The UK Courts were faced with an uncommon inheritance dispute relating to the commorientes rule (the term literally means “simultaneous deaths,” which applies to determining title to property) and survivorship in joint tenancy in 2019 in the case of Scarle v Scarle [2019] EWHC 2224 (Ch).
Case analysis
- Introduction of the case
John and Ann Scarle lived in a bungalow in Essex. They did not have children together, but both had a daughter from previous relationships – Deborah was Ann’s daughter, and Anna was John’s daughter. The couple were found dead in their bungalow on 11 October 2016, having died from hypothermia; John was aged 79, and Ann was 69. The bungalow was jointly owned by John and Ann (worth approximately GB£280,000) and they also had a joint bank account with GB£18,000.
- Issue
The central issue in the case was which of the couple died first. The law governing the ownership of jointly owned assets “is that the last to die is entitled the whole of the property and the sums in the account.” If Ann died first, their joint assets would have passed to John under her will, and then to his daughter Anna under intestacy rules; however, if John had died first, their assets would pass to Ann on intestacy rules, and on her death to her daughter Deborah pursuant to her will. To put it simply, the survivor “takes all”. Section 184 of the Law of Property Act 1925 (“the 1925 Act”) provides that where the order of death is uncertain, a presumption that death occurred in order of seniority (i.e. the older, John, died first).
A claim was issued in 2017 by Anna (representing John’s estate), stating that the presumption under section 184 of the 1925 Act should be rebutted – if she could prove “on a balance of probabilities, who died first” – and claimed that Ann had been the first to die, thereby making her beneficiary to the couple’s assets. Deborah claimed that “the use of the word “uncertain” [in s.184 of the 1925 Act] itself indicates that a standard of proof higher than the civil standard [of a balance of probabilities] is required to render certain that which appears uncertain”, relying on the cases Hickman v Peacey (1945) and Re Bate (1947).
- Previous applications of the “Seniority” Rule
In 1850s, John and Mary Underwood died in a shipwreck. The only survivor described seeing the Underwood children clinging to their mother, and John enveloping the family as they were swept into the sea. In an action by the next of kin of Mr. Underwood (in Underwood v Wing (1855)), it was held that Mr. Wing had no entitlement under the husband’s will – as he was unable to prove that Mary had died before John- and no entitlement under the wife’s will either, “as he had failed to prove that she had survived her husband.”
In Hickman v Peacey, which Deborah’s council relies upon, two brothers were struck and killed by a bomb. The House of Lords (the apex court at the time) discussed the necessity of certainty in proving which brother died first, or if the test was, rather, on what standard of proof (i.e., on a balance of probabilities or beyond reasonable doubt) “who” died first. There was no agreed conclusion on the matter. However, it was decided that since a “simultaneous” death was not possible from a legal perspective, the older survived the younger. The Court in the present case ruled that “Hickman cannot be regarded as binding authority for the proposition that proof of the order of death must be to a standard higher than the balance of probabilities, the argument advanced by [Deborah’s counsel], or to the criminal standard.”
Similarly, in Re Bate, a husband and wife were found to have died of carbon monoxide poisoning in their kitchen. There was sufficient evidence before the court to prove that the younger wife had died first. The Judge commented that he “must be able to come to a conclusion of fact on grounds which so far outweigh any grounds for a contrary conclusion that I can ignore the latter.”
- Expert evidence
Both parties adduced the evidence of expert witnesses (forensic pathologists) to support their cases. While both expert witnesses agreed that Ann’s body was found in a more advanced stage of decomposition, as expected, the expert for Anna stated Ann was more likely to have died first due to her previous ill-health and the stage of decomposition her body was found in; Deborah’s witness said that “temperature was the single most important factor and in the absence of any evidence as to the relative temperatures in the lounge [where John was found] and toilet [where Ann was found,] he could not assume they were equivalent and thus he cannot reliably determine who died first.” However, there were credible theories to support both suggestions that Ann or John had died first. For example, Ann’s walking frame was found on the floor by her husband, though her body was found in another (albeit not far) part of the property, indicating that “he was not able to assist her from the lounge to the toilet and thus he had collapsed by the time she had made that journey.”
- Decision
The facts of the case – namely the more advanced decomposition of Ann’s body, and the warmer micro-environment of the toilet where she was found – did not indicate that Ann had necessarily died before her husband. The Judge adduced that the order of death “remains uncertain,” and therefore treated the case in accordance with the presumption of death under section 184 of the 1925 Act, presuming that John had died first. It was also reported that Anna was ordered to pay upward of GB£170,000 in legal costs, as a penalty for rejecting earlier attempts at negotiations.
Application of commorientes and survivorship in joint tenancy in Hong Kong
So, what is the application of the commorientes rule and survivorship (in joint tenancy) in Hong Kong? There are two relevant laws to consider:
- 11 of the Conveyancing and Property Ordinance (Cap. 291) (“CPO”)
Except for the purposes of section 4(11) of the Intestates’ Estates Ordinance (Cap. 73), where, after the commencement* of this section, 2 or more persons die in circumstances rendering it uncertain that any one of them, or which of them, survived the other or others, such deaths shall, for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.
- 4(11) of the Intestates Estates Ordinance (Cap. 73) (“IEO”)
Where the intestate and the intestate’s husband or wife have died in circumstances rendering it uncertain that one of them, or which of them, survived the other this section shall have effect as respects the intestate as if the husband or wife had not survived the intestate.
To illustrate with an example:
Husband and Wife, Aaron and Bea (aged 68 and 63 respectively) own a flat together as joint tenants. They have no children and unfortunately pass away in a boating accident, and it cannot be determined who died first. They both died without a Will (i.e., intestate).
As the CPO only applies to property, pursuant to s.11 of the CPO, Bea will inherit the jointly owned flat, as it is presumed that Bea, the younger of the two, survived Aaron. Bea’s estate will then be distributed in accordance to s.4(11) of the IEO, that is to say on the basis that Aaron did not survive her. Aaron’s estate will also be distributed in the same manner.
Hong Kong cases similar to Scarle v Scarle
As of the date of publication of this article, there have not been any contentious estate cases relating to the commorientes rule and survivorship in joint tenancy. However, a case in 2011, Ting Kam Yuen v Cheung Wing Kin & Anor [2011] HKCU 1664 related to survivorship in joint tenancy. There were two properties in dispute (“the Properties”) – registered in the names of Cheung Tak Ming (“Tak Ming”) and Chow Tai Ho (“Chow”) as joint tenants. Tak Ming was older than Chow.
The case was brought by the personal representative of the estate of Tong Kwok Fong (“Tong”), a fisherman who worked on a fishing vessel owned by Tak Ming. The Plaintiffs sought declaration that the Properties had passed to “Tak Ming as the surviving joint tenant upon the death of Chow, and now formed part of the estate of Tak Ming”. The Plaintiffs had previously sued the estate of Tak Ming for negligence and damages, and obtained judgements.
On 14 March 1993, Tak Ming took the vessel for a fishing trip – on board the vessel were “Tak Ming; his wife, Chow; his younger brother … ; his youngest brother … [and his wife and daughter; and Tong.” Unfortunately, the vessel collided with a ship and sank. It was the Plaintiff’s case that Chow died shortly after the collision while Tak Ming survived and died an hour later.
Even though Tak Ming was older than Chow, the Court concluded on the facts that Tak Ming, had, in fact, survived a little while longer than Chow, and thereby reversing the presumption under s.11 of the CPO. The Judge declared that the Properties formed part of Taking Ming’s estate.
Conclusion
These cases highlight the importance of having a professionally drafted Will to ensure that your wishes are respected in the event of your death. We also need to remember that in claims of Will construction, the Court will take consideration of the natural and ordinary meaning of the words as a starting point to give effect to the testator’s intentions. The Court’s reliance on the commorientes rule is a rare occasion. Should Ann and John have left behind Wills setting out their intended beneficiaries in the event of them both dying, it would have been less likely for the court to rely on determining who had died first. Taking professional advice for estate planning is particularly important in complex family situations, such as remarriage.
Our Private Client, Probate & Trust team at Hugill & Ip has extensive experience in dealing with contentious and non-contentious Estate issues – so kindly get in touch with our solicitors to find out how we can help in your specific circumstances.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
