The Guardian newspaper recently reported an interesting inheritance dispute that was heard by the High Court of England, between two stepsisters, The Court had to rule, with the benefit of pathology reports, which of their parents died first.
John Scarle, 79, and his wife Marjorie, 69, both died from hypothermia in their bungalow nearly three years ago.
Entitlement to their jointly owned estate, including a home and a bank account, depended on the sequence of their deaths.
John’s only child, Anna, had to show that Marjorie was the first to die if she was to inherit.
Marjorie’s daughter, Deborah, had to demonstrate that the normal legal presumption in such cases – that the youngest person is deemed to have died last – should be upheld.
The case revolved around the English equivalent of the Presumption of Survivorship Act 1921 which deals with the “presumption of survivorship” in the case of multiple fatalities.
The Tasmanian legislation states;
“In all cases where two or more persons have died in circumstances rendering it uncertain which of them survived, their deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be presumed to have survived the elder.”
The judge ruled that the inheritance should go to Deborah because it could not be proved that her mother had died first. Therefore the Presumption of survivorship under the Act procedure worked in her favor in that her mother had died last.
That is, John was presumed to have died first and was presumed to be survived by Marjorie. All of John’s estate passed to Marjory, who then gave all her estate to Deborah.
Delivering judgment, the Judge referred to cases such as one including two brothers killed in an air raid during the Blitz, another case where the order of their death affected how the estates were distributed.
The Judge found that because the bodies of the Scarles were found in separate parts of the bungalow, where ambient temperatures were different, he could not determine without a doubt who had died first
The Judge said: “The only evidence which could point unequivocally to the sequence of death is the relative differences in decomposition, but does it? I am left with two not-improbable explanations for this effect. The first is that Mrs Scarle pre-deceased her husband, the second that the micro-environment of the toilet area was warmer than the lounge.” He added: “The reports from various pathologists … observed that [Marjorie’s] body was significantly more decomposed than John’s. Crucially, however, rates of decomposition are highly sensitive to environmental conditions."
The Judge concluded that the difference in decomposition could be explained by the difference in microclimate. Therefore the order of death remained uncertain and the Presumption of survivorship consequently applied. Majorie was therefore presumed to have survived John and the estate followed her will and went to Deborah.
It is these strange anomalies that are thrown up even when a person dies with a will. In this case, there was no basis for displacing the statutory presumption that the oldest died first. Accordingly, in a similar set of facts in Tasmania, the Court would give the same result.
Fenton Jones, Partner at Bishops and Wills and Estate specialist strongly recommends that every adult person in a blended family relationship should have an up to date will that would protect against these like circumstances. A will drawn for John and Majorie to protect their own natural children, could have avoided all this litigation. This involves the consequences one of both their deaths has on their blended family. In its most basic sense, a blended family is one where the parents have children from previous relationships but all the members come together as one unit.
The result could have been much different and given the outcome that John and Majorie probably wanted if wills creating life interests were made by John and Majorie.
- John and Majorie would need to change the ownership of their property from joint ownership to one where they each have a separate half share.
- In his will, if he was first to die, John would leave to Majorie the right to reside in the property by the use of his share for her life.
- On the death of Majorie, John’s share would pass to his daughter Anna under John’s will , and Majorie’s share would pass to Deborah under Majorie’s will
- In her will, if she were first to die, Majorie would leave to John the right to reside in the property by the use of her share for his life.
- On the death of John, Majorie‘s share would pass to her daughter Deborah, under Majorie’s will, and John’s share would pass to Anna under John’s will
While this may seem complicated, if you speak to our Wills and Estate specialist, Fenton Jones at Bishops and he will explain how simple and cost effective the above steps are. The alternative for someone like Deborah and Anna is expensive litigation which would result in an all-or-nothing case for the parties who wished to inherit from their parents.
As those well respected legal experts ABBA said, “The winner takes it all. The loser standing small“!