A recent case, Scarle v Scarle [2019] EWHC 2224 (Ch), had to address the operation of the rarely used 'commorientes' rule. This provides that where there is uncertainty as to the order of death of two or more people, it is presumed that the deaths occurred in order of seniority so that the younger person is deemed to have survived the elder. This rarely comes up in the modern world both due to advances in forensic science and because scenarios in which this occurs are fairly rare.

Unfortunately in this rather bleak case, an elderly couple, Mr and Mrs Scarle, both died of hyperthermia in their Essex bungalow and their bodies were not discovered for a while. Therefore not only was it not possible to identify the precise date of death of either of the couple, it was also not possible to determine who died first. This mattered in the context of these proceedings because they jointly owned (as joint tenants) their property and a bank account. The law governing the ownership of jointly owned assets provides that the last in time to die is entitled to the whole of the property and the sums in the account. The assets devolved to different people depending on whose estate they were inherited under - either by the terms of Mrs Scarle's Will to her daughter if her husband died first, or to those entitled on Mr Scarle's intestacy, i.e. his daughter, if he survived his wife. Mr Scarle was the older so Mrs Scarle's daughter would inherit the assets.

The High Court confirmed that the party who wished to argue that the presumption did not apply has the burden of proving that the order of death occurred otherwise. In doing so the standard of proof required is 'on the balance of probabilities' rather than 'beyond reasonable doubt'.

Following a difficult examination of various contradictory forensic opinions about the possible order of deaths, the Court concluded that it was simply not possible to tell (even on the balance of probabilities) as there were too many variables and unknowns. It was observed that where the events surrounding the death are capable of giving rise to different inferences (here whether differing rates of decomposition of the bodies could be accounted for by the differences in the temperature in the precise locations in the property at which the bodies were found) 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. Otherwise, it cannot be satisfied that the inferences it draws are justified and do not result from an absence of information.

It was therefore held that the rule of commorientes was in point in these particular circumstances, so that Mr Scarle was presumed to have died first and the jointly held assets passed under Mrs Scarle's Will to her daughter. This case highlights the need to take legal advice, particularly where a couple has separate families, as a suitable clause in a Will could have prevented this dispute from arising.