Having a well-drafted, valid Will has been highlighted clearly in a recent case which ended up with two step-sisters in a dispute over their parents’ estate with specific reference to who died first.
The commorientes rule (Section 184, Law of Property Act 1925) applies for the purpose of determining title to property. It states that, unless the court determines otherwise, where two or more people die in circumstances where it is uncertain who died first, the eldest of the two deceased is assumed to have died first. This presumption, however, can be overturned by evidence to the contrary.
The case of Scarle v Scarle surrounded the deaths of John and Marjorie Ann Scarle, who both sadly died in October 2016 from hypothermia. They were found together in their property, having passed away, and the coroner was unable to determine which of the couple had died first. Both John and Marjorie Ann had children from previous relationships who would stand to inherit, dependent on which of the couple survived the other.
John Scarle’s daughter, Anna Winter, argued that there was some evidence that her step-mother had died first, even though she was younger than her husband. This would mean her estate would have passed to John briefly, and then when he died, would pass to Anna. However, Anna’s step-sister, Deborah Cutler, claimed it was not possible to determine the order of their parents’ deaths and therefore the rule of commorientes should apply, meaning she would inherit.
The judge was asked to consider whose estate would inherit the jointly owned assets (which included the family home worth approx £280,000). The court had to decide whether there was enough evidence to establish who died first. Judge Philip Kramer found in favour of Deborah and applied the commorientes rule to the case on the basis that there was no conclusive proof as to who had passed away first. He concluded that ‘…there is uncertainty as to the order of death. Section 184 applies and the younger is deemed to have survived the elder.’
Cases such as Scarle v Scarle are rare and it is unusual to have to rely on the commorientes rule. However, had Mr and Mrs Scarle taken advice regarding their estate planning options and made Wills which set out who they wanted to benefit from their estate once they had both died, the order of their deaths may not have had an impact on the distribution of their estates.
This case highlight the importance of taking professional advice and having an appropriately drafted Will to ensure that your wishes are accurately recorded. In the context of second marriages or complex family arrangements, protective trusts can be used to ensure that assets pass to beneficiaries as intended.
Statutory Wills – what are they and why might they be needed?
For most people, the idea of setting out post-death wishes carries very little appeal. Preparing a Will requires serious consideration of things that many of us would prefer to leave unsaid and unwritten. However, it is the only way of ensuring that the right people benefit in the right ways from our estates.
One of the essential aspects of a legally enforceable Will is that the person who made it was of sound mind; they understood what they were writing in their Will, and the implications. So what happens when an adult who has possessions – a home, money in the bank etc – but who doesn’t have the necessary mental capacity, ought to make a Will?
The answer is: a Statutory Will. This is a Will that is overseen by the Court of Protection. This Court exists to safeguard the interests of people who either have never had mental capacity, and those who once had capacity but, through illness or accident, no longer have it. They owe a duty of care to such people including enabling proper provision to be put in place for the fair distribution of a person’s assets once they have died.
Sometimes this means updating an existing Will to better reflect new financial and other circumstances, but it can also involve writing a Will from scratch. These jobs typically fall within the remit of a Deputy or an Attorney, each of whom has responsibility for acting in the best interests of people who don’t have mental capacity to make important decisions for themselves. It is also possible for family members and friends to instigate the Statutory Will process, if they are aware that their loved one either does not have a Will, or an up to date Will.
In seeking to prepare a Will for someone who does not have capacity, one of the challenges facing the Court is in ensuring the fair treatment of that person, given that their Will-related wishes may not be known. It involves close scrutiny of the individual’s personal circumstances; any feelings they might have expressed that could be relevant to the distribution of their possessions, and the views of those close to them.
It is a careful and thorough assessment of an incapacitated person’s best interests. This focus is usually of great comfort to those who care deeply about people who are unable to speak for themselves as it can provide some peace of mind that there are proper provisions in place that they believe the person would have wanted if they had been able to make such decisions for themselves.