Winter is coming, but receives nothing

Thursday 22nd August 2019

Winter is coming

As any good private client lawyer knows, the commorientes rule set out in s184 of the Law of Property Act 1925 provides that in situations where it cannot be determined who has died first, the younger person should be presumed to have died after the elder. The decision in the sad case of Mr and Mrs Scarle will therefore be unsurprising to most advisers.

In this case, the bodies of both Mr and Mrs Scarle were discovered at the same time and it was difficult to say for certain who had died first and so Mrs Scarle, as the younger of the two, was deemed to have survived her husband. Further details of the case are reported in the press.

The consequences of the application of the commorientes rule in this case meant that the family home passed to Mrs Scarle’s beneficiary (her daughter Mrs Cutler) and that Mr Scarle’s beneficiary (his daughter Mrs Winter) received nothing. Additionally, Mrs Winter was also left with an order to pay the majority of Mrs Cutler’s legal fees as well as her own.

However, the case is about much more than the application of the commorientes rule. It serves as a useful reminder of the importance of making a Will particularly where there are ‘blended families’ and difficult relationships between potential beneficiaries.

It also came to light that attempts were made by Mrs Cutler to settle the case with a 50/50 split of the estate being offered which Mrs Winter rejected. The case therefore also acts as a warning to potential litigants that where a fair and reasonable settlement out of court is proposed, this should be considered extremely seriously because the financial consequences of losing a case can be devastating.

Central Law Training offers will drafting courses which discuss the application of the commorientes rule and how it affects your will drafting: Certificate in Will Drafting (foundation level) and Will Drafting Masterclass (advanced level). For beginners, our Introduction to Will Drafting e-learning course introduces key topics and points of caution.

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