Although the chances of you and your partner both dying in the same circumstances are extremely rare, it is a valid and important question that should be considered whenever you are updating your wills.
The question has recently been brought to the forefront of the High Court's attention in relation to the estates of John and Anne Scarle. The elderly married couple – who both had children from previous marriages - both sadly died from hypothermia at around the same time in 2016. As their bodies were not discovered for some time, medical experts were unable to provide conclusive evidence as to who had died first, leading to a debate as to which of the children inherit their estates, the main asset of which is a property worth in the region of £300,000.
Mr Scarle's daughter has asked the Court to rule on the order of death, as she believes there is evidence to prove that her father (the eldest of the couple) was the second to die.
The relevant legislation to consider in these circumstances is Section 184 of the Law of Property Act 1925 which provides that where two or more people die in circumstances where the order of death cannot be determined, the law will presume that the deaths occurred in order of seniority, i.e. that the eldest person died first. This principle is often referred to as the Commorientes Rule.
Applying the rule to this case would mean that Mrs Scarle would be deemed to have died second (given that she was younger than Mr Scarle), thus inheriting Mr Scarle's estate before she died.
All of Mr Scarle's estate would therefore pass by the terms of Mrs Scarle's will, meaning that Mr Scarle's beneficiaries would not stand to inherit anything from his estate.
Although it is of course rare for a couple to die in such circumstances, it is inevitable that one will die before the other, and so for families which include children from previous relationships, it is essential to consider all of your options and the potential eventualities when preparing your will.
Difficulties such as those highlighted by this case can be avoided by taking specialist advice and having a professional will drafted. Professionally drafted wills generally include provisions to deal with the possibility of beneficiaries dying within a very short period of time following the death of the person making the will.
It is also possible to structure wills in such a way as to provide a benefit for a spouse or partner, while protecting the estate for children or other family members. In this case, for example, Mr Scarle could have chosen to leave a life interest to Mrs Scarle, giving her the benefit of enjoying the use of the property and income from his estate for her lifetime, following which, his estate would pass to his children, or he could have left his estate in a discretionary trust, so that his chosen trustees could deal with his estate flexibly. In these circumstances, it would not have been an issue if Mr Scarle died first as his estate would still pass by the terms of his own will.
The High Court is yet to hand down judgment in this case, but whatever the ruling, one family will miss out on inheriting their parent's share of a sizeable estate - a harsh disappointment which could have been avoided with properly drafted wills.
Authored by Nicole Chadwick
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