Who inherits property when two or more people die simultaneously? Laura Abbott of Wright Hassall looks at section 184 of the Law of Property Act 1925 and the problem of ‘commorientes’.

Who inherits when two people die at the same time?

When two or more people die in circumstances where it’s impossible to determine the order of deaths (for example, in a car crash), the usual presumption is that the younger survives the elder. This is known as the commorientes (literal translation meaning ‘simultaneous deaths’) rule and is found 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.”

The case of Scarle v Scarle (2019)

The background

The rule was most recently considered in the case of Scarle v Scarle in 2019 (Scarle v Scarle [2019] EWHC 2224 (Ch)). John and Anne Scarle died at home from hypothermia in October 2016 but were not found until worried neighbours phoned the police. They both each had a daughter from previous relationships who argued that they were respectively entitled to receive the estate, comprising mainly of a property held as ‘joint tenants’ and worth £300,000.

The law

If a property is owned as joint tenants, then both owners together own 100 per cent of the property, so if one co-owner dies, then the survivor will continue to own 100 per cent. The surviving co-owner inherits by operation of law, known as survivorship.

John was aged 79 at the date of death and Anne was 69. Therefore, in this case the effect of the commorientes rule was that John would be deemed to have died first and so Anne would inherit the property by survivorship. Anne’s daughter Deborah would then receive her estate, which comprised the entirety of the property, effectively disinheriting John’s daughter, Anna.

The case

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. However, he had said he was getting the car ready for Anne and so both must have been alive at this point. One of the couples had opened a card for their wedding anniversary a few days later, but it was not known who.

Anna argued that, on the balance of probabilities, it was Anne who died first. This is based on evidence about the state of her 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, Deborah argued that the presumption would not be rebutted even if it was possible to show that Anne had ‘probably’ died first – there would need to be “clear, reliable and compelling evidence” to show, “beyond reasonable doubt”, that she had and the medical evidence "does not come close to supporting such a conclusion". Deborah argued 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 should be respected. 

The verdict

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 had rejected offers to mediate and to split the estate on both a 50-50 and a 60-40 basis in her favour. This, in addition to her own costs, meant she faced a costs liability of at least £179,000.

From a contentious probate point of view, this is a stark reminder of the importance not to litigate over low value estates and that unreasonable refusals to engage in meaningful settlement discussions can lead to serious costs penalties.

How can you avoid problems when simultaneous deaths occur?

The Scarle v Scarle case is also a useful reminder of the importance of making a will. If Mr and Mrs Scarle had made wills, they could have made provision both for each other during the lifetime of the survivor and for both daughters, ensuring everyone received something and avoiding the unpleasantness of litigation.

The legislation is approaching 100 years old now and this case could present an argument to revisit it. But, if so, how? While the law can inevitably produce a false result, there does need to be certainty that a result can be arrived at. Also, the need to use it rarely arises in the modern day as advances in science and medicine have meant it is usually possible to determine the order of deaths, even when the deaths are very close or simultaneous.

The last major case prior to the Scarle case which cited this legislation took place in 1963 where a couple had drowned at sea; when again the presumption was employed. So, whilst the circumstances of the Scarle case are extremely tragic, they are unusual.

Are there exemptions from the simultaneous death rule?

It’s important to note that there are two important exemptions to the simultaneous death rule:

• for inheritance tax, section 4(2) of the Inheritance Tax Act 1984 provides that the individuals are assumed to have died at the same instant
• for the intestacy rules, a surviving spouse or civil partner must survive by 28 days to inherit

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

The duties of an executor: what to do when someone dies

What you need to know about the right of survivorship

How to write a will

What are the intestacy rules in England and Wales?

What to do when someone dies abroad

Find out more

Law of Property Act 1925 (Legislation)

Inheritance Tax Act 1984 (Legislation)

Image: Getty Images

Publication date: 23 November 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.