We often hear that we are living in a society where many are living to an older age. Couples divorce or separate, some remarry and the family tree is often much more complicated than in years gone by. As a result, if insufficient consideration to regular estate planning is not given, this can result in a grossly unfair imbalance in an estate, and lead to heartache and financial hardship. Time should therefore be taken to ensure that your Will reflects your true wishes, to avoid discontent at a time which is often already highly emotive.
What happens if two people die in circumstances where it is not possible to say who died first? The Law of Property Act 1925 (section 184) states that where two people die at the same time and it is not possible to determine who died first, the elder will be deemed to have died first (known as the Commorientes Rule). So, if Husband is aged 65 and Wife is aged 60 and both die together and it is not possible to determine who died first, Wife’s Will (or the intestacy rules that apply to her estate if there is no Will) is the one that will take effect as she is the younger person.
This was precisely the outcome of a costly and contentious case which had to be decided in the High Court. John and Marjorie Scarle died of hypothermia at their home in October 2016. Their concerned neighbours informed the police that neither had been seen and, following police investigations, they were found dead. The crucial question as to who died first had to be decided so that the rightful beneficiary of the couple’s estate could be determined.
Mr and Mrs Scarle had each been married previously and had children from their earlier marriages. Although Mr Scarle was 10 years older than his wife, he was generally fitter and had, in fact, been his wife’s carer for many years. Their combined estate was worth almost £300,000 (including the family home).
The issue of who died first was critical. Had Mr Scarle died first, his wife would have inherited the estate and only her children would then inherit from her. Had Mrs Scarle died first, Mr Scarle would have inherited from her and on his death, his children would have inherited.
The uncertainty resulted in the ultimate breakdown of relations between the offspring of both and litigation ensued. After lengthy litigation and consideration of expert evidence, the Judge was unable to definitively confirm who had died first but ultimately decided that, as per the Commorientes Rule, as Mr Searle was ten years older than his wife, he had died first. His children therefore walked away with nothing (save for a hefty legal bill) and Mrs Searle’s family inherited the entire estate.
This most unfortunate case highlights a need to update Wills to ensure that your wishes are met. In this instance, with careful estate planning, arrangements could so easily have been put in place to ensure certainty on death and nobody “losing out”.
If you have any questions about estate planning and would like to book an appointment with a member of our Wills and Estate Planning team do not hesitate to contact us on: 01256 320555 or email: firstname.lastname@example.org .
Wills & Estate Planning Partner