Commorientes Rule Dispute – Sister Wins £300,000 Inheritance Dispute

The High Court has now handed down its judgment in the inheritance dispute between two feuding step sisters following the death of their parents, John and Ann Scarle, in late 2016. The Court favoured the case of Deborah Cutler over her stepsister Anna Winter.

The case concerned which of the stepsisters’ parents died first – something that would decide which of the two siblings would inherit their parents’ home. The case revolved around land law and, in particular, the ancient commorientes rule.

What is the commorientes rule?

In a nutshell, the commorientes rule (found in Section 184 of the Law of Property Act 1925) states that where two or more persons have died in circumstances where it is uncertain which of them survived the other, the younger is presumed to have survived the elder for all purposes affecting the title to any real property.

John and Ann Scarle

In this case, the High Court were asked to determine whether or not the commorientes rule should apply or, based on the evidence of one of the stepsister’s, whether that presumption can be displaced in favour of an outcome that would alter their entitlement to inherit the family home of the late couple.

The case highlights what could have led these two step-siblings to resort to litigation and what steps could have been taken by the deceased couple to prevent the fallout from occurring.

Case details and the couple’s legal arrangements

Deborah and Anna became stepsisters after their parents, John and Ann Scarle, married. Deborah was the daughter of Ann and Anna was the daughter of John. The principal asset in the estates of the elderly couple was the home that they shared in Leigh-on-Sea, Essex, which is believed to be worth £280,000.

The couple were found dead at their home in October 2016. Investigations concluded that the cause of death was hypothermia but there was no conclusive evidence to determine who died first.

Anna argued that her step mother was more likely to have passed away sooner than her father, which would subsequently mean that John Scarle would inherit the estate, and then when he died it would pass on to Anna. Anna’s legal representative commented that the decomposition of Ann’s body showed that “on the balance of probabilities” she had been dead longer than John.

Deborah’s position was that there was no definitive evidence to show which of the couple had actually died first, and as a result her mother, who was the youngest of the couple, would legally inherit the estate.

The Court found in favour of Deborah, applying the commorientes rule to the case, as there was no conclusive proof as to which of John and Ann had passed away first. 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.”

The Court proceedings concluded on Tuesday with Deborah receiving the property, and Anna having to pay her substantive legal costs.

Legal implications

Where a property is held by its registered proprietors as equitable joint tenants, it will be subject to the rule of survivorship. In essence, this means that when one of the proprietors dies their interest automatically transfers to the surviving owner or owners.

Whereas some couples may be aware of and intend this to be the desired effect for the purposes of their estate planning, it can lead to the kind of dispute that has arisen between Deborah and Anna. Of course, no one will probably ever know which of the couple died first, but the order of death could have meant an alternative outcome to this case.

If John died first, Ann would automatically become entitled to his interest in the house. The house, as an asset, would effectively be “stripped” from his estate by the operation of the survivorship rule. But even if Ann were only to live for an hour, minute or even second longer than John, upon her death the entirety of the house would fall into her estate for distribution to her children.

The same rules would also apply in reverse and, under the rules of intestacy, it would be the children of whichever of the deceased is presumed to have died first who would inherit all of the house (subject to any intervention of the Court under the guise of the Inheritance (Provision for Family and Dependants) Act 1975). This will usually not be an issue where all of the siblings have the same parents, but in the case of Deborah and Anna their status as step-siblings means that one of their entitlements dissolves by operation of law depending on which of their parents died first.


Whereas it is unusual for this kind of question to be brought before a Court, it does highlight the need for property owners to take advice to understand the basis upon which their property is held and to make a Will to deal with the way in which their assets are distributed.

In this case, it would perhaps have been incumbent upon the couple to have severed their joint tenancy and held the property as equitable tenants in common. If held in this way, the survivorship rule does not operate and the owner of the interest in land is free to dispose of it as he/she sees fit. This would take away the application of the commorientes rule, since it would not have mattered which of the owners died first.

Commorientes Rule

How can Nelsons help?

Oliver Maxwell is an Associate in our Inheritance Disputes team.

Nelsons have a dedicated team of specialist estate practitioners who can provide you with the advice that you need. However, even the most careful of estate planning cannot entirely remove the risk of disappointed beneficiaries seeking to challenge the administration of the estate and so we also have a specialist team of estate litigators to either assert or defence estate claims.

For more information, please call 0800 024 1976 or contact us via our online form.

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