Understanding how your assets are distributed after your death

… And why making a will is crucial

The recent High Court case of The Estate of John William Scarle Deceased v The Estate of Marjorie Ann Scarle Deceased demonstrates the difficulties step-children often find themselves in on the death of their parent.


Police found husband and wife, John and Marjorie Scarle deceased in their home in Essex on 11 October 2016 after neighbours and family members became suspicious. Their estates comprised their property which they held as joint tenants and a joint bank account. John’s daughter, Ann Winter and Marjorie’s daughter, Deborah Cutler each claimed that their parent was the second to die in order to inherit their parent’s estate.

Why does it matter who was the first to die?

On the death of one of the owners of jointly held assets, the asset passes to the survivor independently of the terms of any will they may have made. For example, if John predeceased Marjorie his interest in the property and bank account would have passed to her and on her death, the assets would form part of her estate and vice versa.

Given John and Marjorie were both found at the same time, their daughters asked the High Court to decide who died first to determine whether Ann or Deborah would inherit the property and joint bank account.

What did the Court decide?

The Judge held that because there was no evidence conclusive as to whom of John and Marjorie died first, John was presumed to have died first. Where two or more people have died in circumstances rendering it uncertain which of them survived the other, there is a legal presumption that the deaths occurred in order of seniority.

Ann was ordered to pay legal costs in the region of £179,000 because the judge decided in favour of Deborah.  During proceedings Deborah made an offer to settle the matter on the basis that they split the estate equally. Had Ann accepted such an offer, she would have received approximately £150,000 –  as opposed to being left to pay substantial legal costs.

Could the dispute have been avoided?

If the property was held by John and Marjorie as tenants in common as opposed to joint tenants, then their share of the property would have passed in accordance with the terms of their will or the laws of intestacy as opposed to the survivor automatically. This does not necessarily mean that there would have been no dispute as claims for financial provision could still be made against estates by classes of people including spouses, cohabitants, children and step children, even where a will has been made.

In order to limit the risk of claims being made it is crucial to ensure that consideration is given to how a property is jointly owned and that a will has been prepared by a solicitor.

All too often people prepare their own wills or have a will prepared online at limited cost, for their family to later discover that it does not conform with the required formalities (and can be set aside), or that the will does not actually reflect the testator’s wishes.

This inevitably causes problems that the family are left to deal with whilst coming to terms with the loss of a loved one.

For information about wills, disputed wills and estates, contact Lauren Greenham on 01227 763939.