by Fergus Hollins, Trainee Solicitor
In Scarle (Deceased) v Scarle (Deceased)  EWHC 2224 (Ch), the England and Wales High Court has upheld a presumption, applicable in the event of a common calamity, whereby the elder is deemed to predecease any other affected parties.
John Scarle, aged 79, and Marjorie Scarle, aged 69, died of hypothermia in their Essex home in October 2016. They were joint tenants of their home and holders of a joint bank account and so the survivor would become sole owner on first death. In England and Wales, under s 184 of the Law of Property Act 1925, where the order of death is uncertain in a common calamity, the younger shall be deemed to have survived the elder.
Evidence provided by pathologists was found to be inconclusive in establishing who died first. Judge Kramer held that where there are ‘different inferences which are not in themselves improbable, the court should not reject one inference in favour of another unless there is some evidence upon which it can safely conclude that it be rejected.’ In the absence of a successful rebuttal to the presumption, Mrs Scarle is deemed to have survived Mr Scarle. The effect of this is that Mrs Scarle’s daughter benefits from the whole of the estate, at the expense of Mr Scarle’s daughter.
The value of the joint estate was estimated at £300,000. In the meantime, Mr Scarle’s daughter, who rejected a number of attempts to settle, was ordered to pay £179,000 in costs (expenses) for bringing the case.
Position in Scots law
In Scotland, the law on common calamity was amended by the Succession (Scotland) Act 2016. Section 9 establishes that each party involved in the calamity is to be treated as having failed any other in respect of succession issues. Section 10 applies if a will establishes that property is to pass to a beneficiary involved in a common calamity. All members of the group have equal status in the sense that it is the testator’s intention that any of them could benefit from the legacy. The property is divided equally among the estates of those killed in the common calamity, so long as there is no provision in the will to the contrary.
The fall-back provision (s 10(4)) is that neither ss 9 or 10 apply if the testator dies as part of the group, so as to ensure that their estate passes to a living beneficiary.
If Mr and Mrs Scarle were Scottish domiciled, neither would be deemed to survive the other and so their share of the estate would pass under their respective wills (or in Mr Scarle’s case, via the laws of intestacy). It is therefore likely that both of their children would have had a right to receive half of the joint estate.
While the recent change to the law in Scotland would bring about a significantly different outcome, it remains to be seen if the Scarle decision will prompt any reaction from the Law Commission of England and Wales.