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  1. Wealth
July 10, 2019

The little-known ‘commorientes rule’ and what it might mean for will writing – expert view

By Spear's

A rare and tragic case highlights the importance of putting in place a well-structured and well-drafted Will which fully reflects the testator’s wishes, writes Hannah Blakey

The High Court has been asked to intervene in a bitter row between step-siblings concerning which of their parents died first. The outcome of the case hangs on the application of a little known piece of legislation.

In October 2016, John Scarle and his wife Ann died of hypothermia at their home in Leigh-on-Sea, Essex. At the time of their deaths, John was aged 79 and Ann was aged 69. They had just celebrated their 26th wedding anniversary. Each of John and Ann had a daughter from a previous relationship and these step-siblings are now locked in a dispute over their parents’ £300,000 house, which John and Ann owned jointly.

The key point of contention is the order in which the couple died.

Although the actual details of the couple’s respective Wills or whether they had Wills in place at all has not been published, it would appear that, if John died first, his share of the property would have briefly passed to his wife before passing to her children, leaving John’s children to inherit nothing. However, if Ann died first, her share would have briefly passed to her husband before passing to his children, leaving Ann’s children to inherit nothing.

The High Court has therefore been asked to determine whether a historic piece of legislation known as the ‘commorientes rule’ (meaning ‘simultaneous deaths’) should govern the order of succession or whether the rule can be displaced by sufficient evidence at the scene to determine the order of deaths.

The ‘commorientes rule’, which is set out at Section 184 of the Law of Property Act 1925, provides that,where two or more persons have died in circumstances where it is uncertain which of them survived the other, the younger is presumed to have survived the elder for all purposes affecting the title to any real property.

This little-known law has been used sparingly over the last century. The rule was last cited in 1958 in a case where a couple were killed when their car crashed into the water.  In this instance, the Judge ruled that, in the absence of compelling evidence that the wife had pre-deceased the husband, because the husband was elder of the two then, by law, he had died first.

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Applying the rule to these circumstances, John would have been presumed to die first so that Ann’s children would receive the full inheritance. John’s daughter would need to show beyond reasonable doubt that Ann died first in order to rebut this presumption and inherit. Expert evidence given at the hearing could not express any view as to even the approximate date of the death of either of John or Ann.

The judge has reserved his ruling on the dispute until a later date. Although the circumstances of the matter are rare, this tragic case truly highlights the importance of putting in place a well-structured and well-drafted Will which fully reflects the testator’s wishes (especially where there are children from previous relationships) to ensure that assets pass to the intended beneficiaries on death, and to prevent bitter family disputes.

Hannah Blakey is an associate at boutique private wealth law firm Maurice Turnor Gardner LLP.

image credit: Alpha Stock Images –

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