A recent High Court case has highlighted the importance of careful Will drafting and estate planning, and the need to consider negotiation and mediation in Will disputes. The Wills, Trusts and Probate team at Bray & Bray explains the case in more detail.


In 2016, John Scarle, 79, and his wife Ann Scarle, were found dead in their bungalow in Leigh-on-Sea, Essex, having died of hypothermia some days earlier.

Based on the forensic evidence, it was not possible to establish the date of the deaths, or which of the two had died first. This triggered a dispute between their two children from previous marriages over the couple’s £300,000 assets, including the bungalow itself, worth £280,000. Mr Scarle died without leaving a Will and Mrs Scarle’s Will apparently made no provision for her stepdaughter.


Mr Scarle’s daughter, Anna Winter, and Mrs Scarle’s daughter, Deborah Cutler, took their dispute to the High Court. Mrs Winter argued that forensic evidence suggested that Mrs Searle died first, which would result in her father inheriting their assets, which would then be passed onto her. But her stepsister, Mrs Cutler, argued that it could not be certain who passed away first and so legally her mother should inherit the property, as she was younger. This argument hinged on a near-century old law: The Law of Property Act 1925.


The court heard that Ms Cutler had attempted to settle the case by dividing the assets equally, and even at one point offered a 60:40 split in Mrs Winter’s favour, as well as mediation. Mrs Winter rejected all attempts of a settlement.

High Court Judge Philip Kramer argued that the rates of decomposition could be explained by different ‘micro-climates’ in the toilet (where Mrs Scarle’s body was found) and the lounge (where Mr Scarle’s body was found). He ruled that the Commorientes Rule in Section 184 of the Law of Property Act 1925 meant Ms Cutler should receive the entire estate.

The Rule, meaning ‘simultaneous deaths’ states that if two or more people die in circumstances where it is not possible to tell who died first, the deaths are presumed to have occurred in order of seniority, so the younger is deemed to survive the elder.

The Judge ordered that Mrs Winter pay £179,000 in legal costs.

Considerations: the importance of estate planning

The case highlights the importance of creating a Will and ensuring it is carefully drafted, as Andrew Hitchon, Partner in the Bray & Bray’s Wills, Trusts and Probate explains: “Careful and precise Will drafting may help to prevent disputes like the Scarle v Scarle case. For example, trusts can be used to provide income or living rights to a surviving spouse, but capital can ultimately be left to children or your bloodline.

“The case also highlights the importance of estate and succession planning, particularly for those in second marriages with a significant joint asset. If Mr and Mrs Scarle had owned their property as tenants in common, they could have set out in their respective Wills who should get their share of the home.

“The use of survivorship clauses in Wills can also prevent inheritance disputes. They state that a beneficiary must survive for a given period of time for the gift to take effect. If the beneficiary dies within the prescribed survivorship period, the gift fails and is distributed to the person’s other beneficiaries.”

Andrew adds: “I think the case also bears witness to the need to consider negotiation and mediation in the interests of costs and sanity in such a case where all or nothing is likely to be the outcome. The legal costs here have been punitive and were virtually two thirds of the estate funds in issue.”

Wills, Trusts and Probate specialists

Bray & Bray solicitors specialise in all kinds of Wills and probate work, adopting a plain English approach that ensures our clients understand where they are at all times in even the most complex of cases.

We’re sympathetic to distressing situations and always work hard to resolve a case swiftly. We’ve dealt with very complicated Wills involving extended families, as well as more straightforward cases of estates with one beneficiary – whatever your situation we can help.

If you want to speak to us about a Wills and probate issue, call us for a no obligation chat on 0116 254 8871, or send an enquiry here.