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“Simultaneous Death: Who Died First?”

It is a morbid question, but is also a very important one. If two people who jointly own property died, and it is uncertain who died first, who inherits the property?

The Law

The present law is set out in section 184 of the Law of Property Act 1925: Where joint owners die, and it is “uncertain” who dies first, the law presumes the older died first.

The intention behind s184 is to reduce the harshness of how the law previously operated, which was where it could not be proved which joint owner died first, the law presumed they died simultaneously.

These findings of simultaneous death often led to harsh outcomes. For instance, in Underwood v Wing (1855) Mr and Mrs Underwood both made Wills, that provided for gifts to Mr Wing should their spouse die in their lifetime. Mr and Mrs Underwood died at sea when they were both washed overboard. There was insufficient evidence on who died first. The Court ruled they died simultaneously, so Mr Wing received nothing.

Another example is the decision in Scottish case of Drummond’s Judicial Factor v Lord Advocate [1944] SC 298. In Scotland an equivalent of s184 was not introduced until 1964. Both spouses were killed when a bomb struck their house during the Blitz. The family could not establish who died first, so the Court found they died simultaneously. The result was that £250.00 of war bonds went to the Crown, not to the family.

Meaning of ‘Uncertainty’

While s184 has prevented the harsh outcomes that follow a finding of ‘simultaneous death’, the key question then is: What does ‘uncertain’ mean?

Put simply, if the orders of death are ‘uncertain’ s184 will operate, and if they are not uncertain it will not apply.

In civil proceedings questions of fact are proved if it is shown that it is ‘more likely than not’ that they existed (i.e. 51% probability). The term applied to that standard of evidence if ‘on a balance of probabilities’. In contrast, in criminal proceedings a higher ‘standard’ of evidence is required, being ‘beyond reasonable doubt’.

The problem is that s184 refers to ‘uncertainty’, which implies that for the presumption not to apply the order of deaths must be ‘certain’. It is widely accepted that ‘certainty’ is a far higher standard of evidence than ‘on a balance of probabilities (i.e. significantly more than 51%).

This is problematic because a higher standard of evidence makes it more difficult for a party to provide the order of deaths, which in turn could lead to injustices and parties not inheriting property they are otherwise entitled to.

Until recently the case law was unclear whether a claimant had to prove the order of deaths on ‘a balance of probabilities’, or a higher standard.

Scarle v Scarle [2019]

However, HHJ Kramer in the High Court case of Scarle v Scarle [2019] EWHC 2224 (Ch) has now brought much-needed clarity to this area.

Mr and Mrs Scarle were both found dead at their home, but in different rooms. Mr Scarle was older than Mrs Scarle, but Mrs Scarle was in a more advanced stage of decomposition.

If the s184 presumption applied then Mrs Scarle would have acquired the entire property from Mr Scarle, and upon her death the property would pass to her relatives.

In contrast, if s184 did not apply (i.e if the order of death was not uncertain) then the property would pass to the relatives of the spouse who died last.

Mrs Scarle’s relatives argued it was uncertain who died first, so s184 applied and the property passed to them. Mr Scarle’s relatives said it could be proven that Mrs Scarle died first, so all property passed to them and s184 did not apply.

The experts agreed Mr and Mrs Scarle both died of hypothermia, and that Mrs Scarle was in a more advanced state of decomposition. The experts also agreed that minor differences in temperature and the environment in the property could have a significant impact on the speed of decomposition.

The representatives for Mrs Scarle’s relatives said there were other reasons for Mrs Scarle being in a more advance state of decomposition, other than simply times of death (for instance, temperature, underlying health conditions and other environmental issues).

The representatives for Mr Scarle argued the Court could infer from the evidence that Mrs Scarle died first.

The Court found that while Mrs Scarle’s more advanced decomposition may indicate she died first, he could not discount the possibility that a warmer temperature and other facts where Mrs Scarle was found could have speeded up her decomposition even if she had died after Mr Scarle.

In the circumstances the Judge found there were simply too many variables influencing Mrs Scarle’s more advanced decomposition, and that it would be unsafe to conclude that Mrs Scarle died first.

While on the facts the Court could not safely draw any inferences on times of death, crucially the Judge made it clear that the standard of proof to avoid the s184 presumption was the same as all other civil proceedings: on a balance of probabilities. The purpose of s184 was to remedy the harshness of the previous law, and it was not necessary to have a higher standard of proof to achieve that purpose.

So, the decision in Scarle v Scarle brings welcome clarity and comfort to the beneficiaries of the deceased who now know the evidential hurdle to jump over is lower than previously suggested.

However, the decision also makes clear there must still be sufficient evidence for the Court to say it is more likely than not a particular order of deaths occurred, and in the absence of that evidence the s184 presumption will still apply.

It remains to be seen if the decision in Scarle v Scarle will be upheld by higher courts in the future, or if the decision itself will be appealed.  


These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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