Avoiding a dispute over Probate

Rogers and Norton

There are occasions where disputes will arise amongst family members following the death of a loved one.


An elderly married couple were recently found dead in their Essex home and not discovered until a week later, meaning that it was difficult to establish who had died first. Both had children from previous marriages, and the difficulty in determining the order of deaths prompted an estate dispute between their respective stepdaughters over the couple's joint assets.

In order to conclude who would inherit the Court had to decide who was deemed to have died first.

One daughter claimed that autopsy evidence indicated that the wife had died first, so that her share of the joint assets briefly passed to her husband by survivorship, and then on to her.

The other daughter claimed that the order of deaths could not be reliably determined, and so the commorientes rule in s184 of the Law of Property Act 1925 should be invoked to deem that the elder spouse (The husband) died first, so that his share of the joint assets passed to his wife by survivorship, and then on to her and her brother.

Ultimately the court decided there were too many variables and unknowns to make a safe decision. He therefore applied the commorientes rule, to deem that the elder spouse died first, so that his issue will inherit the estate's jointly held assets.

The husband also left a separate personal estate to his daughter of around £160,000, but much of it may be swallowed up in the legal costs incurred, despite attempts to reach a settlement.

The story is a salutary example of how important it is to seek experienced and knowledgeable legal advice when preparing a Will. Circumstances can change regularly throughout a life time, necessitating the need to review any Will or Lasting Power of Attorney that may be in place.

We have a dedicated team of specialist estate practitioners who can provide you with the advice that you need. If you wish to review your Will then please email our team at wills@rogers-norton.co.uk.

If however the estate had not been planned carefully or you are a disappointed beneficiary or family member we have a specialist team of litigators that can assist.


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