Partner Philip D'Arcy, head of our Dispute Resolution team, explains how the order of deaths are determined when more than one person passes away.
A recent High Court case highlights the Importance of making a Will.
This was the sad case of John and Marjorie Scarle who were found dead in their bungalow in Leigh-on-Sea in 2016. They were found to have both died from hypothermia at least 2 days before the bodies were discovered, although when the police found them it was clear that the property had also been burgled.
It was a second marriage for both of them and they each had children from previous relationships. Neither had left a Will. All their property was jointly owned so passed to whichever of them survived the other. The whole of their joint estate would then pass to the children of the last one to have died. This was described as an “all or nothing” case in that one set of children would inherit the whole estate and the other family would get nothing.
There is a legal presumption that where the order of death is uncertain, the deaths are deemed to have occurred in order of seniority. This presumption can be overturned if there is evidence to establish who died first, on the balance of probabilities. Mr Scarle was the older of the two. Mr Scarle’s daughter tried to rely on evidence that Mrs Scarle’s body was in a more advanced state of decomposition than Mr Scarle’s body in order to show that the wife must have died first and that therefore she should inherit the whole estate. The Judge decided that there was simply insufficient evidence to enable him to depart from the presumption and accordingly held that Mr Scarle must be presumed to have died first. The couple’s estate passed to Mrs Scarle’s daughter in full. Mr Scarle’s daughter was ordered to pay the costs of the case.
Where a will is made, it is quite common to include what in the US is called a “Titanic” clause, which is a proviso that the estate only passes to the surviving spouse if they live for a period – often 30 days or more after the first death. If they do not then the will often provides for the estate to pass to the children. Here the couple might have agreed to share the joint estate equally between all of their children rather than leaving it to be fought over on an intestacy. Making a will is especially important in cases of second marriages, where they may be competing families hoping to inherit.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.