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Ellie Taylor

Solicitor - Brighton & Hove

3rd October 2019

Are your wishes clear and loved ones protected?

The recent case of Scarle v Scarle highlights the importance of a carefully drafted Will to ensure that your testamentary wishes are clear and loved ones are protected, particularly if there are children from previous relationships.

Had Mr & Mrs Scarle sought advice about the different types of joint ownership of property and had suitable Wills in place, their families could have avoided the high costs of litigation and the resulting breakdown of family relationships.

The background to Scarle v Scarle

In October 2016, married couple Mr John Scarle (79 yrs) and Mrs Marjorie Scarle (69 yrs) were found dead in different rooms in their bungalow. Post-mortems revealed that both had died from hypothermia and the Judge concluded that this had happened between 5th and 9th October.

The vital question for the court to consider was which of them had died first. The answer would determine who inherited their jointly owned property which consisted of their bungalow and a joint bank account.

Inheritance and the law

Jointly owned assets generally pass on the first death to the surviving joint owner regardless of what any Will in place says.

If Mr Scarle had died first, the jointly owned assets would have passed to Mrs Scarle and then to her children by a previous relationship in accordance with her Will.

If Mrs Scarle had died first, the jointly owned assets would have passed to Mr Scarle and then, as he did not have a Will in place, to his own daughter under the intestacy rules.

Where the order of death is uncertain, there is a presumption that death occurs in order of seniority (section 184 of The Law of Property Act 1925). If this presumption applied, Mr Scarle would be regarded as dying first as he was the older of the two, and Mrs Scarle’s children would inherit.

Family dispute

Mr Scarle’s daughter, Anna Winter, sought to rely on evidence indicating that, ‘on the balance of probabilities’ (the formal legal test in these circumstances), Mrs Scarle died first and therefore the presumption should not apply. This evidence showed that, while Mr & Mrs Scarle were both in the early stage of decomposition, Mrs Scarle was at a more advanced stage.

Ms Winter’s case was that this showed her father had survived her stepmother and that she should inherit the jointly owned assets from him.

Mrs Scarle’s daughter, Deborah Cutler, representing her mother’s estate, argued that Ms Winter needed to prove the order of death to a higher standard of proof than the balance of probabilities for the presumption to be overturned.

The Judgment

The judge concluded that such proof is to the civil standard of the balance of probabilities and, where the order of death is uncertain, the burden of proof is on the party seeking to overturn the presumption.

Upon considering all the facts and the evidence presented to him, he decided that there were two alternative explanations for the differences in decomposition. Mrs Scarle had either died before her husband or she had died after him but the environment in which she was found had been warmer which had speeded up the process of decomposition.

In the absence of conclusive evidence, the judge was unable to draw any inference that Mrs Scarle had been the first to die. The order of death remained uncertain and so he applied the presumption of death in the order of seniority.

As the eldest, Mr Scarle was presumed to have died first so the jointly owned assets passed to Mrs Scarle and thereafter to her children in accordance with the terms of her Will.


Mr & Mrs Scarle died in October 2016 and nearly three years later after a court battle between their respective children, a decision has been made for the families involved. Ms Winter’s costs as the claimant are reported to be in excess of £150,000.

The costs of litigation and the resulting breakdown of family relationships in similar circumstances could have been avoided if Mr & Mrs Scarle had sought advice about the different types of joint ownership of property and had suitable Wills in place to ensure their wishes were fulfilled.

Although we do not know what Mr & Mrs Scarle’s wishes were, in our experience, couples generally wish to ensure their partner/spouse is provided for during his or her lifetime but that the assets are ultimately preserved for the benefit of their respective children. This can often be achieved through the use of trusts.

How Rix & Kay can help

Rix and Kay’s Wills and Estate Planning Team can provide you with the advice you need to ensure your wishes are clear and your loved ones are protected. If you wish to discuss your Will, please contact Ellie Taylor or another member of the team.

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