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What happens when the court has to decide who died first?

Posted on 15th August 2019

This week the High Court gave judgement on a probate dispute involving a battle between two step sisters. The court had to decide which parent had died first.

The case involved an elderly couple who each had children from a previous marriage. Jon Scarle was 79 and was full time carer for his wife, Marjorie, who was 69 and disabled following a stroke.

The couple were both found dead in their home in October 2016. Neither had made a will. They owned their house and some savings in joint names. If one joint owner dies, the joint asset passes to the surviving owner. You need to know who died first in order to work out who is the surviving owner.

In this case, if it was established that Jon had died first, the house and savings would have passed to Marjorie. As there was no will, the intestacy rules apply. Under those rules, Marjorie’s estate would pass to her children. If Marjorie had died first, the estate would have passed to Jon and then on to his daughter under the intestacy rules.

It seems likely that Jon and Marjorie would have wanted to leave an inheritance to all their children rather than leaving it to chance as to who would inherit. If they had consulted a solicitor about making a will, they would have been advised to change the way that they owned their house so that they could each leave their half share to their own children. A trust would have been created so that the surviving spouse had the right to live in the house for the rest of their life.

As there were no wills, the court had to determine who had died first in order to work out who would inherit the estate. There is a presumption in law that where two people die at the same time and it is not known who died first, the court will assume that the older person died first. This rule applies where a couple are killed in a plane crash or any other type of accident.

In this case, Jon was the older spouse so the presumption was that he had died first. This meant that the joint assets passed to Marjorie and then on to her children under the intestacy rules.

Jon’s daughter challenged the presumption by producing evidence to show that it was more likely that Marjorie had died first. The court decided that the evidence was not conclusive and therefore the usual presumption should apply. This meant that Jon’s daughter did not inherit any of the joint assets.

This dispute would have been avoided completely if the parents had taken advice, changed the way that their owned their home and made wills.

Many people believe that their children will inherit whether or not they make a will. This case is a reminder of what can go wrong if you die without a will especially when there are children from an earlier marriage.

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