Commorientes and joint tenancies

The word “commorientes” refers to the situation where two (or more) persons die in circumstances where it is uncertain which of them died last. Where there is uncertainty as to who was the last survivor, the effect of s.184 of the Law of Property Act 1925  is to prescribe artificially the sequence among consecutive deaths in order of seniority so that, for all purposes affecting the title to property, the younger are deemed to have survived the elder. The presumption applies in cases of both testate and intestate deaths. However, s.46(3) of the Administration of Estates Act 1925 provides an important exception to the statutory presumption under s.184 in the case of a husband and wife (dying on or after 1 January 1953) in circumstances rendering it uncertain which of them survived the other, where one or both spouses died intestate: see, s.46(3) of the Administration of Estates Act 1925, as amended s.1(4) of the Intestates’ Estates Act 1952. Interestingly, the rationale of the section (which now applies also to civil partners) is to avoid the obvious injustice of allowing the family of whichever spouse/civil partner happened to be the younger of inheriting everything to the complete exclusion of the family of the older spouse/civil partner. 

Successive and simultaneous deaths

In Hickman and Others v Peacey [1945] AC 304, five people (two of whom had made wills benefitting some of the others) were killed by a bomb during an air raid in circumstances where it was impossible to say whether any of them had survived the others.  By a majority, the House of Lords held that, in the absence of evidence as to who died first, the correct conclusion was that they had died in circumstances rendering it “uncertain” which of them survived the other(s) within the meaning of s.184 of the 1925 Act.  The upshot was that the younger of the deceased was deemed to have survived the older in determining the administration of their respective estates. The majority also concluded that s.184 falls to be construed broadly so as to include not just cases where there is a problem in ascertaining which of two (or more) persons died first (i.e., where the order of death is unknown), but also where the deaths have occurred at the same time (i.e., where the order of death is unknown but death is practically simultaneous). According to the majority, therefore, the statutory presumption applies even if the deaths are simultaneous because proof of simultaneous death is impossible and, hence, if survivorship is not established, the only alternative is uncertainty. 

The difficulty, however, with applying s.184 is that the presumption of seniority is applied to all cases of uncertainty and, in the context of a joint tenancy, leads to the inevitable conclusion that, even where the death of two or more joint tenants is instantaneous, the younger will automatically receive the whole of the property by way of survivorship to the exclusion of all the other joint tenants. This is the inevitable conclusion, applying the majority in Hickman, even in cases where there is certainty that the deaths are simultaneous. If the court cannot say for certain which person died first, (because, they all died at exactly the same time), the statutory presumption is triggered and the result is devolution by seniority. 

Rebutting the statutory presumption

The reluctance of the English courts to depart from the presumption of seniority is vividly illustrated in the case of Re Lindop, Lee-Barber v Reynolds [1942] Ch 377, where the facts were not dissimilar from those in Hickman. A husband and wife were killed in an enemy air raid. Their house was struck by a bomb and demolished – their bodies were found on the ground floor underneath their bedroom.  The evidence showed that they both must have been instantly killed by the explosion and two witnesses (who found and examined the bodies) expressed the opinion that the deaths must have been simultaneous. Despite this evidence, Bennett J held that it was impossible to say that both died at precisely the same moment in time and, therefore, the statutory presumption under s.184 applied. The consequence of this was that the wife (who was younger) was deemed to have survived her husband and, therefore, to inherit under his will. Bennett J openly acknowledged that time was infinitely divisible and strong proof was required to establish the fact that two people died at exactly the same time. 

The subsequent case of Re Bate (deceased), Chillingworth v Bate [1947] 2 All ER 418 shows that the presumption will only be excluded if the actual sequence or order of deaths is a “defined and warranted conclusion: at 421. Here, a husband and wife were found dead in their kitchen, the cause of their deaths being carbon monoxide poisoning. There was no question of simultaneous deaths, the sole inquiry being whether the circumstances of their deaths were such as to render it uncertain as to which of them died first so as to bring the presumption under s.184 into play. Jenkins J, having reviewed all the evidence, concluded that the facts were inconclusive as to who died first and, consequently, applying the statutory presumption, the wife (being younger) was presumed to have survived her husband. 

The statutory presumption may also be excluded by a contrary provision contained in the will.  For example, there may be a clause declaring that, in the event of the testator and his wife dying simultaneously or in circumstances where there is no evidence whether he or she died first, the latter should be deemed to have predeceased the former: see, In the Estate of Guggenheim (1941), The Times, 20 June. In such a case, the terms of the will override the statutory presumption. Interestingly, in this context, if the will itself makes provision for “simultaneous deaths”, this expression will be construed broadly so as to give effect to the intention of the testator having regard to the language of the will and surrounding circumstances. In Re Pringle, Baker v Matheson [1946] Ch 124, the testatrix and her two sisters were killed in an air raid by the same bomb. Cohen J held that the reference to “simultaneous death” in the testatrix’s codicil did not require proof of instantaneous death as an absolute scientific truth but death in such circumstances that the ordinary man would infer that death was simultaneous. The codicil had been made in 1941 during the Blitz and it was apparent that the testatrix was attempting to cover the very eventuality which had happened.

Property held on a joint tenancy

The effect of a joint tenancy is, of course, to vest full ownership of the property in the survivor. Significantly, the property never becomes part of the estate of the first tenant to die.  Under s.184, the legal presumption is (as we have seen) that, where there is uncertainty as to which of joint tenants survived the other, the older is deemed to have died first. This means, of course, that the younger becomes entitled to the whole indivisible estate even though (as a matter of pure fact) it is not clear who actually died first. The presumption operates particularly harshly since, as we have seen, it has been held to apply even in cases of simultaneous death (i.e., not only where the order of death is unknown but where death is practically instantaneous). If everyone in the common disaster is found to have died at the same time, why should the younger be afforded the privilege of obtaining the whole estate at the expense of the others? One rationale for this result is the notion that, in the ordinary way of things, the younger is more likely to survive in a situation of disaster than the older. But this statistical probability is open to question if, for example, the younger person was a vulnerable child and the elder was a healthy adult. The relative ages of the parties, therefore, has become, it is submitted, far less significant today given the robustness of even much older victims who remain active and in good health well beyond their retirement age. 

A similar rationale, of course, would apply in the case of the contemporaneous deaths of husband and wife who held property as joint tenants – the younger spouse would become entitled to everything excluding completely the other co-owner unless one (or both) happened to die intestate. In cases of intestate succession, however, s.46(3) has the consequence of effectively severing the joint tenancy so that the respective estate of each co-owner becomes entitled to an equal share in the joint property as tenants in common. It is submitted, therefore, that where there is uncertainty surrounding the circumstances of joint or simultaneous death (i.e., so that it is not known who died first), a fairer and more just solution is to convert the joint tenancy into a tenancy in common in equal shares so that each share then forms part of the estate of the deceased tenants. 

Conclusion

Although the current statutory presumption in s.184 has the merit of certainty and clarity as to the proper beneficiaries in the event of a common calamity, it does have the serious disadvantage, in the writer's view, of giving rise to potentially unfair and discriminatory results. A repeal of s.184 of the 1925 Act in relation to property held on a joint tenancy in favour of an automatic severance of the joint tenancy would, it is submitted, have at least two major advantages over the current law in England. First, no automatic right of survivorship would operate as between the various deceased favouring the youngest estate to the exclusion of all others. Secondly, all the respective successors would benefit equally in the estate thereby avoiding the current imbalance under s.184. Any new enactment in this area (in place of s.184) should, however, cover the eventuality of both uncertainty in the order of death and simultaneous death. Given also that, under the current law, the statutory presumption under s.184 may be excluded by a contrary testamentary provision, this exception should be retained in any new provision allowing for severance not to take place if a contrary intention is shown in the will of the deceased.

The potential unfairness of applying the statutory presumption under s.184 is not, however, limited to cases of joint tenancies. Whilst the position is modified, under s.46(3) of the Administration of Estates Act 1925, in relation to a spouse or civil partner in cases of intestate succession, this statutory exception is of limited application. There is much, therefore, to be said for repealing s.184 altogether and replacing it with a statutory provision which provides for the equal division of the deceased’s estates in all cases of testate and intestate deaths (as well in respect of property held on a joint tenancy) unless the will of the deceased contains language otherwise dealing with the circumstance of simultaneous death.