August 2019 – Grim – but not a fairy tale – Wills and children from previous relationships

Author: Mitchells Roberton
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Stating the obvious

  • At the risk of stating the obvious, in order to inherit from someone you need to survive them. You don’t need to survive them for long: the merest instant will be enough (unless the will makes survival for a longer period a condition of inheriting). This sounds obvious – and usually it is. But a decision this month from the English High Court – Scarle (deceased) v Scarle (deceased) – is a stark (and rather grim) example of how, in rare cases, it can all get decidedly tricky.

The (grim) English case

  • The court case involved the situation where an elderly and frail married couple, Mr and Mrs Scarle, were both found dead in their home from hypothermia in October 2016 but it was uncertain who had died first. In England, as in Scotland, the rule is that in order to inherit from someone you need to survive them. But if you cannot tell who died first and who survived there is something of a conundrum – we’ll call it “the survivorship conundrum”. This conundrum can of course arise in both jurisdictions although Scots law and English law adopt different rules to resolve it (about which more later).
  • The Scarle case was hard fought. But in many cases there would be no fight. For example, suppose Mr and Mrs Bloggs have two daughters together and have wills which leave their whole estates to the other whom failing their children. Suppose Mr and Mrs Bloggs die in circumstances where it’s uncertain who survived the other. However you resolve the survivorship conundrum for Mr and Mrs Bloggs their children will inherit: on the one hand, if it is taken that neither survived the other their children inherit under each will; on the other hand, if it is taken that one of them did survive the other the children inherit the combined estates under the will of the survivor.
  • The fight in the Scarle case derived from the fact that Mr Scarle had a daughter from a previous relationship and Mrs Scarle also had a daughter from a previous relationship. If Mr Scarle was taken to have died first the combined estates of both Mr and Mrs Scarle would go to Mrs Scarle’s daughter. On the other hand, if Mrs Scarle was taken to have died first the combined estates of both Mr and Mrs Scarle would go to Mr Scarle’s daughter. So, in this case the survivorship conundrum was crucial: it proved to be a case of “all or nothing”.

How the survivorship conundrum was resolved – under English law

  • The case report makes for sad and rather grim reading. In attempts by opposing legal representatives to establish that one survived the other there was extensive consideration of expert evidence from forensic pathologists as to the relative states of decomposition of the Scarles’ bodies. But the judge found:

“The only evidence which could point unequivocally to the sequence of death is the relative differences in decomposition [the decomposition of Mrs Scarle’s body being more advanced than Mr Scarle’s], but does it? 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 [where Mrs Scarle’s body was found] was warmer than the lounge [where Mr Scarle’s body was found].”


  • In other words, despite all the evidence presented it was still uncertain who died first – and so who survived. English law resolves the survivorship conundrum by a rule which presumes that the younger survived the elder. As it happened Mrs Scarle was 69 and Mr Scarle 79.
  • So, Mr and Mrs Scarles’ joint property all ended up going to Mrs Scarle’s daughter to the exclusion of Mr Scarle’s daughter.

Scots law 

  • The survivorship conundrum would have been resolved differently under Scots law. The rule here is that “where two persons die … in circumstances in which it is uncertain who survived whom, each is to be treated as having failed to survive the other …”
  • So, if Scots law had applied, none of Mr Scarle’s estate would have gone to Mrs Scarle because she would be treated as having failed to survive him. His estate would have gone to his  daughter. And, likewise, none of Mrs Scarle’s estate would have gone to Mr Scarle because he would be treated as having failed to survive her. Her estate would have gone to her daughter.

Where there is no survivorship conundrum

  • Mr and Mrs Scarles’ situation was sad, grim and very unusual.  But where a couple have children from previous relationships things can go awry even where there is no survivorship conundrum.
  • For example, what happens if, in Scotland, Mr and Mrs McTavish each have a daughter from a previous relationship; each makes a will leaving their estates to each other whom failing their respective daughters and, say, Mr McTavish dies first. In that case Mrs McTavish inherits his estate and, under her will, the combined estates then go to her daughter on her death to the exclusion of Mr McTavish’s daughter.
  • Of course, they might both make wills so that, on the second death, the combined estates go equally between the two daughters. But that has serious risks: for example, the survivor might change their will to favour their own daughter; or might spend all the money; or might remarry.
  • A solution is for Mr and Mrs McTavish to make wills leaving their estates to each other but only “in trust” for the survivor’s lifetime and, on the death of the survivor, for their own daughter. That way, ultimately, Mr McTavish’s daughter inherits his estate and Mrs McTavish’s daughter inherits hers.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Laura Schiavone: email

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