14 October 2019

A question that is often asked by clients is “what happens to our estate if we die together”. People never die at the exact same moment in terms of the law for succession purposes. The commorientes rule as set out in s184 of the Law of Property Act 1925 means if it is not able to be ascertained from available evidence, than the elder is presumed to have predeceased the younger. If a couple execute a mirror will leaving their estates to each other and on the second death to their children, and they die at the same time, the elder is presumed to have predeceased the younger. The younger inherits the entire estate which then passes to the children.

A problem may arise when the ultimate beneficiaries are different for each partner – for example each partner has their own children. If it cannot be proven who died first the younger partner would inherit and the entire estate would pass in terms of their will to their children, and the children of the older partner would inherit nothing.

Consider the case of John and Ann Scarle. Mr Scarle was the elder of them but Mrs Scarle was in ill health. They were found dead in their home from hypothermia but unclear who died first. Both Mr and Mrs Scarle had children from previous marriages. The estate consisted of their house which they jointly owned and savings. They had not made wills. It was therefore vital to show who had died second, as the estate would then pass to that person’s children. The case went to trial at vast expense, and the commorientes rule was applied meaning Mr Scarle’s children did not inherit anything.

The Scarle’s situation and the immense family upset it caused can be prevented by consulting a solicitor and making a will containing a “survivorship” clause. This clause states that each partner must survive the other by a stipulated time period, otherwise each estate will pass separately to the ultimate beneficiaries in each will. A solicitor can also ensure that the way your home is jointly owned also suits your circumstances.

For more information contact Naomi Dyer on 01935 811307 or view or wills and trusts page.