Commorientes

• Author: Karen Nunez-Tesheira
• Pages: 324-328

324 / Probate Practice and Procedure

COMMON LAW POSITION

Anguilla and Grenada,1 Barbados,2 Guyana,3 The Bahamas4

and Trinidad & Tobago

At common law where persons who are in immediate succession to each

other die whether on a testacy or an intestacy, in circumstances in which it

is uncertain which of them died first, it is a matter of proof which of them,

if either, survived the other. Although there is no presumption that they

died simultaneously, nonetheless if the evidence fails to establish the

survivorship of either of them, each would be presumed to have predeceased

the other and the grant of the estate of each of them is made on that

footing.

However it should be noted that in cases of testacy, a testator may by

his will make express provisions for the disposition of his estate which can

effectively exclude the operation of this doctrine.4

The most common instance in which the doctrine of commorientes

arises is where spouses perish in the same accident either dying intestate or

leaving mutual wills. In such instances in the absence of proof to the

contrary, the husband will be deemed to have died a widower and the wife

a widow. In both cases neither spouse takes an interest under the intestacy

or under the will of the other.

STATUTORY POSITION

A. Eastern Caribbean territories (save Anguilla, Grenada and St Lucia) and

Jamaica5

In the above territories there is a presumption in cases of simultaneous

death of persons in immediate succession to each other that the parties

have died in order of seniority, that is the younger is presumed to have

survived the elder.6

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Commorientes