This may seem a strange question but then probate has lots of unusual twists and turns. Let’s imagine a case – just for example – where two oldies became an item in a retirement home.
While this may seem somewhat strange to youngsters, the fire of love often burns strongest after you lose a lifelong partner. You can’t imagine ever being alone again. These things can happen faster than Woodstock or Gretna Green.
After a Decent Period Our Two Oldies Marry
After a ‘decent period’ so tongues don’t wag off the hook the two seniors decide to marry. This could happen in a registry office, or they could decide to splash out at the parish church. Use your imagination.
They never get around to discussing a joint will. Everything is fine. Life is too short to worry about admin. They expect to inherit from one another according to the laws of succession. However, there is a problem waiting in the wings.
But What Do Their Wills Say if One Dies
# Partner A aged 75 (to avoid being gender specific) has an old will they clean forgot about. They left their earthly possessions to a charity decades ago and the document is still valid.
# Partner B aged 72 has no last testament. Although they do have a natural daughter they have not seen for a very long time, because they had a huge quarrel about a young man that took her fancy.
Hence if Partner A died first, Partner B would get the lot, and vice versa. And after we die who cares who inherits they decide, when the topic comes up.
Then They Get Lost in the Woods and Both Die
Our elderly couple decide to take a walking tour along the banks of a Scottish loch where the footpath is level, and there are pubs to overnight every five miles. Alas, the weather turns ugly, there’s a harsh blizzard and they die in each other’s arms whereafter a snowdrift covers them over.
As luck would have it, they both had sizeable investments they tacitly agreed to leave dormant ‘just in case’. A diligent executor tracks down the missing daughter of Partner B. She weeps crocodile tears as she spends the money on a holiday cruise in her mind.
The trustees of the charity read about the tragedy in the local press. Partner A had mentioned the bequest at the time. One elderly director remembers the discussion. Their accountant joins an orderly queue in the executor’s office.
The Challenge Facing the Executor
The partner who died last would have inherited under normal circumstances, making the choice between the charity and the daughter a simple one. However, in this case the police only discovered the bodies when the snowdrift melted after several days. Moreover, the coroner is unable to unambiguously say which of the oldies died first.
The executor is in a quandary too. Then he remembers Section 184 of the Law of Property Act 1925 which reads:
“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.”
Therefore the daughter takes the ocean cruise in this example we made up, while the charity walks away with nothing. Is the law an ass or is this the ‘wisdom of solomon’ in action?
