The commorientes rule, which hit the press over the summer in the Estate of John William Scarle Deceased [2019] EWHC 2224 (Ch) is another example of a rarely-used legal doctrine.
Its complicated name belies its simplicity. The rule, which is enacted at s184 of the Law of Property Act 1925, creates a presumption that, where two or more people have died in circumstances where it is uncertain who died first, the deaths are presumed to have occurred in the order of seniority so that the younger survived the elder.
In the very sad circumstances of this case, John and Marjorie Scarle were found dead at their home in October 2016. The post-mortem for each found the cause of death to be hypothermia but it was not clear who had died first. Mr Scarle’s daughter, Anna Winter, argued that Mrs Scarle died first, so that the entire estate passed to Mr Scarle and then to those entitled on Mr Scarle’s intestacy.
Mrs Scarle’s daughter, Deborah Cutler, argued that Ms Winter had not provided evidence sufficient to ascertain that Mrs Scarle had died first. She argued that the burden of proof was higher than the usual civil standard and rested somewhere between the civil standard (on the balance of probabilities) and the criminal standard (beyond reasonable doubt). As the evidence was not sufficient to ascertain Mrs Scarle’s earlier death, the presumption under s184 applies; Mr Scarle, as the older of the two, died first and therefore the estate passed to Mrs Scarle and then to those entitled under Mrs Scarle’s will.
The court did not agree that a higher standard of proof applies and confirmed the application of the civil standard. However, the judge found that the only evidence pointing unequivocally to the sequence of deaths was the relative difference in decomposition between the bodies. This was either due to the sequence of deaths, or due to differences in the micro-environments in which the two bodies were found (one in the toilet and one in the lounge).
The judge found he could not discount that the differing states of decomposition of the bodies was due to the differing micro-environments in which they were found. As such, the sequence of death remained uncertain, and the presumption under s184 applied. Mr Scarle, as the older of the two, died first and therefore the estate passed to Mrs Scarle and then to those entitled under her will.
The purpose of legal doctrines such as the above are to avoid legal injustice or uncertainty. Legacy officers should be aware of their existence so that they can ensure that charities do not lose out on recovery of charitable bequests.
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