Inheritance Row Over Simultaneous Death of Parents

In the unfortunate event that both parents pass away at the same time and it is not known who died first, what happens next can regrettably result in family disputes. Thankfully this is not a frequent occurrence but, if and when it does happen, it can be particularly stressful. This is illustrated by the case of John and Ann Scarle recently decided in the High Court in England.

The couple died of hypothermia at their home in 2016, but which of them died first triggered a legal dispute over their joint assets. The couple had no children between them, but each had a child from previous marriages. If John, the older spouse, died first then their £300,000 house would have passed to Ann and on her death, it would pass to her daughter Deborah Cutler. If Ann died first, it would be John’s daughter, Anna Winter, that would inherit though to do so she would have had to successfully prove beyond any reasonable doubt that Ann Scarle died first.

In this case, Judge Kramer ruled that under the English Law of Property Act 1925, the presumption that the older of the two died first would apply.

What happens in NSW when there are simultaneous deaths?

In NSW, the legislation prescribes a particular order of death when two people die, but the timing of each death is unclear. Essentially, in the same way as was decided in this English case, the older person is deemed to have died first.

If, for example, the cause of death was a road traffic accident and a husband aged 30 and his 32-year-old wife died together it would be presumed that the wife died first and, assuming there was one, the husband’s Will would prevail.

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