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Who died first? How the order of death can impact on your loved ones

The importance of making a will which covers multiple eventualities – particularly the delicate nature of children from different relationships – has been highlighted by a recent High Court case. This case also illustrates the importance of seeking mediation rather than racking up costly legal fees.

In this very sad case, heard in the High Court in June 2019, an elderly, married couple named John and Marjorie Scarle died without witnesses and their bodies were discovered at the same time, around a week after they had passed away.

Because the deaths were from hypothermia and the bodies found in different parts of the house, with varying “microclimates”, the coroner was unable to determine definitively which of the couple had died first.

Both John and Marjorie had made a will leaving their share of the estate to the other. But on the event of their deaths, the couple’s beneficiaries were two stepsisters and, because the estate was jointly owned, it should therefore have gone to the stepsister whose parent died last.

Due to lack of forensic evidence proving whether John or Marjorie was the first to die, the judge had to revert to making a decision based on their age at the time of death.

Known as the “Commorientes Rule”, this relates to Section 184 of the 1925 Law of Property Act, which deals with the “presumption of survivorship” in multiple fatalities. Marjorie was the younger of the couple and so her daughter inherited the property and the sum of £18,000 which had been held in a bank account, in accordance with Marjorie’s will.

Prior to the High Court decision, Marjorie’s daughter had offered to divide the estate, including through a 60–40 split which would have favoured John’s daughter.
However, because John’s daughter rejected this offer in order to proceed to the High Court hearing, she received nothing from the estate. Worse, John’s daughter is also liable to pay the £179,000 legal fees accrued during the case. The £160,000 which John left his daughter independently of the joint estate has now been swallowed up to pay these fees.

One important thing to note about stepchildren and other, non-biological children, is that they are not automatically recognised as beneficiaries in law.
During our first meeting with you, we ask many questions so that we can fully understand your family relationships (emotional and legal), in order to draw up wills and trusts to avoid situations such as the unfortunate case of John and Marjorie Scarle.

Families with more complex relationships will need to make specific provision for stepchildren or non-biological children in their will, otherwise they may not inherit. We can also help you avoid a situation such as “accidental disinheritance”, whereby you die before your spouse and they leave their assets only to their children, leaving your child without provision.

Contact us
TLB Planning specialises in legal affairs, insurances and funeral plans to take you and your loved ones “Through Life and Beyond”.

Our Legal Services staff have extensive experience in the field and are all STEP (Society of Trust and Estate Practitioners) qualified Will Drafters, so you can be confident that we provide the highest professional standards.

If you would like to talk to us about your plans for wills, Lasting Powers of Attorney, trusts and other matters, do get in touch on 01792 342 673 or email us at