in the form of the  1925.111  Orji explains the motive behind section 184 as follows:112
This statutory rule sets out a default position which is to be assumed or followed by the court unless some other position is established ‘subject to any order of the court’. The displacement of this default provision may be effected by evidence, or the exercise of judicial discretion, or both. There may be a need for the interplay of science and the philosophy of law to work out the final destination of properties jointly owned by the deceased in this event.
Lord Walker of Gestingthorpe explains the provisions in section 184 (which introduced a presumption of seniority) as follows:113
In all cases where, after the commencement of this Act, two or more persons have died 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 older.
Section 184 applies ‘for all purposes affecting the title to property’, including joint tenancy.114  Whenever property was held as joint tenants, and the tenants die in circumstances where the sequence of death is uncertain, they would have been regarded as if they had died simultaneously.115  The main difference between ownership by tenants in common and joint tenants is that the latter includes the right to survivorship.116  When a property is owned by joint tenants, the interest of a ‘deceased joint owner’ automatically gets transferred to the ‘surviving owners’.117  On the contrary, co-owners have no rights of survivorship.118  Unless the departed co-owners’ wills specify that his or her interest in the property is to be divided among the surviving owners, a deceased tenant in common's interest belongs to his or her estate and their estates will be distributed separately.119  Another question that might arise is whether a person, married in community of property, is entitled as the ‘surviving spouse’ to the (half) share of the first dying (the estate is channelled through the ‘survivor’) if they die in a common calamity. in this regard, Corbett and others opine as follows:120
... [W]here a man or woman who was married to his or her spouse in community of property dies, the heirs of the predeceased spouse do not acquire co-ownership in individual assets of the joint estate, but merely the right to claim from the executor half of the net balance of the joint estate. Nor is the survivor, despite the fact that he was during the lifetime of the predeceased spouse co-owner of half of the joint estate, vested with dominium or half of the assets. Like the heirs of the predeceased spouse, he is restricted to a right against the executor to half of the balance.
Interestingly enough, the words in section 184 narrate the civil law presumption known in Roman law and shows similarities with the French civil law approach (as it made provision for the younger being presumed to have survived the older).121
As far as intestate succession goes, section 184 was subsequently modified in 1952. Spouses were presumed to have survived each other for the purpose of distributing each spouse’s inheritance.122  Kerridge explains that after World War II the rule (in section 184) tends to favour wives, as they are usually younger than their husbands.123
5 2 DEVELOPMENTS IN OTHER COMMON LAW JURISDICTIONS
The acceptance of legislation (section 184) in England was the result of certain seemingly unfair interpretations of the ‘traditional common law principles’.124  Soon commonwealth jurisdictions, as well as traditional common law jurisdictions were influenced by section 184.125  While certain jurisdictions adopted legislation based on the seniority principle similar to that of England, other jurisdictions enacted Acts that deal with simultaneous deaths in their Succession Acts.126  All these jurisdictions also regulate aspects of joint tenancies.127  If there is proof that one joint tenant has survived the other, the survivor succeeds to the whole estate, not by virtue of survivorship, but because there is no other tenant (owner) with whom to share the title.128  When the presumption in section 184 was applied in  ,129  the House of Lords ruled that    which of the persons died first, the younger is presumed to have survived.130
5 3 REPUBLIC OF IRELAND, NORTHERN IRELAND AND SCOTLAND
The traditional common law still applies in Northern Ireland and the Law of Property Act was never extended to it.131  The  ,132  recommends:
Under the common law there is a presumption of simultaneous death133  but the Commission is inclined to adopt a provision whereby commorientes is treated as an event which severs a joint tenancy. In that case the deceased persons would be treated as holding their jointly owned land as tenants in common at the time of their death.134
The Republic of Ireland, adopted limited reform in the shape of section 5 of the  .135  Section 5 provides for a    in cases of uncertainty.136  It differs from the English rule and applies only ‘for the purposes of the distribution of the estate of any  .137  It does not apply, as the relevant English legislation, ‘for all purposes affecting the title to property’.138  Section 5 does little more than to codify the common-law position.139  Section 68 of the  140  amended section 5 of the  and made it applicable to joint tenancies.
Scottish law had applied the traditional common law rules until 1964, when they enacted section 31 of the.141  Although it was modelled on section 184, there are three distinct improvements. Firstly, it does not apply between husband and wife. Secondly, it does not apply where a testator made a gift to one beneficiary with a direct gift over to another beneficiary. Thirdly, it omits the ambiguous parenthesis ‘subject to any order of the court’.142  The position is explained by Tainsh:143
Section 31 of the 1964 Act, provided rules for two situations where two people die simultaneously and it is not known who survived the other. For the purposes of succession, spouses and civil partners were deemed to have failed to survive each other and where the parties weren’t married or in a civil partnership, the younger was deemed to have survived the elder.
The laws of succession in Scotland have recently been brought up to date for the first time in 50 years. The new Succession (Scotland) Act,144  which came into force on 4 March 2016, is intended to clarify certain situation and make it fairer. One such change is that section 9 of the Act has revoked the rule for spouses and civil partners and provides that, where two people die simultaneously, neither is presumed to have survived the other, provided the rule in section 10 below does not apply. Section 10 regulates the equal division of property if the order of beneficiaries’ deaths is uncertain. Tainsh explains it as follows:
Section 10 covers situations where property will pass to a person depending on the order of death but that property does not form part of either estate. An example of this is the proceeds of a life policy. This situation wasn’t covered by the 1964 Act so this is a new addition to the legislation. The new rules therefore provide that in situations such as this, the property is to be divided equally between the estates of those persons unless there is express provision to the contrary.’
5 4 UNITED STATES OF AMERICA
Most American states,145  have received the ‘traditional common law’ principle based on the traditional English law to establish the order of deaths.146  Typically, whenever the order of death could be established (through evidence), even when it was evidenced that one deceased survived the other deceased only for a very short period of time (seconds), the distribution follows the facts of the situation (and the ‘no presumption’-rule was applied).147  However, acceptable proof of the facts and circumstances concerning the survival of one or the other (victim) should have been put forward by the asserting party.148  In general, most states did not adopt the post-1925 English approach.149
Since 1940, most states had, however, adopted the    which originally attempted to simplify situations where ‘simultaneous deaths’ occur,150  and specified that if spouses died together, their estates passed to their individual heirs, unless proof existed of who died first.151  This provision represents a codification of the prevailing common law view. Phillips explains it as follows:152
This presumption, codified by adoption of the Uniform Simultaneous Death Act, is an attempt ‘... to supplant the former arbitrary and complicated presumptions of survivorship with effective, workable and equitable rules applicable to the ever-increasing number of cases where two or more persons have died under circumstances that there is no sufficient evidence to indicate that they have died otherwise then simultaneously’.153
The original USDA supposes that the estates divide separately and provided for cases where ‘there is no sufficient evidence’ of survival.154  Nótári and Papp summarise the position in America as follows:155  ‘In the United States of America, the    with almost identical text in all of the states from the 1950’s regulates the issue’. Following the USDA, the    was promulgated in 1969.156  It is a comprehensive statute that unifies, clarifies, and modernises the laws governing the affairs of decedents and their estates, certain transfers accomplished other than by a will, as well as trusts and their administration.157
The ‘sufficient evidence’ principle was criticized after the Illinois Court of Appeals case  . In this instance, there was evidence of survival (by a very short time), and the estate of the first dying (husband) was channeled through the survivor’s (wife) estate.158  As a result, the    in the early 1990’s, introduced a requirement that the survivor should outlive the first deceased by at least 120-hours to qualify as a survivor.159  This rule replaced the ‘no sufficient evidence’ standard rule.160  The Act contains a clause that makes provision for a situation where the end result would be an intestate estate devolving to the state.161  Gallanis explains:
The reason for the drop-off in enactments is that the Act works well when the order of deaths is unknown, but when the details occur in a rapid but ascertainable sequence the Act fails to achieve the desirable result.
From a South African point of view the ‘uncodified traditional common law’, as it applied before the    and  remains important, as the courts still rely on the traditional common law position in South Africa.162

1.  Corbett, Hofmeyr and Kahn    (2001) 4-5 and 547; De Waal and Schoeman-Malan  (2015) 12; Mee ‘Commorientes, Joint Tenancies and the Law of Succession’ 2005  171-199; Schoeman ‘Commorientes in Heroënskou’  ) 1999    108 ff; Derrett ‘Commorientes’ 1977    55 ff (also in    270 ff).
2.  See Tracy and Adams ‘Evidence of survivorship in common disaster cases’ 1940  801 for ‘common disaster’; Nótári and Papp ‘The problem of simultaneous death in the law of inheritance - historical and comparative approaches’ 2013    12-28; Lazarus ‘Work of Appellate Courts: Private law: Successions and donations:  ’ 1974  363-365.
3.  Tracy and Adams    801; Nathan ‘Common disasters and common sense in Louisiana’ 1966-1967  30 39-40 fn 19.
4.  racy and Adams    801; Nótári and Papp    12.
5.  See    in    (Latin). Alternative forms -  . Verb - ‘I  die  with another’ (accessed 2016-02-16). See also Phillips and Berger    (1953) 400.
6.  Dollar ‘“Common Disaster”: Confusion’ (2014-08)    (SAN) 1-7.
7.  Corbett    4-5 and 547; De Waal and Schoeman-Malan 12.
8.  Tracy and Adams  801ff.
9 Rickards explains: ‘Throughout human history, there have been many world events that have seen a multitude of deaths and widespread  destruction’. See Rickards ‘10 Deadliest World Events in Human History’    available from listverse.com/2013/01/03/10-deadliest-world-events-in-human-history/ (accessed 2013-01-03).
10.  Orji ‘Simultaneity of death and survivorship - law of uncertainty and improbability’ 2013      501  504.
11.  Tracy and Adams801. They refer to the first case    Croke’s Reports, during the time of Queen Elizabeth (Co Eliz) 502 (1596) where the principles of survivorship were apparently considered when a double hanging took place. The court found (on the evidence presented) that the son survived his father as his legs kicked (in reflex).
12.  Own emphasis. See also Roeleveld ‘Questions concerning simultaneous deaths’ 1970    31-52 33.
13.  De Beer    (2012 LLM dissertation NWU) 6: ‘Due to the uncertain, and at times impractical nature of the term, it is governed by statute in modern law’.
14.  Using certain presumptions to prove the sequence in case of ‘uncertainty’. See Hunter  (1803) (D 34.5.18 pr) 928.
15.  Here the order of deaths remained a factual question and had to be proved. See Re ‘The Roman contribution to the Common Law’ 1961    447  482; Chapman ‘The presumption of survivorship’ 1914  585; Yntema ‘Roman law and its influence on Western civilization’ 1949  77 ff and Gallanis ‘Death by Disaster: Anglo-American Presumptions, 1766-2006’ in Helmholz & Sellar (eds)    (2009) 189-200.
16 This contribution does not deal with the harmonisation of law of succession. See Thomas ‘Harmonising the law in a multilingual environment with different legal systems: lessons to be drawn from the  legal history of South Africa’ 2008    133-155; Verbeke and Lelue    (2010) 335 ff and Working group Max Planck Institute for Comparative and International Private Law ‘Comments on the European Commission’s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession’ 27-05-2010 (version of 26-03-2010)RZ) 74 (2010) 27.
17.  88th Report of the Law Reform Committee of South Australia ‘Relating to problems of proof of survivorship as between two or more persons dying at about the same time in one accident’ LRCSA (1985) 3-39. Especially in mixed-jurisdictions such as South Africa. See Tetley ‘Mixed jurisdictions: common law vs civil law (codified and uncodified)’ Part I 1999    591  599: ‘Mixed jurisdictions are legal systems in which the Romano Germanic tradition has become suffused to some degree by Anglo-American law’.
18.  Garner    (1995) 180.
19.  See  ‘Joint tenancies and English commorientes: a question of survivorship or severance?’ 2011    122-134.
20.  Verbeke and Lelue 335 ff; Max Planck Working group (RZ) 27.
21.  See Maasdorp    (1947) 130 ff; Corbett    5; De Waal and Schoeman-Malan 12; Lazarus    363; Schuster    (1907) 31; Kimbrough,’Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection’ 1994 William & Mary L Rev 269; Van der Burght and Ebben  (2004) § 18-20; Casey    (2014) 26-27.
22.  See  274 So 2d 806 [La Ct App (1973)].
23.    1996 2 SA 677 (O) 681B-C; See Van der Burght and Ebben § 19; Asser-Perrick  Erfrecht en Schenking  (2009) n 28; Boezaart    (2010) 17; De Waal and Schoeman-Malan 12.
24 Corbett    5; De Waal and Schoeman-Malan 11-12; Lazarus  363; Schuster 31; Van der Burght and Ebben § 18; Casey  26-27. Capron and  Kass ‘A statutory definition of the standards for determining human death: An appraisal and a proposal’ 1972    87 and 89-90.
25.    1986 4 SA 1188 (A);    412 Ill 261; 106 N E 2d 188 (Supreme Court of Illinois 1952) (heirs of person determined as of time of death of that person). See also Tracy and Adams    804; Lazarus  362; Corbett    5.
26.  See Murray ‘Law of Succession (including Administration of Estates)’ 1978    347 364: ‘A further complication is the differing views that have been held as to when death is deemed actually to have occurred. Is it when the heart stops beating, or breathing ceases, or when the nerve centre of the brain ceases to function’. See De Beer 6; Chapman (UPLR) 585; Belkin    (2014) 100  101; Provence ‘Proof of life: Understanding the Uniform Simultaneous Death Act’    (AEI) 101 and‘Foreign presumptions and declarations of death and English Private International Law’
27.  See Phillips ‘Time of death: does it matter?’ 2010  ); Derrett  62 and Chapman  585; De Beer 6; Casey  26-27.
28.  See also Capron and Kass    89-90: ‘The right to a portion of the testator’s estate therefore depends upon the beneficiary surviving the deceased. When several people related to one another die together, survivorship will determine the vesting of rights and the lawfulness of claims’.
29.  1950 215 P 2d 478 (California District Court of Appeals). See also Ryan ‘The Uniform Determination of Death Act: An effective solution to the problem of defining death’ 1982    1517-1518; Lazarus363; Schuster 31; Van der Burght and Ebben § 18; Casey    26-27.
30.  Corbett    5 and 574.
31.  In  the court ruled on the issue of who of two persons died first is a    of the trial court.
32.  See Garner 180. Also see  http://legaldictionary.thefreedictionary.com/Simultaneous+death  and  http://dictionary.thelaw.com/commorientes/ (accessed 2015-08-28)  Roeleveld 31 ff; Schuster 31; Van der Burght and Ebben § 20; Asser-Perrick n 28.
33.  See    (Latin); Phillips and Berger 400.
34.  ‘Common-law terminology and its relationship to Civil law terminology’  http://www.kinsellalaw.com/wp-content/uploads/publications/kinsella_civil-law-dictionary-pba.pdf  (accessed 2015-12-23).
35.  See De Beer 6. Hamza (AUV) 43 ff: ‘In the sources of the Roman right [law] one doesn’t find  that appears in the fragments treating legal questions been born following the décés in the same event of several people. The expression relative ‘commorientes’ to several deceased in the same event is only [found] in only one source (D 24.1.32.14).’ See also Nótári and Papp (FJ) 12.
36.  See De Beer 6. The definition was recently confirmed in    160 DLR 4th 36 (1996); Re Mandin Estate 1998 Alberta Court of Appeal (ABCA) 165 §  2  ; See also Contributor ‘Statutory solutions of the problem of survival in a common disaster’ 1936  344 and n 5 http://heinonline.org (accessed 2015-11-13); Tracy and Adams    802; Nótári and Papp    14; Mee    Pauchard  How ancient Rome influenced European law’ 19-08-2013  
37.    585.
38.  Tracy and Adams  802 explain that ‘common disaster’ as a brought concept.
39.  See Anonymous, “Commorientes”, available at  http://dictionary.thelaw. com/commorientes/ (accessed 2015-11-13)  .  In the ‘Joint Response of the Law Society of England & Wales and the Society of Trust & Estate Practitioners to the European Commission’s Green Paper on Succession and Wills’ (LCEW and STEP) 1-20    (accessed 2016-06-01) it is suggested that the use of the established term    may be more useful than the term ‘simultaneous death’.
40.  Kinsella http://www.kinsellalaw.com; Mee  171; Corbett  5; Nathan  39. See also Derrett  60 explains that    is also used to refer to the dying persons themselves.
41.  Chapman  585; Hohmann ‘Presumptions in Roman Legal Argumentation’ (2001-05-17)    61 1-15; See Voet 34 5 3 and 36 1 16 (Gane’s translation 1956) 256-257; Schuster 31; Von Madai  (1844) 373; Conway and Bertsche ‘The New York Simultaneous Death Law’ 1944 Fordham L Review (FLR) 18 n 10; Roeleveld 31-32; Nótári and Papp (FJ) 14; Pauchard (LRE).
42.  Some modern-day scholars do not agree that the word  stems directly from presumptions in the  of Justinian. See D 24 1 32 14: ‘... licet de commorientibus oratio non senserit’. See Scott The(1932) translation. See Hamza ‘Réflexions sur les présomptions relatives aux comourants  en Droit romain’ (Reflexions [sic] on the presumptions relating to commorientes in Roman law) 1976    (2008 translation) 43-68 and Nótári and Papp  12 ff.
43.  
44.  See Tracy and Adams  801; Gallanis 189-200; Roeleveld 31-33; Corbett et al 4-5; Nótári and Papp    12; Corbett et al 4-5 and Mee  178.
45.  See Hamza  43; Hunter 928; Benas and O K F ‘Notes of Cases’ 6 1942  88-90;(1985) 1-39. Nótári and Papp    12.
46.  HLR 344 and n 5; Nathan    39-40 fn 19; Nótári and Papp  12.
47.  Derrett    56-62.    [1947] 2 All ER 418;  [1955] SC (House of Lords) 56;    [1956] OR 188 (Court of Appeal for Ontario) where a couple died together in their house from carbon monoxide poisoning;  [1962] South Australian State Reports (SASR) 95;    Illinois Court of Appeals482 NE 2d 418 Ill 1985;  290 Michigan App 647 803 NW2d 889 (2010).
48.  Sherman  Roman law illustrated by Anglo-American law and the modern codes  (1917) 42-43. See Scott’s translation on  34 5 23;    34 5 24;  34 5 9;  24 1 32 14. See also Derrett  62 ff and Hohmann OSSA 2.
49 Chapman  585; Hohmann OSSA 1-15; Voet 34 5 3 and 36 1 16 (Gane’s translation 1956) 256-257; Schuster 31; Von Madai ‎ 373; Conway
49.  and Bertsche    18; Roeleveld 31-32; Nótári and Papp    14; Pauchard  
50.  For a discussion of Gaius, Bartolus and lavolenus see Derrett    65 fn 19-20.
51.  Hamza    43.
52.    12; Hohmann OSSA 1-15; Hunter 928; Conway and Bertsche  18; Roeleveld 31-32.
53.    63. He notices that in many of these cases the jurists were content that for practical purposes neither survived the other. See also Sherman 42; Gallanis 189-200; Hohmann OSSA 3; Conway and Bertsche  18 n 10; Roeleveld 31-32; Nótári and Papp    14.
54.  Chapman    586 refers to    73 Md 403; 21 At Rep 64 (1891).
55.  Sherman 42; Cowan  (undated)  http://global. britannica.com/topic/Roman-Dutch-law states: ‘  In the southern Netherlands (today’s Belgium), the reception of Roman law began in the 13th century and was completed by the 16th century’.
56.  See D 34 5 3 and D 36 1 16. See Derrett    62; Van Mourick et al 25; Schuster 31; Me  171-199; Roeleveld 34 and his reference in n 5 to    (1676) and n 6    (Antwerp 1626). Cf Nathan (TLR) 42; Nótári and Papp (FJ) 16. Kaser    1 (1955), 237 who gives references to modern continental discussions of the presumptions (at n 21).
57.  Voet D 34 5 3. Williams  156; Derrett  64 n 16 refers to Johan à Someren(1673) III 59-60.
58.  When there is doubt as to who survived, the son (younger) is presumed to have died first. See Cowan (undated); Hunter 929; Heubner    (Philbrick’s translation) (1918) 46; Hamza (AUV) 43-68; Derrett (UCR) 62; Nótári and Papp (FJ) 19 and Van Mourick  (2011- II 2) 25.
59.  See Derrett    64 fn 17 explain the reception of presumptions.
60.    63. They advised that the    should be read with the commentary of Voet. They refer also to Menochio    VI 50 (Venice 1590 II 108-111), where the principles and instance are compendiously and clearly set out.
61.  See Lee    (1946) 369; Zimmermann and Visser ‘South African Law as a Mixed Legal System’ in  (1996) 3 n 16 and 2-13 and 2-13; Williams  156.
62.  Du Toit 278.
63.  Williams  156 explains: ‘The consequence is that one must go back to a comparatively remote period for the majority of the text-writers and cite as authorities books no longer authoritative among the Dutch themselves’. See also Meijer and Meijer ‘Influence of the Code Civil in the Netherlands’ 14 2002  227-236. For SA law see Lee  (2002) 1; Lee (1946) 369; Du Toit 282.
64.  See Roeleveld 33; Schoeman 108-109; Corbett  5; Boezaart 157; De Waal and Schoeman-Malan 12.
65.  For the position in Italy see Menochio  108-111, where the principles and instance are compendiously and clearly set out. In 1495, Roman law was officially declared as subsidiary applicable in Germany. Sherman 42-43.
66.    587.
67.  Stryk Diss io C.
68.  Fodere Vol 2 220. Also see Puelinckx-en Coene ‘De commoriëntenleer, een voorbijgestreefde theorie’ 1970 TPR 239.
69.  See also Tracy and Adams    806 n 40; Hamza    43-68; Lazarus    364; Nathan  42; Tetley  600.
70.  See Derrett 66-67. See the former Art 720-722 of the  (until 2001) and Hunter 928: ‘When it is uncertain whether the legatee or the testator died first. In cases of apparently simultaneous death of two or more people, as by shipwreck, fire, or in battle, it often was material, in determining the devolution of an inheritance or the fate’. See also Garb and Wood § 3.28 for Austria; Sherman 42; Pauchard  ; Roeleveld 38 for France and Belgium. Roeleveld refers to    1710-1719 who apparently criticise the presumptions.
71.  (Cor LR) 77.
72.    (BW -  ) of 1838. See also Williams (YLR) 156; Asser-Perrick n 28. See Van der Burght and Ebben § 20; Meijer and Meijer    227-236; Yntema    77 ff and Roeleveld 40 ff who explains that the presumption is only valid if the moment of death is uncertain and that the rule of the French law was not adopted because it was far too complicated.
73.  See Art 32. See also Schuster 31 who explains the position in Germany: ‘BGB 20 on the other hand establishes a presumption to the effect that persons who have succumbed to common danger have died at the same moment. The effect of this is that neither person can become entitled to any right in the estate of the other as his survivor’. While common law countries generally follow the procedural characterisation of simultaneous death and apply the, German law was applied as the  in    [1945] Ch 5. See Garb and Wood § 3.28 for Austria, § 16 France and § 17 for Germany.
74.  See also the    (1891) Art 25;  Art 4; Roeleveld 43.
75.  See Cowan (undated); Von Madai 373; HLR 344 fn 6-9 for case law before 1936; Derrett    62; Nótári and Papp  19; Verbeke and Lelue 335 ff; Pauchard  . See also BreslauerMeijer and Meijer  227-236. Roeleveld 42 refers to Völker (  (1947/1948) 375 who points out that the application of the presumption could have unreasonable results. In the opinion of Völker the Roman Law had more reasonable results and emphasises equity more than probability’.
76.  Lee (2002) 2. See also Chapman    586; Sherman 42; Derrett  55.
77.  (UCR) 67.
78.  See also Nótári and Papp (FJ) 17; Gallanis 192. See Max Planck Working group (RZ) 27.
79.  See Art 725-1 of the French Civil Code (since 2001).    he    provides: ‘Order of death of two or more persons - 1. When it is impossible to determine the order of death of two or more persons, those persons are considered to have died at the same time, so that none of them shall benefit from the estate of the other.’ See Van der Burght and Ebben § 19. See also Art 2 of the Annex to the 1972 ‘Benelux Convention on    which was adopted in Art 721 of the Belgian Civil Code and Art 720 of the    and Max Planck Working group (RZ) 27 and 100 ff.
80.  Louisiana receipt the Napoleonic Code in 1825 (revised in 1870 and still in force). See also HLR 344; Nathan (TLR) 41;  Lazarus (LLR) 363  who explains the Louisiana Civil Code (LCC) arts 938 and 939. Most case law on the principles of the French Code (presumptions of death) is found in Louisiana and California. See Cowman v Rogers 73 Md 403; 21 At Rep 64 (1891); Hollister v Cordero 76 California 649, 18 Pac Rep 855 (1888); In re Succession of Langles 105 Louisiana 39; 29 So Rep 739 (1900);    297 So 2d 506 (La  Ct  App 1974); In re Estate of Schmidt 67 Cal Rptr 847 854 (1968); Roeleveld 31-33. Haneman and Booth ‘120 Hours Until the Consistent Treatment of Simultaneous Death Under the California Probate Code’ 2015 Nova Law Review (NLR) 451-471.
81.  Chapman    594; Gallanis 189-191; Re    482; Roeleveld 44 ff and  (1985) 3-39. See also Garb and Wood § 2.35 for Australia.
82.  HLR 344 and n 5  http://heinonline.org  (accessed 2015-11-13). See also Nathan  39-40 fn 19; Nótári and Papp12; Corbett  4-5; Roeleveld 31 ff and Mee  178.
83.  Own emphasis.
84.  Reference to the ‘traditional common law’ means for this discussion the position as it was in England and Wales before 1925. See also Von Madai 373;    344 n 6-9 for case law before 1936. See also De Colyar ‘Notes on the presumptions of death and survivorship in England and elsewhere’ 1911    255-277; Gallanis 189 fn 2 for common law cases and Verbeke and Lelue 335 ff in general.
85.  See    (1816) 35 ER 688; See also Derrett  71-2 where he discussed case law from 1767-1816. See also    482; Freeman ‘Influence of Roman Law in English Courts’ (undated) 1-8 http://damienfreeman.com/wp-content/uploads/2014/11/PDF38-Influence-of-Roman-Law-in-English-Courts.pdf (accessed 2016-02-21).
86.  (1883) 44-45.
87.  (1855) 4 De G M & G 633. See Tracy and Adams    809, Chapman (UPLR) 589-600 and LRCSA (1985) 3-8 for a thorough discussion of older common law cases. See also De Colyar  255 ff; Hubback    (1845)    Gallanis 190 fn 4 for Sillick v Booth (1841) 62 Eng Rep 1137.
88.  (1861) 8 HLC 183. See also    2 Phillimore’s Ecclesiastical Reports 261  267; 161 Eng Rep Repr 1137 1140 (1815); Gallanis 190-191; De Colyar (JSCL) 255 ff;
89.  See also    (1767/8) 96 ER 372;    (1985) 3-5 for case law in Australia; Roeleveld 44; Gallanis 193.
90.  LR 5 Eq 139 (1870).
91.    (1985) 5.
92.  151 Misc 577 Surrogate’s Court of the City of New York (1934). See the case law in Tracy and Adams  806 and 831; Zadnik ‘Simultaneous Deaths of Joint Owners’ 1951 W  70-71.
93.  See also Roeleveld 33 and Schoeman 108-109.    344 SW 2d 120 Supreme Court of Missouri En Banc (1961).
94.  HLR 344-5; Tracy and Adams (MLR) 810-813; De Beer 10.
95.  Tracy and Adams (MLR) 810-813; Chapman (UPLR) 589. See  .
96.  Folkerth ‘The Uniform Simultaneous Death Act for Ohio’ 1948  684; Tracy and Adams    808 refer to  (1912 case) to illustrate the common law position. For more recent case law see also    547 SW 2d 232 234 (Tenn 1976);    77 Ill 2d 147, 395 NE 2d 579 (1979);  7 Kan App 2d 128 (1981); 638 P 2d 378; Hubback 149-151; Mee  179 ff;  Pawlowski and Brown (PLR) 122.
97.  Own emphasis. LRCSA (1985) 5-8.
98.  Own emphasis. Zadnik  71: ‘In cases where rights depend on survivorship, the result of the common law rule that no presumption whatever exists is, in legal effect, the same as a presumption in favor of simultaneous death.’
99.  Schoeman 108-109; Corbett  5; De Waal and Schoeman-Malan 12; Mee    171 ff; Orji    501;  (1985) 8 for South Australia.
100.  Conway and Bertsche    19 who refer to earlier cases in America:, 75 N Y 78 (1878);    187 US 401, 23 Sup Ct 184 (1903). See also Chapman    589-600; Mee    173 and the  (1985) 19.
101.  LRCSA  (1985) 9 ff; Orji (CPL) 501 and Sawyer and Spero    (2015) 156.
102.  For a detailed discussion of joint tenancies in English common law jurisdictions see Spitzer ‘Joint Tenancy with Right of Survivorship: A Legacy from Thirteenth Century England’ 1985  629  635-636.
103.  ‘Realism and Formalism in the Severance of Joint Tenancies’ 1998    1-34. Chapman585; Yntema  77 ff; Gallanis 189 and Kerridge ‘Intestate Succession in England and Wales’  (2015) (eds) Reid, De Waal and Zimmermann 328.
104.  See also Folkerth    684; Re    482.
105.  See  http://legal-dictionary.thefreedictionary.com/Joint+Tenancy  (accessed 2016-12-21). Tenancy in common is a  of      of      in      or              it    be  by      or    of  
106.    17-18 fn 9 refer to the marginal notes in    2 Phillimore’s Ecclesiastical Reports 261 267, 161 Eng Rep Repr 1137 1140 (1815). Zadnik    70.
107.  When a husband and wife were swept into the sea by the same wave and were never after-wards seen the court, rejecting all speculations and presumptions and held that there was no evidence to show which was the survivor, and that therefore they must be taken to have died at the same time. The words ‘and in case my said wife shall die in my lifetime’ were interpreted strict.
108.  Zadnik    71.
109.  (1985) 8.
110.  ) 72;    201 Iowa 969 204 N W 448 (1925) (held, since there was no presumption of survivorship in a common disaster, the burden of proof was on the party alleging survivorship).
111.    189. See also Breslauer131; Garb and Wood § 15 for England and Wales; Kerridge 328 and Walker ‘Cold-blooded and warm-blooded presumptions’ paper presented 10-2008    2.
112.  (CPL)Wislizenus ‘Survival in Death by Common Disaster’(argument in favour of civil law presumptions).
113.    1-5; Mee    177. See ZadnikAll other factors are disregarded. Evidence of actual survivorship, however, is not excluded.’
114.  See Curtis ‘  The benefits and pitfalls of joint tenancy  ’ http://www. investopedia.com/articles/pf/08/joint-tenancy.asp#ixzz3s6ySGuRl (accessed 2015-11-21).
115.  See http://legal-dictionary.thefreedictionary.com/Tenancy+by+the+ Entirety (accessed 2015-10-17): ‘A    of    in        by a Husband and Wife  whereby each owns the undivided whole of the property’.
116.  Phillips  . The most distinctive characteristic of a joint tenancy is indeed that of survivorship and the immediate transfer of ownership to the survivor’.
117.    192 Tenn 400  402; 241 S W 2d 506 507 (1951);  133 Tenn 65 69; 179 S W 629 630 (1915). Instead, upon the death of one spouse, the surviving spouse possesses an undivided interest in the whole estate that is no longer subject to the undivided interest of another in that estate, or, in other words, the surviving spouse possesses the property simple absolute.
118.  In South Africa, however, only co-ownership of property is known. See Du Bois    (2007) 558 and 673: ‘The modern position is therefore that a beneficiary has merely a personal right, against the executor and does not acquire ownership by virtue of a will’. See also  [2011] ZAGPJHC 27.
119.  
120.    14-15.
121.  Gallanis 193 indicate that the source for s 184 could have been the Roman or French law. He refers to D 34 5 9 4 and D 34 5 22.
122.  Gallanis 189. See    1952 and s 46 [3] of the    Act 1925. See also Roeleveld 45 See Sawyer and Spero 155-156; Mee    179; Zadnik  
123.    329. Since 1995 it is required that a spouse survives the intestate spouse by 28 days in order to inherit. If the husband and wife have had a tragic accident and the husband dies and the wife survives by more than 28 days and both parties have not made a will then the wife will take the estate of her husband. See also Kerridge 343-344 n 121.
124.    660-661 per Lord Cranworth LC. In    at 213, Lord Wensleydale commented that the evidence left it ‘in total uncertainty whether the husband died before or after the wife, or whether they both died at the same instant. Whoever has to maintain any one of these propositions, must certainly fail.’ Since these two cases have been reported the principles were followed in a number of cases in America, Australia and New Zealand.
125.  For Commonwealth jurisdictions see    (1985) 1-39. See also Law Institute Victoria  1958 (Vic) (2011) ‘Presumptions of Survivorship’ § 44. See also Coffey and Long    (2014) 1315 who explain the Australian position; Pawlowski and Brown    122 for New South Wales and Garb and Wood § 2.49-2.51.
126.  See Zandik 73 for Ohio.    (1985) 8-9 for Australia and New Zealand. See below the    and  
127.  Conway and Bertsche    27; Phillips  ; Dollar  3; Pawlowski and Brown    122-134; Mee  186-189 discusses and criticise the conventional understanding of ‘joint tenancies’ in the case  (1784) 2 Dick 633 and Orji    fn 3 and 507-508 for the origin of joint ownershipCf Hubback 149-150 and Walker    
128.  Phillips  ; Dollar    3; Pawlowski and Brown    122-134; Nótári and Papp  20; Coffey and Long 1315; Gorgopa; Kerridge 329.
129.  [1945] Appeal Case (AC) 304. See also In    [1946] Ch 124;    1948 4 SA 221; LCRSA (1985) 11.
130.  There was no evidence to show whether any of the deceased had survived the other. See also    [1942) Ch 377  382; Mee () 179; Roeleveld 45.
131.  See Mee  173: ‘In the absence of legislative intervention, the common law position (established in the English case law) still applies in Northern Ireland’.
132.    8-2010 para 7.22-7.23. Orji  506-507 and the proposal of the    clause 50 on  which implements the recommendation of the Commission for the introduction of a provision dealing with    (simultaneous deaths of joint tenants).
133.  The common law didn’t follow a presumption of simultaneous death approach but follows a ‘no presumption’ rule. See Garb and Wood § 22 for Ireland § 36 for Northern Ireland. See also    § 44.
134.    2010 par 7.15. The provision is modelled on one contained in the  2006 (No 20).
135.  1965. See also    70-2003 Ch 3.
136.  See Mee  ) 173-176. S 5 was applied in  [2000] 2 Ireland Reports 571; where a married couple was killed when they had driven off a pier in bad weather. See Belkin 100, 103 and Casey    374.
137.  Mee (NILQ) 175 for a discussion on s 5 and how s 184 influenced the outcome in Re    [1963] Ch 1. See also Casey  30-31.
138.  Mee (NILQ) 176 recommendation that s 5 should also apply to all purposes as does s 184; Orji (CPL) 501. See also  (NI) Order 1994, Art 30 and    (NI) Order 1996 a 3.
139.  Mee (NILQ) 175 explains that the provision was derived from Art 20 of the  
140.  2008.
141.  See s 31(1)(b). Garb and Wood § 40 for Scotland. See  1976 Session cases (Scotland) 110.
142.  Orji () 506; Walker    5.
143.  ‘New rules on Succession in Scotland - how they will affect who inherits your estate’ 2016-03-11  https://www.harpermacleod.co.uk/hm-insights/2016/march/new-rules-on-succession-in-scotland-how-they-will-affect-who-inherits-your-estate/  (accessed 2016-10-29).
144.  2016.
145.  Tracy and Adams    808 refer to    (1912 case) to illustrate the common law position. See also Belkin 101 and Kimbrough  ) 289-299.
146.  See Folkerth (OSLJ) 684;    in general; Nathan  40; Lazarus (LLR) 636. See Gallanis 194-195 for the position in all the different states and case law; Tracy and Adams  810-813; Chapman (UPLR) 589.
147.  ; HLR 344-5; Tracy and Adams (MLR) 810-813; Roeleveld 33; Schoeman 108-109 and De Beer 10.
148.  Zadnik  77; Folkerth    684; For more recent case law see    547 SW 2d 232 234 (Tenn 1976);  77 Ill 2d 147, 395 NE 2d 579 (1979);    7 Kan App 2d 128 (1981); 638 P 2d 378; Hubback 149-151; Mee    179 ff;  Pawlowski and Brown  (PLR)  122.
149.  The statutory presumption that was adopted in England is quite different from their contemporary American counterparts. See Kerridge 328. Some States followed the    See Phillips    for California (  1954) and Lazarusfor the    arts 938 and 939. See Mee n 22 who explains: ‘The tendency in modern times has been to discard the presumptions.’ He refers to Samuel ‘The 1997 Successions and Donations Revision - A Critique in Honor of AN Yiannopoulos’ 1999  1041 1043.
150.  See the    1940  . Haneman and Booth  451-471; See also  (1985) 8 ff and Cohen ‘The Common Law in the American Legal System: The Challenge of Conceptual Research’ 1989  for the different    in the different States.
151.  S 3 of the USDA. See Folkerth (OSLJ) 684; Zandik (WRLR) 82.
152.    (n 48). He refers to    125 California App 2d 894 (1954). See also Belkin 101.
153.  (Cal LR).  See Gallanis 200; Provence ‘Uniform Simultaneous Death Act: Part II’ 09-07-2014:  . He explains the latest development in the South Carolina Probate Code where the USDA includes both intestate and testate estates. See    California Court of Appeal [Civ No 295 Fifth Dist June 24 [1964] for the application of the  
154.  Amongst, the adopting jurisdictions, there are variations from state to state, some of which are significant. To determine the law in a particular state one should check the code    in that jurisdiction.
155.  (FJ) 13.
156.  Andersen ‘The Influence of the Uniform Probate Code in Non-adopting States’ 1985    599-600.
157.  Art II, sec 2-104 and 2-702. Garb and Wood § 48-50; De Beer 25. It is not the purpose of this article to discuss the Acts in detail.
158.    See also    2013 North Dakota 83.
159.  Gallanis 198. The 120 hour requirement of survival sought to implement the testators possible intention.
160.  Haneman and Booth    451-471; Zadnik 77. S 6 of the USDA contributes toward this flexibility by allowing the parties to make a different disposition of the property in any will, deed, trust, or contract of insurance.
161.  Gallanis 197 explains: ‘The reason for the drop-off in enactments is that the Act works well when the order of deaths is unknown, but when the details occur in a rapid but ascertainable sequence the Act fails to achieve the desirable result’. Haneman and Booth    451-471.
162.  Saslaw ‘Simultaneous deaths: Testator’s will v State law’ 1993 The    60. See also    946 F 2d 1473 (9th Cir 1991) where the court found that the will of the husband overrides the 120-hour rule where his wife died 38 hours after her him.