An important and interesting inheritance dispute claim has been heard at the High Court. The contested probate issue between stepsisters sought to establish which of their parents was the first to die in order to determine the way in which the estate’s assets should be distributed.

The background

Coroners established that the married couple, John William Scarle, 79, and Marjorie Ann Scarle, 69, both died as a result of hypothermia while resident at their Essex home in 2016. The exact details of their deaths, which evidence revealed could have been at any time within a five-day period, were unclear.

Given the way in which the law in relation to probate and estate administration operates in reference to “joint tenants”, the correct distribution of the couple’s assets hinged on the sequence of their deaths: a surviving joint tenant automatically receives the share of the other joint tenant who died first.

Under Section 184 of the Law of Property Act 1925, in instances where the order of death is unclear, there exists a presumption that the oldest person died first. Because, of this principle, known as the “commorientes rule”, Mrs Scarle’s daughter, Deborah Cutler, was due to inherit the couple’s £300,000 Essex bungalow and £18,000 in savings.

However, Anna Winter, the daughter of Mr Scarle, instructed inheritance dispute solicitors to bring the claim and argue that her stepmother, Mrs Scarle, was the first to die, therefore passing her share of the estate to Mr Scarle. The court heard evidence from Police in the form of investigation reports into the deaths and medical records, as well as from the doctor who carried out the post-mortem examinations and forensic pathologists for both the claimant and defendant.

What the court found

The High Court heard that Mrs Scarle had suffered a brain haemorrhage around ten years prior to the approximate date of her death. This had affected her mobility. Furthermore, it was heard that her body was “substantially” more decomposed than her husband’s. However, experts conceded that this more advanced state of decomposition could have been attributable to temperature differences in the rooms of the couple’s Essex house in which each was discovered.

Judge Philip Kramer stated, “I am left with two not improbable explanations for this effect. The first is that Mrs Scarle pre-deceased her husband, the second that the micro-environment of the toilet area was warmer than the lounge. I cannot discount the latter in the absence of evidence from which I could reliably reach such a conclusion. Accordingly, I cannot fairly draw the inference that it was the former.”

Given that all the circumstantial evidence was equivocal, the judge deferred to the commorientes rule – which means that the oldest was presumed to have died first. As such, the bungalow and the money passed according to Mrs Scarle’s Will to her daughter, Ms Cutler.

What we learned

This inheritance dispute makes it clear that testators should ensure the future of their estates by having up-to-date and valid Wills in which they clarify important matters – for example, whether property is held as joint tenants or tenants in common. Part of this responsibility includes ensuring that both parties are aware of what happens if one dies before the other or if both die at roughly the same time and it is impossible to determine who predeceased whom.

For couples, particularly those from so-called ‘blended’ families that include stepchildren, this means making plans together for every possible eventuality. It is uncomfortable to think about, but it should always be borne in mind that the order in which a couple dies can, without proper planning, result in dramatically different consequences and the likelihood of a contested probate claim.

Making so-called “mirror Wills” is usually the best way to avoid confusion. As their name implies, these Wills mirror each other’s provisions and allow for a clear unity of intent.

In the case of the Scarles, if Mr Scarle had wanted his daughter to inherit his property upon his death, the only way for him to have ensured this would have been for him to instruct a Wills solicitor to draft a valid Will to this effect. As it was, once his share of the estate passed to his wife at the time of his death, the rules of inheritance are that Mrs Scarle’s Will took precedence.

To read the full judgment, click here.