You may have joked about death with your spouse or partner by saying “I’m going first!” It’s a common enough dash of black humour – usually born from the idea that life without them would be unbearable. But whilst such jokes can make light of painful thoughts, there is a serious consideration underneath – would your plans for passing on your assets to loved ones be affected if one or the other of you ‘went first’?

Many things need to be considered when making your inheritance plans. Usually, in a couple, you will want to make your plans together – so that they are co-ordinated and achieve common intentions – although this may not always be the case.

The order in which you pass away can, in some instances, lead to drastically different effects. This was highlighted in a recent, and tragic, case following the deaths of an elderly couple – a case that also explored how the law handles situations in which it is uncertain who died first.

The case:The Estate of John William Scarle (Deceased) v The Estate of Marjorie Ann Scarle (Deceased) [2019] EWHC 2224 (Ch)

Mr and Mrs Scarle lived in a bungalow in Leigh-on-Sea. Both had children from previous marriages and, whilst Mrs Scarle had made a Will, Mr Scarle had not.

In October 2016, Mr and Mrs Scarle were found dead in their home, having died from hypothermia. It was unclear how long they had been dead before their bodies were discovered but expert opinion agreed that it must have been 48 hours at least. Circumstantial evidence established that they could have died at any time within a 5-day period.

It was also unclear whether Mr or Mrs Scarle had died first. This became a crucial question in the legal dispute which arose over who should inherit the couple’s bungalow, valued at around £300,000, and the contents of their joint bank account, which stood at £18,000.

Both the bungalow and the bank account had been held by Mr and Mrs Scarle as ‘joint tenants’. This meant that the surviving joint tenant would automatically receive the share of the joint tenant who died first. Our factsheet on ‘Jointly Owned Property’ gives further information on how joint property can be held and its legal effects.

Anna Winter, the daughter of Mr Scarle and the Personal Representative of his estate, sought to prove that Mrs Scarle had died first. If established, it would mean that Mrs Scarle’s share of the joint property would pass to Mr Scarle and this would then be passed to her, as his only child, through the Intestacy Rules (because Mr Scarle had not left a Will).

On the other side of the dispute was Deborah Cutler, the daughter of Mrs Scarle and the Personal Representative of her estate. If Mr Scarle was deemed to have died first, his share of the joint property would have passed to Mrs Scarle, before then being passed to the beneficiaries of Mrs Scarle’s Will.

Clearly these represent two very different outcomes depending on which of the couple was considered to have died before the other.

The law in these situations

When it is important to establish the order in which the deaths of multiple people occurred, and circumstances have made this uncertain, a legal principle takes effect.

It is called the ‘commorientes rule’ and is set out under section 184 of the Law of Property Act 1925. It states that – unless a court rules otherwise – the deaths are presumed to have occurred in order of seniority. In other words: that the eldest person died first.

In the case of Mr and Mrs Scarle, Mr Scarle was the older of the two. According to this principle, therefore, he would be deemed to have died first; his share of the bungalow and money would pass to Mrs Scarle, and they would then be passed according to Mrs Scarle’s Will. Ms Winter’s claim could only succeed if a court ruled against this presumed order of deaths.

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The High Court’s judgment

To establish her claim, Ms Winter argued that the evidence surrounding the couple’s deaths indicated that Mrs Scarle had died first.

The judgment makes for difficult reading.  The judge conducted a thorough examination of the circumstances in an attempt to ascertain who had died first and this involved consideration of many upsetting details. As such, you may find even the less-explicit details which follow to be distressing.

Mr and Mrs Scarle had been found in separate rooms, Mr Scarle lying on the lounge carpet and Mrs Scarle on the toilet floor. There were signs of disarray in the house, and it was thought that one or both of the couple may have become confused as a result of the hypothermia which killed them.

Mrs Scarle’s body had been discovered in a more advanced state of decomposition than that of Mr Scarle. Ms Winter’s claim relied heavily on this fact, and both sides introduced expert evidence on rates of decomposition to try and prove the order in which the couple died. The conflict centred on whether there had been different temperatures and conditions in the rooms in which the couple were found – factors which may have affected their rates of decomposition in different ways.

However, the judge found that no certain conclusions could be drawn about the conditions within the bungalow, and therefore, whether the bodies had decomposed at different rates. Circumstantial evidence, such as the locations of certain items in the house, was similarly considered to be equivocal. Therefore, the judge held that the commorientes rule – that the oldest was presumed to have died first – should be applied. Consequently, Mr Scarle was deemed to have died first, with the bungalow and money passing according to Mrs Scarle’s Will.

Considering your own arrangements

This tragic case undoubtedly involved some rare circumstances. It is very uncommon for the commorientes rule to be necessary, especially now that medical and pathological knowledge have come a long way since the rule was set down in 1925.

Additionally, many couples have Wills that make the order of their deaths immaterial – such as ‘mirror Wills’, for example, which essentially match each other in their provisions.

However, in the case above, Ms Winter received nothing of her father’s share of the joint property. Largely this was because Mr Scarle had not made a Will and he held this property with his wife as joint tenants. Whether Mr Scarle would have wanted his daughter to inherit his shares is unclear, but it is not difficult to imagine similar inheritance problems occurring for other people, even without the terrible events of Mr and Mrs Scarle’s case.

It is important to consider your own situation and whether anything in your current arrangements (or lack of!) could cause problems passing on your assets to the loved ones whom you wish to benefit.

How Roche Legal can help

It is never too soon to get your testamentary wishes in order, or to update your plans following changes in your circumstances.

At Roche Legal, we are reassuring experts who can help you with a wide range of legal matters. We specialise in:

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If you would like to know more about planning your inheritance provision, or you would like guidance about your existing arrangements, please do not hesitate to get in touch with us.

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