When deciding who died first matters

23rd August 2019

Losing a single relative is bad enough, but should you lose two at the same time the grief can be further amplified by the need to establish the order in which they died.

Whilst this might appear a seemingly pointless exercise, it can have huge implications for those relatives wishing to inherit an estate and demonstrates the need for everyone to write a Will and keep it updated.

No evidence of order

A recent High Court case wrestled with this very concept, reaching a decision in August 2019, after relatives found themselves in dispute over a £300,000 inheritance.

The case centred on married couple John and Ann Scarle, who were found dead together in their home in October 2016. Both John and Ann had been married before, with each relationship producing a daughter; step-sisters Ann Winter and Deborah Cutler.

With no Will having been written to reflect the wishes of the deceased, according to the law in England and Wales, the child whose parent survived the longest would inherit the couple’s combined estate.

However, the reason this case made it to Court is that the order of the deaths was not immediately clear. Ms. Cutler, the biological daughter of Ann Scarle, claimed the couple’s inheritance.

Under section 184 of the Law of Property Act, dating back to 1925, there is a presumption that when two people have died in circumstances where it is not possible to ascertain which of them survived the other, the younger of the two is deemed to have survived the older one.

In the case dealing with the Scarles’ deaths, it would mean that Ann, 69 years old and ten years junior to her husband, would be deemed to have survived him even if only for a few moments.

John’s estate would have then passed to his wife and subsequently to her biological daughter, Ms Cutler. However, each individual case will always be determined on its own merits and the facts surrounding the deaths, which may have been simultaneous in an accident.

There is always the possibility a judge can be convinced that on balance the claimant has sufficient evidence to refute the prevailing presumption of seniority on death.

Evidence from various sources in the Scarles’ case, including Essex Police and expert pathologists for both the claimant and the defendant debated the relative differences in decomposition between the Scarles’ bodies, to establish which parent had indeed died first.

However, there appeared to be no proof as to who had died first, so following presentation of this evidence, Judge Philip Kramer delivered his judgement and found in favour of Ms Cutler, affirming the presumption set out in legislation, that her mother Ann had survived her husband John Scarles.

It is possible, in fact highly likely that John Scarle would have wanted his biological daughter to inherit some or all of his estate, but with no Will available to state his wishes, the decision relied on the law as it currently stands, however unfair it may seem to the relatives missing out.

Whatever your wishes draft a Will

One way to address the issue concerning deaths at the same time is to include a ‘survivorship provision’ in each Will of a couple. This ensures a beneficiary only inherits if they survive the deceased by a certain period, which is usually 28 days. But for this to work, a Will has to have been drafted first!

It is clear from the Scarles’ case that married couples must make Wills to state their specific wishes for the distribution of their estate.

This is the only way to avoid the complications that clearly can arise if both parties were to suffer a tragic accident and die together without a Will having been made. This could result in the law distributing the estate in a way at odds with the wishes of the deceased, had they made a Will.

For expert independent advice to help you and your loved ones benefit from a well-drafted Will, please get in touch today and we will explain how Ansons make it happen. Talk to Adam Penn, an Associate Director in our Wills and Probate team, on 01543 431 196 or email