Scarle James Deceased, the Estate of v Scarle Marjorie Deceased, the Estate of

Section 184 of the Law of Property Act 1925 applies only where the order of death remains uncertain. The party seeking to establish the order of death bears the burden of proof, discharged on the ordinary civil standard: the balance of probabilities. The statutory wording does not create a heightened or hybrid standard of proof.

Where the evidence permits more than one inference which is not itself improbable, the court should not prefer one inference unless there is a safe evidential basis for rejecting the others. If that cannot be done, the statutory uncertainty remains and the presumption operates, deeming the younger person to have survived the elder.

John and Marjorie Scarle, a married couple, were found dead at their home. They jointly owned the property and a bank account. Their estates disputed which spouse had died first, because that determined which estate took the jointly owned assets.

The claimant argued that section 184 did not apply if the order of death could be proved on the balance of probabilities. The defendant argued for a higher, intermediate standard and contended that the evidence did not establish the sequence. The central issues were the applicable standard of proof and whether the evidence safely established who died first.

1. Standard of proof. The claimant bore the burden of establishing the order of death. The applicable standard was the balance of probabilities. Section 184 did not introduce a heightened or hybrid standard. Hickman v Peacey was not binding authority for a higher standard because the House of Lords decision turned on the construction of the statutory uncertainty, and observations on standard of proof were obiter. Re Bate was consistent with the civil standard.
2. Evaluation of competing inferences. The ordinary civil standard does not permit the court to choose between competing inferences merely because one appears more probable where each is not improbable. The court must have evidence providing a safe basis for rejecting the alternatives. This approach concerns the quality and sufficiency of the evidence, not a different standard of proof or any alteration in the burden of proof.
3. Application. The relative decomposition of the bodies could support the inference that Mrs Scarle died first, but only if the environmental conditions in the toilet and lounge were equivalent or the lounge was warmer. The evidence did not safely establish that premise. Several competing explanations remained possible, including differences in micro-environment. Other evidence, including the pressure sore, retained urine, ketoacidosis, the parties’ medical conditions and the state of the property, was equivocal.
4. Disposition. The claimant failed to prove the order of death on the balance of probabilities. The sequence therefore remained uncertain, section 184 applied, and Mrs Scarle was presumed to have survived Mr Scarle. The court found that both died of hypothermia between 5 and 9 October 2016.