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Who died first?

Posted on 28th June 2019

The reported case of the stepsisters asking the Court to rule whose parent died first to determine which of them should inherit, relates to the little known commorientes rule.

The literal meaning of the word is “simultaneous deaths” and applies in circumstances where two or more people die in circumstances where it is impossible to tell who died first. Section 184 of Law of Property Act 1925 provides that in such circumstances, the deaths are presumed to have occurred in age order, so that the younger person is deemed to have survived the older person. So in the reported case of John and Ann Scarle, who both died from hypothermia in their home in October 2016, the legal presumption would be that John Scarle died first, as he was the older of the two. Although the wife was younger, the husband’s daughter is saying that he probably survived longer, as he was the healthier of the two. However, to overturn the commorientes rule, the husband’s family will have to be able to prove that.

In the circumstances of this particular case, the couple each had children from previous marriages. They died at their home in Essex and their bodies were discovered at a later date. The cause of the tragedy is unknown and the two sides of the family are now arguing over who inherits. This is likely because in each Will, they left their estate to the other spouse and then on the second death they each left their estate to their own children. If the order of death was known, it would be the children of the second spouse to die who would inherit and the position would be quite clear.

But, why did the Scarle’s leave it to chance as to which side of the family would inherit? Most couples would want both sets of children to benefit, whoever died first. In most cases where there are children from a previous relationship, couples would be advised to make provisions for every eventuality, to ensure (a) there is not a legal fight after the death of one or other of them; and (b) so that both sides of the family can share the total inheritance fairly.

One way of avoiding the commorientes rule applying is to put a survivorship clause in the Will, providing that someone can only inherit if they survive for a period of say 30 days. However, with married couples, that can have inheritance tax implications, if they do both die at the same time. Also, it does not resolve the situation of “survivor takes all” which is often not what is intended. Better, to consider the following:

  1. In each Will, make provision to split the assets on second death i.e. 50% to each person’s children. It is of course possible that the survivor could change their Will or remarry which would revoke that Will and so another possibility would be –
  2. To own the property (which is in dispute in the Searle case) as tenants in common (a form of joint ownership, which allows you to leave your own share of the property by the terms of your Will) and then to leave the survivor a life interest or a right to live in your share of that property (or any replacement) during their lifetime only. On their death, your share could pass under the terms of your own Will, to your children. In that way, the surviving spouse can stay in the house and your children don’t lose out.

There may be other possibilities to consider as well, but a properly drafted Will could avoid the issues now affecting these two families.
In the Scarle case, the judge will give a ruling at a later date.

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