Inheritance - What is Normal Matters
Despite the changes being brought about by the Civil Partnership Act 2004 which introduced the 'civil partnership' for gay couples, the increasingly common situation whereby partners live together without a formal relationship continues to produce arguments in the courts.
In a recent case, a woman was the partner of an alcoholic and lived with him for 27 years prior to his death without ever marrying. Three months before her partner's death, she was awakened by him at night as he brandished a knife and threatened to kill himself. Being scared of possible violence, she took a small number of her possessions and moved in with her daughter. Her partner was found dead two months later.
She was not included in her partner's will and thus sought to make a claim against his estate under the Inheritance (Provision for Family and Dependants Act) 1975, which allows claims to be made in such circumstances. The claim was resisted by her late partner's brother on the grounds that she had not been maintained by her late partner for the two years immediately before his death; a necessary condition for the claim to succeed.
The county court judge took the view that in circumstances such as these, one has to look at the 'settled state of affairs' that existed between the woman and her partner and not the situation that had arisen shortly before his death. Spending 27 years together established that that was 'normal'. There was abundant evidence that they did not consider that their relationship was at an end. On appeal, the Court of Appeal confirmed this ruling.
It is sensible when cohabiting with anyone to whom you are not married or are not the civil partner, to enter into a cohabitation agreement, so that ‘who owns what’ is clear. This is not only important if the relationship breaks up, but also can be one the death of one of the partners.
The Government has announced that it is intending to give long-term cohabitees legal rights in cases similar to this.
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Tim Johnson |
There is no doubt that this is the common-sense decision in this case. The tragedy is that the two sides had to fight this out in the courts with the attendant cost and delay – the Court of Appeal decision was over two years after the man's death. This could easily have been avoided had the man made a will which properly included the interests of his partner.
