Scarle v Scarle and the 'commorientes' rule: who died first?

HHJ Philip Kramer, sitting as a judge of the High Court, gave his judgment last Tuesday (13 August 2019) in the matter of Scarle v Scarle. The claim was brought on behalf of the Estate of Mr John William Scarle Deceased (by his personal representative Ann Winter), against the Estate of Marjorie Ann Scarle Deceased (by her personal representative Deborah Ann Cutler).

In general terms, the case concerned the question as to which of Mr and Mrs Scarle died first and, as a consequence, who would inherit their bungalow and £18,000 in a Co-op bank account, both of which were owned jointly between them.

Background

On 11 October 2016, Mr Scarle, aged 79, and Mrs Scarle, a married couple, sadly passed away in their bungalow in Essex. Mrs Scarle was the younger of the two, aged 69 at the time. The police found Mrs Scarle first, in the bathroom, later finding Mr Scarle in the lounge.

Based on the evidence, it was not possible to establish the date of the deaths, but they occurred in the period 4 October 2016 to 9 October 2016. The post-mortem examinations found that the cause of death of both Mr Scarle and Mrs Scarle was hypothermia.

The law

The law governing the ownership of jointly owned assets is that the last to die is entitled to the whole of the property and the sums in the bank account. As they had both passed away, the house and money would pass to those entitled to their estate, i.e. to Mrs Scarle’s estate if Mr Scarle died first and vice versa.

Central to this question is the operation of section 184 of the Law of Property Act 1925, a provision which, where the order of death is uncertain, creates a presumption that the younger person is deemed to have survived the elder person.

The dispute

Ann Winter, the claimant, is the only child of Mr Scarle. Her case was that:

• The presumption in s.184 is not engaged if she could prove, on the balance of probabilities (i.e. 50.1%), who died first; and
• Based on the evidence, she could prove that Mrs Scarle died first.

Deborah Cutler, the defendant, is the daughter of Mrs Scarle. Her case was that:

• The standard of proof was higher, i.e. somewhere between the balance of probabilities and beyond all reasonable doubt; and
• Ann could not prove the sequence of deaths, even to 50.1%, and therefore it was to be presumed that Mr Scarle died first.

The evidence

The doctor carrying out the post mortem examinations thought that the changes due to decomposition were less advanced in Mr Scarle, which may have suggested that he died a period of time after his wife, possibly days.

Another expert was also of the view that Mrs Scarle was more likely to have been first to die based on, by way of example, the more advanced state of decomposition and her underlying pathologies (which could have brought about sudden death).

All of the experts agreed that Mr Scarle and Mrs Scarle were in the early stages of decomposition, but that Mrs Scarle was at a more advanced stage. In consequence, if the temperature and environmental conditions within the two rooms, i.e. the lounge and the bathroom where they were found, were equivalent, it may be concluded that it was more likely than not that Mrs Scarle died before her husband.

The key difference between the experts was whether it should be accepted that the temperature and environmental conditions in which the Scarles were found were equivalent.

The arguments

Ann argued that there was a lack of significant variation in the micro-climate of the property and that the lounge must have been as warm or warmer than the toilet because of the layout of the premises. If the lounge was warmer, this would have accelerated Mr Scarle’s decomposition and his lesser decomposition would indicate that he must have died substantially later than his wife.

Ann also placed reliance on the evidence that Mr Scarle was alive on the floor for some time before death, namely a pressure sore on the right hip and the continued production of urine. In contrast, she points to Mrs Scarle’s pre-existing conditions, which the experts accepted may have led to a collapse followed by the development of hypothermia.

Deborah said that all the experts had to go on was the rate of decomposition and that they couldn’t draw any reliable inference from the fact that one was more decomposed than the other. This was particularly true, she said, given that decomposition is a very unreliable method of identifying the time of death and the extent of decomposition can be variable amongst people who die at the same place and time.

Deborah said that no safe inference could be drawn as to whether the toilet area was warmer, cooler or the same as the lounge.

The circumstances surrounding the death were also relied upon by Deborah, pointing out, for example, that Mr Scarle was the carer as he was more physically able.

The decision

As to the burden of proof, it was held that, where the order of death is uncertain, the burden of proof is on the party seeking to establish otherwise. Such proof is to the civil standard, the balance of probabilities.

The facts surrounding the deaths were equivocal and the picture was incomplete, even when considered in conjunction with the evidence of the pathologists.

The only evidence which could point unequivocally to the sequence of death was the relative differences in decomposition. Both Mr Scarle and Mrs Scarle were at an early stage of decomposition when found but Mrs Scarle was substantially further on in that stage. There were two explanations for this effect, namely that Mrs Scarle pre-deceased her husband or that the micro-environment of the toilet area was warmer than the lounge. The experts accepted that if the temperature and environmental conditions within the two rooms were found to be equivalent, it was more likely than not that Mrs Scarle died before her husband.

It was held that there were too many variables and unknowns to come to a safe conclusion as to the relative temperatures of the toilet and the lounge. Ann, the claimant, therefore did not satisfy the judge as to the order of death. Accordingly, the presumption of death in s. 184 of the Law of Property Act 1925 applied and Mrs Scarle was presumed to have survived Mr Scarle. The bungalow and the bank account therefore passed to those entitled to Mrs Scarle’s estate.

Conclusion

Where two or more people die in circumstances rendering it uncertain which of them died first, it will be assumed that the youngest survived the eldest. A person wishing to challenge this will need to be able to show, on the balance of probabilities and with clear evidence, which of the deceased persons died first.