Who Would Inherit Your Estate? – Don’t Leave It to Chance

A recent case in the High Court involving an obscure point of law has highlighted the importance of having an up to date Will, particularly for couples in second marriages.

The case related to John and Margery Ann Scarle who were found dead at home together on 11 October 2016. Each had children to an earlier relationship and the case concerned who would inherit their combined estate, which comprised a house worth £280,000 and about £18,000 in a joint bank account.

In basic terms, whichever of Mr and Mrs Scarle had died second would have inherited the estate of the first to die and it would pass on through them to their family. The family of the second to die would take the whole of the combined estate and the family of the first to die would take nothing. (It should be noted that although this was the case on the facts of Mr and Mrs Scarle's circumstances, how an estate passes depends upon the circumstances of each individual case and the same might not necessarily be true for other couples. Advice should be taken in relation to each individual situation).

Mr Scarle had been seen alive on 3 or 4 October 2016 when he spoke to a neighbour and said that he was "getting the car ready for Ann", which suggested they were both still alive at that point. There was also evidence that at least one of them was alive on 7 October because this was the date of their wedding anniversary and an anniversary card was found in their house which had been opened.

Mr Scarle's daughter suggested that Mrs Scarle probably died first because her body was more decomposed than that of Mr Scarle when they were found, suggesting that she had been dead for longer. The Court decided, however, that it could not be determined conclusively who had died first.

This brought into play a legal provision known as "commorientes". This provision says that in circumstances where it cannot be determined which of two people died first, it will be deemed that the elder of them died first. Mr Scarle was ten years older than Mrs Scarle and it was therefore held that Mrs Scarle should be deemed to be the survivor, meaning that everything passed to her family and nothing passed to her husband's family.

On the point raised about the level of decomposition of the bodies, the Court held that it was not impossible that this could have been affected by the fact that the temperature was different in the parts of the house in which they had each been found.

Points to come out of this case include:

It is essential to have an up to date Will, particularly for couples with children to earlier relationships, who should consider when making their Wills what they would wish to happen if they die together.

Although the commorientes rule took effect in this case, this should not be relied on because it is rare for there to be no evidence to show who died first. For example, if a couple was involved in a car crash and one died at the scene of the accident and the other died a couple of minutes later in the ambulance, it would be clear who had actually died first and the commorientes rule would not apply. Which side of the family took the estate would be entirely down to chance and the question of which spouse happened to be the one to die at the scene of the accident and which happened to die in the ambulance. It is unlikely that many couples would want the division of their estates between their families to be left to chance.

It was notable that in the case of Mr and Mrs Scarle, the legal and court costs were estimated to be over £170,000. Even if the commorientes rule can determine who should inherit an estate, a large proportion of the family wealth can be taken up by the costs of getting to that decision.

All in all, the sad case of Mr and Mrs Scarle was a salutary example of why it is important to have an up to date and properly thought through Will.

This article was written by Mark Jones. Mark is a Partner in our Personal Law Department and is based in Harrogate.

Mark specialises in the creation and administration of trusts, tax planning and wills as well as probate work, particularly those where the family has fallen out and contentious issues have arisen.

You can contact Mark on 01423 502 211 or email directly.