Though it does not occur often, sometimes two people die in circumstances which render it difficult, or indeed impossible to determine who died first.

Such a conundrum is of particular importance when the deceased individuals owned joint property together or their estates are to be administered consecutively. Such was the case of Scarle v Scarle (2019).

Scarle v Scarle 2019

On 11 October 2016, Mr. John Scarle and Mrs. Marjorie Scarle were discovered dead in their bungalow in Essex. Mrs. Scarle was 69 years old and Mr. Scarle was 79 years old.

Mr. Scarle died intestate (i.e. without leaving a valid Will), leaving a Daughter from a previous marriage, Mrs. Anna Winter (“Anna”).

Mrs. Scarle on the other hand died leaving a Will, bequeathing her entire Estate to her daughter, Mrs. Deborah Cutler (“Deborah”).

The couple’s joint Estate was valued at around £218,000 which, in the context of Contentious Probate disputes, particularly those that are litigated all the way through to a Trial, is considered a modest size.

Mrs. Scarle was found first, in the bathroom. Mr. Scarle was found second in the living room. It was agreed between all parties that the married couple had laid dead for over forty-eight hours before they were discovered.

During the course of the Trial, the Judge heard evidence from both of the Daughters, Forensic Pathologists, the Police and experts on decomposition, as to the likely order of death.

Despite the plethora of evidence put forward, the Judge decided that “the only evidence which has the potential to provide reliable inferences is that produced by the forensic pathologists”.

Interestingly, all experts agreed that Mrs. Scarle showed significant signs of decomposition suggesting she predeceased her Husband, possibly by days. However, disagreement arose as to the environmental factors which may have contributed to this, particularly the temperature in the two different rooms where the bodies were found.

Unfortunately, determining the temperature of the two rooms was complicated by open windows throughout the property, open French doors adjoining the living room, and skylights in the bathroom ceiling.

But why did it matter who died first?

The Law of Property Act 1925

Under Section 148 of the Law of Property Act 1925, where it is uncertain who died first, a presumption is created that death is deemed to have occurred in order of seniority.

In the case of Scarle v Scarle, this would mean that Mr. Scarle’s Estate would pass to his Wife, Mrs. Scarle, who was presumed to have survived him. Deborah would then inherit the entirety of the combined Estates and Anna would receive nothing.

It has long been established that the burden of proof lies with the party seeking to prove that this presumption does not apply, i.e. in this case, Anna. A Court should not consider overturning the presumption unless there is sufficient, indisputable, evidence that supports a different explanation.

In the case of Scarle v Scarle, it was decided that that Anna had failed to upset the presumption and therefore Mr. Scarle was deemed to have died first and the entirety of the combined Estates were therefore inherited by Deborah.

Costs

When debating whether to pursue a case, the value of the Estate(s) has to be balanced against the likely costs associated in taking a matter all the way through to a Trial. Legal fees can accrue exponentially throughout litigation, particularly when preparing for a Trial. It is for this reason that the Courts strongly encourage active participation in methods of Alternative Dispute Resolution, such as Mediation or Arbitration, with a view of resolving the matter outside of Court.

Despite winning the case, and therefore inheriting the entirety of the combined Estates, Deborah was sanctioned by the Court with an adverse Costs Order made against her. This resulted in Deborah being liable for Anna’s costs of £84,000, in addition to her own costs of £95,000. This resulting in a total liability of £179,000, thereby almost completely depleting her hard-won inheritance.

The Court took such a strong stance against Deborah due to what was seen as an unreasonable rejection to engage in genuine negotiations and mediation which, in the Court’s view, could have avoided taking the matter to Trial and the unnecessary accruement of legal fees.

This case therefore serves as a powerful reminder to parties, both setting out and already embroiled in Contentious Probate disputes, to make genuine attempts to resolve the dispute outside of Court.

We can help you

If you have recently received notice of a challenge to an Estate under which you benefit and wish to defend it, then please contact our Contested Wills, Trusts and Estates Team on 01823 625841.

We handle a variety of disputes and issues surrounding Wills and Estates. We offer high-quality, cost-effective legal advice on such matters, with flexible funding arrangements such as Deferred Funding Arrangements and Conditional Fee Agreements (i.e. No-Win, No-Fee arrangements) being available.