News & Insights: Wills, Probate and Trusts

Who died first? Why having a will is important.

15 August 2019

The recent case highlighted in the press of the Scarle family in England highlights the need for a well drafted will. This case involved a husband and wife who died simultaneously with each being survived by a biological daughter from previous relationships. The case centred around the fact that the Mr Scarle died without a will and Mrs Scarle had a will and that they appeared to die at the same time. The argument brought before the court centred around who died first.

 

The legal presumption laid down by statute is that when two people die at the same time it is assumed that the eldest died first, Mr Scarle was the eldest in this situation, this is the presumption in England and Wales and also in Northern Ireland.

 

The step sisters went to court to argue the case with one arguing that this presumption in law was wrong as it would disinherit her and the other one defending that challenge.

 

The deceased couple’s estate was held jointly therefore the question of who died first was significant as to who was set to inherit. Joint assets pass upon death to the survivor even if they only briefly survive the other.

 

The difficulty in this case was that the post mortem was inconclusive as to who had in fact died first and the evidence provided could not convince the Judge otherwise. The Judge therefore found that the presumption of the eldest dying first had not been rebutted and found in favour of Mrs. Scarle’s biological daughter.

 

When you have two families joining together with children from previous relationships it is important to safeguard your children upon your death with a well drafted will.

 

Contact Judy Rose at judy.rose@oreillystewart.com if you have any questions relating to this matter.

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