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The Effect of the Rule of Commorientes on an Inheritance

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The rule regarding “commorientes” is concerned with determining survivorship where two or more people have died in the same incident. If it cannot be determined who died first, then the younger should be presumed to have outlived the elder. This can lead to confusion over who is to get what of an inheritance.

The case

We recently outlined the law in NSW when there are simultaneous deaths, illustrated by a recently decided English case where similar rules apply. To recap, Mr and Mrs Scarle died at their home in England of hypothermia in October 2016. The couple were survived by Deborah Cutler, Ann Scarle’s daughter, and Anna Winter, John Scarle’s daughter, both from previous relationships.

What evidence did the court consider?

The court considered factors such as Ann’s health before her death and the condition of her body when the couple were discovered. Ann had suffered a stroke in 1998 which left her requiring mobility assistance and full-time care by her husband. So, while there was evidence that Ann may have died first, there was no conclusive evidence to rebut the presumption that John, the elder spouse, died before Ann. The trial judge said: “I conclude that there is uncertainty as to the order of death” so the presumption “applies and the younger is deemed to have survived the elder.”


As the court ruled that the order of death was uncertain, the younger spouse was presumed to have survived her husband and Mrs Cutler inherited under her mother’s Will. Mrs Winter not only lost the £300,000 bungalow but was ordered to pay the majority of Mrs Cutler’s costs as well as her own, totalling at least £150,000.

While the rule is relied on infrequently, it demonstrates the need to consider all potential contingencies when estate planning. Having an appropriately drafted Will is imperative to ensure that the testator’s wishes are accurately recorded and assets distributed to beneficiaries as intended.

Contact our Wills and Estate Lawyers in Sydney, NSW

Szabo & Associates Solicitors provide expert advice on all matters relating to estate planning. Please contact us on (02) 9281 5088 or complete our online contact form.

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