Solicitor Louise Low, in our Dispute Resolution team explains why a recent case highlights the importance of making a Will.
Scarle v Scarle [2019] EWHC 2224 (Ch) was the sad case of John and Marjorie Scarle who were found dead at their home in 2016. They were found to have both died from hypothermia at least 2 days before the bodies were discovered, although when the police found them it was considered a possibility that the property had also been burgled.
It was a second marriage for both Mr and Mrs Scarle and they each had children from previous relationships. Neither had left a Will. All their property was jointly owned, which meant that it passed to whichever of them survived the other. The whole of their joint estate would then pass to the children of the last one to have died. This was described as an “all or nothing” case in that one set of children would inherit the whole estate and the other family would get nothing.
There is a legal presumption that where the order of death is uncertain, the deaths are deemed to have occurred in order of seniority. This presumption can be overturned if there is evidence to establish who died first, on the balance of probabilities. As Mr Scarle was the older of the two, his daughter tried to rely on evidence that Mrs Scarle’s body was in a more advanced state of decomposition than Mr Scarle’s body in order to show that the wife must have died first. If this could be proven, Mrs Scarle’s estate would have passed to her husband, and upon his death, Mr Scarle’s daughter should inherit the whole estate. The Judge decided that there was insufficient evidence to enable him to depart from the presumption and accordingly held that Mr Scarle must be presumed to have died first. The couple’s estate passed to Mrs Scarle’s daughter in full and Mr Scarle’s daughter was ordered to pay the costs of the case as a result of a refusal of previous settlement offers.
Where a Will is made, it is quite common to include a clause that directs that the estate only passes to the surviving spouse if they live for a period of often 30 days or more after the first death. If they do not then the Will often provides for the estate to pass to the children. Here the couple might have agreed to share the joint estate equally between all of their children rather than leaving it to be fought over on an intestacy. Making a Will is especially important in cases of second marriages, where they may be competing families hoping to inherit.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
