Make a Will – Or – Fighting With The Family (not the film)

A month or so ago I wrote, as I often do, that everyone should make a Will.

I presume, if you have not made your Will by now, that you did not read the Blog – so here it is –

If you did read it, no doubt you have made a Will. Good. I do not think that there has ever been a case where the distribution of a person’s Estate (their belongings after death) has been rendered more complicated by the fact that they left a properly thought-out and properly worded Will.

Whereas of course, the law reports over the centuries provide hundreds of examples of the confusion and stress and bizarre consequences that can be the result of failing to do so.

Which is not to say that I advise you to get out your pen now and write your will on your own without good legal advice. Obviously a stupid will is stupid. I wrote about that too! Link here

Anyway the case I wrote about in June has now reached a Court decision. This is a very tragic case and a stark if extreme illustration that failure to make Wills can drive families apart.

Mr Scarle and Mss Scarle owned their house and money together. The legal term is “as joint tenants”. A feature of a joint tenancy is that the first joint owner to die is presumed by a “legal fiction” to have given (do the children say “gifted” these days? Why?) their share in the joint property to the other joint owner/s at the moment of death.

So if Mr Scarle died first, then Mrs Scarle owned everything previously owned by both of them, and if not, not. Contrariwise, if Mrs Scarle died first, then Mr Scarle owned everything previously owned by both of them, and if not, not.

Most unusually, the Scarles died in circumstances in which the order of death was not obvious.

There was no incontrovertible evidence. There had, for example, been no 999 call for the ambulance saying “My husband/wife has collapsed and died”. No CCTV indoors, no internet-linked Alexa or other devices listening to everything.

They were found, both dead, in their bungalow. Mrs Scarle was younger but had been frailer. Mr Scarle was ten years older but had been his wife’s carer, although evidence suggests that he was seriously declining in health just before his death.

An unusual state of affairs. Unusually these days that is. In wartime, not unusual when bombs were falling and whole families killed in an instant.

A serious problem in this case was, each of the Scarles had children of earlier marriages. So if Mr Scarle died first, the estate passed to his widow as surviving joint tenant, then to her child or children; but if Mrs Scarle had died first then it would be her husband’s issue who would inherit.

There had been cases before in English law when this set of circumstances had arisen.

Ironically a century and a half ago, the case of Mr Wing was a case where Wills had actually been made.

Mr and Mrs Underwood had made wills, leaving everything to each other if they should die before the other. But if they should be second to die then in their Wills they each left everything to Mr Wing.

They died in a shipwreck in the 1850s; it was not possible to say who drowned first.

In order to get his money from Mr Underwood’s estate, Mr Wing had to prove that Mrs Underwood had died first. And/or in order to get his money from the estate of Mrs Underwood, he had to prove that Mr Underwood died first.

So because he could not prove who died first, though one of them must have, and both of them had left him all the money if they died second, Mr Wing got nothing.

Was the law an ass? It was precise to the point of pedantry, I’ll give it that. A Notary loves a pedant.

At any rate it took 75 years for the law to change. In 1925 the following paragraph was enacted, s184 of the Law of Property Act

184 Presumption of survivorship in regard to claims to property.

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.

So now the present law provides the solution to the conundrum which flummoxed the claim of Mr Wing in 1855. If it is uncertain who died first then the law will tell you that the older person died first.

So Scarles’ case, Mr Scarle is 79 years and has died and Ms Scarle is 69 years and been found dead with her husband. Death had clearly taken place days before they were discovered. The manner of their last moments showed distressing turmoil, it may be that Mr Scale had collapsed and his wife had fallen in her rush to go to his aid. Or vice versa that Mrs Scarle had collapsed and Mr S. had collapsed in shock. Then the unfortunate couple could not move and in due course both froze to death

When found, both bodies were decomposing. There were different stages of decomposition reached but medical experts did not feel able to reach certain agreement based upon that, or based upon the effect of the different temperatures of the different rooms in which their bodies were found, as to the crucial question, who died first?

To my simple mind, it seems that in a case where doctors cannot agree with each other, (and in this case whilst the doctors called as expert witnesses reached different conclusions as to who may possibly have died first nevertheless each of them said that they could not be certain beyond reasonable doubt), then the condition of section 184 above is met. “Circumstances render it uncertain …..”

The value of the main asset, the bungalow, is reported in the papers to be around £250,000.00; the whole estate perhaps £300,000.00

The full report of the Court hearing is – HERE -.

Is it just me who finds that the whole esoteric exercise of arguing and discussing what is the “standard of proof” that something is uncertain which must be met by the parties is a bit of a waste of time? The daughter of Mr Scarle, in order to win the claim, had to show that s184 did not apply. To do this means she has to show that the circumstances of the deaths do not “render it uncertain” as to which spouse survived the other.

But how can you disprove that a state of affairs is uncertain? Presumably, by proving that Mr Scarle died second. But there was no witness who found it possible to say so with certainty. So if that is not a definition of being uncertain then I ask, what might be? And that was her own expert witness.

And whilst it is all very well and good as an abstract discussion of the law to suggest that Mr Scarle might have died second, and for the court to discuss in the abstract whether such a hypothesis, in order to succeed, would need to be “probably” correct – which is the “civil standard of proof”, or “correct so that we are sure” – which is the “criminal standard of proof” or something more or something in between – still it seems to me an exercise in hugely expensive futility.

Here we have two doctors saying they cannot be sure who died first. And if they both say that, then whether one of them tends towards a feeling that A died first, whilst the other thinks that perhaps the more likely is that B did, what they are both saying is that they are not certain.

And of course if there is no certainty, then s184 says that Mrs Scarle died first. Which is where we started.

So how this got all the way to Court appears to me to be an encapsulation of all that is wrong with not making a will. Because children do not want to miss out on £300,000.00, and they will fight lost causes, and fight each other even at the risk of spending all the money on lawyers. And then never speak to each other again.

Oh you say – our family is not like that.

Time for a song Link here  – Siblings song –

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