By Alys Haf,  Probate Assistant, Wills, Trusts & Estates

Almost three years ago John William Scarle and Marjorie Ann Scarle died together from hypothermia at their Essex home. Based on the evidence it was not possible to establish who had died first.

Where the order of death is uncertain Section 184 of the Law of Property Act 1925 creates a presumption that the oldest person died first. The court was asked to consider the inheritance dispute between the two stepsisters. If the wife was found to die first then her daughter would inherit. If the husband died first, then his daughter would inherit.

As a result of the presumption in the Law of Property Act 1925, Mrs Scarle’s daughter was due to inherit the bungalow and £18,000.00. It was for Mr Scarle’s daughter to argue that medical evidence proved that it was Mrs Scarle who died first.

Grisly medical evidence was submitted to try and prove who died first. Evidence suggested that changes due to decomposition were less advanced in Mr Scarle, and that Mrs Scarle was ‘substantially further on’ in the process of decomposition. Another expert suggested that the reason that Mrs Scarle’s decomposition was further than Mr Scarle’s was that the temperature and environmental conditions within the two rooms that they were discovered were different, i.e the bathroom and living room.

The judge found that there was not enough medical evidence to rebut the presumption set out in the Law of Property Act 1925 and, affirming the existing Law, the judge ruled that the older spouse had died first.

This case clearly illustrates the issues which can arise when relatives pass away with no suitable Will in place. Probate law is complex and differing family structures mean it is essential for expert advice to be sought when writing a Will.

The Wills, Trusts & Estates team at Cullimore Dutton are specialists in Will writing and are members of STEP (The Society of Trusts & Estates Practitioners). For more advice about making a Will please contact a member of the Wills, Trusts & Estates Department at Cullimore Dutton Solicitors on 01244 356 789 or email

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

This article is also available in Welsh



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