With the recent dramatic increase in property values and the emergence of a Society that is not afraid of seeking resolution of disputes through the Courts, wills and inheritance disputes have increased substantially.
At the same time, there has been a marked increase in the number of couples choosing to cohabit rather than marry. In fact, cohabitation has risen by 65% per cent in the past 10 years according to a recent study by the Office of National Statistics. The Civil Partnerships Act 2004 has also meant that same sex couples are now able to make a permanent legal commitment to each other.
Unfortunately, the increase in cohabitation and civil partnerships has not been matched by an increase in people writing Wills or entering into formal agreements as to what will happen on death.
Pitfalls for Cohabitees and Civil Partners
The absence of a Will means that cohabitees often see the assets of their deceased partner going to their partner’s family, rather than them, under the rules of intestacy.
Alternatively, a cohabitee or civil partner may have written a Will a number of years prior to his or her death and not updated that Will to take account of their new relationship.
It can also be the case that a person cohabits with or is the civil partner of someone who owns the majority of the assets of the couple (e.g. the house) and believes that their partner will make sufficient provision for them in their Will. They then may find that although their partner may have had an up-to-date Will, it did not in fact make sufficient provision.
Something which also comes as a surprise to many people is that, as with marriage, a Civil Partnership revokes any Will made prior to the Civil Partnership (unless the Will was specifically made in contemplation of the Civil Partnership). The effect is that unless a new Will is made, the Estate is distributed according to standard rules of intestacy. This may not reflect the wishes of the deceased and may not provide necessary provision for a number of people, who then may wish to bring a claim against the Estate.
Inheritance Act Claims
A cohabitee or civil partner who was in some way financially dependant upon their partner and who finds themselves without adequate provision, either because their partner died without making a Will or because a Will was made but left insufficient provision to the partner, has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A person wishing to make a claim under the Inheritance Act must do so in very strict time limits. The application asks the Court to investigate the assets left by the deceased and the provision made for the applicant. The applicant will ask the Court to find that insufficient provision was made and that this should be rectified.
Class of Claimant
Previously, the overwhelming majority of Claimants under the Inheritance Act were the husband, wife or child of the deceased. With the arrival of the Civil Partnership Act 2004 and the increase in cohabitation, claims by civil partners and cohabitees have risen sharply recently.
Cohabitees are described under the Act as a couple living together ‘as husband and wife’ for two years or more at the time of death and reference to husband and wife now includes same sex couples.
In addition to a claim under the Inheritance Act, where a cohabitee or civil partner dies leaving a Will but without leaving sufficient provision for his/her partner, the surviving cohabitee or civil partner can seek to challenge the Will on a number of bases:
- Capacity: that the deceased was incapable, generally due to mental illness, of making the Will with proper understanding of its consequences.
- Duress: that a third party has exerted some improper influence over the deceased which affected his/her ability to freely make the Will.
- Fraud: that the Will produced was not in fact that of the deceased.
- Proper Form: that there was some type of procedural or technical error which invalidates the Will.
If you are a cohabitee or civil partner and you find yourself in the position of having recently lost your partner and having then found out that you have not been left what you consider you are entitled to, Linder Myers’ Wills and Inheritance Disputes Team can help by giving sympathetic advice and assistance. You may also have inherited your partner’s Estate but now face claims from other parties for provision from the Estate. Again, Linder Myers is able to help.
If however you are currently cohabitating or are in a civil partnership, our Trusts and Estates Department can help you to avoid any unnecessary problems in the future by drawing up a current Will or Cohabitation Agreement. Whilst it is impossible to predict the future, you can plan for it and help provide you and your loved ones with peace of mind.