Historically, the “Commorientes Rule” (meaning "simultaneous deaths") found in Section 184 of the Law of Property Act 1925, states that if two or more people die in circumstances where it is not possible to determine who died first, the younger is deemed to survive the elder.

This is an issue that can come up frequently when dealing with estates, though rarely becomes the central issue in a disputed estate claim. The High Court this week has had to consider this rule when dealing with an inheritance dispute between step siblings, over which of their parents died first. This is the first case of its kind since the 1950’s, when the courts had to determine who had died first, after a family all died together when their home was bombed during the Second World War.

John and Ann Scarle, who each had children from previous marriages, sadly both died from hypothermia in October 2016. They were found together, having passed away, and the coroner was unable to determine medically, which one died first. It is understood that they had not made wills, and therefore their estate passed under the intestacy rules. This then led to the children fighting over the estate, as the children of whichever of the couple survived longest, will inherit the couple’s £280,000 house, with their step-siblings getting nothing. John Scarle's daughter, Anna Winter, argued that there was some evidence that her step-mum probably could have died first, which would mean her estate would have passed to John briefly, and then when he died, would pass to Anna. However, Deborah Cutler, daughter of Ann, claims the order of deaths cannot be determined and that the Commorientes Rule applies, meaning that John died first, passing his estate to Ann, and meaning she and her brother, Andre, should inherit the property.

The court is therefore having to consider whether the evidence that has been argued by Anna’s legal team is sufficient to establish that it was more likely than not that her step-mum died first, and the judge has reserved his judgment for a later date.

The Commorientes Rule usually has a very practical application, but it shows that it can lead to completely unintended consequences if assets are jointly owned, or if an individual dies without a will, or if their will is not prepared properly. Had this couple made wills before they died, determining who they would want to benefit from their estate once they both had died, the order in which they died would have been of very little relevance. It will be interesting to see what decision the court makes.