Contentious Probate: Cohabiting Couples

Are you a cohabiting couple? If so, have you made provisions for your partner in your Will? No? Your partner could make a claim against your estate if you haven’t made provisions for him/her. In one of our earlier blogs, we did mention that the law does not recognise unmarried partners and, therefore they don’t inherit under the Rules of Intestacy. Unless, of course, you make a Will and make provisions for your partner.

The Office of National Statistics released a survey in November 2017 which showed that 3.3 million families are cohabiting. This is the fastest growing family type. However, despite these statistics it is worrying that cohabiting couples are not updating their Wills. Furthermore, they are losing out on the Inheritance Tax planning benefits that married couples enjoy. See our blog on the Inheritance Tax Threshold & Residence Nil Rate Band which provides further information on this.

If your partner feels that you haven’t made adequate provisions for them in your Will or that the Rules of Intestacy do not provide for him/her, then he/she can make a claim against your estate during the probate process. The Inheritance (Provisions for Family and Dependants) Act 1975 states that the following individuals can make a claim:

  • A spouse or civil partner;
  • A former spouse or civil partner who has not remarried or entered into a new civil partnership;
  • A person living as husband, wife or civil partner in the same household for two years ending with death;
  • Children. Adopted children claim against the estate of their adoptive parents rather than their birth parents;
  • Anyone treated as a child of the marriage or civil partnership;
  • Anyone who considers they were maintained to a material extent by the deceased immediately prior to their death and can demonstrate this is the case.

Claims made by cohabiting partners are on the increase. There have been a few cases recently that have made the headlines and we will look at a brief summary of two of them below.

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Lewis v Turner [2017] EWCA Civ 2182:

  • Mrs Audrey Blackwell died on the 6th May 2014.
  • She did make a Will leaving her entire estate to her daughter, Mrs Lynn Lewis. However, the original Will could not be located and a reconstructed version was submitted to the Probate Registry. Mrs Lewis would have inherited the estate under the Rules of Intestacy anyway.
  • Mrs Blackwell’s estate mainly comprised of her house known as “Green Avon”. Her partner, Mr Thomas Stanley Warner, who was 91 at the time, also lived there and had done since 1995. It was his home too and had been for almost 20 years.
  • Mrs Lewis, being the sole executor, obtained the Grant of Probate on the 13th November 2014.
  • In January 2015 she brought a claim against Mr Warner for:
    • (i) possession of the property on the ground of trespass and;
    • (ii) return of various items in the property (specifically furniture, chattels and personal property forming part of Mrs Blackwell’s estate) under the Torts (Interference with Goods) Act 1977.
  • Mr Warner filed a defence in February 2015. Separately, he applied for relief under the Inheritance (Provisions for Family and Dependants) Act 1975 and requested that the court make an order permitting him to continue living in the property. Mr Warner was significantly better off than Mrs Blackwell, financially, and although he could afford to buy another house, he said that he would be very unhappy and stressed if he had to move from the house where he spent the happiest years of his life.
  • Mr Warner said that there was no agreement between him and Mrs Blackwell for him to continue leaving at Green Avon after her death or even purchase it.
  • The court ruled that Mrs Blackwell’s Will did not make reasonable financial provisions for Mr Warner and ordered that Lynn sell Green Avon to Mr Warner for £385,000. The judge took several factors into consideration when arriving at the decision, mainly:
    • Mr Warner’s physical disability;
    • His age;
    • The length of time that Green Avon had been his home;
    • The fact that Mr Warner had made contributions to the costs of Green Avon during the time he lived there;
    • The location of the property. It was in the centre of a village where Mr Warner grew up and had lived all his life, and;
    • Its location next door to neighbours who looked after Mr Warner’s welfare.
  • Mrs Lewis appealed the decision which the Court of Appeal dismissed.
  • You can read more about this case on the BBC website by clicking here or you can read the full judgement here.

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Carole Anne Taylor and James Redmond

  • Carole Anne Taylor and James Redmond met at a jive dancing class.
  • They lived together as man and wife for 7 years until his death.
  • Mr Redmond did leave a Will, which he made 20 years ago, leaving his £1 million estate to his two daughters. His Will made no provisions for Mrs Taylor. Consequently, Mrs Taylor has made a claim against his estate for £325,000.
  • Mr Redmond’s daughter are contesting the claim on the basis that the relationship was not exclusive. Mr Redmond had another long term girlfriend whom he spent weekends with.
  • His daughters claim that as a result, Mrs Taylor and Mr Redmond’s relationship cannot be considered to be that of a husband and wife.
  • The judge is yet to rule on this case.
  • You can read the full article in The Telegraph by clicking here.

Possible Solutions for Co-habiting Couples

  • If you have a Will, review it and update it, if necessary. It is good practice to review your Will every few years.
  • If you don’t have one, you should make a Will as soon as possible. Remember, unmarried partners don’t inherit under the Rules of Intestacy.
  • Re-think marriage! The Inheritance Tax planning benefits for married couples is huge. By 2021 a married couple can leave a combined estate of up to £1 million free of any Inheritance Tax. Compare that to £325,000. Cohabiting couples cannot transfer their Nil Rate Band to the survivor and therefore, only have a tax free allowance of £325,000.

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