The commorientes rule: a warning

  • September 19, 2019
  • By Daniel Watson, Senior Associate

The recent case of Scarle v Scarle highlights the importance of proper lifetime planning in the context of wills.

In a situation where two or more people die and the order of their deaths is uncertain, a little-known rule contained in section 184 of the Law of Property Act 1925 (known as commorientes) dictates that it is presumed that the deaths occurred in order of seniority (in other words, the younger is deemed to survive the older). The presumption applies unless a party successfully establishes that the order of deaths occurred otherwise.

The facts of Scarle v Scarle were that the bodies of John and Anne Scarle were discovered in their family home in 2016. It was established that they had died a number of days previously. Mr Scarle had not left a Will, meaning that his estate would have passed under the intestacy rules to his daughter, if he had survived his wife. Mrs Scarle had left a Will, which provided that her estate should pass to her daughter. Whichever of the couple died last would have inherited the joint assets (which included their home and a bank account), which would in turn have passed to their respective children. In order to establish to whom the deceaseds’ joint assets passed, the order of death needed to be ascertained.

It was not possible to identify precisely on which date(s) Mr and Mrs Scarle had died. The body of Mrs Scarle was more decomposed than Mr Scarle’s, but this did not determine who died first. The relevant decomposition rates were different in the locations involved (primarily because of the different ambient temperatures).

The question in point was what standard of proof should be used to establish the order in which the couple died. The judgment noted that the standard of proof is the same as in civil proceedings, i.e. the balance of probabilities. The implication of this was that, as it could not be established on the balance of probabilities which of the couple died first, the presumption under the commorientes rule, i.e. that the younger survived the elder, applied to Mr and Mrs Scarle. This meant that Mrs Scarle was presumed to have survived Mr Scarle, meaning in turn that the couple’s joint property passed to Mrs Scarle’s daughter under her Will.

The case highlights the fundamental importance of having Wills in place (which Mr Scarle did not), and of couples in second marriages reaching agreement on where their joint estates should eventually end up after the death of the second to die. If this had been done, one outcome might have been for the Scarles to decide that the children should each receive 50% of the combined estates following their deaths. This could have been achieved by leaving everything to the surviving spouse outright, with the children inheriting 50:50 on the second death. Alternatively they could have decided that each of them would leave at least some of their respective assets on trust for the survivor for the remainder of the survivor’s life, and thereafter for their own children, thereby preserving those assets for their children.

Having an effective Will dealing with one’s assets can be invaluable in avoiding family disputes and consequential legal fees (around £170,000 in Scarle, with the property in question only worth around £300,000).

For more information, please contact the partner having responsibility for your affairs or any partner in the private client department here.

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