Why couples should consider their joint assets when making wills

On the 11 October 2016 John Scarle, aged 79, and Marjorie Scarle, a married couple, were found dead at their bungalow in Essex. Mrs Scarle was the younger of the two, aged 69 at the time.

In a case described by lawyers as "extraordinary", Mr Scarle's daughter, Anna Winter and Mrs Scarle's daughter, Deborah Cutler went to the High Court over their inheritance.

It was necessary to determine which of the couple died first and 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 death occurred in order of seniority.

The question as to the order of death is important because the couple were joint tenants of their property worth around £300,000 and the holders of a joint bank account in which was deposited £18,000 at the time of the death. The law governing the ownership of jointly owned assets is that the last in time to die is entitled to the whole of the property and the sums in the account.

Ms Winter's case was that forensic evidence suggested Mrs Scarle died first, resulting in her father inheriting all of the couple's assets before his death, which would then pass to her.

However, Ms Cutler relied on the S184 "presumption" that, as the elder of the two, Mr Scarle, died first, meaning she would inherit the assets through her mother.

The Judge ruled that Mr and Mrs Scarle died of hypothermia at some time between 5th and 9th October 2016 but it could not be proved as to the order of death, which remained uncertain. Accordingly, the presumption of death in s. 184 applied and Mrs Scarle was presumed to have survived Mr Scarle and therefore her daughter inherited the house and the money in the bank account.

The decision in this case points to the fact that people need to consider how their property is held i.e. as ‘joint tenants’ or ‘tenants in common’ and that professional advice is sought so that a properly drafted Will can be prepared that covers every eventuality.

Farida Isaji is a solicitor specialising in Wills and Estate planning and has recently attained the TEP (Trust and Estate Practitioner) designation given to full members of STEP (Society of Trust & Estate Practitioners) which is a highly regarded international professional association. Membership is by examination and members have specialist knowledge and experience in relation to inheritance and succession planning.