Inheritance Dispute: Who died first and why does it matter?

17th September 2019 Will Disputes

Where parties own assets together and one of them passes away it is usually the case that the surviving owner will inherit those assets that were jointly owned by way of survivorship.

However, in the recent case of Scarle (Deceased) v Scarle (Deceased) [2019], both husband and wife died in close succession, leading to uncertainty over which spouse died first. This resulted in a lengthy and expensive legal battle between their two step-children concerning which of them were entitled to inherit the joint assets.

The joint assets in question included a property and a joint bank account. Each spouse had a daughter from a previous marriage and determining which spouse died first was crucial in determining which of their daughters would inherit the joint assets. For example, if the husband died first, his share of the joint assets would have passed to his wife and upon her death, they would have passed in their entirety to the wife’s daughter as she had left everything to her daughter in her will. This would leave the husband’s daughter with no entitlement to the joint assets. Alternatively, if the wife was deemed to have died first, her husband would have acquired the joint assets and these would then pass to his daughter under the intestacy rules as he had not left a will.

At the conclusion of the court proceedings, the Judge applied a legal presumption that in cases where the order of death is uncertain, is it presumed that the oldest individual died first. The husband, as the older spouse, was deemed to have died first, whereby the joint assets passed to his wife upon his death. Therefore as his wife had passed away, it was her daughter that inherited the joint assets, namely the property and the funds held in the joint bank account and the husband’s daughter was left with no entitlement to the joint assets and a hefty bill for her own legal costs as well as a proportion of her step-sister’s legal costs.

This case shows the merit of having a will to ensure that your assets are distributed in the manner you intend following your death. If the spouses had talked through with a solicitor what they each wanted to happen to their respective shares of the joint assets on death they might have realised a problem may arise on their deaths and had the opportunity to create a solution which would have ensured their respective children received a proportion of their assets. Furthermore, having a well-drafted will may reduce the likelihood of a legal battle and the huge expense and emotional strain that can result from lengthy litigation proceedings. This is especially important where circumstances are more complicated due to previous marriages and children from previous relationships.

Even if you believe that you do not need a will, unforeseen circumstances can leave your loved ones with no entitlement to your estate. Whilst the circumstances of the above case are rare, it should be noted that even if the spouses hadn’t died so close together one of the children would still have been left without a guarantee of an inheritance from their parent, and the case serves as an important reminder to make provisions in your will for the unexpected. Therefore it is important to obtain professional advice and assistance in order to help you to write a will that is well-drafted and takes account of your specific family circumstances and needs and does not leave any room for ambiguity or uncertainty where unexpected events may occur.

Please see our next blog post for information on ‘mirror wills’ and ‘mutual wills’, both  of which are common between spouses/civil partners as a joint approach to drafting their wills.

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Alison Parry is a Partner located in Manchester in our Will and Trust Disputes department

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