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Inheritance Dispute - Sister Wins £300,000 under Commorientes Rule Dispute

Inheritance Dispute -   Sister Wins £300,000 under Commorientes Rule Dispute

The High Court has applied the Commorientes Rule in an inheritance dispute between two step-sisters following the death of their parents, John and Ann Scarle, in late 2016. The Court favoured the case of Deborah Cutler over her step-sister Anna Winter. 

The case concerned which of the step-sisters’ parents died first – something that would decide which of the two siblings would inherit their parents’ home. The case involved land law and, in particular, the ancient Commorientes Rule.

What is the Commorientes Rule?

Under Section 184 of the Law of Property Act 1925, the Commorientes Rule states that where two or more persons have died in circumstances where it is uncertain which of them died first, the eldest is presumed to have died first when considering who owns any property.

The rule applies when it is impossible to tell who died first. The deaths are presumed to have occurred in age order, so that the eldest person is presumed to have died first. 

In this case, John and Ann Scarle, both died from hypothermia in their home in 2016, the legal presumption would be that John Scarle died first, as he was the older of the two. Although the wife was younger, the husband’s daughter was saying that he probably survived longer, as he was the healthier of the two. However, to overturn the Commorientes Rule, the husband’s family would have had to have proven that.

In this particular case, the couple each had children from previous marriages. They died at their home and their bodies were discovered later. The cause of the tragedy is unknown and the two sides of the family were arguing over who inherits the property.  In each Will, they left their estate to the other spouse and then on the second death they each left their estate to their own children. If the order of death was known, it would be the children of the second spouse to die who would inherit and the position would be quite clear.

The Scarle’s left it to chance as to which side of the family would inherit.  Most couples would want both sets of children to benefit, whoever died first.

In most cases where there are children from a previous relationship, couples would be advised to make provisions for every eventuality, to ensure

(a) there is not a legal fight after the death of one or other of them; and

(b) so that both sides of the family can share the total inheritance fairly.

One way of avoiding the Commorientes Rule applying is to put a survivorship clause in the Will, providing that someone can only inherit if they survive for a period of say 30 days. However, with married couples, that can have inheritance tax implications, if they do both die at the same time. Also, it does not resolve the situation of 'survivor takes all' which is often not what is intended.

When drafting Wills, it is better to consider the following:

  1. In each Will, make provision to split the assets on second death i.e. 50% to each person’s children. It is of course possible that the survivor could change their Will or remarry which would revoke that Will and so another possibility would be –
  2. To own the property as tenants in common (a form of joint ownership, which allows you to leave your own share of the property by the terms of your Will) and then to leave the survivor a life interest or a right to live in your share of that property (or any replacement) during their lifetime only. On their death, your share could pass under the terms of your own Will, to your children. In that way, the surviving spouse can stay in the house and your children don’t lose out.

There may be other possibilities to consider as well, but a properly drafted Will could have avoided the issues that these families faced.

If you require advice on a disputed probate matter please contact Neenu Puri or John Simister in the Litigation Department at Alsters Kelley on 01926 3506000 or email or



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