The importance of having a well-drafted Will has been highlighted in a recent case which saw two step-sisters in a dispute over their parents’ estate and specifically who died first.
The commorientes rule (which is found in section 184, Law of Property Act 1925) applies for the purpose of determining title to property. It states that, unless the court determines otherwise, where two or more people have died in circumstances where it is uncertain who died first, the eldest of the two deceased is assumed to have died first. This presumption can be overturned by evidence to the contrary.
The case of Scarle v Scarle concerned the deaths of John and Marjorie Ann Scarle, who both sadly died in October 2016 from hypothermia. They were found together in their property, having passed away, and the coroner was unable to determine which of the couple had died first. Both John and Marjorie Ann had children from previous relationships who would stand to inherit, dependent on which of the couple survived the other.
John Scarle’s daughter, Anna Winter, argued that there was some evidence that her step-mother had died first, even though she was younger than her husband. This would mean her estate would have passed to John briefly, and then when he died, would pass to Anna. However, Anna’s step-sister, Deborah Cutler, claimed it was not possible to determine the order of their parents’ deaths and therefore the rule of commorientes should apply, meaning she would inherit.
The judge was asked to consider whose estate would inherit the jointly owned assets (including the family home worth approximately £280,000). The court had to decide whether there was enough evidence to establish who died first. Judge Philip Kramer found in favour of Deborah and applied the commorientes rule to the case on the basis that there was no conclusive proof as to who had passed away first. He concluded that ‘…there is uncertainty as to the order of death. Section 184 applies and the younger is deemed to have survived the elder.’
Cases such as Scarle v Scarle are rare and it is unusual to have to rely on the commorientes rule. However, had Mr and Mrs Scarle taken advice regarding their estate planning options and made Wills which set out who they wanted to benefit from their estate once they had both died, the order of their deaths may not have had an impact on the distribution of their estates.
This case serves to highlight the importance of taking professional advice and having an appropriately drafted Will to ensure that your wishes are accurately recorded. In the context of second marriages or complex family arrangements, protective trusts can be used to ensure that assets pass to beneficiaries as intended. A solicitor or professional advisor will be able to recommend the best way to draft your Will to ensure your wishes are met and your assets pass in the way you intend on your death.
Associate Solicitor at TWM Solicitors LLP
Charlotte is an Associate Solicitor at TWM Solicitors in Wimbledon. She joined in 2017 having qualified in 2015. Charlotte specialises in all Private Client matters including Wills, Estate Administration, Lasting Powers of Attorney and Court of Protection work. She is a fully qualified accredited member of Solicitors for The Elderly (SFE) and a committee member of SFE Surrey. Charlotte is also an affiliate member of the Society of Trust and Estate Practitioners.
TWM Solicitors is a leading South East law firm with 220 people in offices across Surrey and London. We are a full service firm, undertaking the full spectrum of legal work – for private clients, we are renowned for family law, residential property, tax planning, trusts, wealth management, and Wills and probate, and for business clients we have teams dealing with the full range of corporate and commercial law, dispute resolution, employment, and commercial property. Our Private Client department is recommended in The Legal 500 Guide to UK law firms and in the Chambers HNW Guide.