23 August 2019 by

Who dies first? Court battle over parents’ £300k estate decided

The order in which two people die can have a profound impact on who inherits.  A recent case considered the application of a long established but rarely used legal rule that says where the order of death cannot be ascertained it is presumed that the eldest person died first.

The case involved a husband and wife, John and Marjorie Scarle, who sadly both died of hypothermia at their home in October 2016.

John and Marjorie each had children from previous marriages, and it was not clear which of them had died first, prompting litigation over who would ultimately inherit their £300,000 of joint assets.

John’s daughter, Ms Winter, claimed Marjorie had died first, so her father would have inherited Marjorie’s share of the estate, and this would now be passed to her.

Marjorie’s daughter, Ms Cutler, relied upon the legal rule called ‘Commorientes’, claiming that as it was not possible to determine who died first then the legal presumption is that her step-father John died first, as he was the eldest, meaning Marjorie would have briefly inherited John’s share of the joint assets, and the estate would now pass to her (and her brother).

The High Court Judge decided the correct standard of proof is the civil one, which is ‘the balance of probabilities’, and that where the order of death is uncertain, the burden of proof is on the party seeking to establish otherwise. This meant that it would have been for Ms Winter and her legal representatives to establish, on the balance of probabilities, based on forensic evidence, that Marjorie (aged 69) died before John (aged 79).

Ms Winter was ultimately unable to do this, and the Judge eventually ruled that ‘Mr and Mrs Scarle died of hypothermia at some time between 5th and 9th October 2016. The claimant [Ms Winter] has not satisfied me to the civil standard as to the order of death, it remains uncertain. Accordingly, the presumption of death applies and Mrs Scarle is presumed to have survived Mr Scarle.

This meant Ms Cutler was successful and inherited (alongside her brother) not only her mother’s sole assets, but also John’s share of any joint assets, which would have passed to Marjorie’s estate on John’s death.

If you would like to find out more about the case or speak to one of our recognised Contentious Wills and Probate Team please click here.

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