What happens to an estate when you don’t know who died first?
28 August 2019 by Lauren Hancock
As a Wills and Probate Solicitor, I am quite often asked by clients “what would happen if me and my husband/wife/partner die at the same time having left each other our entire estates?” This is a question which has been bought to the fore in recent months and was ultimately considered by High Court Judge Philip Kramer when deciding what was to happen with the joint assets of the Late Mr and Mrs Scarle.
On 11th October 2016, Mr and Mrs Scarle were both found deceased at their Leigh-on-Sea home. The last known sighting of Mr Scarle was the 3rd or 4th October, over a week before he and his wife’s bodies were discovered.
Some 3 years of expensive legal dispute ensued between Deborah Cutler, Mrs Scarle’s daughter, and Anna Winter, Mr Scarle’s daughter as to where their joint assets should pass. If it were found that Mr Scarle passed away first, his interest in the joint assets, including the family home, would have passed to his wife (albeit for a very short time) and thus, these would have subsequently passed with her estate to her daughter Deborah. If Mrs Scarle passed away first, her interest in the joint assets would have passed to her husband and then to his daughter Anna. Needless to say, both Deborah and Anna argued that their respective parent outlived their spouse.
Though examinations determined that both Mr and Mrs Scarle died of hypothermia, there was no conclusive evidence as to who died first. Anna argued that Mrs Scarle, her step mother, was most likely to have passed away first. Her legal counsel stated that the decomposition of Mrs Scarle’s body demonstrated that she had predeceased her husband.
Deborah on the other hand argued that there was no evidence to demonstrate whom had died first and that therefore the “commorientes rule” should be applied. This rule, established under the Law of Property Act 1975, states that where two or more persons have died in circumstances where it is uncertain which of them survived the other, it is presumed that the younger outlived the elder for all purposes affecting the title to their property.
Deborah’s mother was some 10 years younger than her husband meaning that, if the commorientes rule was applied, she would be presumed to have outlived him.
After hearing the case, Judge Kramer found that the evidence produced to him was insufficient to establish the order of death. He therefore ruled that the commorientes rule applied and therefore that Mrs Scarle was deemed to have outlived her husband.
The case highlights the huge importance of ensuring that your affairs are in order. If you would like any advice in relation to preparing your Will, we at Fisher Jones Greenwood are here to help. Please feel free to call us on 01206 700113 or email [email protected].
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