A commorientes clause is a clause that state in the Will that the beneficiary will only be entitled to the gifts if the beneficiary survives the testator by certain days, usually 30days after the death of the testator.

This clause is useful in the situation that if the testator and the beneficiary died at the same time or it cannot be determined who died first such as in an accident. Section 2 of the Presumption of Survivorship Act 1950 states that 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. It means the younger person will be deemed to have survived the older person.

If the testator and the beneficiaries died together in such a scenario, the younger beneficiary in the Will that without a commorientes clause will inherit the testator’s gifts and therefore it will form part of the beneficiary’s estate. Is the testator intention?
If there is such a commorientes clause in the Will, the deceased beneficiary is deeded to have died before the testator. Therefore, that beneficiary will not inherit the gifts and the gifts will be distributed to the other beneficiaries stated in the Will.

The purpose of having such a clause in the Will is to prevent the gifts from being part of the estate of the beneficiary who did not survive long enough to entitle the gifts and also to avoid the gifts to be transferred twice.