The High Court Has To Decide the Order Of Death Of Elderly Couple

Author: Elizabeth Baker
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In October 2016, an elderly couple both died in their own home having suffered from hypothermia. Their bodies were not discovered until a week later, after neighbours called the police.

The couple, John and Ann Scarle, both had children from previous marriages and these stepdaughters are having a case heard, in the England and Wales High Court, regarding who has the right to inherit the Scarles’ home, which is jointly owned and is valued at £300,000.

The difficulty is that the issue of succession depends on who died first. In the Wills left by the deceased couple it seems that Mrs Scarle wanted her share of the property to pass to Mr Scarle if she died first and then, when Mr Scarle died, her share would pass to her children Deborah and Andre.  Mr Scarle wanted his share to go to his wife, if he died first and when she died, his share would pass to his daughter, Anna. So the case is pivotal on which one of the couple died first. However, expert evidence could not reliably decide an approximate date of each death, let alone a time.

Mr Scarle’s daughter, Anna, argues that the autopsy evidence shows on the balance of probabilities that Mrs Scarle died first and she should inherit. Mrs Scarle’s daughter,Deborah, in turn contends that the order of death cannot be certain and so the commorientes rule in s184 of the Law of Property Act 1925 should apply. This states that the older person will be deemed to have died first. Mr Scarle was the elder of the two, so the presumption would be that he died first. Mrs Scarle would therefore inherit and on her death her estate would go to her children. Deborah also asserts that the s184 supposition cannot be overturned, unless the evidence that Mrs Scarle died first was beyond reasonable doubt.

No decision has been reached.

Although, it is generally acknowledged that a couple dying together in a common accident is a relatively rare occurrence, in Scotland, it is customary when drafting Wills to take account of such a situation in the unlikely event of a spouse or partner dying in quick succession. It is therefore usual for 30 day clauses to be used in wills of married couples or civil partners. These clauses provide that on the death of the first, their estate only passes to their partner if their partner survives them for 30 days. This prevents a situation of the estate first passing in quick succession through the estate of the other, only to find that the other had already died in that same accident or shortly thereafter.

If you would like further information please contact a member of our private client department.

Elizabeth Baker

About Elizabeth Baker

Elizabeth is our Business Development Manager. She has a degree in both English Literature and Law from Glasgow University. After graduating in 1983 she served her traineeship as a solicitor in Oban. When she was admitted as a solicitor her first job was at Mitchells Roberton in 1985 so she is a well known face. She spread her wings and joined other firms along the way and had a successful law practice under her own name for some years. She returned to Mitchells Roberton in 2011 and works primarily to enhance the marketing of our firm. With her excellent links with small business and the media in the greater Glasgow area, she is well placed in the role and generates a good deal of referrals and new business. Elizabeth is a people person and naturally connects with both staff and clients. Elizabeth has two grown up children and loves walking her dog, travelling and reading literature. Email: eb@mitchells-roberton.co.uk

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