When disaster strikes - a case law analysis of simultaneous deaths

Abstract

Incidents of loss of life might inevitably result in litigation when the sequence of victims’ deaths is disputed. In this contribution, an analysis and discussion of tragic incidents and case law dealing with simultaneous deaths as well as the questions posed by the law of succession by the “commorientes” doctrine are done. The potential impacts where simultaneous deaths occur and several family members, or related persons, die instantly, are illustrated, with reference to natural disasters and shared tragedies on the one hand, and the frequency of the simultaneous loss of lives on the other. Different scenarios found in numerous reported incidents and cases from South Africa and other jurisdictions are discussed. It is also shown that several aspects have contributed to the recent increase of simultaneous deaths due to the change in times and conditions over the past 2000 years. Also contributing to this is the facts of the case, on the one hand, and dissimilarity in the approaches between common law and civil law on the other. The author focuses on case law as the Courts are called upon to determine the order of deaths to establish whether the exact sequence can be determined, or not. It has become apparent that whenever the order of death can be established accurately, the distribution of the estates will follow the sequence of deaths. However, if the order cannot be established the departed are either “regarded” as having predeceased each other (as no one survives the other), or surviving each other resulting in them being incapable of inheriting from one another. South Africa is exposed to high rates of simultaneous deaths, especially road accidents, murders and attacks on civilians, and despite daily media reports of people dying in the same disaster, there has been only a hand full of reported Court cases on this topic.