Last Man Standing: The Importance of Determining Who Died First

A recent case in the English High Court has highlighted the difference between Jersey and English Law when spouses or couples die simultaneously.

The facts of the case were somewhat tragic. John and Anne Scarle aged 79 and 69 died from hypothermia at their jointly owned home in Essex during the winter of 2016. Their children subsequently became embroiled in a legal row about who would inherit their estate. Mr. Scarle’s daughter Anna Winter argued that her step mother Mrs. Scarle would have been more likely to have died first which meant that her father technically inherited the estate which would then be passed on to her. Her step sister Debra Coulter, argued that it could not be determined who passed away first.

The Court’s decision turned on the Commorientes Rule. In England under the Law of Property Act 1925, the rule relating to simultaneous deaths states that if it cannot be determined who died first then the younger person is deemed to have outlived the elder. Judge Philip Kramer, ruled that because there was uncertainty as to which of Mr. and Mrs. Scarle died first, the rule should apply and the younger Mrs. Scarle was deemed to have survived the older Mr. Scarle. As a consequence Mrs. Coulter as heir of her late mother became the heir to the whole of the estate. In turn Mrs. Winter was ordered to pay the majority of Mrs Coulter’s costs as well as her own which were estimated to be in the order of £150,000.

If the case had been heard in Jersey the result would have been different. Under Article 9 of the Wills and Successions (Jersey) Law 1993, where two or more people die in circumstances rendering it uncertain who was the survivor, the Court will hear evidence to try and determine the order of death. If the Court cannot determine beyond reasonable doubt that one person died before the other then it has the power to make an order that the persons are deemed to have died simultaneously.

On a simultaneous death order the estate of each person is distributed in the way that it would have been had the other person named in the order survived that person. If like Mr. and Mrs. Scarle, the couple owned property jointly then their jointly owned property is divided equally between their respective estates.

It seems therefore that Jersey Law, allowing as it does for a finding of simultaneous death, is a much fairer system. Certainly Mrs. Winter in the recent case would have been pleased if the English Court had the same power to make a practical order that the Jersey Courts have.

Ultimately the case highlights the very real need to have your wills prepared by a legal team experienced in drafting testamentary arrangements and succession planning. A proper arrangement in Mr. and Mrs. Scarle’s wills, making provision for the event that they died at the same time or in circumstances where it could not be determined which of them died first, could have prevented the cost and anguish that followed their deaths. Benest & Syvret’s Wills and Probate team are amongst the leading lawyers in the Island dealing with estate administration and Will drafting. Contact Philip Syvret or Claire Kingham on 875875 for further information.


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