45 St. Clair Ave. West, Suite 600
Toronto, Ontario, M4V 1K9
Tel: (416) 925-7400 Fax: (416) 925-7464

The Meaning of “Survival”

In Ontario, the general rule is that heirs and beneficiaries must survive whomever they inherit from. But what does “survive” mean? What happens when a testator and a beneficiary die at the same time? Simultaneous death is a rare occurrence. Absent a catastrophic incident such as a plane crash or explosion, it is likely that medical evidence could be procured to determine who died first. However, situations exist where although the victims did not truly die simultaneously, the sequence of their deaths cannot be determined.

Historically, common law rules deemed it necessary for a person claiming property in this situation to prove the order of deaths. This rule has been replaced by legislation.[1] According to Part IV of the Succession Law Reform Act, it is assumed when two people die at the same time and it cannot be determined who in fact died first, that each person is deemed to have survived the other.[2]

The purpose of this rule is to avoid the unnecessary hardship of having to prove the order of deaths as well as multiple administration costs. However, if the order of death can be proved, this statutory presumption may be avoided.

Many jurisdictions in the United States take a slightly different approach to determining the meaning survival. The Uniform Probate Code (“UPC”) sets out what is commonly referred to as as the “120-hour rule”:

UPC 2-104[3]

a) For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (b), the following rules apply:

  1. An individual born before a decedent’s death who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before a decedent’s death survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period.
  2. An individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives 120 hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent’s death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.

Simply put, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent and the decedent’s heirs are to be determined accordingly.

Janus v. Tarasewicz[4] is a case that demonstrates the need for such a rule.

On September 29, 1982, husband and wife, Stanley and Theresa Janus, decedents, unknowingly ingested cyanide-laced Tylenol capsules. Shortly thereafter, Stanley collapsed on the floor. Theresa was still conscious when a nurse attended the scene and began performing CPR on Stanley. Theresa fainted and started experiencing seizures shortly after the nurse arrived. She was breathing on her own but her pupils did not respond to light. Stanley was pronounced dead that night at the hospital.

Doctors were able get Theresa’s heart beating on its own but she had no other visible vital signs. On the night of September 29, 1982 she was moved to the intensive care unit.

On September 30, 1982 it was determined that Theresa had suffered total brain death. Here life support systems were removed and she was pronounced dead on October 1, 1982.

Theresa was the beneficiary of Stanley’s life insurance policy. The insurance company determined that Theresa had survived Stanley and paid the proceeds to the administrator of Theresa’s estate.

Stanley’s mother (the “Plaintiff”) brought a declaratory judgment action against the insurance company and the administrators of Stanley and Theresa’s estates, claiming the proceeds of the insurance policy ought to go to her as the contingent beneficiary of the policy. The trial court heard testimony from several expert witnesses and concluded that Theresa survived Stanley but did not say by how long she survived him. The Plaintiff appealed.

The Appellate Court affirmed the Trial Court’s decision stating that the diagnoses’ of death were made in accordance with the usual standards of medical practice and that it was not necessary to determine how long Theresa survived Stanley.


In this case, Illinois treated the beneficiary as having died first for purposes of distribution of property or insurance proceeds. A major point of contention in this litigation was the definition of “death” given the possibility that Theresa suffered total brain death before Stanley was pronounced dead. This case predated the adoption of the 120-hour rule by the UPC, which ultimately would have prevented this litigation from occurring.

Legislation has added clarity to the meaning of survival for the purposes of determining heirs and beneficiaries when the sequence of deaths cannot be easily determined.

[1] Oosterhoff on Wills, 8th Edition, 2016, Thomson, Carswell, p. 622.

[2] Succession Law Reform Act, R.S.O. 1990, c. S.26, Part IV.

[3] Unif. Probate Code §2-104.

[4] Janus v. Tarasewicz, 482 N.E.2d 418, (Ill. App. 1st Dist. 1985).

Previous Post:
Next Post:
Click here or on top Blog logo to return to Blog front page.

Search Blog by Keyword(s)

Site Search

Site Map