The Commorientes – Rule who has died first?

The law applying to deceased Estates, like most other law in NSW, is largely based on English law.  Over the centuries, English law has developed a principle called the Commorientes – Rule which applies in the cases of people who have died where it cannot be determined by clear evidence who died first.  This can have a significant impact on the distribution of someone’s Estate.  It was a particular issue in Britain during WWII when multiple family members could be killed in a bomb blast and it was not possible to work out who died first.

The law in England, and in most Australian states, is that death is presumed to take place in order of seniority.  That is, that the older person is presumed to have died first.  However, this legal presumption can be excluded by specific wording in a Will or by clear evidence to a Court as to the actual order of deaths.

There was a case in England a little while ago where, sadly, Mr and Mrs Scarle both died of hyperthermia in their home in Essex and were not discovered for several days.  The Scarles did not have children together, but each had a child from a previous marriage. Their Estate consisted of a house and 18,000 UK Pounds in savings.  Mr Scarle was the elder of the couple and therefore under the law in England (and the law in NSW), the Commorientes – Rule says that he died first.  If that were the case, his Estate would pass to his wife and then to her beneficiaries (her daughter).  His daughter contested the Rule and the matter went to Court.

Interestingly, Mrs Scarle’s daughter offered to settle 50/50 with Mr Scarle’s daughter before the Court hearing but Mr Scarle’s daughter would not consider any settlement.  She tried to prove to the Court that Mrs Scarle had died first owing to the greater state of decomposition of her body.  However, the Court decided that it was too difficult to determine who died first and, as such, the Commorientes – Rule would apply.  The Estate went in full to Mrs Scarle’s daughter.  Because she’d tried to settle the Court proceedings earlier in the piece, Mr Scarle’s daughter was ordered to pay her legal fees of over $300,000!

A further case recently occurred in NSW that involved a 94yo mother who lived with her 66yo son at Rooty Hill.  Their bodies were discovered in their home in October 2005 and it was not possible to determine the cause of death of either of them.  Neither of them had Wills but the son’s Estate was worth nearly $900,000, while the mother’s Estate was worth zero.  If the Commorientes – Rule applied and the mother was presumed to have died first, her Estate would pass to her son.  He did not have any eligible relatives under the rules of intestacy so the whole Estate would pass to the State of NSW.  However, if the Court decided that the son had died first then his whole Estate would pass to his mother.  The mother did indeed have other relatives and the money would then pass to her nieces and nephews.

In this case, the Court decided, based on the position of the bodies in the house and their relative states of decomposition, that the son had died first.  This meant that the Estate went to his mother and then onto his cousins.  The Court rebutted the Commorientes – Rule.

Litigation in the Court system is expensive, slow and stressful.  Avoid a situation like this by having a valid Will prepared by a solicitor that takes into account the contingencies of life.  Our firm has more than 70 years of experience in Wills and deceased Estates. Remember knowledge is power. Please contact us on 0246 514800 if you have estate planning needs.