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Murray Beith Murray is a leading Scottish private client law firm.

For over 170 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.

Common calamity and the presumption of who died first

andrewWhile making Wills is typically a priority for couples who own property together, worrying about who dies first often is not.

In October 2016, an elderly couple were found dead in their home. John and Ann Scarle had each made Wills to deal with their primary asset, their home. The problem? It was not clear which spouse died first and this point is being disputed by couple’s stepdaughters in the England and Wales High Court.

In England and Wales, when two or more people die in circumstances where it is not clear who died first the commorientes rule applies for the purposes of inheriting property. This rule presumes that the order of survival is determined by age, with the oldest person dying first and the youngest last. The presumption can drastically affect succession.

In this case, Ann is presumed to have survived her husband, meaning that while her children would inherit the house worth £300,000, John’s daughter (from a previous relationship) would inherit nothing. In order to rebut this presumption, it would need to be determined ‘beyond reasonable doubt’ that Ann died first. This is what John’s daughter is attempting to prove in the England and Wales High Court in order to secure her inheritance of the £300,000 property.

Should such a case occur in Scotland, the outcome would be very different. The applicable law is Section 9 of the Succession (Scotland) Act 2016 which provides that:

“Where two persons die simultaneously or in circumstances in which it is uncertain who survived whom, each is to be treated as having failed to survive the other for all purposes affecting title or succession to property.”

The differences between the position in Scotland and in England and Wales are best demonstrated in this example:

Adam and Christine Jones, aged 60 and 55 respectively, each have children from previous marriages. Their Wills leave their estates to each other, whom failing to their respective children. Adam and Christine both die and it is not possible to determine who died first. In England and Wales, it would be presumed that Christine survived Adam, meaning that his estate would pass to her in terms of his Will. Upon Christine’s death her estate (now including Adam’s estate) would pass to her children, meaning that Adam’s children would inherit nothing. In Scotland, neither Adam nor Christine are presumed to have survived each other. The ‘fall-back’ provisions contained in their Wills mean that Adam’s estate would be inherited by his children and Christine’s by hers.

Of course, as in England and Wales, this presumption can be challenged. Nevertheless, the default position in Scotland appears to yield fairer results, avoiding the ‘all or nothing’ outcome of England and Wales.

Although the circumstances of this couple’s death are very unusual, the case demonstrates the importance of having a valid Will that provides for multiple eventualities. The case also highlights the complexities that can arise in step-families and the importance of consulting a solicitor when preparing a Will to ensure that your wishes are expressed, even in the most unforeseeable of circumstances.

Specialist Wills Solicitors, Edinburgh

If this blog has raised any questions and you would like to discuss writing or updating your Will, please get in touch with Murray Beith Murray today using our Contact Form or call us on 0131 225 1200 to speak with one of our specialist Wills solicitors.

Our personal, attentive service coupled with sage, astute and commercially-minded guidance, allow us to build long-term, ongoing relationships with our clients, helping them to protect assets throughout generations. We clearly outline the implications from initial contact, helping to dispel the mystery behind the law and legal process. Our highly personal service reflects our culture, which is centred on integrity and trust, and the expert guidance we provide has been designed to be an investment, not an expense.

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