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High court must decide order of death of elderly couple found dead in their home

Thursday, 4 July, 2019

The estate of an elderly couple who were both found dead in their own home is being disputed by their stepdaughters in the England and Wales High Court, with the point of contention being which of the couple died first.

John and Marjorie Scarle died of hypothermia at their home at Leigh-on-Sea in Essex in October 2016. Their bodies were not found until a week later, after neighbours called the police.

Both had issue from previous marriages, and these stepdaughters are now claiming the right to inherit the Scarle's GBP300,000 house, which John and Ann owned jointly. The difficulty is that the succession depends on which of the two died first.

The couple's testamentary wishes have not been published, but it seems that, if Mr Scarle died first, his share of the property would have briefly passed to his wife, and then when she died, to her children Deborah and Andre.

However, if Mrs Scarle died first, her share would have briefly passed to her husband, and then on to his daughter Anna.

The High Court has to consider whether there was sufficient evidence at the scene to determine the order of deaths. Expert evidence could not reliably determine even an approximate date of each death, let alone time.

Mr Scarle's daughter Anna argues that the autopsy evidence shows on the balance of probabilities that Mrs Scarle died first, and therefore that Anna should inherit the property. Mrs Scarle's daughter Deborah argues that the order of deaths cannot be known for sure, and thus the commorientes rule in s184 of the Law of Property Act 1925 should apply, which states that the elder will be deemed to have died first: in this case, the husband. The s184 presumption would not be rebutted even if it could be shown that Mrs Scarle had probably died first, she says, unless the evidence that Mrs Scarle had died first were 'beyond reasonable doubt'.

The judge hearing the case has reserved his decision.

Such cases rarely arise nowadays, says Kate Salter of law firm Kingsley Napley, because it is usually possible to determine who has died first. The last major case citing this legislation took place in 1963 where a couple had drowned at sea, she says.

Sources