It sometimes happens that both spouses die at the same time or within a short time of each other. When spouses die at the same time, under South Australian law there is no presumption (that is, it is not taken as a fact) that the older died first. Where there is no proof of who died first, it may be necessary (for example, where the deceased were joint tenants) to apply to the court for guidance as to the distribution of the estate.
A testator can cover the possibility of both spouses dying together or within a short time of one another, by making a clause as follows:
I give my whole estate to my wife Grace Smith provided she survives me by a period of twenty-eight days. If my wife fails to survive me by twenty-eight days I give my whole estate in equal shares to my children Peter Smith and Mary Jones.
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