Wills & Probate: Inheritance & Legacy Planning Matters – The order of death – commorientes rule explained

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.

A recent case concerning the death of John and Ann Scarle where the ancient commorientes rule determined who inherited the estate, clearly demonstrates the importance of planning for the future and having well written Wills to cover all eventualities.

The Facts

  1. Mr and Mrs Scarle owned their home in Leigh-on-Sea, Essex as ‘joint tenants’.
  2. Between them they had two daughters. Deborah was the daughter of Ann and Anna was the daughter of John.
  3. The couple were found deceased at their home in October 2016.
  4. Following investigations, it was concluded that the cause of death was hypothermia but there was no conclusive evidence to determine who died first.
  5. Due to Mr and Mrs Scarle owning their home as ‘joint tenants,’ upon death, ownership of the family home would have passed automatically to the survivor’s estate and then on to their beneficiaries.
  6. In this particular case, Deborah was the beneficiary of her mother’s estate and Anna was the beneficiary of her father’s estate and therefore only one of their two daughters would inherit the family home. The matter as to which daughter inherited rested wholly on the order of death.


It was impossible to medically determine the sequence of deaths, so the High Court referred to the commorientes rule which comes from the Law of Property Act. This states that if it is not possible to tell who died first, the presumption is that the deaths occurred in order of seniority – that is the older died first.

In this case, the husband was older, so the wife’s daughter (Deborah) inherited the family home which formed the bulk of the estate.

The moral of the story?

It is vital for people to be aware of whether jointly owned properties are held as ‘joint tenants’ or ‘tenants in common’ and to understand what the impact of this is on their estates.

Had Mr and Mrs Scarle severed the joint tenancy over their property, they would have held it as tenants in common. If this was the case, commorientes would not have applied to the house and they could have each left their own halves of the property to their own daughters, preventing the legal battle. If this had been managed properly during their lifetime, it would not have mattered who died first.

A properly drafted Will and legal advice about how assets are owned can help you understand what happens to your estate after you die. Professional advice and a clear Will can help prevent problems similar to the issues raised in Mr and Mrs Scarle’s case and ensure your wishes can be followed accordingly upon your death.

If you would like to discuss your wishes and options relating to inheritance and legacy planning matters, please contact kathryn.caple@elselaw.co.uk or call her on 01283 526 200.

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