Commorientes: Deaths, disasters, disappearances

This chapter discusses commorientes - parties who, in some sense, die together - and the problems generated by a need to identify a sequence for such deaths in circumstances where that sequence is not possible to prove. By reference principally to English, French and German law, it looks at the scope of the factual uncertainty problem here in terms of both the variable circumstances in which it can arise and the variable and blurred levels of uncertainty that these entail. The chapter also reviews the range of solutions and rules used across time and place to identify or impose a sequence or other result, including retreating to ordinary proof, presumptive sequencing, and rules for sharing or reallocation. Throughout, the analysis considers the policies and imperatives that drive framings of the problem and choices made in crafting a solution. It finds overall that the uncertainty problem entailed has limited clear natural boundaries, and that its scope can be driven by policy goals and one's preferred solution. Relatedly, over time, framings of the problem have tended to broaden out to include more scenarios, whilst solutions have narrowed in on simpler default answers justified by policy goals, rather than attempts to approximate truth.