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The importance of writing a Will to avoid disputes

03 Sep 2019

A landmark inheritance dispute between two step-sisters has been resolved after the High Court invoked a rarely used section of the 1925 Law of Property Act.

John Scarle, 79, and his wife Marjorie, 69, both passed away in their bungalow in Essex, seemingly in close succession and possibly as a result of hypothermia, triggering a drawn out dispute between their respective daughters over who would inherit the estate.

As neither Mr or Mrs Scarle had a Will, their estate passed under the Rules of Intestacy, and, as they each had a daughter from a previous relationship, entitlement to their jointly-owned estate was dependent on who had passed away first.

If Mr Scarle had died first, Mrs Scarle would have inherited his estate and, on her death (even if that was only a matter of hours later), the assets would pass to her daughter, Deborah. If Mrs Scarle had died first, Mr Scarle would have inherited the estate and, on his death, it would pass to his daughter, Anna.

Hearing the case, HHJ Kramer concluded that, despite Mr Scarle’s daughter adducing expert forensic evidence, there were too many variables at play to determine who died first. As Mr and Mrs Scarle were found in separate parts of their house, which had different micro-climates, differing rates of decomposition had occurred and the order of death could not be determined.

In the absence of conclusive evidence that one party had predeceased the other, the court was required to rely on the nearly century-old presumption of survivorship in multiple fatalities found within section 184 of The Law of Property Act in which deaths are presumed to have occurred in order of seniority and accordingly the younger shall have been deemed to outlive the elder party.

Therefore, as Mr Scarle was older than his wife, the law deemed Mr Scarle to have died first. His estate then passed to his wife in the first instance and then on her death to her daughter. This resulted in Mrs Scarle’s daughter inheriting the entirety of the estate.

Family Balance

Importance of properly drafting your Will

This case highlights the importance of having a properly drafted Will. In England and Wales, we have testamentary freedom to dispose of our property in any such way as we see fit on our death. If you die without a Will (i.e. intestate), there is no guarantee that your estate will pass to the people and causes that you care about.

Mr and Mrs Scarle for instance may have preferred for their daughters to share the estate equally, irrespective of who died first. That would certainly have saved a great deal of distress and the costs that come with Court proceedings of this kind.

As tomorrow is not promised, the realisation that Wills are necessary may come too late and it is important to avoid added stress for your family during an already emotional time.

If you already have a Will in place and your family circumstances change during your lifetime, you have the option to amend your Will via a Codicil, or alternatively, revoke your Will entirely and put in place an updated version.

Reducing contention

Taking advice and making a Will can help to reduce the risk of potential family disputes in relation to your estate as there will be a legally-binding document in place determining how you would like your estate to be dealt with upon your death.  A well drafted Will will include a survivorship clause (usually one month) and so if one of your beneficiaries dies with or shortly after you, you can be confident that your chosen substitute beneficiaries inherit. This would have solved the problem faced by the Scarle family.

If you have any concerns regarding your Will or an estate and would like to discuss with our team of specialist lawyers please contact us.