What if we both die ‘together’?

"What if we both die 'together'?" is an increasingly common question asked by clients, as it can have significant repercussions on Wills, inheritance and intended beneficiaries.

The truth is, in law, it is simply not possible to die 'at the same time' - and Section 184 of the Law of Property Act 1925 states that:

"[where]...two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court)...be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder."

Otherwise known as the 'Commorientes rule', meaning simultaneous deaths, this area of law was rarely heard of - until the current Court case following the deaths of John and Ann Scarle that has thrown this rule into the spotlight.

Having lived in their home since 1988, Mr and Mrs Scarle were found dead at their home due to hypothermia on 11 October 2016. Each of them had children from a previous relationship and, it is thought, they both died intestate (without a Will). The stepchildren are now in a Court battle over who died first and thus, which side of the family will inherit the family home, worth around £300,000.

As they owned their property as joint tenants, meaning the survivorship rules apply, then the estate of the person who is deemed to have died last will benefit from the property. Mr and Mrs Scarle were aged 79 and 69 respectively so if a Judge implements the Commorientes rule, Mrs Scarle will be deemed to have died last and the estate will therefore pass to her descendants.

In situations like this, the absence of a Will can be catastrophic, not to mention extremely costly. Disaster scenarios should always be discussed when making a Will so that in the absolute worst case, you know your estate will pass to your chosen beneficiaries.

• In an update to the Scarle case, this has recently been settled (13 August). Mrs Scarle's daughter, Deborah Cutler, won the inheritance battle against her stepsister in the High Court, by using the Commorientes rule to argue that her mother legally outlived her stepfather.

For individual advice and assistance contact our Wills, Probate and Trusts Team to find out how we can help.

Keri Wood, Chartered Legal Executive, Wills, Trusts and Probate, Direct Tel: 024 7649 3100, Email: KTW@bandhattonbutton.com