Who died first? – the ‘commorientes’ rule following Scarle v Scarle [2019] EWHC 2224 (Ch)

16 Sep 2019

On 13 August 2019, the High Court handed down judgment in the widely reported decision of Scarle v Scarle [2019] EWHC 2224 (Ch) which concerned the presumption under s184 Law of Property Act 1925 as to the order of death in uncertain circumstances following the untimely death of a husband and wife.


John William Scarle (79) and Marjorie Ann Scarle (69) were found dead at their home on 11 October 2016. Both Mr and Mrs Scarle were discovered by a PC Daniels and it was common ground that both had died at least 48 hours before their discovery.

The dispute arose as to which of the two died first given that their property was owned as joint tenants and around £18,000 was held in a joint bank account at the time of their deaths. As such, those assets would pass to those entitled under the respective estates.

In cases where two or more persons die in circumstances in which is it unclear which of them died first, s184 Law of Property Act 1925 creates a presumption that the deaths are to have occurred in order of seniority and therefore the younger shall be deemed to have survived the elder.

In this matter, the presumption would act to conclude that Mr Scarle pre-deceased his wife and therefore, their joint assets would form part of Mrs Scarle’s estate. Ann Winter, the personal representative of Mr Scarle’s estate, challenged the s184 presumption by relying on alleged evidence that Mrs Scarle was the first of the two to die.

Deborah Ann Cutler, the personal representative of Mr Scarle’s estate, argued that Mrs Winter needed to prove that Mrs Scarle was the first to die to a standard of proof higher than that of the civil standard and below that of the criminal standard. In any event, it was argued that Mrs Winter had not even proven her case to the civil standard, let alone this higher standard.

HHJ Kramer therefore dealt with the issue concerning the standard of proof to be applied in considering the s184 presumption before moving on to apply.

Standard of Proof

Prior to the enactment of s184 Law of Property Act 1925, there was no presumption as to survivorship based on age and the burden lay with the person asserting as such to prove their case to the civil standard of proof (Wing v Angrave [1860] VIII H.L.C; Underwood v King (1855) 4 De G.M.&G 633).

It was argued on behalf of Mrs Winter that s184 introduced a higher standard of proof through the use of the word “uncertain” which required the person seeking to displace the presumption to render certain that which appears uncertain.

In support of this argument, reliance was placed on the decision in Hickman v Peacey [1945] A.C. 304. HHJ Kramer considered Hickman, which involved the death of two brothers as a result of a bombing during the Blitz. At first instance, Cohen J was not satisfied that the brothers had died at the same time and therefore applied the presumption. However, this decision was overturned on appeal in the Court of Appeal who held that the conclusion they died at the same time was overwhelming and that the presumption was a “question of fact to be decided in accordance with the usual method of dealing with questions of fact.” The decision was then reversed by the House of Lords who held that the proper construction of s184 is that, if survivorship is not affirmatively proven, the statutory presumption applies. However, the Lords were divided on the degree of proof required with Lord Macmillan commenting that the use of the word “uncertain” denoted “a reasonable element of doubt.”

Despite the multitude of further authorities referred to, HHJ Kramer held that the starting point in civil cases is that there is one standard of proof, namely the civil standard on the balance of probabilities and the authorities relied upon were not inconsistent with that starting point.  Moreover, HHJ Kramer did not agree that s184 introduced a new standard of proof and the codification was instead introduced to remove practical difficulties in the administration of estate where it has not been possible to ascertain the succession of deaths.

In relation to the standard of proof, HHJ Kramer came to the following conclusions:

  • Where the order of death is uncertain, the burden of proof is on the party seeking to establish otherwise.
  • Such proof is to the civil standard, the balance of probabilities.
  • Where the events surrounding the death are capable of giving rise to different inferences which are not in themselves improbable, the court should not reject one inference in favour of another unless there is some evidence upon which it can safely conclude that it be rejected.

Discussion and Decision

Factual evidence in this case came from witness evidence of the parties and Mrs Scarle’s sister in addition to the various police and pathology records following the discovery. In addition, three expert forensic pathologists provided reports and oral evidence during the course of the trial.

The experts agreed that the couple died of hypothermia but no agreement was reached as to which of the two died first. Extensive evidence was provided as to the relative states of decomposition and the temperature and environmental conditions of the rooms in which they were both found.

Mrs Winter sought to argue that the more advanced degree of decomposition present on Mrs Scarle supported the conclusion that she died first whereas Mrs Cutler argued that no reliable inference could be drawn from the state of decomposition and this was an unreliable method of pinpointing the time of death.

The experts agreed that if the environmental conditions and temperature in the two rooms were equivalent then it was more likely that Mrs Scarle pre-deceased her husband. As such, the judge heard submissions in relation to the relevant conditions within the two rooms but ultimately concluded that there were too many variables to come to a safe conclusion as to the temperature of the two rooms.

HHJ Kramer accepted that Mrs Scarle was in an advanced state of decomposition compared to Mr Scarle. However, as that was the only evidence upon which he could draw any inferences as to the sequences of death and he was otherwise left with two not improbable explanations as to the relative decomposition of the couple, the judge could not be satisfied that Mrs Scarle pre-deceased her husband as alleged by Mrs Winter.

As a result, HHJ Kramer held that the Claimant had not satisfied him as to the civil standard of proof to disapply the presumption under s184. Therefore, the younger is deemed to have survived the elder and Mr Scarle was found to have pre-deceased his wife.


This case reinforces the need for couples (whether married or not) to properly consider how they intend for their joint property to be owned, whether as joint tenants or tenants in common and also to ensure wills are update to reflect these wishes.

Moreover, this matter demonstrates that parties should give considerable thought to their prospects of success before embarking upon expensive and, in this case, heavily publicised litigation over what was a fairly modest estate.

It has been widely reported in the press that the Mrs Winter was ordered to pay Mrs Cutler’s costs on the indemnity basis with an interim payment of £55,000 out of a total of £84,000, with the remainder sent off for detailed assessment. This is in addition to her own costs totalling around £95,000 resulting in a total liability of at least £179,000.

The decision to award costs on the indemnity basis was made as a result of Mrs Winter’s refusal to make any reasonable attempt to engage in settlement discussions, with offers to split the estate 50:50 and 60:40 being rejected in addition to an offer to mediate. This highlights just how vital ADR can be in contentious probate disputes and how serious the consequences can be for not engaging in any meaningful discussions whatsoever.


Cameron Stocks

Call: 2015


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