When two or more people die together – and they own joint assets – it is important to discover who died first. If this cannot be established, it is assumed that the deaths occurred in order of age. In other words, the oldest person died first.
The commorientes rule
This is known as the commorientes rule in English and Welsh law. ‘Commorientes’ is Latin for ‘simultaneous death’. It is often a source of dispute, as it can have serious implications for the beneficiaries of each person’s estate.
For example, imagine a couple who own a property jointly. The husband is older than his wife. They each have a daughter from a previous relationship. Then, both individuals die seemingly at the same time. So, who inherits what?
Firstly, the husband’s share of the property passes to his wife. This is because the Rule of Survivorship says that jointly owned assets pass automatically to the surviving owner. It’s true that the wife may have died at exactly the same time. But for the purposes of Probate, she is considered to have outlived her husband, because she is younger.
Now, the entire property forms part of the wife’s estate, rather than her husband’s. Her Will states that everything should pass to her daughter. Consequently, the husband’s daughter does not receive a share of the property. In effect, she has been disinherited, simply because her father was older.
Scarle v Scarle
This is precisely what happened in the recent case of Scarle v Scarle. Mr and Mrs Scarle were an elderly couple who were both found deceased in their home. They died of hypothermia and there was no way of telling who passed away first. The commorientes rule therefore took effect and the wife was presumed to have survived her husband.
As a result, the husband’s daughter failed to receive a share of any jointly held assets. This included a property and money held in a joint bank account. She disputed this, arguing that because the order of deaths was uncertain, a higher standard of proof should be enforced. This would compel the wife’s daughter to prove that her mother had outlived her husband.
However, the judge disagreed. He confirmed that where the order of deaths is uncertain, the commorientes rule comes into force. The burden of proof is on the party seeking to establish otherwise. In this case, the husband’s daughter would have to prove that her father outlived his wife. She attempted to achieve this with various evidence, but none was considered reliable enough to prove her case.
The commorientes rules was therefore upheld. The wife’s daughter inherited the joint assets in full, while the husband’s daughter received nothing.
How to avoid accidental disinheritance
This may be a cause for concern for anyone who holds assets as a joint owner yet has different beneficiaries to the other joint owner. Without the right planning, this may result in your loved ones being accidentally disinherited. To avoid this, you need to get a professionally drafted Will that prepares for every eventuality.
One option is to include a survivorship clause in your Will. This states that a joint owner must outlive the other for a certain amount of time. If the joint owner dies before the time period expires, the gift fails and passes to the next beneficiary named in your Will. However, this approach can result in a higher Inheritance Tax bill.
If so, it may be preferable for each joint owner to update their Will, ensuring it aligns with each other’s wishes. For instance, Mr and Mrs Scarle could have stipulated that following the second spouse’s death, the jointly owned assets would be split 50:50 between their respective daughters. Then, in the event of a simultaneous death, each child would have received an equal inheritance – and a lengthy court battle would have been avoided.
Speak to our Will writers
To guarantee your wishes are fulfilled after your death, please contact our Will writers. We can draft a Will that covers every eventuality.