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Wills and simultaneous deaths

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Posted by Laura Abbott on 07 August 2019

Laura Abbott Associate

John and Anne Scarle died at home from hypothermia in October 2016 but were not found until worried neighbours telephoned the police. Mr and Mrs Scarle both had children from previous relationships who sought to argue that they were respectively entitled to receive the estate. 

The usual presumption when two or more people die in circumstances when it is impossible to determine the order of deaths (for example, in a car crash) is that the younger survived the elder. This is known as the commorientes (literal translation meaning ‘simultaneous deaths’) rule and is encompassed in S184 of the Law of Property Act 1925 which reads:

In all cases 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), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

Usual presumptions

John Scarle was aged 79 at the date of death and Anne was 69.  In this case therefore, the effect of the usual presumption would be that John would be deemed to have died first.  On the basis that John left his estate to Anne and then Anne on to her children, the effect of the rule is to disinherit John’s children from the couple’s £300K estate; hence the dispute. 

Although experts were instructed it was not possible to reliably determine even an approximate date of death, let alone time.  John had been seen last by a neighbour but he had said he was getting the car ready for Anne and so both must have been alive at this point.  One of the couple had opened a card for their wedding anniversary a few days later, but it was not known who. 

Mr Scarle’s daughter Anna argues that, on the balance of probabilities, it was Mrs Scarle who died first. This is based on evidence about the state of Mrs Scarle’s body when she was found by the police and the fact that her father was fitter and healthier than his wife so is likely to have survived for longer.  However, Mrs Scarle’s daughter Deborah argue that the presumption would not be rebutted even if it was possible to show that Mrs Scarle had ‘probably’ died first – there would need to be “clear, reliable and compelling evidence” to show, “beyond reasonable doubt”, that Mrs Scarle had died first and the medical evidence "does not come close to supporting such a conclusion".  Deborah argues that the S184 presumption is there to provide a solution in cases where it is not certain who survived longest, as in this case, and therefore ought to be respected. 


Ultimately, the judge held the usual presumption should apply.  The judge also ordered Anna to pay the entirety of Deborah’s costs on the basis she unreasonably refused to engage in settlement discussions; Anna having rejected offers to mediate and to split the estate on a 60-40 basis in her favour.    

The legislation in question is approaching 100 years old now and this case could present an argument to revisit it; but, if so, one must beg the question as to how?  On the other hand, the need to use it rarely arises in the modern day as it is usually possible to determine the order of deaths (even when the deaths are very close or simultaneous). The last major case citing this legislation took place in 1963 where a couple had drowned at sea; and in this case the presumption was employed.  The circumstances of this case are extremely tragic but unusual. 

About the author

Laura Abbott


Laura specialises in all aspects of contentious probate work and disputed estates.

Laura Abbott

Laura specialises in all aspects of contentious probate work and disputed estates.

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