High Court decides who died first in landmark probate case


In July we looked at the very interesting and unusual High Court case of Scarle. Mr and Mrs Scarle were found dead together at their home, which posed huge problems with their estate. In order to decide who inherits the estate, the Court needed to decide who died first. Four months later and Judgement in that case has been given.

Background to the case

John and Ann Scarles both passed away from Hypothermia in 2016. Both had children from their first marriages, who then became locked in a dispute over inheritance of their combined estate, seeing as it was not possible to medically determine who died first.

Due to the wording of their Wills, the survivor of them would inherit the whole estate and thereafter the children of the survivor would inherit. They also owned property jointly together which again would pass from the first to die to the survivor and then to the survivors children.

His Honour Judge Kramer was asked to consider the legal position of a double death where it is unclear who died first. This legal analysis required consideration of what is known as the Commorientes Rule.

Section 184 of the Law of Property Act 1925, otherwise known as the Commorientes Rule (literally meaning “simultaneous deaths”), states that (subject to any court order) if two or more people die in circumstances where it is not possible to tell who died first, the deaths are presumed to have occurred in order of seniority, so the younger is deemed to survive the elder.

Ann Scarle was 10 years younger than her husband.

The Judgement

His Honour considered evidence from various pathologists including Dr Ashley Fegan-Earl (from BBC’s Silent Witness) that Ann’s body was greatly more decomposed than that of John’s. His Honour stated in his judgement that this was either due to the fact that Ann had died first or that her body was found in an environment which enabled significantly advanced deterioration. He concluded that there was insufficient evidence to agree that it was the latter and therefore on the balance of probabilities there was no reason to displace the statutory presumption under Section 184 that John had died first.


The judgement meant that any joint assets and all assets passing under their Wills passed from John to Ann and then on to Ann’s two children leaving John’s daughter to inherit nothing.

How to avoid a Will dispute

To avoid years of court battles like John and Ann’s children you need to take professional advice from a Solicitor.

A solicitor will be able to advise you on the clauses to include in a Will to protect your loved ones against all eventualities. They will also be able to advise you on a life interest trust which can protect your share of your matrimonial assets for your children whilst also ensuring your spouse is protected for the rest of their lifetime. This approach ensures both sides of the family are provided for.

Most importantly, make sure your Will is clear and watertight. By taking appropriate advice you can ensure that your affairs are dealt with smoothly and efficiently and it should also minimise the risk of delays and costs of a legal dispute.

More information

Our Private Client Team are one of the leading private client departments in Essex, and are able to prepare a professional, watertight Will that reflects your personal wishes and requirements.This article was written by Claire Buttress, Senior Associate in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2019.


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