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Understanding the “commorientes rule” and survivorship

Wills Article - Paul Caslin

16th October, 2019

In England and Wales, where two or more people have died simultaneously or where it is not possible to determine the order of death, the law presumes that the deaths occurred in order of seniority.

This is known as the “commorientes rule” (s.184 Law of Property Act 1925) which is concerned with determining survivorship and can dictate the order in which the estate of a couple is distributed. The youngest will be assumed to have died last; therefore, will inherit any jointly owned property and, potentially, inherit under the eldest’s will or the Intestacy rules if there is no Will.

Whereas some couples may be aware of and intend survivorship to be the desired effect for the purposes of their estate planning, the application of law to your estate if you have children from a previous relationship could produce results that you did not intend, lead to disappointed beneficiaries and fuel costly disputes.

This was recently illustrated in the case of Mr & Mrs Scarle. The High Court was asked by two feuding step-sisters to decide which of their parents (who had both found dead at their bungalow from hypothermia) died first to determine which step-sister would inherit their parents combined estate.

Without medical evidence to prove otherwise, the commorientes rule applied and so Mr Scarle, 10 years older than his wife, was presumed to have died first. On this basis and without a Will, Mr Scarle’s assets briefly passed to his wife by survivorship before passing to her own children who were entitled to Mrs Scarle’s combined estate (worth £300,000) under the Intestacy Rules. Mr Scarle’s daughter received nothing.

This case demonstrates the importance of having a Will to record who should inherit your estate and to control how your assets are to be distributed to your beneficiaries, as intended by you, and not onwards according to somebody else’s Will or by the law.

We can protect your assets for your chosen loved ones by providing appropriate and practical estate planning advice; and by drafting specific and robust provisions in a Will that is tailored to your family circumstances.


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