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The Derbeian Winter 2019/20 Edition

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The Winter 2019/20 Edition of The Derbeian Magazine, a magazine about all things Derby, past and present that also doubles up as a useful, local business directory


THE Derbeian | Winter 2019/20 The order of death – commorientes rule explained The commorientes rule (found in Section 184 of the Law of Property Act 1925) states that where two or more persons have died in circumstances where it is uncertain which of them survived the other, the younger is presumed to have survived the elder for all purposes affecting the title to any real property. A recent case concerning the death of John and Ann Scarle where the ancient commorientes rule determined who inherited the estate, clearly demonstrates the importance of planning for the future and having well written Wills to cover all eventualities. The Facts 1. Mr and Mrs Scarle owned their home in Leigh-on-Sea, Essex as ‘joint tenants’. 2. Between them they had two daughters. Deborah was the daughter of Ann and Anna was the daughter of John. 3. The couple were found deceased at their home in October 2016. 4. Following investigations, it was concluded that the cause of death was hypothermia but there was no conclusive evidence to determine who died first. 5. Due to Mr and Mrs Scarle owning their home as ‘joint tenants,’ upon death, ownership of the family home would have passed automatically to the survivor’s estate and then on to their beneficiaries. 6. In this particular case, Deborah was the beneficiary of her mother’s estate and Anna was the beneficiary of her father’s estate and therefore only one of their two daughters would inherit the family home. The matter as to which daughter inherited rested wholly on the order of death. Conclusion It was impossible to medically determine the sequence of deaths, so the High Court referred to the commorientes rule which comes from the Law of Property Act. This states that if it is not possible to tell who died first, the presumption is that the deaths occurred in order of seniority – that is the older died first. In this case, the husband was older, so the wife’s daughter (Deborah) inherited the family home which formed the bulk of the estate. The moral of the story? It is vital for people to be aware of whether jointly owned properties are held as ‘joint 22 | Else Solicitors

Winter 2019/20 | THE Derbeian tenants’ or ‘tenants in common’ and to understand what the impact of this is on their estates. Had Mr and Mrs Scarle severed the joint tenancy over their property, they would have held it as tenants in common. If this was the case, commorientes would not have applied to the house and they could have each left their own halves of the property to their own daughters, preventing the legal battle. If this had been managed properly during their lifetime, it would not have mattered who died first. MEET THE TEAM Kathryn Caple Kathryn specialises in and heads up Wills and Probate. Kathryn has been working as a private client solicitor since qualification and is also a member of the Society for Trust and Estate Practitioners (STEP). She is an active member of the Etwall & Hilton Rotary Club and is a keen viola player, having performed with the Nottingham Symphony Orchestra. She enjoys reading and is a board game enthusiast when her children give her time! Tel: 01283 526230 Email: A properly drafted Will and legal advice about how assets are owned can help you understand what happens to your estate after you die. Professional advice and a clear Will can help prevent problems similar to the issues raised in Mr and Mrs Scarle’s case and ensure your wishes can be followed accordingly upon your death. If you would like to discuss your wishes and options relating to inheritance and legacy planning matters, please contact kathryn. or call her on 01283 526 200. TESTIMONIALS “ Else Solicitors Wills department dealt with my wife and my Will in a sensitive manner which left both my wife and I feeling relieved that at the end of our lives all our intended plans will be carried out. We could have brought one of those do-it-yourself Will kits but we would always have worried would it be found and would it be written properly. With Else Solicitors we have complete peace of mind and would definitely recommend them to anyone else.” Peter and Jane Hodson “ I was really impressed that Kathryn came to see us at home to discuss our Wills and also at the signing stage. Everything was clearly explained. Thank you.” Isabel Wilson “ I have used Kathryn Caple at Else Solicitors for my Estate Planning requirements and would highly recommend her services. She was extremely patient with me and dealt with my rather complex needs. I found her to be knowledgeable, courteous and professional. I am very reassured that she has put in place all that is required.” Susie Owen, Curious Guys Else Solicitors | 23

Current Edition and Featured Article for The Derbeian Magazine

The Derbeian Winter 2019/20 Edition
Winter 2019/20 Featured Articles

All Past editions of The Derbeian Magazine

The Derbeian Magazine Autumn 2019 edition
The Derbeian Magazine Summer 2019 Edition
The Derbeian Magazine Spring 2019 Edition
The Derbeian Magazine Winter 2018/19 Edition
The Derbeian Magazine Autumn 2018 edition
The Derbeian Magazine Summer 2018
The Derbeian Magazine Spring 2018 Edition
The Derbeian Magazine Winter 2017/18 Edition
The Derbeian Magazine Autumn 2017
The Derbeian Magazine Summer 2017
The Derbeian Magazine Spring 2017 Edition
The Derbeian Magazine Winter 2016/2017
The Derbeian Magazine Summer 2016 Edition

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