John and Ann Scarle lived in a bungalow in Leigh on Sea. They did not have any children together, but both had a daughter from previous relationships (Ann's daughter being Deborah, John's Anna).
In 1998, Ann had a stroke. She used a walking frame around the home and a wheelchair outside. John was her carer, often getting up several times a night to assist her.
On 3 or 4 October 2016, John told his neighbour Fiona that he was getting the car ready to take to Ann and him to lunch. That was the last time anyone reported seeing the couple alive.
On 6 October, Fiona noticed that the kitchen lights were on early in the morning. On 7 October, Deborah rang her mother to congratulate the couple on their wedding anniversary, but no one picked up. She assumed they were collecting a takeaway.
On 9 October, another neighbour found a group of children in the Scarles' garden and, when she telephoned the Scarles to let them know, again, no one picked up.
The police found John and Ann on 11 October. Ann was lying by the toilet in her nightdress and John was on the floor in the lounge in his pyjamas. In front of John was Ann's walking frame and wheelchair. They had both died of hypothermia. Their bungalow had been turned upside down.
They jointly owned the bungalow (worth around £280,000) and had £18,000 in a joint bank account.
Conundrum: why the order of death matters
Where couples own property jointly (called a joint tenancy), the survivor 'takes all'.
Ann left a will. John did not. If Ann died first, the bungalow would pass to John under her will (and on his death to his daughter Anna, under the intestacy rules). If John had died first, the bungalow would pass to Ann on the intestacy rules (and on her death to her daughter under her will).
The difficulty was that nobody knew who had died first – so it was not clear who got the bungalow and the bank account.
If two people die and it is 'uncertain' who died first, then, for inheritance purposes, it is presumed that the older died first.
Anna issued a claim in 2017, saying that the presumption should be rebutted and asking the Court to declare that it was Ann, the younger of the pair by 10 years, who died first.
How does the Court apply this rule?
Back in 1860, a judge looked at what happened after John and Mary Underwood died in a shipwreck off Beachy Head on their way to Australia. The only survivor of the wreck described seeing John, Mary and their children swept into the sea. The judge decided that there it was a 'pure question of fact' and he needed 'a clear preponderance of evidence' to decide that John (the elder) died after his wife. This evidence was not before the Court so John was deemed to have died first.
In Hickman v Peacey, two brothers were struck by a bomb in the Second World War. The House of Lords discussed whether there needed to be certainty as to who died first, or whether if the test was 'who', on the balance of probabilities or beyond reasonable doubt, died first. The Law Lords ultimately did not come to an agreement on this, but did decide that since it was not possible legally to have a 'simultaneous' death, the older survived the younger.
In Re Bate, a husband and wife were found dead in their kitchen, the victims of carbon monoxide poisoning. The judge said that he had to be 'able to come to a conclusion of fact on grounds which so far outweigh any grounds for a contrary conclusion' to decide the older survived the younger.
There were credible theories supporting both Ann and John dying first. Had Ann collapsed first, John, who was more physically able, could have got help. The fact that he did not could lead to the inference that he collapsed first and died, leaving Ann in difficulty. However, John had pressure sores – he had been lying on his right hip for a period of time and so perhaps collapsed, followed by Ann, but whilst she passed away, he remained incapacitated for some time.
Anna and Deborah both produced experts to support their cases.
Both experts agreed that Ann's body had been in a more advanced stage of decomposition than John's. However, they disagreed on the importance of whether or not the toilet (where Ann was found) was warmer than the lounge (where John lay).
Anna's expert said that Ann was more likely to have been the first to die, based on her more advanced decomposition and her previous ill-health. He thought that variations in the bungalow's microclimate would not be so significant to change his opinion.
Deborah's experts (including Silent Witness' Dr Fegan-Earl) said that 'temperature was the single most important factor and in the absence of any evidence as to the relative temperatures in the lounge and toilet he could not…reliably determine who died first.'
The Judge decided that the evidence left the order of Mr and Mrs Scarle's death 'uncertain'. The differences in decomposition between Mr and Mrs Scarle weren't necessarily because Ann died first – they could be because of different temperatures between the rooms. Therefore, the Judge treated John as having died first.
There are reports in the press that Anna was ordered to pay her step-sister's costs on the indemnity basis (of up to £84,000), in addition to her own, which neared £100,000. She was apparently penalised heavily for rejecting an early offer from Deborah to split the estate 50:50 and refusing to mediate.
Anna's insistence of pursuing her case in the face of a well-established legal principle and her refusal to entertain alternative dispute resolution led to the Court penalising her heavily on costs.