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Scarle v Scarle: inheritance dispute upholds presumption that oldest is deemed to have died first

August 15th, 2019

The recently decided case of Scarle v Scarle highlights the importance of including a survivorship clause in a Will.  Andrew King, contested wills and probate specialist, considers and discusses the judgment handed down on 13th August 2019.

On 11th October 2016, Mr Scarle (aged 79) and Mrs Scarle (aged 69) were found dead at their home by the police.  The legal presumption, set down by section 184 of the Law of Property Act 1925, was that Mr Scarle had died first, the presumption being that death occurs in order of seniority.

This is important because the couple’s assets were held jointly.  Their legal estate comprised a property and a bank account with a balance of £18,000.

The starting point therefore is that as Mr Scarle is presumed to have died first, Mrs Scarle would be entitled to the whole of the jointly owned property and the joint bank account.  All of the assets would then pass in accordance with Mrs Scarle’s Will.

The significance of this is not immediately obvious.  However, Mr and Mrs Scarle each had a daughter from prior relationships and so, the daughters were not connected by blood.

Mrs Scarle had made a Will leaving her entire estate to her daughter, Deborah Cutler.  Therefore, as Mr Scarle was presumed to have died first, the jointly owned assets passed to Mrs Scarle, which were to be inherited by her daughter.  Mr Scarle’s daughter, Ann Winter, was to receive nothing.

Mr Scarle’s daughter, no doubt unhappy with the outcome caused by the presumption, brought a claim and sought to prove that Mrs Scarle had in fact died first.  Mr Scarle had not made a Will and so, in the event of his death, his estate would pass under the Intestacy Rules.  Should he survive his wife, Mr Scarle’s estate would pass to his daughter.

If Ms Winter succeeded in persuading the court that Mrs Scarle had died first, the presumption would be defeated and instead she would receive all of the Scarle’s assets with Ms Cutler receiving nothing.

The Judge considered witness evidence from the daughters and neighbours, post-mortem evidence and police accounts, as well as expert evidence from forensic pathologists.  Mr Scarle’s daughter sought to convince the Judge that the evidence displaced the presumption that her father had died first.

Upon considering the available evidence, the Judge concluded that both Mr and Mrs Scarle had died of hypothermia at some time between 5th and 9th October 2016 but that the order of death remained uncertain.  As a result, the Judge concluded that the presumption of death in the Law of Property Act 1925 applied: Mrs Scarle is presumed to have survived Mr Scarle.

Consequently, Mrs Scarle’s daughter will now receive the full benefit of the property and bank account held jointly by the Scarle’s.  She will recover the majority, though not all, of her legal costs from Mr Scarle’s daughter.  Mr Scarle’s daughter will receive nothing from her father’s estate.  In addition, she will be required to pay her own legal costs as well as those of Ms Cutler.

A large part of my work involves acting for parties who are in conflict over a person’s estate.  Death can often bring out the worst in people with money very quickly becomes the motivating factor.  With second (and subsequent) marriages being far more common in society, these issues are only increasing as individuals connected not by blood but through a common relative who has now passed, fall into dispute.  If a loved one has passed and you do not feel that you have been properly provided for, please contact me and I will discuss your options with you.  My focus is on ensuring you are provided with honest advice on the reality of your situation.

I have experience in assisting with Wills being challenged where a person lacked capacity or where it is alleged that the Deceased was subjected to undue influence.  My experience extends to assisting both those who want to bring the claim as well as those defending.  Where no provision was made for a person, whether in a Will or by virtue or intestacy, I can investigate the bringing of a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Returning to the Scarle case, it is interesting to reflect that the case would never have arisen had Mr Scarle made a Will with a typical survivorship clause.  Had Mr Scarle’s Will left everything to his wife, subject to her surviving him by 30 days, the presumption would not have been triggered.  Instead the assets would have been divided; Ms Cutler and Ms Winter would each have received half of the combined estate.  Making a Will is an important first step to take, as is ensuring that Will remains up to date as life evolves.

Lennons has a well-established Wills, Probate and Life Planning department.  If the Scarle judgment has triggered you to consider making or updating your Will, please make contact for a discussion on how we can assist you with this.

If you have questions regarding anything within this article, our experienced solicitors in Buckinghamshire can help you. Talk to one of our experts in Chesham, Amersham or Beaconsfield today on 01494 773377 or email

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