The presumption of survivorship – why it can matter who died first

Wills & Inheritance|August 21st 2019

I remember well my year at the College of Law (as it then was) in Chester, in the early eighties. Sadly, I don’t recall so much of what I was taught. There are some legal nuggets that stuck, though, and that have remained with me ever since. Of course, many of those are no longer good law, having been replaced by new law.

It is thus rather comforting to come across a case that deals precisely with one of those nuggets that did stick. Maybe my studies during that year are still of some value to me after all.

I was taught the nugget whilst studying probate. It probably helped that my probate lecturer, who I can still picture, had a slightly unusual and amusing way of teaching, making it much more likely that you would remember what he had to say.

It is also probably true to say that law relating to probate is more likely to still be current, as probate law seems to change much less frequently than law in other areas. That is demonstrated by the fact that this particular nugget is contained in section 184 of the Law of Property Act 1925, and is therefore nearly a hundred years old (it almost certainly predates the 1925 Act, as that was a consolidating statute, but my expertise, such as it is, does not in this instance go back any earlier than 1925).

So what does section 184 say? Well, it is to do with the situation where two people die in circumstances where it is uncertain which of them died first. The classic situation is where they die in a car accident – who can say which of them died first? (Of course, there is also the possibility that they died at the same instant, but we will gloss over that.) Section 184 says that in such a case it is presumed that the older person died first. This is known as the ‘presumption of survivorship’. It doesn’t matter how much older they are – it can be just a few days – the one born last is deemed to have survived the older person.

OK, so what? You might ask. Why does it matter who died first?

Well, it can matter a lot when it comes to dealing with their estates. In particular, jointly owned property will automatically pass to the joint owner who died last, unless it has been specified otherwise. And obviously, the person or persons that benefit from the estate of each joint owner may differ. Thus the sequence of the deaths can mean that the property can pass to completely different people.

This was the situation in the recent case The Estate of James Scarle Deceased, v The Estate of Marjorie Scarle Deceased.

The facts of the case are rather sad. On the 11th of October 2016 John Scarle and Marjorie Scarle, a married couple, were found dead at their bungalow in Leigh on Sea, Essex. They had both died of hypothermia. Mr Scarle was 79 and Mrs Scarle was 69.

As you can probably guess what is coming next, I will keep the rest of this post quite short, and will simplify the facts.

Mr and Mrs Scarle were the joint owners of the bungalow, and they also had a joint account with £18,000 in it. Mr Scarle had not left a will, which meant that his estate would pass to his daughter and only child Anna Winter, under the rules on intestacy. Mrs Scarle had made a will, leaving her estate to her daughter, Deborah Ann Cutler.

So the scene is set. If Mr Scarle died first, the bungalow and money would pass first to Mrs Scarle, and then to her daughter, Ms Cutler. If Mrs Scarle died first, the bungalow and money would pass first to Mr Scarle, and then to his daughter, Ms Winter.

It was therefore crucial to find out if the order of death could be established. If it could, then that would determine the matter. If it could not, then it would be determined by the presumption of survivorship.

Ms Winter took the matter to the court, arguing that the evidence indicated that Mrs Scarle had died first. The court decided, however, that the evidence was inconclusive. Mr and Mrs Scarle had died at some time between the 5th and 9th of October 2016, but it remained uncertain who died first. Accordingly, the presumption of survivorship applied, and the estate passed to Ms Cutler.

You can read the full judgment in the case here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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