Who Died First? Survivorship in Joint Tenancy

The UK Courts were faced with an uncommon inheritance dispute relating to the commorientes rule (the term literally means “simultaneous deaths,” which applies to determining title to property) and survivorship in joint tenancy in 2019 in the case of Scarle v Scarle [2019] EWHC 2224 (Ch).

Case analysis

Introduction of the case

John and Ann Scarle lived in a bungalow in Essex. They did not have children together, but both had a daughter from previous relationships – Deborah was Ann’s daughter, and Anna was John’s daughter.  The couple was found dead in their bungalow on 11 October 2016, having died from hypothermia; John was aged 79, and Ann was 69. The bungalow was jointly owned by John and Ann (worth approximately GB£280,000) and they also had a joint bank account with GB£18,000.


The central issue in the case was which of the couple died first.  The law governing the ownership of jointly owned assets “is that the last to die is entitled the whole of the property and the sums in the account.” If Ann died first, their joint assets would have passed to John under her will, and then to his daughter Anna under intestacy rules; however, if John had died first, their assets would pass to Ann on intestacy rules, and on her death to her daughter Deborah pursuant to her will. To put it simply, the survivor “takes all”. Section 184 of the Law of Property Act 1925 (“the 1925 Act”) provides that where the order of death is uncertain, a presumption that death occurred in order of seniority (i.e. the older, John, died first).

A claim was issued in 2017 by Anna (representing John’s estate), stating that the presumption under section 184 of the 1925 Act should be rebutted – if she could prove “on a balance of probabilities, who died first” – and claimed that Ann had been the first to die, thereby making her beneficiary to the couple’s assets. Deborah claimed that “the use of the word “uncertain” [in s.184 of the 1925 Act] itself indicates that a standard of proof higher than the civil standard [of a balance of probabilities] is required to render certain that which appears uncertain”, relying on the cases Hickman v Peacey (1945) and Re Bate (1947).