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15th August 2019

Rare rule invoked where it was impossible to determine which spouse died first.

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The High Court in the case of Estate of James Scarle v Estate of Marjorie Scarle [2019] EWHC 2224 (Ch), has this month ruled that there was simply not enough evidence to determine who died first, invoking what is known as the Commorientes Rule. In October 2016, John and Marjorie Scarle were both found dead at their home in Leigh on Sea in Essex, having died of hypothermia. Both John and Marjorie had children from previous marriages. A dispute arose between them as to which children would inherit the couple’s jointly owned assets (being their property and cash held with the Co-Op bank), due to the difficulty in determining which of the two died first.

The law governing the ownership of jointly owned assets, is that the last in time to die, is entitled to the whole of the property and the sums in the account. As they had both died, the house and money would pass to those entitled to their estate; under the will of Marjorie if John had died first, or to those entitled on John’s intestacy if he had survived Marjorie.

John’s daughter, Anna Winter, claimed that the medical evidence indicated that Marjorie was the first to die, in which case Marjorie’s share of the jointly held assets, passed to John and now belonged to Anna.

Marjorie’s daughter, Deborah Cutler, argued that the order of deaths could not be determined on the evidence and that therefore S.184 of the Law of Property Act 1925; known as the Commorientes Rule should be invoked. Under this rule the oldest spouse is deemed to die first. So, in this case, Marjorie’s argument was that under the rule, John was the eldest and therefore deemed to die first, so that his share of the jointly held assets passed to Marjorie and hence to Deborah and her brother by Marjorie’s will.

Upon evaluating all the autopsy evidence, the Court held that there were too many unknowns and variables to make a definitive decision on who died first. The evidence was technical and complicated by the fact that intruders appeared to have gained access to the property and tampered with the scene.

The Court therefore applied the Commorientes Rule and held that as a result, it was deemed John had died first (John being the eldest of the two), meaning that Marjorie’s’ children would inherit the couples jointly held assets, to the exclusion of John’s daughter, Anna.

For more information on disputes arising from the distribution of estates, please call Hewitsons today on 0330 311 0885, to speak to one of our solicitors. We offer a free initial consultation, to all new clients, lasting up to 30 minutes. Alternatively, please complete our online form and a member of our team will be in touch to discuss your enquiry.