HM Insights

Court hears inheritance battle over which parent died first

The question of who dies first can often have consequences in relation to who inherits an estate, but what happens when a couple die at the same time? This was the situation that has arisen in an English court case, where a particular set of circumstances means that the ruling would settle a family battle over who would get a £300,000 legacy.

The High Court case in England heard evidence that married couple, John Scarle, 79, and his wife Ann Scarle, 69 were found dead together in their home in Leigh-on-Sea in October 2016. Step-sisters Anna Winter and Deborah Cutler were the respective children of each spouse from previous marriages and the one whose parent survived the longest would inherit the couples combined estate.

While good manners may dictate that women should always go before men, as it is unknown which spouse passed away first, the judge has been asked to deliberate on the matter.

inherit-inheritance-succession-law-Will-rights-lawyer-solicitor-scotland-death-estate-legacy-first.jpg

The law in England & Wales

In England & Wales, s.184 of the Law of Property Act 1925 provides the presumption that when two people have died in circumstances rendering it uncertain which of them survived the other, the younger person is deemed to have survived the elder.

If the law was followed directly, it would mean that Ann would be deemed to have survived John. His estate would then fall to Ann, who briefly inherited John's share of the estate, and subsequently to her biological daughter. Therefore, it would seem that the law appears to favour Ms Cutler.

However, based on the evidence presented in Court, a judge may rule that the presumption set out in the 1925 Act has been rebutted and find in favour of Ms Winter.

A different situation under the law in Scotland

Historically, the position in Scotland reflected that of England & Wales. However, s.9 of the Succession (Scotland) Act 2016 fundamentally changed the law where it is uncertain in what order two or more people passed away. It is now the case that each individual is treated to have failed to survive the other.

If the same set of circumstances had occurred in Scotland, each of John and Ann's biological children would have been able to claim their legal rights on their respective parent's estate as the Act states that the spouses would have effectively died widowed.

Although not legally binding, it is often the practice of Scottish Private Client solicitors to include provisions in a client's Will whereby a beneficiary must survive for a minimum period of time (usually 30 days) to avoid such circumstances.

Get in touch

It is important to remember that the Scottish laws of succession do not directly mirror that of those in England & Wales. Our Private Client team can provide expert advice on drafting your Will and answering any questions you may have in relation to succession planning.