By Dr Joanna McCunn, Lecturer in Law (University of Bristol Law School) and Dr Andrew J Bell, Research Assistant (Institute for European Tort Law of the Austrian Academy of Sciences and University of Graz, Vienna).
The ‘extraordinary’ recent case of Scarle v Scarle has brought national press attention to a property law rule dating from 1925. Though little-known and seemingly bizarre in application, the rule stands atop millennia of legal thinking and is a useful and pragmatic tool for solving this instance of an unusually challenging evidential problem. This problem, of intractable uncertainty, occurs across the legal system, and the various rules used to address it can have surprisingly extensive policy benefits.
Scarle v Scarle
John and Ann Scarle were discovered dead at their home, having both succumbed to hypothermia under mysterious circumstances. It became vital to know which of the two had died first. If Ann had outlived her husband, she would have inherited the whole of their jointly owned property; if Ann had died first, it would have passed to John. Dispute arose because each of the spouses was to be succeeded by a daughter from a previous relationship; each daughter thus stood to inherit all or nothing from her parent.
The dispute coalesced around a presumption known as the ‘commorientes rule’. Found in section 184 of the Law of Property Act 1925, this provides that, where it is uncertain which of two or more persons has outlived the other(s), a younger person is deemed to have survived an elder. While the rule itself is clear, it has been unclear what kind of ‘uncertainty’ is required for the rule to apply. Does a sequence of deaths have to be proven beyond reasonable doubt to avoid the presumption (the criminal law standard), or only on the balance of probabilities (the civil standard)?
HHJ Kramer decided that the ordinary civil standard applied: the commorientes rule is only engaged when it cannot be proven on the balance of probabilities (i.e. >50% probability) which person survived longer. In Scarle, however, even that hurdle was not met. The evidence as to the order of deaths was too equivocal and section 184 therefore kicked in: Ann Scarle was younger than, and so taken to have outlived, her husband. Her daughter inherited everything.
Shipwrecks and sailors
At first glance, this rule seems bizarre and capricious. Relative date of birth is unlikely to function as a good proxy for relative time of death. Is this an example of an absurd old law, totally out of touch with life’s realities? Media coverage has certainly made much of its age and apparent obscurity, describing the case as ‘highly unusual’ and the rule as ‘little used’.
Perhaps counterintuitively, however, the fact that this case is unusual demonstrates that the rule is doing its job. Before 1925, parties in England had to positively prove survivorship on the ordinary rules of evidence. Where the facts were irredeemably unclear, absurdity could result. For example, in 1853, John and Mary Ann Underwood made wills, each leaving their property to the other, and to William Wing should the other spouse pre-decease them. The couple drowned in a shipwreck. In Underwood v Wing (1855) and Wing v Angrave (1860), it was held that, because Wing could not prove that either spouse had outlived the other, he was unable to inherit under either will.
That situation could encourage courts to make decisions on the slimmest of evidence. In Ommaney v Stilwell (1856), for example, the question was whether Edward Couch, a member of the doomed Franklin expedition, had outlived his father, who died in January 1850. The expedition had made no contact since 1845, and it is still unclear today when Edward perished. Sir John Romilly MR, though lamenting his ‘extreme inability to come to a satisfactory conclusion’ in the case, held that Edward had survived his father based on his ‘youth and strength’.
Contemporary medical jurisprudence texts demonstrate what flimsy material the courts could be working with. Tidy’s Legal Medicine (1882) suggested that ‘a woman’s breasts and particularly her clothes might buoy her up automatically,’ allowing her to survive longer than a man in a drowning case. The evidence involved could also be unedifying: in Taylor v Diplock (1815), the court heard lengthy arguments on the strengths, weaknesses and condition of an asthmatic, war-wounded husband and his wife drowned at Falmouth.
Where the facts of a case were so unclear, the court’s determination would be unpredictable, if not wholly arbitrary. This lack of certainty encouraged litigation, rehashing gory tragedies. The fact that these cases were generally brought by relatives made this doubly undesirable.
Thankfully, the commorientes rule contributes to solving these problems. By providing a default outcome, it avoids absurd results like that in William Wing’s case. The existence of the presumption also decreases uncertainty and discourages litigation. In the Irish case Re Kennedy (2000), Kearns J observed that broad approaches to such presumptions are ‘harmonious and not socially divisive,’ since they discourage litigation between family members. Though cases like Scarle occasionally still reach court, nineteenth-century experience demonstrates the problems now avoided. The rule is so ‘little used’ in court today because it is quietly fulfilling a key function. We must not forget just how common situations which could bring about the problem are – anything from a house fire to a car crash. Less dramatically, Jump v Lister (2016) saw octogenarian spouses die of natural causes at home together; application of the rule was uncontested there.
Thus, while the rule must inevitably produce some erroneous results, convenience and certainty win through. Age-based commorientes presumptions have been used for millennia on the basis that they allow for the definitive resolution of impossible cases. The Romans, for example, recognised a range of presumptions about survival, including that a father predeceased an adult son, but survived a minor.
Shades of uncertainty
In fact, section 184 has proved so useful that judges sometimes go out of their way to emphasise the uncertainty of a particular case, facilitating the application of the statutory presumption. In Re Beare (1957), for example, uncontradicted medical evidence as to the likely order of deaths was held insufficient to displace the presumption. HHJ Kramer’s approach to the standard of proof is somewhat out of step with the rest of the case law here, which tends to err on the side of increasing application of the rule. (His decision on that point is not binding precedent.)
In other cases, a commorientes rule is even applied when the order of deaths is clear. The Law Reform (Succession) Act 1995 provides that, where an intestate’s spouse or civil partner survives them but dies within the next 28 days, the two are to be treated as though neither survived the other. Again, this rule was justified on the basis of convenience. The Law Commission explained that it would ‘make the administration of estates less expensive’ and discourage disputes between relatives.
Commorientes rules, then, are not always the simple tiebreakers that they first appear to be. Initially introduced to resolve a small core of cases of intractable factual uncertainty, where a sequence of deaths simply cannot be established on the evidence, their ambit has tended to expand as their policy benefits become clear. Both Parliament and judges have taken such rules beyond true uncertainty, applying them to cases that could (at least arguably) be resolved on the evidence.
A broader problem
These commorientes cases are just one example of a difficulty that arises across the legal system, meanwhile: how can the law act when the facts to which it must respond are simply unknowable? We are currently conducting a research project looking at such instances of intractable uncertainty. The issue has several times arisen in the very recent legal past. In the 2000s, for example, deserving mesothelioma victims faced the inability of present science to prove who caused their harm – Fairchild v Glenhaven Funeral Services (2002) was the watershed case. Similarly, a criminal prosecution collapsed when confused boundaries of land ownership and an injunction’s reach across fields prevented proof of where HS2 protesters had been protesting.
Often, default or tiebreaker rules are introduced to solve problems like these. In the HS2 case, the judge noted that the defendants were entitled to the benefit of the doubt – a venerable criminal law principle often known as in dubio pro reo. In Fairchild, it was held that in such circumstances, where there was an irresolvable scientific uncertainty, contribution to the risk of the materialised harm could suffice to establish causation.
As with the commorientes rule, however, the ambit of these rules may start to expand when wider policy benefits become clear. The contra proferentem rule, for example, began life as a tiebreaker: when the meaning of a contract was entirely unclear, it would be read most favourably for the non-drafting party. However, its ambit expanded rapidly in the nineteenth and twentieth centuries, when it was pressed into service to protect consumers from contracts imposed on them by stronger parties. We have seen the same pattern with commorientes. Tiebreaker rules initially addressed at otherwise insurmountable problems of intractable uncertainty seem to be prone to mission creep.
Thus, while presumptions like the commorientes rule can seem absurd and arbitrary, they serve useful functions in the legal system. Primarily, this involves ensuring that cases plagued by inherent uncertainty can still be resolved predictably and efficiently. As policy ideas behind those rules find traction, however, other benefits can emerge and be exploited. These benefits should not be overlooked, especially in commorientes cases apt to become unedifying spectacles. HHJ Kramer was moved to criticise the ‘vitriolic and hurtful’ public response to Scarle, and no one gains from each party waxing lyrical on the decomposition of the body of the other’s parent. It will only be regrettable if his decision as to the standard of proof in such cases encourages more feuding families to seek their day in court.
3 thoughts on “In Good Order: Deaths, Disputes and Default Rules”
Very interesting article, thanks.
You might be interested in this recent decision from Australia (from Victorian Supreme Court)
Re Tucker; Nunan v Aylward  VSC 210 (2 April 2019)
Tragic circumstances where a couple (Gregory and Korinne) were murdered by being stabbing to the chest and abdomen. Both died intestate. There was some medical evidence that suggested that Korinne (the younger) died before Gregory (the older). However, the court found that the circumstances of the deaths was uncertain and applied the statutory presumption that Korinne survived Gregory. One thing I thought was curious was that there isn’t any indication in the judgment as to any attempt to obtain evidence from the murderer Mustafa, who had pleaded guilty to murders. But given the unusual circumstances where the parties were simply asking the Court to approve a purported settlement, perhaps no-one was interested in what he might say.
As for default or tiebreaker rules, you might be interested in the decision (again from Victoria) of Moll v Noblett & Ors (Real Property)  VCAT 353 (5 March 2009), particularly at paragraph 
Here the Tribunal resolved the problem by ordering the Principal Registrar to toss a coin! I am not aware of any other case where this method has been utilised but would be fascinated to hear if you come across any.
Really interesting, thank you. As this case shows, the attempt to prove a hypothesis in order to displace the legal presumption involves as much detailed and no doubt distressing medical and other scientific evidence as the 19th century cases, although with a more advanced knowledge of forensic medicine than in 1882. I think there is a case for anonymising the names of people involved in these cases. There can be no public interest in knowing the identity of private individuals who died at home of natural causes, and it would reduce the likelihood of the kind of “vitriolic and hurtful” public commentary which the judge rightly criticised when giving judgment in August 2019.
Since this article was published, I have researched and written the story behind Ommanney v. Stilwell, the 1856 case which applied the presumption which is now statutory to the sequence of deaths of Edward Couch, a junior officer of HMS Erebus, one of the two ships of Sir John Franklin’s lost Arctic expedition of 1845, and his father James Couch, a retired naval captain and Trafalgar veteran who died in Plymouth in 1850. The evidence the court relied on was provided by Arctic explorer Dr John Rae, whose account of the fate of the expedition was itself based on what he had been told by Inuit (then Esquimaux) inhabitants of the Arctic. His/their report of the resort to survival cannibalism by the desperate expeditionaries scandalised Franklin’s widow and Charles Dickens, who excoriated it in a journal he published in 1854. Since the wreck of HMS Erebus was discovered in 2014, it is just possible that evidence will come to light that determines the actual, or more probable, date of death of Edward Couch than that presumed by the court and complete the story.
A link to the first in a series of blogs I have written of the full story here, in case it is of interest