16 September 2019

There are two legal principles that can have important unintended results when you die without making a Will – especially if you are married/civil partnership.

The first is one that you are probably aware of is that joint assets pass by survivorship. This means that if you die first and have for example a joint bank account with your spouse or partner they will automatically inherit the account on your death. What is wrong with that you may think, it is nice and simple and gives me the outcome that I want. Even if that is true be aware!

What many people do not realise is there is a second principle that can cause all sorts of unforeseen problems if you have not made a Will especially if you think there is no need when you own everything jointly! Under section 1984 of the Law of Property Act 1925 there is a presumption that the oldest person died first if the order of death is uncertain.

A recent High Court judgement in the case of Scarle v Scarle perfectly, yet tragically, illustrates the effect of these two principles together. The couple both died from hypothermia in their home and there was not enough evidence that would rebut the application of this second principle. This resulted in the wife, as the younger of the two, inheriting their joint assets by survivorship. This included their home and cash.

Where is the problem? They did not have any children together, only a child each from a previous marriage. This resulted in the wife’s daughter inheriting all her mother’s estate under the intestacy rules including the joint assets and the husband’s daughter not receiving anything from those joint assets.

If they had made a Will they could have received advice on how their wishes could have been best achieved and in particular if they wanted their children to each receive an equal share.

For more information contact Natalie Mason on 01929 500323 or or visit our Wills and Trusts page