Who Died First? – Daughter Misses out on Inheritance due to Little Known Legal Rule

In a recent case involving an elderly couple found dead in their home. A little known legal rule centering around who died first has resulted in the wife’s daughter taking the entire joint estate. With her step-sister missing out.

What happened?

John and Marjorie Scale were found dead together in their Essex home in October 2016. Both having died of hypothermia. John and Marjorie’s jointly held assets passed to each other by way of survivorship. With assets in their sole names passing to their respective daughters. The bulk of their assets were held jointly.

John’s daughter Anna and Marjorie’s daughter Deborah, have since the deaths, been locked in an intense legal battle. All over who died first. Therefore, to establish who now stands to inherit the combined estate.

It was important to establish the order of death. If Marjorie had died first, her estate would have passed to John, however briefly. When he then died, the assets would pass down to his daughter. The opposite situation would occur if John had died first. With Marjorie inheriting and then passing on to her daughter. This means one of Anna and Deborah would be left disinherited and bitterly disappointed.

The Law

The little known legal rule, known as the “Commorientes Rule”, is set out in Section 184 Law of Property Act 1925. This can assist in such a situation. This law provides that, where the order in which two people died cannot be determined, the oldest is deemed to have died first. On the face of it therefore, as John was the elder, it seemed he would be deemed to have died first. With his estate passing to Marjorie, and her daughter then inheriting on her subsequent death.

However, the Commorientes Rule is only the starting point. The Judge had to consider all of the evidence available to him to ascertain whether the true order of death could be established. The Judge considered a large volume of medical and forensic evidence. This included autopsy evidence about the degree of decomposition of the bodies. As well as evidence from the property, such as the temperature in the rooms they were found and evidence about John and Marjorie’s state of health.

Although Marjorie’s body was more decomposed than John’s, which might ordinarily have indicated she had died first, the evidence was not conclusive. The Judge took into account reports from several pathologists and the fact that the bodies were found in different parts of the bungalow. Which was crucial as the area in which Marjorie found was warmer than where John was found. Which could have explained the greater rate of decomposition.

The Decision

After considering carefully all of the evidence, the Judge felt that he could not, on the balance of probabilities, determine who died first. In other words, there was not enough evidence to displace the assumption that the Commorientes Rule applied. Therefore the case had to be determined on that principle.

The Judge therefore ruled that John was deemed to have died first, with Marjorie inheriting and the assets passing to her daughter.

John’s daughter did inherit his personal assets in his sole name. However a very significant amount of this inheritance will now be used in settling the vast legal fees incurred.

How can this be avoided?

What is clear from the above case is that failing to take proper advice when drafting your Wills can result in a dispute on your death. Which could have been avoided. Not only can this be very expensive. It can result in a lot of distress or heartache for your loved ones.

Where couples have children from previous relationships, it is vital that they seek advice on how their assets are held. Also how their Wills are structured in order to ensure that their children or families benefit on their death.

This can be achieved through a variety of mechanisms. Simple Trusts or careful Will drafting and advice should be sought from a qualified professional. All to ensure they will be effective on your death and achieve your wishes.

It is disappointing that this case reached Court. Reasonable individuals properly advised would probably have sought to compromise their case and reached an agreement. However, it is useful for us as solicitors working in this area to have the legal position restated.

If you would like advice in relation to preparation of a Will, please contact us at our Eastbourne office, or alternatively please complete the contact form below.