The Estate of John William Scarle Deceased (by his personal representative Ann Winter) v The Estate of Marjorie Ann Scarle Deceased (by her personal representative Deborah Ann Cutler)

JurisdictionEngland & Wales
CourtChancery Division
Judgment Date13 August 2019
Neutral Citation[2019] EWHC 2224 (Ch)
Docket NumberClaim No: HC-2017-002117
Date13 August 2019

[2019] EWHC 2224 (Ch)





HHJ Philip Kramer

(sitting as a Judge of the High Court)

Claim No: HC-2017-002117

The Estate of John William Scarle Deceased (by his personal representative Ann Winter)
The Estate of Marjorie Ann Scarle Deceased (by her personal representative Deborah Ann Cutler)

Amrik Wahiwala (instructed by Sparlings LLP) for the Claimant

James Weale (instructed by Law Hurst and Taylor LLP) for the Defendant

Hearing dates: 18–19 June 2019



HH Judge


On the 11 October 2016 John William Scarle, aged 79, and Marjorie Ann Scarle, a married couple, were found dead at their bungalow, 300 Eastwood Road North, Leigh on Sea, Essex. Mrs Scarle was the younger of the two, aged 69 at the time.


This case concerns the question as to which of them died first. The question is relevant as they were joint tenants of 300 Eastwood Road and the holders of a joint bank account with Co-op bank in which was deposited £18,000 at the time of the death. The law governing the ownership of jointly owned assets is that the last in time to die is entitled to the whole of the property and the sums in the account. As they have both died, the house and money will pass to those entitled to their estate, under the will of Mrs Scarle if her husband died first, or to those entitled on Mr Scarle's intestacy if he survived his wife. Central to this question is the operation of section 184 of the Law of Property Act 1925, a provision which, where the order of death is uncertain, creates a presumption that death occurred in order of seniority.

The broad dispute


Anna Winter is the only child of Mr Scarle and represents his estate. She is represented by Mr Wahiwala of counsel. Her case is that the presumption in s. 184 is not engaged if she proves on balance of probabilities, who died first. In the face of such proof it can no longer be said that the sequence of death is uncertain. She relies upon evidence which, she says, points to Mrs Scarle having been the first to die.


The Defendant, Deborah Ann Cutler, is the daughter of Mrs Scarle and represents her estate. She is represented by Mr Weale, of counsel. Her case is that in order for the presumption not to apply, Ms Winter has to prove that Mrs Scarle died first to a higher standard of proof, somewhere between proof on balance of probabilities, the standard applied in civil proceedings, and beyond a reasonable doubt, the standard applied in criminal proceedings. Mr Weale says that whilst he is not arguing that the criminal standard of proof applies for the purposes of the hearing before me, he wishes to reserve his position on that argument in the event that the case goes further. He adds that, in any event, the claimant has not proved the sequence of deaths, even to the civil standard, and thus it is to be presumed that Mr Scarle died first.


In view of the importance that has been attached to the dispute as to the standard of proof required to avoid the operation of the presumption, it is convenient to look at that issue first.

The Law


Section 184 of the Law of Property Act 1925 states as follows:

“184. Presumption of survivorship in regard to claims to property.

In all cases where, after the commencement of this Act, 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.”


Prior to the enactment of s.184 there was no presumption of law as to survivorship based on age. The onus of proof was on the person asserting the affirmative. The question as to who survived was treated as a “pure question of fact” to be proved by a “ clear preponderance of evidence” to support an inference as to who died first; see Wing v Angrave [1860] VIII H.L.C., 183, (1860) 11 E.R. 397 at p.403 per Lord Campbell LC. The standard of proof adopted was the civil standard. In the absence of the presumption, in a case such as the present, in which there were cross-claims as to who was the survivor, if neither side could prove who died first their estate was distributed as if they had died at the same time. This approach produced results which may appear surprising, if not harsh.


In Underwood v Wing (1855) 4 De G.M.&G 633, (1855) 43 ER 655 and Wing v Angrave, the simplified facts are that John and Mary Underwood, a married couple, both made wills with gifts to each other but if their spouse should die in their lifetime to William Wing. On 13 th October 1853 the Underwoods and their children set sail for Australia on the Dalhousie. The ship foundered off Beachy Head on 19 th October and sank. The only survivor of the wreck, John Reed, described seeing two of the children clinging to their mother, the group enveloped in their father's arms, when a wave swept them all into the sea. A remaining child, Catherine, had been lashed by a spar but she too perished shortly afterwards. In an action by the next of kin of Mr Underwood, Underwood v Wing, it was held that because Mr Wing had failed to prove that the wife had died in the lifetime of the husband, he had no entitlement under the husband's will. In Wing v Angrave, the contest was between Mr Wing and those entitled to the gift in Mary's will, a power of appointment over the personal estate of her late father to which they were entitled under the father's will in default of appointment. The House of Lords upheld the decision of the courts below that Mr Wing had no entitlement under Mary's will either as he had failed to prove that she had survived her husband. In Drummond's Judicial Factor v Lord Advocate [1944] S.C. 298, a case in Scotland, where a statutory presumption was only introduced in 1964, £250 of War Bonds, representing the life savings of the wife, passed to the Crown instead of members of the family because they were unable to prove the succession of death when the wife, her husband and children were killed in the destruction of their home by wartime bombing.


Mr Weale argues that s.184 of the 1925 Act introduced a new code for ascertaining the order of death in cases of uncertainty which demands a higher standard of proof than that generally used in civil proceedings. He says that the use of the word “uncertain” itself indicates that a standard of proof higher than the civil standard is required to render certain that which appears uncertain. In support of his arguments he relies upon Hickman v Peacey [1945] A.C. 304, Re Bate [1947] 2 All ER 418, Re Kennedy [2000] 2 I.R. 571 and the contrast with other statutory presumptions which provide for their rebuttal in terms such as “unless the contrary is otherwise proved”, a formulation used in both Section 36 of the Road Traffic Act 1934 and Section 32 of the Mortgage Interest Restriction Act 1923.


Mr Wahiwala says that what was said in Hickman as to the standard of proof was not consistent between the speeches and was, in any event, obiter. Re Bate does not support Mr Weale's argument and Re Kennedy was incorrectly decided and is not binding. He referred me to a number of Commonwealth cases which deal with wording similar to s. 184, Re Plaister [1934] 34 NSW 547, Re Comfort [1947] V.L.R. 237 and Adare v Fairplay [1956] 2 D.L.R. 67, Re Zappullo [ 1966 VicRp 55 and the Scottish case of Lamb v Lord Advocate and others [1976] S.C. 110 in all of which the civil standard was applied and in some of which the court considered Hickman and Bate.


In total, counsels' researches have produced 22 cases and 6 practitioner texts said to be relevant to the issue of the standard of proof.



In view of Mr Weale's reliance on Hickman, the discussion of this case in the authorities, and the cursory approach to this issue reflected in some of the practitioner texts to which I have been referred, it is necessary to look at the facts of the case and the course which it took through the courts in a little detail. The deaths in that case took place at the height of the Blitz. The testators, two brothers, were sheltering with others in 5 Cheyne Walk, London when it was struck by a bomb which demolished the entire premises and killed the occupants. The order of their death affected the distribution of their estates.


At first instance, Cohen J held that he was not satisfied that all in the house had died at the same time and applied the presumption. The decision was overturned on appeal; In re Grosvenor [1944] 1 Ch 138. In the Court of Appeal, Luxmoore LJ, at p. 150, felt it improper to interfere with Cohen J's judgement, albeit he thought it “not improbable” that following a bomb blast in which one person was blown to pieces and another lost limbs the latter survived the former, but without expert evidence as to the effects of bomb blast he would not feel justified in coming to a conclusion that they died at the same moment. The Master of the Rolls and Goddard LJ considered that the inference that they were killed at the same time was overwhelming. The Master of the Rolls said, at p. 146, that this was a “question of fact to be decided in accordance with the usual method of dealing with questions of fact”; Goddard LJ said that “ it is undoubted law that in civil proceedings a finding can, and may be, rested on the probabilities of the case.” Thus, the majority found that, on balance, there was no uncertainty to trigger the application of the presumption.


The House of Lords reversed the Court of Appeal by a majority; the case is reported as Hickman v Peacey [1945] A.C. 304. The minority, Viscount Simon L.C. and Lord...

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