1975 Act Claims – can I still inherit when we don’t know who passed away first?

Losing a parent is always going to be an extremely difficult and emotionally traumatic experience. It can be made even more confusing when a parent and step-parent pass away at the same time but we don’t know who dies first.

Who stands to inherit?

It is often the case that step children are disinherited from their parent’s estate merely because their biological parent died first and they left their estate to the step-parent. It is more common than people realise and it can lead to dire consequences for the child concerned. So you can imagine how matters are complicated even further when your parent dies at the same time as your step parent but it cannot be determined who died first.

The case of Scarle v Scarle (2019)

In the case of Scarle v Scarle (2019) the husband and his second wife both died of hypothermia in their home but it couldn’t be determined who had died first. Both had prepared Wills passing their estate to the other and both had daughters from their previous relationships. The Court was forced to decide that John Scarle must be presumed to have died before his wife Marjorie because he was the oldest in accordance with an old legal principle. 

The result of this was quite drastic as John and Marjorie owned their home as ‘joint tenants’ meaning that on the first death the entire property would pass to the surviving spouse. The Court’s decision meant that John’s share of the property was deemed to pass entirely to Marjorie and therefore her daughter, Deborah, inherited the entire property and John’s daughter, Anna, received none of it. This is despite Anna putting forward evidence that John may have been the second one to die. 

The Inheritance Act 1975

In these circumstances, the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) can offer a potential route to a fairer resolution for people like Anna. Under the 1975 Act Anna could either make a claim for reasonable financial provision against her father’s estate as a child of the deceased or against her step-mother’s estate as a step-child provided she was treated as a “child of the family”. If this claim was successful, the Court can make an order that Anna should receive benefit from either estate irrespective of the terms of the Will. It is also possible under the 1975 Act to sever the joint tenancy of a property so that the parent’s share of it falls back into their estate and doesn’t pass automatically to their spouse but to make use of this provision you need to act promptly following the date of death. So a claim by Anna under the 1975 Act might have been one way to achieve a fairer outcome to this case.

A claim under the Inheritance Act 1975 can therefore be used in the most unusual set of circumstances to achieve a fairer outcome; and that is of course the purpose for which the 1975 Act was created. It is essential that applicants instruct specialist solicitors experienced in how to use the 1975 Act to achieve the best outcome immediately to ensure they do not miss the tight time limits for bringing such claims.