At Nalders Solicitors, probate and administering estates fall within our specialisms, and what always surprises us when we work on such cases is how little preparation most of us make for our deaths. The Law Society estimate that two thirds of people in the UK will die without a Will (known as Intestate).
While this is often because people feel the topic is a tad morbid, it is also due to the fact that many of us find the subject of Wills, Probate, and so on rather confusing. Although the help of a professional can usually remedy any difficulties you might be experiencing, there are some instances in particular where all but the most specialist lawyers are left scratching their heads.
This includes simultaneous deaths, where something known as the commorientes rule applies. Here’s how it works.
The commorientes rule – in theory and in practice
When it comes to inheritance, the law has quite specific rules to help us determine where an individual’s estate should go. However, one circumstance which creates confusion is when two or more people die in circumstances where it is not possible to tell which of them predeceased the other.
In these instances, a legal concept known as the commorientes rule applies. Used for the purpose of determining who should inherit the deceased individuals’ property, it presumes that the deaths occurred in order of seniority, meaning that the younger of the two is assumed to have survived the elder (Section 184, Law of Property Act 1925). This helps to decide who succeeds to any shared estates the deceased might have.
While it’s rarely used in practice, the commorientes rule is not defunct and was recently applied in a High Court case, which offers a useful example of how the principle works. The case involved two step-sisters, whose parents died from hypothermia in October 2016.
By the time the elderly couple were discovered, it was not possible to determine who had passed away first. As they had not made Wills and so both died Intestate, ascertaining the order of death was essential in determining who received the estate on the death of the second spouse. Because the couple had no children together but they each had children from previous marriages, ascertaining the order of death would decide which child would receive the entire estate and which would receive nothing. This led to a £300,000 inheritance battle over who should be awarded the couple’s £280,000 home and the money they had in a joint bank account.
In the event, it was determined that as the wife, Marjorie Anne Scarle, was 10 years younger than her husband, John, their assets should be awarded to her children, leaving their step-sister with no claim to the house or money.
Sadly, this particular scenario could have been avoided had the couple had valid Wills in place. This would have allowed them to provide for each of their respective children if they wished to do so and potentially avoided an expensive and emotional legal battle. Whilst this task may seem daunting, professionally prepared Wills allow for freedom of choice as to the distribution of your estate and ensures that “first” and “second” families can be provided for in line with your wishes.
If you’re currently involved in an inheritance dispute or concerned about getting your affairs in order, why not contact our Cornwall-based office today for advice? Our Wills and Probate Executive Jess Symons and her friendly and helpful team are always happy to answer any questions or queries you might have.