Cowan v Foreman - [2019] EWCA Civ 1336

Judge Makes Decision On All Or Nothing Case

A High Court Judge has used the Commorientes Rule, and decided that Ann Scarle outlived her husband John after they both passed away at their home in Essex in October 2016.

John Scarle aged 79 and his wife Ann aged 69 died of hypothermia in 2016. The last known sighting of Mr Scarle was on the 3rd or 4th October, days before his and his wife’s bodies were discovered on the 11th.

Anna Winter, Mr Scarle’s daughter, argued that her stepmother, Mrs Scarle, was likely to have died first meaning her father technically inherited the house, which should therefore be passed on to her.

But her stepsister, Deborah Cutler, Mrs Scarle’s daughter, argued that it could not be said for certain who passed away first and so legally her mother, the younger party, should inherit the property.

What ensued was a legal row, to uncover who would benefit from the deceased’s estate and assets. When the decision was finally made, the court used a 94 year-old law to determine the outcome of the case. Resulting in Mrs Cutler being awarded the £300,000 inheritance.

The ‘Commorientes Rule’ in Section 184 of the Law of Property Act 1925 – meaning ‘simultaneous deaths’ – states that if it cannot be determined who has died first then the younger person should be presumed to have outlived the elder. This law was used mainly after World War Two when couples or families died in the same incident, such as the Blitz bombings.

Mrs Winter’s barrister, Amrik Wahiwala, said that the decomposition of Mrs Scarle’s body suggested that “on the balance of probabilities” she had been dead longer than her husband.

But James Weale, Mrs Cutler’s barrister, argued that there was no direct evidence shedding light on when either had died. He said Mrs Winter would have to prove “beyond reasonable doubt” that Mrs Scarle died first.

Following on from the judgement, Judge Philip Kramer 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.

“The claimant has not satisfied me to the civil standard as to the order of death.

“I conclude that there is uncertainty as to the order of death. Section 184 applies and the younger is deemed to have survived the elder.”

Mr Weale, following the decision in his client’s favour, said:

“The High Court gave judgment today in an extraordinary case which required a judge to determine the order in which the parents of two step-sisters died.

“This was an all or nothing case for the parties who stood to inherit from their parents.”

Andrew Wilkinson, partner and will disputes specialist at law firm Shakespeare Martineau, added:

“It comes as no surprise that this almost century-old law has not been used since the Blitz.

“Given the advances in medical science and forensics, it is almost always possible to ascertain the order of death.”

Mrs Cutler said following the judgement:

“This matter should never have got to trial.

“I did my best to resolve the dispute by making several reasonable offers to the Claimant including an offer right at the beginning that the parties split the assets belonging to the estate 50/50.

“However, none of those offers were accepted and the Claimant refused my offers to mediate.

“The only counter-offer made by the Claimant was that her father’s, my stepfather’s estate would receive the entirety of the assets and that I would have to pay a portion of her legal costs.

“I am very pleased that the Judge has accepted my case that the evidence was too uncertain to enable a conclusion to be drawn with the consequence that the statutory presumption applies.

“Myself and my family would like to ask for privacy in this sad and difficult case to be respected.”

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