Who died first? When the date of death matters (Part 1)

In June the High Court heard a dispute between two step-sisters who have asked the court to decide which of their parents died first.

This unusual case concerns the affairs of married couple John and Anne Scarle who tragically died at home from hypothermia in October 2016 but were not found until around a week later, after worried neighbours called the police. The couple had no children together, but both had children from previous relationships who are now locked in a High Court battle over who stands to inherit the couple’s jointly owned property in Leigh on Sea.

The key issue the court has been asked to decide is which of Mr and Mrs Scarle died first.

Why does it matter?

Mr and Mrs Scarle owned their property in Leigh On Sea together. If Mr Scarle died first, then his share of the property would have briefly passed to his wife. When she died, the property would then pass to her children Deborah and Andre. But if Mrs Scarle died first, her share would have briefly passed to her husband, and then on to his daughter Anna when he died.

What does the law say?

The relevant legislation is section 184 of the Law of Property Act 1925. Section 184 says

“In all cases where… two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

So where it’s not possible to determine who died first there is a presumption that it was the oldest person.

The need to use this legislation rarely arises in the modern day as it is usually possible to determine who, of two people, has died first (even when the deaths are very close or simultaneous). The last major case citing this legislation took place in 1963 where a couple had drowned at sea.

The circumstances of this case

Although experts were instructed it was not possible to reliably determine even an approximate date of death, let alone time. The parties presented evidence based on sightings by neighbours and the date of post found in the property which had been opened.

Mr Scarle was aged 79 at his death whilst his wife was aged 69. As Mr Scarle was the eldest, under section 184 it is presumed that he died first. Lawyers on behalf of Mrs Scarle’s daughter Deborah argued that must be right and said that the presumption is there to provide a solution in cases where it is not certain who survived longest, as in this case.

Lawyers for Mr Scarle’s daughter Anna argued that, on the balance of probabilities, it was Mrs Scarle who died first. This was based on evidence about the state of Mrs Scarle’s body when she was found by the police, which suggested she had been dead for longer than Mr Scarle.

However, Deborah’s lawyers argued that the presumption under section 184 would not be rebutted even if it was possible to show that Mrs Scarle had ‘probably’ died first – there would need to be “clear, reliable and compelling evidence” to show, “beyond reasonable doubt”, that Mrs Scarle had died first.

Although the circumstances of the couple’s death are very unusual and we do not know what the couple’s testamentary wishes were, the case demonstrates the importance of making sure that you have a valid will recording your wishes, as an intestacy may not produce the result you intend.

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