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UK Estate Spat Serves as Reminder of “Titanic” Importance for Canadian Estate Planners

British stepsisters are embroiled in an estate dispute that hinges on which of their parents died first, after an elderly couple was found dead in their home in 2016.  Link to telegraph.co.uk article

John and Ann Scarle were married in the 1980s. Both had children from a previous marriage, including: John’s daughter Anna Winter, and Ann’s daughter Deborah Cutler. The couple did not have any kids together.

On October 11, 2016 John (aged 79 at the time) and Ann (aged 69) were both found dead from hypothermia in their home in Leigh-on-Sea, UK.

Now their daughters, Ms. Winter and Ms. Cutler, find themselves in the midst of a heated estate battle, as they fight in court over which parent died first. The family of whichever spouse outlived the other is set to inherit the entirety of estate assets, while the children of the other parent will receive nothing.

In the UK, according to section 184 of their Law of Property Act 1925, when two or more people die at the same time, and where the order of death cannot be determined, the younger is presumed to have survived the older. This is known as the ‘Commorientes’ rule, which fittingly translates to “simultaneous deaths”.

The Commorientes rule has not been applied in the UK since the mid-20th century (when it was used more frequently to deal with wartime deaths of multiple family members) yet it looms large in the Scarle Estate dispute. In Scarle, by operation of the Commorientes rule, unless Ms. Winter can somehow prove on the evidence that her father John lived longer than her stepmother Ann, then the younger Ann will be deemed at law to have survived John and Ann’s children will inherit the entire estate.

The case is currently before the UK High Court, with Ms. Winter presenting evidence which she says shows that Ann died first on a balance of probabilities. Ms. Cutler, on the other hand, contends that the evidence is inconclusive and therefore the presumption of Commorientes must prevail, deeming Ann to have outlived John. Expert evidence has been tendered opining on the likely timing of John and Ann’s deaths, yet such timing will be difficult to pinpoint, as nobody saw or spoke to John or Ann between October 3rd and 11th, 2016.

Judge Philip Kramer of the UK High Court has reserved his decision to a later date.

Canadian Perspective

The Scarle case is an important reminder for Canadian will drafters of the chaos that can ensue when a couple dies simultaneously and does not have the proper estate contingency plan in place.

In Canada, to confuse matters even further, the separate provinces/territories have differing rules regarding what happens to estates in cases where spouses die simultaneously or in circumstances where it is difficult to discern which spouse survived the other.

For example, in PEI, the Commorientes rule applies by way of their own Commorientes Act.

Meanwhile, in Ontario and British Columbia, when an accident or disaster takes the lives of both spouses, neither is deemed to have survived the other (they are both deemed to have predeceased), and both spouse’s assets will pass to their heirs as if their partner had predeceased them.

Regardless of which set of rules apply, it is always best practice to account for the tragic possibility of simultaneous death in your estate planning, to avoid the legal mess that can follow.

This is why will drafters have made a habit of incorporating simultaneous death clauses, often referred to as “Titanic Clauses”, in the wills of spouses. A properly drafted “Titanic Clause” (which takes its name from the famous case of Ida and Isador Strauss, co-owner of Macy’s department store, who died together aboard the Titanic) will specify what the testators want to happen in the event that the spouses die at the same time. For example, the Titanic Clause may specify which of the spouses should be presumed to have predeceased the other. Without a Titanic Clause, distribution of the estates may be subject to the prevailing jurisdictional rules regarding simultaneous death.

While death, and particularly the coinciding deaths of yourself and your partner, are never pleasant topics to dwell on, these are crucial scenarios to consider when drafting wills and making estate plans.

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