DATE PUBLISHED: 29 Aug 2019 LAST UPDATED: 13 Apr 2022

But who died first? The relevance for inheritance in Winter v Cutler

The High Court has recently ruled on an “extraordinary” probate case this week regarding the inheritance of two step siblings.

The step-siblings’ parents, Mr and Mrs Scarle, both died at their home in Essex from hypothermia in October 2016. The couple were not found until a few days after they are presumed to have died by which time the bodies had begun to decompose.

The battle

The couple’s property was held as joint tenants meaning that one person’s share of the property passed to the other when they died. Mr and Mrs Scarle died without a will (intestate) so their estate passed to their child. The problem here was that the order of death was uncertain and so it was difficult to ascertain whose child should inherit the property.

Mrs Winter sought to rely on the fact that her father’s body was less decomposed than Mrs Scarle’s therefore suggesting that he had died later. Mrs Cutler, on the other hand, sought to rely on a 1925 law, named the “Commorientes Rule” under s184 of the Law of Property Act 1925.

The “Commorientes Rule”

The “Commorientes Rule” sets out that where property is owned as joint tenants and it cannot be ascertained which of the joint owners died first, the Court will presume death based on seniority and accordingly the property will pass to the youngest owner.

Although this rule has been in existence for over 90 years it is rarely used due to scientific and medical advances enabling us to usually ascertain who did in fact die first. Notable cases in which the rule has been successfully used previously are:

  • Cases of bombings during World War 2;
  • A case in 1958 in which a couple died when their car crashed and landed upside down in a river; and
  • A 1963 case in which a couple drowned at sea and their bodies were never found.

In some jurisdictions, where time of death is unknown, the property is treated as being held as tenants in common meaning that both families inherit from the unfortunate circumstances. This is not the case in England and Wales.

The Judgment

Judge Philip Kramer, upon reviewing the case, ruled in favour of Mrs Cutler. He deemed that the explanations surrounding who had died first were improbable and so, in the uncertain circumstances, s184 of the Law of Property Act 1925 applied.

Mrs Cutler therefore inherited the couple’s property. Mrs Winter, who it appears from the judgment failed to properly engage in settlement negotiations during the course of the claim, has been ordered to pay a significant amount of Mrs Cutler’s fees. Mrs Winter’s £150,000 legal cost therefore also serves as a reminder of the benefits of engaging in alternative dispute resolution and settlement negotiations during a claim.


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