The law in England and Wales dealing with wills dates back to Victorian times. The current rules are based on the Wills Act 1837, while the tests to see if someone has the capacity to make a will were set out in a case from 1870.
The Law Commission has been consulting on several proposals to reform the law on wills. It is expected to report soon on proposals to modernise the law, which include:
- Changes to the test for capacity to make a will, which take into account modern medicine’s understanding of conditions like dementia;
- Statutory guidance for doctors when assessing if someone has the capacity to make a will; and
- New rules protecting someone making a will from undue influence.
A recent example of how better rule along these lines may have prevented a long and expensive legal claim was the case of Nutt v Nutt. This case involved the estate of Lily Rose Nutt, who was survived by three children. The dispute led to a five-year battle in the High Court (Nutt v Nutt  EWHC 851 (Ch)).
In the case, Mrs Nutt made a will in 2005, which split her estate equally among her three children. In a later will made in 2010, Mrs Nutt left her house (worth £350,000) to her youngest son and then split the rest of her assets equally among the three children. The two elder children attacked the validity of their mother’s 2010 will on four grounds.
1) They questioned whether the 2010 will had been properly executed (signed);
2) They disputed that their mother had the necessary mental capacity to execute the will;
3) They suggested that their mother did not know that the 2010 will left most of her estate to their younger sibling; and
4) They alleged that the will had been signed only because their mother had been unduly influenced.
During the case, evidence was submitted that the deceased had been diagnosed with Parkinson’s disease in 2004, had a heart attack in 2007 and had been diagnosed with Paget’s disease (a disease which causes weakening of the bones) in 2008.
The judge in the case rejected all of the arguments. The evidence of Mrs Nutt’s health did not support the argument that she didn’t have the mental capacity to make the will in 2010. There was actually evidence to suggest that the deceased had discussed with various friends at great length her intention to leave the house to her youngest son. Equally, the description of the youngest son as a dominating and domineering personality was rejected by the Court, which actually found that he was “affectionate and attentive”.
In essence, the older children were arguing that the 2010 will was invalid, but in reality, they were actually opposing it because they thought it was unfair. Perhaps if a clearer rule in line with the Law Commission’s proposals had been in place, this dispute may never have reached the courts.
Often even more problematic are situations where estates are left with no valid will in existence.
If you have studied Wills, Probate and Administration through ILSPA, you will remember what the Commorientes Rule is all about. S.184 of The Law of Property Act 1925 (presumption of survivorship in regard to claims to property) provides that:
“In all cases where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”
You will also remember, however, that this Rule applies only to someone dying testate. The rule under an intestacy can be found in the Intestates’ Estates Act 1952, which implies a presumption that neither spouse left the other surviving.
So, let us imagine that the following situation appeared in your course material:
“John Scarle, aged 79, and his wife Marjorie, aged 69, were joint tenants of their matrimonial home and had a joint bank account in the sum of £18,000. There were two children – Ann, who was Mr Scarle’s daughter by a previous marriage, and Deborah, who was Mrs Scarle’s daughter, also from a previous marriage. Mrs Scarle had made a will leaving all her estate to her daughter Deborah, but Mr Scarle had made no will. They lived by themselves and had been of poor health for some while. One day, they were both found dead in their bungalow – Mr Scarle in the lounge and Mrs Scarle in the toilet; both had died from hypothermia. The medical evidence was that they had died at least 48 hours before their discovery, but the exact, or even approximate times of their respective deaths were unascertainable. Explain who is entitled to the respective estates.”
Your answer should be along the lines that as the times of death were unascertainable, the Commorientes Rule under s. 184 LPA 1925 would take effect, resulting in the presumption that Mr Scarle, being the older, died first. On that basis, as he and his wife held the matrimonial home as joint tenants and the bank account was a joint one, on Mr Scarle’s death, both these assets would immediately and automatically pass to Mrs Scarle, who would become the sole owner of both. As Mrs Scarle, therefore, made a will leaving all her estate to her daughter Deborah, Deborah would be the sole beneficiary.
However, this situation is not a hypothetical one — it really happened! Mr and Mrs. Scarle were found dead in their bungalow in October 2016. Mr Scarle was in the lounge and Mrs Scarle was in the toilet. Mr Scarle’s daughter, Ann, was not happy with the outcome caused by the presumption and that her stepsister would get everything. So, she brought a claim in the High Court, Chancery Division, for a declaration that there was sufficient evidence that her mother, in fact, predeceased her father, in which case she was entitled to the whole estate. The judgment was handed down on 13 August 2019 – Scarle v Scarle  Ch - Claim No: HC-2017-002117 and can be found online here: http://www.serlecourt.co.uk/images/uploads/news-and-events/Scarle_v_Scarle_13_August_2019.pdf.
In the first case of this nature, in 1940, the House of Lords (now the Supreme Court) decided that in circumstances where it was not possible to determine who died first, there was a presumption that the younger survived the older (in other words, the older died first). In the current case, the point that is being argued by one of the stepsisters is that unlike in the 1940s, it is now possible to determine times of death much more accurately. It is argued that there is no need to apply the legal presumption that the older dies first, as there is evidence that can prove the couple did not die simultaneously.
Briefly, the case to support Ann consisted of medical evidence as to the state of decomposition of the two bodies when they were found. It was agreed that both Mr and Mrs Scarle’s bodies were in the early stage of decomposition, but that the latter was at a more advanced stage. In consequence, if the temperature and environmental conditions within the two rooms, i.e. the lounge and the toilet, were equivalent, it could be concluded that it is more likely than not that Mrs Scarle died before her husband. Having considered old case law relating to shipwrecks and WWII air raids, His Honour Judge Kramer (interestingly a County Court Judge sitting as a High Court Judge) accepted the submission from the defendant that the difference in decomposition could be explained by the difference in micro-climates between the toilet (where Mrs Scarle was found) and the living room (where Mr Scarle died).
Interestingly, there were arguments in the case as to what the burden of proof for s.184 should be. Can, in fact, the presumption be rebutted should the burden be ‘beyond a reasonable doubt’ (as, for example, in criminal cases) or merely ‘on the balance of probabilities’ (as in civil disputes)? It was decided that the section does not create a presumption which may be rebutted. The presumption only arises when the sequence of death is uncertain. If the order of death is proved, the presumption does not arise. Hence, there is no need to recite ‘unless the contrary is proved’ or some similar formula. In all the circumstances of the case, it could not be ‘certain’ as to who died first and, ipso facto, the circumstances were ‘uncertain’, which is the prescription for s.184. As a consequence, there was no basis for displacing the statutory presumption that the older (Mr Scarle) died first.
Apart from being an interesting case, it does go to show how careful one must be when drafting a will. This case, with all its subsequent costs and expenses, could have been avoided had both Mr & Mrs Scarle made ‘mirror’ wills with a typical ‘survivorship’ clause in them, i.e. “I leave all my estate whatsoever and wheresoever to my husband/wife provided he or she survives me for a period of (usually 28 or 30) days. If he/she does not, then I give, devise and bequeath my estate as follows:”. However, mirror wills can still be tricky. It’s worth looking up Jump and Jones v Lister  EWHC 2160. You can find a good explanation here: https://www.todayswillsandprobate.co.uk/guest-writers/survivorship-clauses-commorientes/.
Ultimately, it is not likely that the outcome of the Scarle v Scarle case will result in a major change in the law nor is it likely that the Law Commission will make specific recommendations about the Commorientes Rule. However, if the Commission makes recommendations that encourage couples to make Wills in the first place, then the likelihood of future disputes about who died first might be reduced.