Simultaneous Deaths – who died first?


Posted by Stephanie Walls, 14th August 2019
A High Court case concerning a dispute between step-sisters over which of their parents died first, demonstrates the importance of understanding how assets are held and the way in which they will be distributed upon death.

Background

Under the Law of Property Act (the “LPA“), where two or more people have died simultaneously or where it is not possible to determine the order of death, there is a presumption that the elder of the two died first and the youngest is assumed to have died last, for the purposes of determining title to any real property. This is known as the “Commorientes Rule” which was commonly relied upon during the Second World War to determine the order of death where whole families were killed during the London Blitz. The presumption can be rebutted by evidence demonstrating that the younger party passed away first.

The Commorientes Rule does not apply for the purposes of Inheritance Tax on death, nor does it apply to circumstances where the parties die intestate.

Facts of the Case

Mr and Mrs Scarle, an elderly couple, both passed away at their home in October 2016. The cause of death was hypothermia, however the circumstances surrounding their death remains unclear. The couple were survived by Deborah Cutler, Ann Scarle’s daughter and Anna Winter, John Scarle’s daughter; both from previous relationships.

The couple’s house in Leigh-on-Sea was owned by them as equitable joint tenants. Where a property is held by the proprietors as joint tenants, the interest of the proprietor who dies first will pass to the surviving owner and falls outside of the deceased party’s estate, as devolved by the deceased’s party’s Will.

Whilst the details of the couple’s respective Wills are unknown it is likely that, if John died first Ann would have inherited his interest in the house which would, upon her death, have passed to her daughter Deborah. If Ann died first, John would have inherited her interest and the entirety of the house would pass into his estate for distribution to his daughter Anna upon his death. Therefore, the decision as to whether the Commorientes Rule applies will determine the order in which the estate is distributed.

Evidence considered by the Court

The court considered factors such as Ann’s health prior to her death and the condition of her body when the couple were found. Ann had suffered a stroke in 1998 which left her requiring mobility assistance and full time care by her husband during the last years of their lives. Whilst there is a compelling argument to suggest that Ann may have died first, there is no conclusive evidence to rebut the presumption that John, being the elder of the two, passed away before Ann.

Lessons

The Court has ruled that, as the order of death remained uncertain, the LPA presumption applied and was not displaced: Mrs Scarle was therefore presumed (as the younger spouse) to have survived her husband which resulted in her daughter, Mrs Cutler, inheriting under her mother’s Will.

Whilst the Commorientes Rule is relied upon infrequently and cases such as this are rare, it demonstrates the need to consider all potential contingencies when estate planning. Having an appropriately drafted Will is imperative to ensure that the testator’s wishes are accurately recorded and assets are distributed to beneficiaries, as intended.

This article has been co-written by Stephanie Walls and Natalie Powers.

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