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20 August 2019 | Comment | Article by Roman Kubiak TEP

Commorientes rule applied – Court gives judgment in inheritance dispute over which parent died first

Last month, I wrote about two stepsisters who were involved in a legal dispute in the High Court over a £280,000 inheritance as to which of their parents died first.

John and Anne Scarle were found dead at their home in October 2016 after police were called by worried neighbours. While it was confirmed that the couple died of hypothermia, the circumstances surrounding their deaths were unclear.

Under section 184 of the Law of Property Act 1925where two or more people die in circumstances where it’s not possible to determine who died first (known as the commorientes rule), the law presumes that the deaths occurred in order of seniority, so that the younger is deemed to have survived the elder. This presumption can be overturned by evidence to the contrary.

Mr Scarle’s daughter, Anna Winter, argued that her stepmother, the younger of the couple, probably died first owing to her poor health; she’d suffered a stroke in or around 1998 and had limited mobility.

Mrs Scarle’s daughter, Deborah Cutler, argued that it was impossible to determine who died first and so the presumption should apply.

Determining who died first would dictate which of the stepsisters would inherit any jointly owned property and, potentially, who would stand to inherit under any will or on intestacy (the name given for where no valid will exists).

His Honour Judge Philip Kramer held that the facts surrounding the order of deaths were “equivocal” and the picture “incompleteso that the presumption applied. This meant that Mr Scarle, as the elder of the couple, was deemed to have died first, meaning that the jointly owned assets were deemed to pass to Mrs Scarle and thereafter on to her daughter, Ms Cutler, under the terms of Mrs Scarle’s will.

Ms Cutler made numerous offers to Ms Winter to settle the claim, including offering to split the assets equally, and even in Ms Winter’s favour, none of which were accepted by Ms Winter. This refusal to negotiate meant that Ms Winter was ordered to pay £179,000 in costs.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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