Will dispute shows importance of well drafted Wills


The High Court is considering a Will dispute between two daughters concerning which one of their elderly parents died first.

John and Ann Scarle sadly died at their home in Essex in 2016 however their bodies were not discovered until a week later.

They each had children from previous marriages who are now claiming the right to inherit the £300,000 home which Mr and Mrs Scarle owned jointly.

Where a property is owned jointly, it will pass to the survivor of the two owners where if the property was owned as ‘tenants in common’ then it will pass under the terms of each person’s Will.

It is therefore important to know who died first where a property is owned jointly (i.e. who survived to inherit the house). Unfortunately in the circumstances, it is difficult to establish who died first, which has led to this particular Will dispute. If Mr Scarle died first, his estate would have passed to Mrs Scarle and then when she died, it passed onto her children; Deborah and Andre. Whereas if Mr Scarle died first, her estate would have passed to Mr Scarle and when he died, it passed onto his daughter; Anna.

The children are therefore now disputing the matter in court, with Anna arguing that Mrs Scarle appears to have died first and therefore she (Anna) should inherit, whereas Deborah argues that as it is unclear who died first, the commorientes rule in s184 of the Law of Property Act 1925 applies. This rule states that where it is not possible to tell who died first, the elder (Mr Scarle) is treated as having died first, thus meaning that Deborah and Andre inherit under their mother’s Will.

All of these issues could have been dealt with by severing the joint tenancy of the property and having well drafted Wills.

Whilst Wills are important in all circumstances, they are particularly important where there are untraditional family dynamics.

Rebecca Dixon is a solicitor in the private client department at Barker Gotelee, Ipswich solicitors.

Personal Solicitors Ipswich – for more information on our range of legal services, please call the team on 01473 611211 or email bg@barkergotelee.co.uk