Who dies first? It's a matter of probability

In the recent case of Scarle V Scarle the court had to decide who died first in order to be able to determine who would inherit their estate.

The facts

On 11 October 2016 Mr and Mrs Scarle were both found dead at their home.  Both had died from hypothermia.  The court had to determine which of them had died first.  The question was relevant because they were joint tenants of their home and they also had a joint bank account with Co-Op bank with a credit of about £18,000 at the time of their deaths.

The law

The law governing the ownership of jointly owned assets is that the last to die in time is entitled to the whole of the property as well as the monies in the account.  As they both died, the house and the monies will pass to those entitled to their estate – in the case of Mrs Scarle this would have been those entitled under the terms of her will and in the case of Mr Scarle those entitled by virtue of the intestacy rules as he had not made a will.  Central to this question was the operation of Section 184 of the Law of Property Act 1925 which provides:

“In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

Mrs Scarle was the younger of the two at the date of their deaths, aged 69.  However, she was dependent upon her husband for her care and her mobility was limited following a stroke in 1998/99.

The parties’ claims

The parties to the claim were Anna Scarle (“Anna”), the only child of Mr Scarle and Deborah Cutler (“Deborah”), the only child of Mrs Scarle.

Anna’s case was that the presumption under Section 184 is not engaged if she proves, on the balance of probabilities, who died first.  In the face of such proof, it can no longer be said that the sequence of death is uncertain.

Deborah, on the other hand, contended that in order to succeed Anna had to prove Mrs Scarle died first to a higher standard, somewhere between balance of probabilities (the usual standard applicable for civil proceedings) and beyond reasonable doubt (the standard applied in criminal proceedings).  Her counsel argued that the use of the word “uncertain” in Section 184 itself indicates that a standard of proof higher than the civil standard is required to render certain that which appears uncertain.

Both parties’ counsel relied upon various previous authorities in support of their respective clients’ positions and a detailed analysis of the same was undertaken by the court.

The court’s view on the law

Having reviewed the authorities, the court concluded that the starting point is that there is one standard of proof in civil claims, namely the balance of probabilities.  The judge concluded that there was no need to alter the standard of proof nor did the language of Section 184 indicate such a change.  He went on to say that the Section did not create a presumption which could be rebutted.  The presumption only arises where the sequence of deaths is uncertain.

The evidence

Having considered the legal position, the court went on to review the evidence.  Evidence before the court was in the form of witness statements by both parties and also Mrs Scarle’s sister, Jacqueline.  In addition, there were documents from the police investigations and medical records, post-mortem reports and expert reports from forensic pathologists instructed by both parties.  The pathologist who undertook the post-mortems thought the changes of decomposition were less advanced in Mr Scarle which may suggest he died a period of time after his wife, possibly a few days later.  However, temperature and environmental issues are a factor in the question of decomposition and the Scarles were found in different locations in the property.  Indeed, it was common ground that even those who die at the same time and in the same circumstances may not decompose at the same rate.

Having reviewed this evidence together with that of the experts instructed by the parties the court determined that when both Mr and Mrs Scarle were in the early stages of decomposition but that Mrs Scarle was substantially more advanced. The court did not place any weight on the evidence that decomposition can vary between individuals who die at the same time and in the same conditions.  The court also considered there were too many variables and unknowns to come to a safe conclusion as to the relative temperatures of the two different rooms in which Mr and Mrs Scarle were found.

Judgment

In all the circumstances, the only safe conclusion that the court could find were that Mr and Mrs Scarle died of hypothermia somewhere between 5 and 9 October 2016.  Anna had not satisfied the court as to the civil standard as to the order of death and thus it remained uncertain.  Accordingly, the presumption under Section 184 was effective with the result that Mrs Scarle was presumed to have survived Mr Scarle.  Accordingly, Mrs Scarle inherited her husband’s estate upon her death and her daughter, Deborah in turn inherited her estate upon her death.  The property and the monies belonged to Deborah.