The saying goes that 'where there's a will, there's a way'. However, a little known historical rule could lead the way to complications and even a legal battle.

Mr and Mrs Scarle died of hypothermia in their home in Essex in October 2006, and owned their family home jointly. It is also believed that they left wills leaving the remainder of their estates to one another as well.

Both Mr and Mrs Scarle had children from previous marriages. If Mr Scarle had died first, his share of the property would have passed momentarily to his wife, and then 'down the line' to her two adult children. If Mrs Scarle had died first, then her share of the property would have passed momentarily to her husband, and then 'down the line' to his adult daughter instead. Therefore, the issue of 'who died first?' becomes absolutely crucial to determining who inherits.

Under 'the commorientes rule', where it is uncertain which person died first, the general law assumes that the elder died before the younger. In this case, Mr Scarle would be deemed to have died first, which would completely disinherit Mr Scarle's children, who are arguing against the rule's application.

The commorientes rule dates back to 1925, and so for a judge to rebut the firmly established doctrine of 'deaths in order of seniority', the evidence to the contrary is likely to need to be conclusive and irrefutable.

The implications of this rule cannot be ignored, and you should consider all factors in succession planning to ensure your wishes are met.

It is more important than ever to ensure that your existing will has been recently reviewed and that you take advice from a specialist private client lawyer.

  • Megan Seabourne is a partner at award-winning law firm VWV, which has offices in Clarendon Road, Watford