Application of the commorientes rule – Scarle v Scarle

30 August 2019

This case relates to a particularly sad set of facts. Mr and Mrs Scarle were both found dead from hypothermia on 11 October 2016 in their home and on the evidence available it was not clear who had died first. Both had children from previous marriages and a case was brought to court by their respective step-daughters to determine whose estate would inherit the jointly held property of the deceased (including the family home), either under Mrs Scarle’s will or under the laws of intestacy in the case of Mr Scarle.

Section 184 of the Law of Property Act 1925 establishes a presumption that the older of the two is treated as the first to die, unless evidence can be presented to the contrary. This presumption is known as the “commorientes” rule. The judge ruled that there was not enough evidence to determine who died first and so, on the basis that Mrs Scarle was the younger of the two, Mr Scarle's share of the joint assets passed first to Mrs Scarle and then on to her children in accordance with the terms of her will.

The case serves as a useful reminder of the commorientes rule, albeit the application will in practice be limited to very specific circumstances. Perhaps more importantly, the case demonstrates that it is vital for individuals to consider their testamentary arrangements and the ownership of assets, particularly in the context of second marriages or other situations where there is scope for conflict between surviving family members. A potential solution may be to include trust arrangements in the individual's will to ensure that their surviving spouse can continue to benefit from their assets for the remainder of their life, whilst also preserving capital for children from a previous relationship.

Judge Philip Kramer ruled the Law of Property Act 1925 meant Ms Cutler should receive the whole estate.