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The law as it stands

Under the Law of Property Act 1925, where two or more people die simultaneously, the deaths should be presumed to have occurred in order of seniority, so the younger outlives the older relative.

The High Court and Mr and Mrs Scarle

In a 2019 case, the High Court was asked who should inherit the assets of married couple, John and Ann Scarle. Both John and Ann had children from previous relationships when they married. The main asset of their estate was a £300,000 house.

The couple passed away from hypothermia in tragic circumstances at their home sometime between 03 and 11 October 2015. Their home, which had previously been targeted by vandals, was found in a poor state, with broken windows and the door left open.

Disputes arose after the couple’s joint death because John’s daughter, Anne (not to be confused with Jonh’s wife, Ann), believes that she was entitled to inherit the house in its entirety, whilst Ann’s daughter, Deborah,

had Anne and Deborah been full siblings, it would not have mattered who passed away first as the property would have been split between the children.

Due to neither John or Ann having written a will, even if it had been their intention that the assets should have been split between all their children, the rules of intestacy say that the younger spouse would inherit the assets. In this case, John Scarle, who was 10 years older than Ann, was deemed to have died before his wife, therefore his assets, according to the rules on intestacy, passed to Ann, even if for the briefest of minutes.

Upon Ann’s passing, the assets were then distributed in accordance to the rules of intestacy, had she had a will, they may have been distributed more fairly.

However, if it could have be shown beyond reasonable doubt that Ann died first, then the estate would go to John’s family.

John’s daughter advanced a case that Ann probably died first, based on the state of Ann’s body when the Police found Mr and Mrs Scarle.

However, the judge decided that Ann’s daughter should inherit the estate because there was no conclusive evidence that her mother definitely died first.

Had the Scarles agreed who would inherit their assets on their deaths by drafting mutual or mirror wills, it may have saved a very expensive court battle, which will have substantially diminished the estate’s value.

Avoiding will and estate disputes due to simultaneous death

Drafting a will

A will is an important document, yet research shows that over half of the UK’s adults do not have one in place.

Some people do not believe that they have any assets to give and what they do have will pass to their partners or children.

It is especially problematic where step-family are involved and families have been ‘joined together’, the partners may want their shares of the assets to pass to their children rather than their step family.

Mirror and mutual wills

Mirror and mutual wills are wills drafted by two or more people. They are often used by couples and partners as a way of confirming that they both agree on what should happen when the last one passes away. They look almost identical in content.

In the case of a mirror will, once one individual passes away, the survivor is entitled to make a new will, which can be completely different from the previous one.

This can be avoided by agreeing mutual wills, limiting the survivor’s ability to make a will in different terms, which, in essence, bounds them to keep their will as it was at the time their partner’s was executed.

Survivorship clauses

We also recommend having a survivorship clause within your will to ensure that property only passes to a beneficiary after a certain period. If the beneficiary passes away before that time, the estate passes to other beneficiaries.

Disaster clauses (also known as common tragedy clauses)

A disaster clause can be put into your will to determine where your estate would end up if you and all your beneficiaries die at the same time. In a rather famous case, Richard Cousins, who was tragically killed along with his family in a plane crash in Sydney in 2017, had a disaster clause within his will. As a result, Oxfam was bequeathed £41m from his estate.



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