What happens to property owned by joint tenancy if you don’t know who died first?!

Answering what does happen is straightforward, whether that is the ‘right’ result might be different.

A recent High Court case has highlighted the legal presumption found in s184 Law of Property Act 1925, known as the ‘Commorientes Rule’.  In Winter v Cutler, heard at the end of June, the High Court has been asked to determine which step-sister will inherit their parents’ home. Both parents were found dead from hypothermia in October 2016, after police were called by neighbours who were worried. One sister relies on the presumption in s184, that where property is owned as joint tenants and it cannot be ascertained which of the joint owners died first, the Court will presume death based on seniority, and accordingly the property will pass to the youngest owner. The other step-sister must therefore prove that her step-mother (who was some 10 years junior to her husband but not in good health having suffered a stroke in the late 1990s) died before her father, in order to inherit. None of the experts in the case were able to express a view on the date of death or who passed away first. It was argued that there was some evidence which might point to Mrs Scarle having passed away first, but the one question for the Judge is whether it is enough to show that Mrs Scarle passed away first on the balance of probabilities, or whether the presumption must act in cases of ‘uncertainty’, such that Mrs Scarle having died first would have to be shown beyond reasonable doubt? The Judgment has been reserved and the outcome of the case is awaited.

One imagines that the parents could never have dreamt this could happen, nor would ever have wanted only one of their children to benefit in such circumstances. During the wait for the Judgment, practitioners and the public will not doubt be asking whether the rule in s184 is an artificial but necessary device, or whether an alternative outcome might result in a fairer result. In some jurisdictions recognising the concept of joint tenancy, where simultaneous deaths occur, the owners are treated as having held as tenants in common, or it is presumed that neither survived the other. In the circumstances of this case that might have come closer to doing justice, and would almost certainly have avoided the litigation.

The presumption in s184 has rarely been relied upon in reported authorities. There are a number of historic cases stemming from bombing in the Second World War, together with one case in the 1950s (a car crash) and one in 1960s (a couple drowned at sea together).

The case, interesting on its facts alone, is a prudent reminder to practitioners to help clients think through the possible implications when deciding whether to hold property as Joint Tenants or Tenants in Common. Whilst there are many advantages to joint tenancy, because the property passes outside the estate on death, it is difficult to avoid circumstances such as those that arise in this case with a well drafted will. Where a couple each have their own children from previous relationship (which is by no means an uncommon) they will need to think hard about how they should hold properties that they buy together. Often lawyers will help them to consider whether a surviving spouse will ‘do the right thing’ and ensure that the children/family of the first to die will still inherit, but on the facts of this case the only way to avoid an injustice would have been for the children to agree… a scenario which many step-parents might actively seek to avoid.