The High Court recently handed down a judgment in a case where the Judge had to determine the sequence in which the elderly parents of two step-sisters died in order to distribute the couple’s joint assets to the appropriate beneficiary.
The Facts
On the 11th October 2016 Mr Scarle, aged 79, and Mrs Scarle, aged 69, were found dead at their bungalow in Leigh on Sea, Essex. They were found in different areas of the bungalow, Mrs Scarle in the toilet and Mr Scarle in the lounge.
Mrs Scarle suffered from a variety of medical conditions and relied on Mr Scarle as her carer. Mr Scarle’s health also appeared to decline in the two months prior to his death.
Neither Mr nor Mrs Scarle had made wills. They were joint tenants of the bungalow and had a joint bank account which contained £18,000.00 at the time of their deaths.
The house and money were to pass on to the estate of the deceased. Therefore, if Mr Scarle had died first his estate would briefly pass on to Mrs Scarle before passing on to her daughter, whereas if Mrs Scarle had died first her estate would briefly pass on to Mr Scarle before passing on to his daughter. On the evidence before the court, it was not possible to establish an exact date of death for either Mr or Mrs Scarle, but the Court found that the deaths occurred in the period between the 5th and 9th October 2016.
The Law
Mr and Mrs Scarle held the property as joint tenants which meant that they both owned the whole of the property and did not have a quantified share.
The law governing the ownership of jointly owned assets is that the last in time to die is entitled to the whole of the property as well as the sums held in the bank account. If the order of death is uncertain, there is a presumption that death occurred in order of seniority, i.e. the oldest died first, pursuant to s.184 of the Law of Property Act 1925 (“s.184”).
Prior to s.184, there was no presumption and the onus of proof was on the person making the claim. If neither side could prove who died first, then the estate was distributed as if both parties had died at the same time.
The Claimant’s case
It was the Claimant’s case (the daughter of Mr Scarle) that the presumption under s.184 is not engaged if it can be proved who died first on the balance of probabilities (civil standard of proof). The Claimant relied upon evidence that Mrs Scarle died first due to (i) her advanced level of decomposition (compared to that of Mr Scarle), (ii) the temperature of the lounge, where Mr Scarle was found, being as warm or warmer than the toilet where Mrs Scarle was found and (iii) that Mr Scarle was alive for some time on the floor before his death due to a pressure sore and continued production of urine.
The Defendant’s case
The Defendant (the daughter of Mrs Scarle) argued that in order for the presumption under s.184 not to apply the Claimant had to prove that Mrs Scarle died first to a higher standard of proof, somewhere between the civil standard (balance of probabilities) and the criminal standard (beyond a reasonable doubt). The Defendant stated that no safe inference can be drawn from (i) the respective levels of decomposition of Mr and Mrs Scarle, (ii) the temperature of the toilet and lounge or (iii) the environmental conditions. The conditions surrounding their deaths could point in either direction regarding the order of death.
The Standard of Proof
The Defendant argued that under s.184 the “use of the word “uncertain” itself indicated that a standard of proof higher than the civil standard is required to render certain that which appears uncertain”. The Defendant relied upon Hickman v Peacey [1945] A.C. 304, Re Bate [1947] 2All ER 418 and Re Kennedy [2000] 2 I.R. 571.
The Claimant argued that discussion as to the standard of proof in Hickman was obiter, Re Bates does not support the Defendant’s argument and Re Kennedy was incorrectly decided and is not binding. The Claimant relied on a variety of Commonwealth and Scottish cases in support of applying the civil standard of proof.
An in-depth analysis of these cases and standard of proof can be found in the full Judgment, the link for which is provided below.
Considerations
Mr and Mrs Scarle were found at differing stages of decomposition, Mrs Scarle’s being more advanced. On that basis one could form the view that Mrs Scarle died first based on her stage of decomposition.
It is important to delve deeper into the analysis and consider what else may affect the rate of decomposition. It was raised that decomposition can vary between individuals who die at the same time in the same circumstances. The Judge did not place weight on this argument because the experts accepted that if the two rooms were equivalent in temperature and environmental conditions it is more likely than not that Mrs Scarle died first.
Temperature was an important factor to consider when looking at decomposition as Mr and Mrs Scarle were found in different areas of the bungalow. Differing temperatures in different rooms could be significant when analysing the actual decomposition of the bodies and determining the rate of decomposition. Determining the temperature of the respective rooms was further complicated by open windows, a partially open door and a potential break in by an intruder.
Conclusion
The civil standard of proof (balance of probabilities) should be adopted in these cases.
The judge found that Mr and Mrs Scarle died of hypothermia at some point between the 5th and 9th October 2016. The Claimant did not satisfy the Judge as to the order of death to the civil standard of proof. Therefore, the presumption of death in s.184 is engaged and it is presumed that Mrs Scarle survived Mr Scarle, albeit briefly.
Full judgment of Estate of James Scarle v Estate of Marjorie Scarle [2019] EWHC 2224 (Ch) can be found here:
Take away points
- The civil standard of proof (balance of probabilities) applies when determining the order of death.
- Where the order of death is uncertain, the onus is on the party making the claim, otherwise, the presumption under s.184 applies.
- The court should not reject one improbable inference for another unless there is some evidence upon which it can safely conclude that it can be rejected. The court must be satisfied that the inferences it draws are justified and that they are not as a result of absence of information.
- It is important for clients to consider whether their property is owned as ‘joint tenants’ or ‘tenants in common’ and to have their will drafted in a way that reflects their wishes.
