Order of joint deaths and succession of property

Scarle v Scarle [2019] EWHC 2224 (Ch)

Background

An elderly couple, John and Ann Scarle, were found dead in their family home on 11 October 2016. Pathologists concluded that the most likely cause of death in each case was hypothermia, however, they were unable to establish the dates on which either died. The body of Anne Scarle was found significantly more decomposed than that of John Scarle, leading to suggestions that Anne Scarle may have died first.

The couple owned their family home (worth £280,000), together with a bank account (balance of £18,000) as beneficial joint tenants. Both John and Ann Scarle had children from previous marriages. If John Scarle died first, his share of the assets would have briefly passed to Anne Scarle and when she died, the property would be passed to her children. If Anne Scarle died first, her share in the assets would have briefly passed to John Scarle and then would be passed on to his daughter. In other words, the family of whichever of the couple survived longest was set to inherit all the assets, leaving their step-siblings entitled to nothing.

The Law

The decision turned on the operation of section 184 of the Law of Property Act 1925 also known as the “Commorientes Rule”. The provision provides that where the order of death is uncertain, it is presumed that the younger person is deemed to have survived the elder person.

John Scarle’s daughter argued that the presumption in section 184 should not be engaged because on the balance of probabilities, she could prove Anne Scarle died first. Anne Scarle’s daughter refuted this, arguing that the section 184 presumption should apply and that a higher standard of proof than the balance of probabilities is required.

The Decision

As to the burden of proof, the court concluded that where the order of death is uncertain, the ordinary civil standard of proof - being the balance of probabilities - applies. It also clarified that the burden of proof lies with the party seeking to establish otherwise to satisfy.

In considering the argument of John Scarle’s daughter i.e. that Anne Scarle died first because her body was found at a further stage of decomposition, the court found that “the facts surrounding the deaths are equivocal and the picture incomplete” pointing to the fact that external factors - such as the microclimate in each of the rooms where the deceased were found - may have been the cause of decomposition rates rather than the time of death itself.

The court accordingly held that there were too many unknowns to safely conclude that on the balance of probabilities Anne Scarle had died first. The section 184 presumption was therefore not disengaged and it was presumed John Scarle, the elder of the couple, died first. As a result, the assets passed to the children of Anne Scarle and the daughter of John Scarle received nothing from her father’s estate.

Considerations

• Testators/Testatrixes, particularly in second relationships/marriages with separate beneficiaries/dependants, should seek legal advice in respect of their Wills to explore all the options and their consequences - this will minimise the risk of a dispute between beneficiaries/potential beneficiaries on their death.
• Where possible, charities should ensure testators/testatrixes, particularly those who have pledged a legacy in their Will to charity, are aware of the effect of survivorship to jointly owned property.

Full details of the case can be seen here.