Commorientes rule invoked as evidence fails to prove order of English couple’s deaths

The judge in the Scarle estate dispute, in which an elderly married couple were found dead in their Essex home, has ruled that there is not enough medical evidence to determine who died first (Estate of James Scarle v Estate of Marjorie Scarle, 2019 EWHC 2224 Ch).

John and Marjorie Scarle died of hypothermia at their home at Leigh on Sea in Essex in October 2016. Their bodies were not found until a week later. Both had children from previous marriages, and the difficulty of determining which of the two died prompted an estate dispute between their respective stepdaughters over the couple's joint assets.

John Scarle's daughter, Anna Winter, claimed that autopsy evidence indicated that Marjorie Scarle died first, so that her [Marjorie’s] share of the joint assets briefly passed to her husband by survivorship, and thence to Anna Winter.

Marjorie Scarle's daughter, Deborah Cutler, claimed that the order of deaths could not be reliably determined, and so the commorientes rule in s184 of the Law of Property Act 1925 should be invoked to deem that the elder spouse (John Scarle) died first, so that his share of the joint assets passed to his wife by survivorship, and thence to Deborah Cutler and her brother.

The England and Wales High Court thus had to evaluate the autopsy evidence, and evidence from the scene of the deaths, and of their state of health. Moreover, it had to decide what standard of proof was needed to determine the order of deaths, as the scant case law on commorientes had not settled this matter.

The judge, Philip Kramer, decided that the correct standard of proof is the civil one, the balance of probabilities, and that where the order of death is uncertain, the burden of proof is on the party seeking to establish otherwise. Moreover, where the evidence is inconclusive, 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.

'Otherwise [the court] cannot be satisfied that the inferences it draws are justified and do not result from an absence of information, which is a characteristic of s184 cases', he said.

The evidence itself was technical and mostly related to temperature variation in the house and its effect on decomposition. It was complicated by some signs that intruders might have disturbed the scene.

Ultimately, Kramer HHJ decided there were too many variables and unknowns to make a safe decision. He therefore applied the commorientes rule to deem that the elder spouse died first, so that Marjorie Scarle's issue will inherit the estate's jointly held assets.

John Scarle left a separate personal estate of GBP160,000 to his daughter Anna Winter, but much of it may be swallowed up in the legal costs incurred, despite attempts to reach a settlement.