## Facts

- Hubert M. Perry and Ruth L. Jones‑Perry were married and died after a head‑on automobile collision in rural Oklahoma on August 21, 1999.
- The couple had no children together; Jones‑Perry had three children from a prior marriage, and Perry had other heirs, making the order of death important to distribution of their estates.
- Two probate matters were opened and later consolidated for purposes of an order determining heirship.
- Rich D. Jones, personal representative of Jones‑Perry’s estate, sought a determination that Jones‑Perry survived Perry so that the Uniform Simultaneous Death Act (USDA) would not control distribution.
- James Fred Hill, personal representative of Perry’s estate, argued there was not sufficient proof of survivorship and contended that the witnesses’ testimony did not satisfy the Uniform Determination of Death Act (UDDA) for establishing when each spouse died.
- At the heirship hearing, witness Jerad Kirkes testified that when he arrived at the scene he found Jones‑Perry had a pulse and was breathing.
- Kirkes and witness Ryan Patrick Stroud moved Perry from the vehicle; Kirkes observed Perry “gasping for breath” while being moved.
- Kirkes then checked Jones‑Perry again and found a pulse but no breathing; later he could not find a pulse. Kirkes believed Jones‑Perry survived Perry by approximately three to six minutes, but he acknowledged he never checked Perry’s pulse.
- Stroud testified to substantially similar observations and believed Jones‑Perry lived at least a minute longer than Perry.
- Both death certificates listed the same time of death for the spouses: 11:15 p.m.
- The trial court found, based on the testimony presented, that Jones‑Perry survived Perry and entered an order determining heirship consistent with that finding. Hill appealed.

## Issues

1. In a probate heirship dispute over whether one spouse survived the other (and thus whether the USDA applies), must survivorship be proved by clear and convincing evidence, or by a preponderance of the evidence?
2. Was the lay testimony about observable signs of life, despite identical times of death on the certificates and objections grounded in the UDDA, sufficient to support a finding that the spouses died other than simultaneously?

## Decision

- The Court of Civil Appeals affirmed the order determining heirship.
- The court held that the trial court applied the correct burden of proof: survivorship in this context is proved by a preponderance of the evidence, not by clear and convincing evidence.
- The court concluded the evidence was sufficient to support the trial court’s finding that Jones‑Perry survived Perry by a short period.
- Because there was sufficient evidence that the deaths were not simultaneous, the USDA did not control distribution as if both spouses died at the same time.

## Legal Principles

- In Oklahoma probate proceedings, the ordinary civil burden—preponderance of the evidence—applies to a survivorship determination unless a statute or binding authority requires a higher burden.
- The USDA applies only when there is no sufficient evidence that two persons died other than simultaneously; once a factfinder determines survivorship by a preponderance, the USDA’s default rule does not govern that transfer.
- The UDDA’s definition of death does not, by itself, make lay observations inadmissible or incapable of supporting a timing determination; observable facts such as breathing, gasping, and a palpable pulse may be considered in deciding sequence of death.
- A death certificate’s listing of the same time of death for two decedents is not necessarily conclusive on the issue of survivorship when other evidence supports a different sequence.

## Conclusion

The appellate court upheld the probate court’s determination that Ruth L. Jones‑Perry survived Hubert M. Perry, ruling that survivorship needed to be shown only by a preponderance of the evidence and that lay testimony describing signs of life at the accident scene provided sufficient support for a non-simultaneous-death finding, making the USDA inapplicable.


Estates of Perry v. Hill, 40 P.3d 492 (2001)