Who Died First?

John Scarle died of hypothermia in October 2016 in his own home at the age of 79.  His wife Ann Scarle also died of hypothermia there at the age of 69.  They were found dead when the Police broke into their home on the evening of October 11th 2016 after concerns had been raised as to their welfare.  The property had been targeted by vandals or burglars.  Windows had been broken and a door had been left ajar.  It was in complete disarray.


One can only imagine the sadness of the immediate family.  They were a loving couple.  Mr Scarle was his wife’s full-time carer following her stroke in 1998.  This made her extremely disabled, requiring a mobility aid to walk around the house and the use of a wheelchair outside.


Both John and Ann had children from previous marriages.  Once the grieving was over, the children had to decide how to distribute their parents’ estate.  They fell out over this, and in consequence asked the High Court to step in to decide who should get the £300,000 inheritance.  The stakes were high.  The family of whichever of John and Ann survived longest would inherit this small fortune and their step-siblings would get nothing.


The High Court’s decision was therefore to decide who died first.  John’s daughter Anna Winter insisted that her step-mum Ann almost certainly died first.  If she was right in that presumption it would mean that her father John briefly inherited Ann’s share of the house when she died, and that would be passed on to Anna.  But Ann’s daughter Deborah Cutler would have none of it.  She claimed that when the order of deaths could not be established then legal presumption would step in.  This would mean that her step-dad John would be presumed to have died first as the older of the two and in consequence that would mean that she and her brother would get the spoils.


The Court was asked to rule on Section 184 of Law of Property Act 1925.  This provides that if two or more people die in circumstances where it cannot be certain who died first, the younger is deemed to have survived the older.  This is known as the “Commorientes Rule”.  In English that means “simultaneous deaths”.


There is nothing a High Court Judge likes more than precedents.  Were there any previous cases which would assist the Court?  In this instance the cupboard was rather bare.


In 1940 a high explosive bomb landed on a house in Chelsea killing the four occupants.  Two of them had made gifts in their Will which would take effect only if the beneficiaries – who happened to be among the dead – were to survive them.  The House of Lords determined that in the absence of any evidence that only one of them had survived the rest, Section 184 would kick in.  That meant that the youngest was deemed to have survived.   So the property went to the estate of the youngest.


Then in 1958 a couple died in a car crash. The post-mortem showed that the husband had been hit on the head and knocked completely unconscious, but not his wife.  The inquest found that both of them were drowned.  It was argued by the lawyers that she would have died first as she would have used the oxygen in her body faster.  But the Court thought otherwise.  The Court applied Section 184 and as the husband was older by 7 months he was presumed to have died first and his estate went to his wife.


Finally, in 1963 a couple drowned at sea. Both had left their estates to the other.  Their bodies were never discovered.  Again, the man was the older of the two and she was deemed to have survived him.   His property therefore became part of his wife’s estate and under her Will passed to her niece.


In the case of John and Ann Scarle the lawyers put forward conflicting evidence to the Judge about who died first.  John’s daughter Anna put forward the proposition that Ann had died first because the state of her body when the Police found them suggested that she had been dead the longest.  Anna’s barrister argued that even if it could be shown that Ann “probably” died first that was insufficient to enable John’s family to inherit.  The test was to show that it was “beyond reasonable doubt” that Ann died first in order for his daughter to inherit.  The medical evidence produced to the Court failed to provide clear, reliable and compelling evidence.



The Judge in the end upheld the Commorientes Rule.  Section 184 of the Law of Property Act 1925 prevailed.  As John was the older of the two, the Court deemed that Ann, younger than him by 10 years, survived him. It was not necessary for the Court to determine by how long – Ann’s younger age swung the presumption in her favour.


As a result Deborah Cutler and her brother Andre Farley succeeded and they were the ones to receive the full inheritance.  It is certain that vast costs were incurred as a consequence of this High Court scrap.  In this case, attempts to settle the case before it got to a hearing failed.  In Anna Winter’s case then, the tragedy of losing her father was compounded by the size of the legal bill to be paid after her defeat.


So, lessons need to be learnt if one is to engage in litigation. Even when the chances of success look good or better than good, one can never be certain.  If the chance is there to avoid litigation, my advice would be to consider all the options first and try them before having your day in Court.  If Anna Winter was blessed with the benefit of hindsight, would she still have proceeded with her claim in the light of the simultaneous death rule? Only she knows the answer to that, but I know what I would do if I were in her shoes.


If you need help on Wills and estates then do please get in touch with us.  You can contact us here at Busbys on 01288 35 9000, visit our website at www.busbyslaw.co.uk, or e‑mail us at lawyer@busbyslaw.co.uk.  See also Busbys’ advert on this page.


John Busby

Busbys Solicitors

Bude & Holsworthy

This site is protected by Comment SPAM Wiper.