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1 July 2019 | Comment | Article by Roman Kubiak TEP

Stepsisters in inheritance battle over which parent died first

It has recently been reported that two stepsisters are fighting a legal battle over a £280,000 inheritance in the High Court over which of their parents died first.

John and Anne Scarle were found dead at their home in Leigh-on-Sea on 11 October 2016, after police were called by worried neighbours. While it was confirmed that the couple died of hypothermia the circumstances surrounding their deaths remained unclear. Both Mr and Mrs Scarle had children from previous relationships when they began their relationship in 1983.

As it currently stands, the immediate family of whichever of the couple survived the other would stand to inherit the couple’s property, worth in the region of £280,000, whilst their step family would inherit nothing.

Under section 184 of the Law of Property Act 1925 where two or more people have died in circumstances where it is not possible to determine who died first, it is presumed that the deaths occurred in order of seniority, so that the younger is deemed to have survived the elder. This is known as the “commorientes rule”, which literally means “simultaneous deaths”. That presumption can be overturned by evidence to the contrary.

Anna Winter, daughter of Mr Scale, insists that her step mother probably died first, owing to her poor health. Mrs Scarle had suffered a stroke in or around 1998 and had limited mobility. If found to be true by the court, this would mean that Mr Scarle briefly inherited the property from his wife before passing it on to Ms Winter by reason of his subsequent death.

Deborah Cutler, daughter of Mrs Scarle, claims that the order of deaths cannot be determined and, as such, the commorientes rule must apply.

As Mr Scarle was ten years older than Mrs Scarle, if the commorientes rule is applied Mrs Scarle would be deemed to have briefly inherited the property from her husband before it then passed to Ms Cutler and her brother.

Ms Cutler alleges that the evidence put forward by Ms Winter in respect of Mrs Scarle’s ill health is insufficient to rebut the legal presumption that commorientes applies.

His Honour District Judge Philip Kramer has reserved judgement until a later date.

It is worth noting that the commorientes rule does not apply for the purpose of inheritance tax, or in cases of intestacy, i.e. where the parties die without wills. Under section 46(2A) of the Administration of Estates Act 1925, a surviving spouse or civil partner has to survive their partner by 28 days to inherit.

Although the reports are silent on this point, based on the law it is likely that the couple prepared wills leaving their estates to each other in the first instance and to their respective children should their spouse die before them.

While cases such as this are rare, it provides an example of the difficulties which can arise without careful estate planning.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates 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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