Who died first? A key question in some probate cases


To some this may seem a strange question but in the context of Wills this can be a very important question and sometimes pivotal in determining who inherits an estate.In the recent case of John Scarle and Ann Scarle, which was heard in the High Court at the end of June 2019, John and Ann were both found dead from Hypothermia in October 2016 in their home in Leigh-on-Sea, Essex. The family are now locked in a dispute over who inherits their combined estate.​0 Advanced issues found▲1

The background to the Will dispute

For both John and Ann this was their second marriage. They both had children from their first marriages; John had one daughter and Ann had a son and daughter.
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.
In this case it has not been medically possible to determine which one of them died first. The children of the deceased couple are now engaged in a legal action through the High Court to determine which side of the family will inherit the combined estate.​  

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. With this in mind, her children’s barrister James Weale, told Judge Phillip Kramer that Mr Scarle’s daughter needed to provide “clear, reliable and compelling evidence” to rebut the presumption imposed by the Commorientes Rule.

The judge has reserved his ruling on the dispute until a later date.0 Advanced issues found▲   

So what can you do to avoid such Will disputes?

There are many things that can be stated in a Will to avoid such disputes. If John and Ann had taken advice on the preparation of their Wills this dispute may have been avoided. ​

  1. 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 the scenario of a couple dying together at the same time when it is medically impossible to determine who survived.
  2. Consider a different approach to providing for you loved ones in your Will. 

    It is very easy to get caught in the mindset that your Will should leave everything to your spouse and then to your children on the death of the surviving spouse. However, in the case of a second marriage this is not always appropriate as only the children from the last to die will benefit- often this is not what was actually intended. Most re-married couples intend that their share of the matrimonial assets should ultimately go to their children, but should they be the one to die first that their spouse still has a home for the rest of their life.

    By including a life interest trust in your Will you 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.

Make sure your Will is clear

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 

Planning for the future is not always pleasant, but putting legally binding arrangements in place now can prevent stress and expense for your loved ones in the future.

Our Private Client Team have been recognised as one of the leading private client departments in the region by Legal 500 UK, and are able to prepare a Will and Lasting Power of Attorney for you that reflects your personal wishes and requirements.

In addition to these services, we also offer related expert estate planning, tax and trust advice.6 Advanced issues found▲           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 July 2019.


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