Scarle v Scarle and the commorientes rule

The importance of having a well-drafted, valid Will has been highlighted clearly in a recent case where the commorientes rule was used to determine who would inherit a couple’s estate, after two step-sisters ended up in a dispute over which of their parents died first.

The commorientes rule (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 die in circumstances where it is uncertain who died first, the eldest of the two deceased is assumed to have died first. This presumption, however, can be overturned by evidence to the contrary.

The case of Scarle v Scarle surrounded the deaths of John and Marjorie Ann Scarle, who both sadly died in October 2016 from hypothermia. They were found together at 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 (which included the family home worth approx £280,000). The court had to decide whether there was enough evidence to establish who died first. Judge Philip Kramer found if 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 highlights 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.

Ann-Marie Matthews is a solicitor in the private client team at Barker Gotelee, Ipswich Solicitors.

Suffolk Estate Planning Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email