Lawyers turn to century-old law to settle probate dispute that hinged on which parent died first

PROBATE lawyers have gone back in time by reviving a century-old law to win a high-profile inheritance battle in the courts.

The judgment yet again underlines the importance of writing a will – and the far-reaching consequences that can be played out under the glare of the world’s media if you don’t, and die intestate.

In a rare scenario even for the complex legal world of contested probate, a feuding daughter and her stepsister took to the High Court to settle an inheritance fight that was triggered by the death of their parents.

John and Ann Scarle, aged 79 and 69, died from hyperthermia at their home at Leigh-on-Sea in Essex at some stage between October 4 and 9 2016.

The case revolved around which parent, in the eyes of the law, died first – drawing upon legislation dating back 95 years to settle the argument between the two children once and for all.

The judgment highlights the legal minefield that can lie ahead when dying wishes have not been reflected in a formal will.

The court heard how the two children, who had a “strained relationship”, became immersed in a long-running legal fight over who would inherit a £280,000 bungalow following their parents’ death.

Anna Winter, Mr Scarle’s daughter, argued that her stepmother, Mrs Scarle, was likely to have died first and that meant that her father technically inherited the house, which should therefore be passed on to her.

But her stepsister, Deborah Cutler, Mrs Scarle’s daughter, argued that it could not be said for certain who passed away first and so legally her mother, the younger party, should inherit the property.

Mrs Cutler relied on this near century-old law to win the case.

The “Commorientes Rule” in Section 184 of the Law of Property Act 1925 – meaning “simultaneous deaths” – states that if it cannot be determined who has died first then the younger person should be presumed to have outlived the elder.

As a result, she was able to walk away with the property while her stepsister was left facing a £150,000 a legal bill.

Judge Philip Kramer said: “I conclude that there is uncertainty as to the order of death. Section 184 applies and the younger is deemed to have survived the elder.”

Thanks to advances in medical and forensic science, it is now almost always possible to pinpoint the order of death.

But in the rare, possibly unique, set of circumstances that presented themselves in this case, it was down to a piece of legislation drawn up long before the Second World War to determine who died first and settle this long-running probate battle.

Following the judgment, Mrs Cutler said that the matter “should never have got to trial” – and this certainly would have been the case if specialist legal advice been sought and a better will had been drafted.

For example, this case would appear to have been the perfect scenario for the home being held as tenants in common, and left in trust.

Rather than the property passing to the surviving spouse and the daughter of the first to die getting nothing, the home would have been passed 50% to each respective daughter, which would have been a much fairer outcome.  You can read more about this approach in a previous Milners article here

Should you have any questions or concerns regarding wills, trusts and probate, or any other inheritance-related issues, such as probate disputes, please do not hesitate to contact solicitor Jessica Savage, a fully qualified member of the Society of Trusts and Estate Practitioners (STEP), or this article’s author, trainee solicitor Nathan Watts, here at Milners on 0113 245 0852 or email us at hello@milnerslaw.

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