A cautionary case for those who haven’t made their Wills

Recently, a particularly unusual case with a £280,000 property in dispute reached its conclusion. The abnormal element of this case was that it revolved entirely around the question, “which spouse died first?” The protracted and laborious court proceedings involved in this case serve well as a cautionary tale, as much distress could have been avoided if the deceased had prepared Wills.

A lot of couples ask us when discussing their Wills what will happen to their estate if they both die at the same time. When considering the succession of estates, when people have died in the same event or accident, the order of the deaths must be established to ensure that the estates of the deceased are administered in the correct order.

In such scenarios it is not legally possible for two people to have died at the same time; one must be established to have died before the other. Unfortunately, in some situations it is not clear which person has died first.

The scenario

In this case, John Scarle, 97, and his wife Marjorie, 69, died nearly three years ago, both from hypothermia in their property in Leigh-on-Sea, Essex. John and Marjorie did not have any children together. John was survived by his only child – his daughter, Anna Winter – and Marjorie was survived by her only child – her daughter, Deborah Ann Cutler.

Their jointly owned estate comprised of their property, worth £280,000, and a bank account holding around £18,000. Neither John nor Marjorie had written a Will, and therefore the question of which of them died first was crucial in determining whether the property was to be inherited by Anna or Deborah.

Anna argued that Marjorie was likely to have died first and that meant that her father technically inherited the property from Marjorie, and should therefore in turn be passed on to her.

Deborah argued that it was not certain who died first and so legally her mother Marjorie, the younger spouse of the couple, should inherit the property and therefore the property in turn should be passed on to her.

“Simultaneous deaths”

The case revolved around the near century-old law, the “Commorientes Rule” in Section 184 of the Law of Property Act 1925 – meaning “simultaneous deaths” – which states that if it cannot be determined who has died first, then the younger person should be presumed to have outlived the elder.

The Judge relied on historic cases considering this same rule, including one which dates back to the Blitz involving two brothers killed in an air raid, where the order of their deaths affected the distribution of their estates.

It has become very rare that the Commorientes Rule needs to be considered due to advances in medical and forensic science.

Medical evidence was submitted to support the claim that Marjorie had died before her husband stating that “on the balance of probabilities” the decomposition of Marjorie’s body suggested that was the case. However, this was not accepted by the Judge as the bodies of John and Marjorie were found in different areas of the property, which had differing climates and temperatures, which may have affected the rate of decomposition of each body.

The ruling

Without conclusive evidence that Marjorie died before her older husband John, Judge Philip Kramer ruled in favour of Deborah.

He said: “The claimant has not satisfied me to the civil standard as to the order of death.”

“I conclude that there is uncertainty as to the order of death. Section 184 applies and the younger is deemed to have survived the elder.”

This case has reconfirmed the old Commorientes Rule and bought clarification to anyone who may be a potential beneficiary of an estate in a similar situation.

The unsuccessful party, Anna Winter, has not only lost out on any inheritance from her father but has reportedly been ordered to pay her stepsister’s legal costs in the anticipated sum of £150,000. This three year long legal battle would most likely have been avoided if John and Marjorie had made Wills before they died.

Contact the Wills experts

If you want to ensure that your estate is divided according to your wishes, please do not hesitate to contact a member of our Wills and Probate team. Call us now to instruct one of our experienced and specialist lawyers to represent you, advise, guide and support you.

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