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Who Died First? The Importance of Reviewing Your Will

on Thursday, 27 February 2020.

It is important to have a well drafted Will, especially in the case of second marriages, if there are children from previous relationships.

Mr and Mrs Scarle were found dead at their home. Their home and bank account were owned by them as joint tenants. Assets held by co-owners as joint tenants pass to the survivor.

If it is not possible to determine the order in which individuals die, there is a statutory presumption that the eldest died first. This is known as the rule of commorientes and was central to the decision in this case.

Only Mrs Scarle had a Will (Mr Scarle died intestate, ie without making a Will). If Mr Scarle was found to have died first, the joint assets would have passed to Mrs Scarle, and then inherited by her daughter. On the other hand, if Mrs Scarle was found to have died first, Mr Scarle's daughter would inherit the joint assets.

The Two Arguments

Mr Scarle's daughter argued that the presumption that her father had died first did not apply and that she could produce evidence proving, on the balance of probabilities (the standard of proof required in civil proceedings), that Mrs Scarle had died first.

Mrs Scarle's daughter argued that, for the presumption not to apply, the required standard of proof was higher than for other civil proceedings and was somewhere between the balance of probabilities and beyond reasonable doubt (the higher standard of proof required in criminal proceedings).

Who Died First?

Very little was known about the events surrounding the deaths. The forensic evidence showed that both bodies were in the early stages of decomposition, with Mrs Scarle's body being in a slightly more advanced stage. The experts agreed that, if the temperature and environmental conditions in the two rooms were the same, then it was more likely than not that Mrs Scarle died first. There was also evidence that Mrs Scarle had pre-existing medical conditions and that Mr Scarle was her carer.

The judge held that the facts surrounding the order of the deaths were vague with too many variables and unknowns. Therefore no complete picture could be made even when the evidence was considered. There was insufficient evidence to reject a suggestion that the bathroom was warmer than the lounge and it was therefore unfair to say that the most probable reason that Mrs Scarle's body was more decomposed was that Mrs Scarle had died first.

The judge held that there was only one standard of proof for civil proceedings: the balance of probabilities.

Mr Scarle's daughter had failed to produce sufficient evidence to discharge the burden of proof and the presumption prevailed; Mr Scarle was therefore presumed to have died first. The assets passed to Mrs Scarle on Mr Scarle's death, and then onto her daughter when Mrs Scarle died.

What Should the Scarles Have Done?

If Mr and Mrs Scarle had taken legal advice while they were still alive, a solicitor could have advised them to consider making Wills with life interest trusts (to provide for the survivor of them) and to leave their combined estates equally to their respective children on the second death.


If you need support with succession planning or drafting your Will, please contact Will Drewery in our Private Client team on 020 7665 0869, or complete the form below.

 

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