Section 184 of the Law of Property Act 1925
Scarle v Scarle  EWHC 2224 (Ch)
The only certainty in life is death. But not every moment of death is certain, and its uncertainty can have important consequences for the living. During the Second World War, in the early evening of Saturday 14 September 1940, air raid warning sirens sounded in London as they had done since the start of the intense Blitzkrieg on the city the previous Saturday. It was still light at 6pm and the course of the Thames would have guided the pilots towards their intended targets. In Chelsea, just north of the river and to the south west of Westminster, there were many casualties. Nearly 100 people were sheltering in the crypt of a church in Upper Cheyne Row when a high explosive bomb crashed into it and started a fire which killed 23 people. A young air raid warden’s diary recorded
“18:27 — Bomb on Holy Redeemer …. through crypt floor to cellar where it exploded against some strutting among 80 odd people. I got knocked off the bike. A second knocked me down again and a third sent a brick onto my tin hat. I went to Holy Redeemer and set to work on stirrup pumps. The cries and groans were awful. God help them all. We took 12 dead and put them in the garden by the church as it was getting dark. I think my heart broke this night over the sights I have seen today.”
At almost exactly the same time, another high explosive bomb dropped onto a small house a moment’s walk away from the church, at 5 Upper Cheyne Row. The bomb fell through the roof and into the basement of the house, where it exploded, shattering the house into ruins, and killing five people who were sheltering in the basement, which had been strengthened with sand bags against the air raids. When their bodies were dug out of the debris of the house over the next few days, they were mutilated, partially dismembered and scarcely identifiable. The five came from two separate households — a mother and daughter who lived at 5 Upper Cheyne Row, and two bachelor brothers and their housekeeper, who lived nearby, but who had no air raid shelter of their own, and who had an established routine of sharing the basement air-raid shelter at no 5 when they heard the warning sirens. The older of the two brothers, Randolph Grosvenor, was a retired doctor who had been called on by the police to certify numerous unexplained deaths in Chelsea in his working life. His will benefited both his brother and their housekeeper, if they survived him. His brother’s will in turn benefited him, as well as their housekeeper and the woman in whose house they had sheltered, again if they survived him.
Over the remaining years of the war a case progressed through the courts, eventually reaching the House of Lords in January 1945, as Hickman v. Peacey  AC 304, to decide how these inheritances should be dealt with following the five deaths in a common disaster. Had they all died simultaneously? Or had any of those who were named in the brothers’ wills in fact survived each other? The law had to provide some answer to these questions. It took the judges until June 1945, after VE Day, to do so.
s184 Law of Property Act 1925
At the heart of the case was a legal rule which had been enacted twenty years previously as a new provision in English law. This small part of the comprehensive reform of the law of property, trusts and estates in 1925, section s184 of the Law of Property Act 1925, is known as the “commorientes” rule (Latin for “people who die simultaneously”), even though it does not explicitly deal with people who die at exactly the same time.
s184 of the Law of Property Act 1925 states that
“In all cases where . . . two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), 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.”
The presumption in section 184 applies unless there is evidence of the order in which deaths actually occurred, but otherwise it takes effect, and cannot be avoided simply because its operation is arbitrary and may be unfair in its effects.
The law of uncertain time of death before 1925
Before s184 was enacted, in England and Wales, there had been no legal presumption at all where there was uncertainty as to the order of deaths. As the cases decided since then reflect, a 1925 law about uncertain or simultaneous deaths is likely to be tested and applied in an advanced industrialised society by warfare, or by mishaps of air travel, or by faulty domestic appliances. But the circumstances of a group of people dying together without it being known in what order their deaths took place are far older than that — think of the bodies trapped in their last movement by the pyroclastic flow from Vesuvius in 79 AD, or the 17th century victims of the Plague in London, immured in their homes behind a nailed door with a cross painted on it.
In more modern times, in 1856, a court accepted a presumption of fact that, as a strong young man, Edward Couch, an officer of one of the ships in Sir John Franklin’s 1845 lost Arctic expedition was likely to have survived his father, a retired naval officer, who died at home in England in 1850. More modern, and very recent research into that fateful expedition has since established that it is most unlikely that he did so survive, and almost certain that he died in 1848. Also in the 1850s, the outcome of a case which had led to years of litigation was one of the reasons for a change in the law in 1925. On 19 October 1853, HMS Dalhousie, a merchant ship carrying cargo and passengers from London to Sydney, foundered in the English Channel off Beachy Head, with the total loss of life apart from the helmsman, Joseph Reed. A week later, he was able to give an account of the fate of one family of passengers, a John and Mary Underwood and their three children, who were emigrating to Australia, and later gave essentially the same account in evidence in court:
The passengers who were dragged through the galley window were Mr. and Mrs. Underwood and two children, and the young lady who was taken out of the water and had come out of one of the poop cabins was Mr. Underwood’s eldest daughter, a young lady about 19 years of age. Just before a fearful sea had swept off Mr. and Mrs. Underwood and the two children he observed them embrace each other in earnest prayer, evidently quite conscious and resigned to their fate. Captain Butterworth was holding on near him, when Miss Underwood, in her night dress, was washed out of the poop, and he exclaimed, pointing to the unfortunate girl, “For God’s sake, look here!” She was floating away when he (Reed) caught her up under the arms, and with the aid of Burley he got her out. He should never forget the look she gave him. He had cut a piece of rope to secure himself to a spar (the spare mainyard), but, seeing there was no chance for the girl, he said, “ You had better let me lash you to this ; it is your only chance, and you may be picked up ; if you perish, there is some hope of your body being found.” She looked up imploringly at him and said, “ Yes, do.” He immediately lashed her to the spar, and when it was sent adrift from him she ejaculated to Reed, “ May God bless you, and spare you to get ashore!” (Reed was moved to tears while reciting this scene.) He observed the spar going to windward full 10 minutes after the ship had foundered. There were also clinging to it Captain Butterworth, Mr. Finch, second mate ; James Burley, the young assistant sailmaker ; a youth named Simpson (son of Mrs. Simpson, cabin passenger), and three or four Lascars. From the heavy sea which was sweeping over the spar he thought it very improbable that any of them could live many hours.
Two weeks before setting off for Australia, on 4 October 1853, both Mr and Mrs Underwood had made wills. Their lives and deaths give some passing insight into Victorian middle-class life. Mr Underwood, who was a merchant in the City of London intending to set up business in Sydney, left his estate to Mrs Underwood, but in case she should die in his lifetime, to his children, and if they should die, to a friend, William Wing. Mrs Underwood also made a will. She was the only child of a father who had created a trust providing her with an income of £500 a year, for her own use even after her marriage, at a time when married women did not otherwise have property rights. Her father had also given her the power to appoint the trust fund itself to whom she wished in her own will. She gave the trust fund to her husband, but in case he should die in her lifetime, to the same friend, William Wing. In numerous courts over the seven years following the shipwreck, with contested evidence about both the physiology of drowning and the relative strength and swimming ability, or lack of it, of Mr and Mrs Underwood, William Wing ultimately failed to secure his inheritance under either Mr or Mrs Underwood’s will, as he could not prove which of the couple had survived the other. Mr Underwood’s mother upheld her claim that her grand-daughter, Catherine, should inherit under her father’s will, as Joseph Reed’s evidence showed that she had survived her parents and brothers, and Mrs Underwood’s father’s family became entitled to the trust fund that he had originally created.
As in Mr and Mrs Underwood’s case in the House of Lords, the judges in Hickman v. Peacey, the Chelsea wartime bomb case, were not unanimous in either the Court of Appeal or the House of Lords, but the majority in the House of Lords decided that the presumption in s184 should apply, because it was uncertain whether any of the five individuals had survived any of the others. So it was presumed that Dr Benjamin Grosvenor had predeceased his younger brother.
My intention is not to explore the inner labyrinths of these judgments, much of which consisted of debate about whether any deaths could ever be simultaneous, and whether the presumption applied to simultaneous deaths or not, but to explain the legal background to a very recent decision in Scarle v. Scarle  EWHC 2224 (Ch), and some of the myths of public understanding that have sprung up about the case. Both the Chelsea air raid deaths and the Beachy Head shipwreck deaths were public events recorded in contemporary newspapers. Although the Chelsea deaths happened in a private home, they were part of the larger public story of the Blitz, and the Underwoods’ shipwreck deaths happened in public, and in the course of a voyage made by thousands of people in the 19th century. By contrast, Mr and Mrs Scarle’s deaths were private deaths in their own home, yet the trial of the inheritance dispute which followed gave rise to a great deal of public commentary, much of it, as the judge rightly described it “vitriolic and hurtful”.
Scarle v. Scarle  EWHC 2224 (Ch)
Three years ago, in the early evening of Tuesday 11 October 2016, police officers who had been called by a concerned neighbour in a suburban street in Leigh-on-Sea in Essex entered the home of an elderly married couple, John and Ann Scarle. Neither of them had been seen for about a week, when John had told a neighbour that he was “getting the car ready for Ann”, in order to go out to lunch locally, something which they did routinely, and Mrs Scarle, already seated in the car, had waved to their neighbour. On 11 October, both Mr and Mrs Scarle were found dead by the police, their bodies lying in separate parts of their bungalow. There were also signs of damage and disarray in the bungalow itself. Post mortem examinations carried out two days later ruled out any criminally suspicious circumstances for either death, and recorded that the cause of death of each of them was hypothermia. But neither the post mortem examination nor any other evidence established a precise date or time of death, or the order in which Mr and Mrs Scarle had died over the past few days since Mr Scarle’s brief conversation with the neighbour.
This unanswered question of the order in which the couple had died gave rise to a legal dispute about the inheritance of their respective estates, and the case was the subject of many news reports and discussions during the course of the trial on 18–19 June 2019. Judgment was published on 13 August 2019, prompting further news reports and commentary.
The inheritance and the dispute
Mr and Mrs Scarle’s marriage was a second marriage for both of them. They had been in a relationship since the early 1980s and had bought their home in Leigh-on-Sea in 1988 using proceeds of sale of a property which had belonged to Mrs Scarle. Their home was a bungalow in a residential section of a long and quite busy road, set back from the pavement by its front garden. At the date of their deaths each had an adult daughter from a previous marriage, each of whom took legal responsibility for the administration of their dead parent’s estate. Mr Scarle’s daughter was Anna Winter (“Mrs Winter”), and Mrs Scarle’s daughter was Deborah Cutler (“Mrs Cutler”). Mrs Scarle had made a will leaving her estate to Mrs Cutler and to her son, Mrs Cutler’s brother. Mr Scarle had not made a will and had no other children, so if he had died after his wife, his entire estate would have passed to Mrs Winter on his intestacy. But Mr and Mrs Scarle owned their home, as many married couples do, as joint tenants, which meant that on the death of the first of them to die the whole property would go to the survivor of them, irrespective of any will or the rules of intestacy. They also had £18,000 in a joint bank account which they owned in the same way.
Mr Scarle was 79 at the date of his death and Mrs Scarle 69. The operation of the presumption in s184 in Mr and Mrs Scarle’s case meant that Mrs Scarle, who was younger, would be presumed to have died after Mr Scarle, who was older, and so to have inherited the bungalow and the bank account of which she shared ownership with her husband, which would then form part of her estate passing under her will to her two children.
In July 2017, Mrs Winter, as the legal representative of Mr Scarle’s estate, commenced a claim against Mrs Cutler as the legal representative of Mrs Scarle’s estate, in which she argued that the presumption should not apply. Mrs Winter believed that, with the evidence of a forensic pathologist, she could prove that Mrs Scarle in fact died before Mr Scarle. The original basis of her belief seems to have been the post mortem report on Mr Scarle, which had suggested the possibility that he had died after his wife, because the changes of decomposition were less advanced in his body than in hers.
The judgment in the inheritance dispute
The judgment published on 13 August 2019 is on the website of BAILII, at https://www.bailii.org/ew/cases/EWHC/Ch/2019/2224.html
On the same day it was made public, there was a short hearing to decide costs liability in the light of the judgment. There is no published judgment from this hearing, but at least one journalist attended and reported on it, in the Daily Telegraph of that day.
The outcome of the trial was that Mrs Scarle’s estate inherited the bungalow (valued at £280,000 in 2017) and the £18,000 in the joint bank account by survivorship, and Mr Scarle’s estate had no share in these assets. In other words, Mrs Winter failed in her claim, and Mrs Cutler successfully defended it on behalf of herself and her brother. The decision was entirely based on the presumption in s184 of the Law of Property Act 1925. There are many presumptions in English law, but s184 is slightly unusual in that it starts from a position of factual uncertainty, and imposes a legal fiction on that state of uncertainty. How much certainty is required to remove the default state of uncertainty? This was one of the questions in the case. The judge’s decision turned on two points -
Legal argument about the standard of proof required to successfully challenge the operation of the presumption
This is an argument about the assessment and persuasiveness of evidence, which can seem abstract, or more difficult to analyse in practice than to state in principle. In criminal cases, the prosecution must prove its case beyond a reasonable doubt. In civil cases, a claim must be proved on the balance of probabilities. It is easy to translate the concept of “balance of probabilities” into “more than 50%” but harder to translate the more demanding standard of “beyond reasonable doubt” in percentage terms, or in either case to identify and quantify the evidence which is sufficient to satisfy each of the tests. Indeed, English courts do not in general favour the application of mathematical models of probability to proof of hypothetical facts, but prefer to start from the proposition that either something has happened or it has not, and it is for the court to decide on all the evidence which alternative is more compelling.
Mrs Scarle’s daughter, Mrs Cutler, argued that the standard of proof was higher than “balance of probabilities” — an argument which was based on analysis of some of the earlier cases about the presumption and cases on similar laws in some Commonwealth countries, and on the proposition that greater certainty is required to remove a starting point of uncertainty. The judge ruled that the right standard of proof was the balance of probabilities, and referred to a well-known decision involving allegations of sexual abuse of children, in which it had been affirmed that “there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not”.
Whether the evidence, even on the balance of probabilities, was sufficient to remove the presumption in s184
The judge decided that it was not, having heard evidence from two expert forensic pathologists who had prepared reports for each side and were cross-examined on them at the trial. Although the experts agreed with the pathologist who had carried out the post-mortem examinations that Mrs Scarle’s body was in a more advanced state of decomposition than her husband’s, there was not enough evidence to decide whether this was attributable to the fact that she had indeed died first, or to environmental factors in the different parts of the bungalow where she and her husband had collapsed and died, and so the judge was left with the uncertainty to which the s184 presumption applies.
Public comment about the case
“A woman has won a £300,000 inheritance battle against her stepsister … by using a 1925 law to argue that her mother legally outlived her stepfather”
Some of the media reports prompted commentary on the case which has focused on issues which seem to have been extensively misunderstood, and which do not reflect at all fairly on the individuals involved in it, or on the underlying course of the legal dispute.
The litigation was repeatedly presented as a battle between stepsisters, between whom relations were strained. Some online comments seemed to suggest that women are disposed to be unreasonable or vindictive in litigation, ignoring the fact that Mrs Cutler was acting not simply only on her own behalf but, as the legal representative of her mother’s estate, on her brother’s behalf as well, as the two of them shared their mother’s estate equally. Many comments also overlooked the fact that the law of inheritance, even when based on a legal presumption, provides a clear answer to the question of “who inherits”? The law confers rights which people are entitled to ask a court to give effect to, or to defend against a hostile claim. In this case, there were only two possible answers to the question, but each litigant had a reasonable legal basis for, in Mrs Winter’s case, bringing the claim, and in Mrs Cutler’s case, defending it. The words “using a 1925 law” suggest that Mrs Cutler’s lawyers deployed some obscure or archaic principle, but it is in the nature of a legal presumption to simply operate without giving rise to dispute. As recently as 2016, a case was decided about the interpretation of the wills of an elderly couple who, like Mr and Mrs Scarle, had been found dead at home of natural causes in circumstances where it was impossible to determine who had died first, yet this did not attract the same degree of public attention.
A far more serious aspect of public understanding, or misunderstanding, were the allegations that Mr and Mrs Scarle’s deaths were attributable to indifference or neglect from either or both of their respective daughters. Officious bystanders conjectured a version of King Lear in suburbia, and many had the temerity to suggest that neither Mrs Winter nor Mrs Cutler deserved any of the disputed inheritance at all.
The Daily Telegraph journalist who attended court on 13 August reported the judge to have said then that “people should be more humane… There’s no suggestion that Mrs Winter or Mrs Cutler were inattentive to their parents, and what happened was wholly unexpected”. The evidence in the judgment itself showed that Mrs Cutler had spoken to her mother on about 3 October, and had sent her mother and stepfather a wedding anniversary card, which had been delivered and opened, for the 7 October. She had also tried to ring them at home in the early evening, and assumed from the lack of a response to her call, that they had gone out to eat at a Chinese takeaway restaurant, which they always did on their anniversary. There was also evidence of neighbours’ awareness and concern for Mr and Mrs Scarle, one immediate neighbour telephoning them but receiving no reply when she heard a commotion from the back of their house and chased away a group of children she found in their garden.
These officious accusations of neglect seemed to insistently avoid any perception of a more plausible reality — that Mr and Mrs Scarle were an elderly couple who were managing to live reasonably well independently in a home that was familiar to them and suitable for their needs, with one of them caring for the other. Mrs Scarle, although younger than her husband, had impaired mobility following a brain haemorrhage, and other health problems, and her health had been deteriorating, as observed by or described to family and neighbours. The judge described her as dependent on her husband for her care. There was also evidence that Mr Scarle’s health had declined in the months before his death, that he had been less able to manage (the garden was neglected) and that he had refused to see a doctor at his step-daughter’s suggestion. It frequently happens that manageable living arrangements of elderly people come to an abrupt end when one or other of a couple suffers a fall, or a stroke, or other sudden deterioration in their health. Hypothermia is a known risk for elderly people who are immobile, even in their own homes. It is not unusual, but is a reflection of both their frailty and their interdependence, for such a couple to be admitted to hospital, or enter institutional care, or die, within hours or days of each other. Mr and Mrs Scarle’s deaths appear to have been similar.
Some of the commentary also betrayed a lack of insight into the variety of ways in which older adults living independently habitually keep up contact with their families, perhaps with stark generational differences. It’s apparent from the judgment that at the date of their deaths Mr and Mrs Scarle had one landline phone at home, and no mobile phones. Apart from visits — and there was evidence of a visit to them from Mrs Scarle’s sister less than a month previously — their contact with members of their families would have been by letter or by landline phone call. Many people of their generation, especially a couple who were managing at home together as they were, with neighbours known to them nearby, would not think it unusual to speak to close family members no more frequently than once a week — a different world from that of constant contact via WhatsApp, text or social media updates more familiar to younger people, and adopted by some, but far from all, older people.
Another focus of public comment was to question why the dispute was litigated to trial, instead of the couple’s daughters reaching a compromise, and dividing the inheritance between themselves in some way. As was revealed on the day judgment was given, there had been such negotiations and attempts to compromise, which, as is usual, had taken place on a basis not to be disclosed to the court until after the end of the trial itself. Mrs Cutler had offered to share the joint assets equally with her stepsister before the claim was even issued. As the case progressed towards trial there were further negotiations, with greater concessions from Mrs Cutler. As she is reported to have said on 13 August, she did her best to resolve the dispute by making several reasonable offers. The negotiations appear to have been unsuccessful because Mrs Winter only made a very limited concession (no more than a concession of 50% of her own costs) in her own, much later, compromise proposals, and because she and her solicitors refused to attempt mediation of the claim, despite many requests from Mrs Cutler’s solicitors. Mediation is not compulsory, although someone can be penalised in costs for unreasonably refusing to even attempt it. The outcome of the case is a very harsh one for Mrs Winter, as she faces liability for her own and Mrs Cutler’s costs of well over £150,000, as well as being unsuccessful in her claim. It is regrettable that she did not attempt mediation, although it is understandable that she believed in the strength of her case from the outset.
Cases with similar facts to this are unusual, but there are many other disputes about wills which similarly have an “all or nothing” outcome. A negotiated compromise of such a dispute is likely to involve significant concession by a litigant who would have won, and significant gain by a litigant who would have lost, if there had been no compromise. In one “all or nothing” dispute about the validity of a will decided in 2009, the successful claimants had made an offer to compromise, but the judge refused to make a penal costs order based on it, because (at 4% of the value of the claim) it had not represented a reasonable offer in relation to the value of the estate and the apparent strengths or weaknesses of the case at the time it was made. In a case with a binary “all or nothing” outcome, to be decided on the balance of probabilities, negotiations will eventually tend to be driven towards figures close to 50% of the value of the dispute. It can be very hard for litigants who believe in the strength of their case to perceive and assess the risk they face in this way, and to contemplate such a large departure from what they believe their rights to be. The outcome of this case is a painful example of the consequences of not doing so. Those who have never had to face making such decisions themselves should, in the words of the judge “be more humane”, and slower to criticise those who have — especially against the background of the unexpected deaths of a parent and step-parent, the discovery of the bodies by the police, and the possibility that Mr Scarle had survived his wife first raised by the pathologist’s post mortem report very shortly afterwards.
Note: I have not had any professional involvement in this case, nor any personal acquaintance or contact with any member of Mr and Mrs Scarle’s family. All of the material on which this blog is based is in the public domain, apart from the written skeleton arguments of Amrik Wahiwala and James Weale, the barristers acting for Anna Winter and Deborah Cutler respectively, which they kindly made available to me.
 From the diary of Josephine Oakman, now in the archives of the Royal Borough of Kensington and Chelsea, quoted in http://blitzwalkers.blogspot.com/2015/04/discovering-wartime-chelsea.html
 Quoted in the Sun newspaper of Monday 24 October 1853 © British Newspaper Archive
 Lord Hoffmann in Re B  1 AC 11
 Daily Telegraph report 13 August 2019
 Ritchie v. Joslin  EWHC B7 (Ch)