Category Archives: Contentious probate

Widow Who Forges Will to Get £1m Fortune May Still Inherit All

It has been reported recently that a former legal secretary, Dawn Smith, forged a Will to benefit from the entire estate of her wealthy 61 year old husband Harvey.

Smith, 47, married her husband 3 years before his death. It appears that she forged his Will, faking the signatures of her husband and witnesses. The forged Will excluded her husband’s two adult daughters from his previous marriage and made herself and her son from another relationship the sole beneficiaries of his £1 million estate.

After her husband’s death in 2012 she initially told his family that she didn’t believe that he had a Will but she later produced the paperwork leaving his £500,000 house in Darlington to her, together with a pension worth £420,000.  She has since remarried a Turkish waiter.

The deception was uncovered when a partner at the Darlington firm of solicitors, Hewitts where Dawn Smith had worked, thought it suspicious that Harvey’s adult daughters were overlooked whilst Dawn’s son was included.  Police were alerted and a handwriting expert concluded that the deceased’s signature was a forgery.

The case raises the intriguing question now as to what will happen to Harvey Smith’s estate?  Marriage revokes a Will – so any Will that he had made before his marriage to Dawn is no longer valid.  If there had been no Will the estate would have passed to Dawn under the intestacy rules.

It seems likely that she decided to forge the Will because, after their marriage, her husband made a new Will in which bequests were left to his daughters as well as to her and she wanted to avoid them being beneficiaries.  If that was the case then the forged Will is obviously invalid and the previous Will would take effect.

But, that would mean that Dawn Smith would still benefit from her late husband’s estate despite being a convicted fraudster.  The situation is even worse had he made no Will after his marriage (or if any such Will had been destroyed by Dawn Smith) because everything would then pass to her under the intestacy rules – again, despite her conviction.

Partner and contentious probate specialist, Sarah Young of Ridley & Hall Solicitors, comments:-

“Rather shockingly the legal rule of forfeiture does not help Harvey Smith’s daughters in this particular case.

The forfeiture rule applies to prevent a beneficiary from receiving benefit under a Will if he has unlawfully killed the testator (the maker of the Will) or unlawfully ‘aided, abetted, counselled or procured’ his death.  It does not extend to other crimes.  The rule also applies to intestacy.  Without knowing more of the facts of the case one can only speculate about the final outcome in this case – but it seems likely that the widow here will receive some financial benefit despite her conviction for fraud.”

Sarah Young is concerned about the wider implications in financial abuse cases:

“The same principle applies to perpetrators of financial abuse. Say, for example, someone faces criminal proceedings for having stolen money from a vulnerable elderly person. If they have been left money in a valid Will (or if they would inherit anyway under the intestacy rules) they are still be entitled to inherit their bequest after their victim dies.  As a matter of public policy this must be wrong!”

Financial abuse, particularly of the elderly, is on the rise.  The charity Action on Elder Abuse has reported a 150% increase in reports of financial abuse to their helpline in the last year; 680 calls to their helpline in 2013 showed that transactions involving £24m were reported as having been either stolen, defrauded or coerced.

Sarah Young warns:

“This is a crime that is most often perpetrated by family members and of course, they will often benefit under a Will or intestacy. For that reason, in my opinion, the forfeiture rule should be changed to prevent individuals who have been convicted of an offence of fraud from benefiting from a Will or an intestacy of their victim.”

Sarah Young is a Partner with Ridley & Hall Legal Limited and specialises in Will disputes, cases involving missing people and the Court of Protection. Sarah offers practical, friendly and cost effective advice.  She understands the sensitive nature of cases which often involve disputes between families and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.

Secrets and Lies; the Will of Lucian Freud

A court battle over the estate of the late artist Lucian Freud has put the spotlight on the little known area of law of secret trusts.  The artist had 14 children.  After he died on 20th July 2011 it quickly became apparent that his estate of some £42m had been left to his solicitor and one of his daughters (who were also appointed as executors of the Will).

Lucian Freud’s son Paul challenged the validity of the Will; if it was found to not be valid his father’s estate would pass under the intestacy rules which would mean that it would have been divided equally between all 14 children.

The executors of the Will argued that the £42m was being held by them under a “secret trust”.   A Will becomes a public document as soon as a grant of probate is made (this is a document that gives an executor power to deal with a deceased’s assets after their death). Freud wanted to keep his wishes entirely private and, on legal advice, used the little known option of creating a hidden trust.

The solicitor and daughter said that before his death Lucian Freud had told them what he wanted them to do with the money – and that he didn’t want his other children to know what that was.  It was made clear to Paul Freud by the executors that he was not to benefit under the trust.  So what is a secret trust? Simply put, a trust can be described as a relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and protect it for the benefit of others.  The person who holds the property for another’s benefit is called a ‘trustee’ and the person who benefits from the trust is the ‘beneficiary’.

In a fully secret trust the Will does not reveal that a trust exists at all. It is simply an earlier agreement between the maker of the Will and the trustees during their lifetime.  Half secret trusts arise when a Will refers to a trust but is silent about any specific instructions – for example A might leave a bequest to B “for the purposes for which I have told him.”

Paul Freud argued that in fact, his father had tried, and failed, to create a half secret trust, which made the Will invalid.  However, at court, the executors of the Will successfully established that a fully secret trust had arisen.

The drama may not be over because Paul Freud and his siblings could bring a separate challenge under the Inheritance Act 1975 to say that the Will did not make “reasonable financial provision” for them.  It is possible for adult children to bring claims against a parent’s estate but these claims are not easy to pursue unless, for example, the adult child was financially dependent on their parent at the time of their death.

Ridley & Hall Partner Sarah Young comments:

“Fully secret and half secret trusts are rare – and it’s easy to understand why the artist’s son in this case was suspicious. On the face of it his father was leaving his incredibly large fortune to his solicitor and one daughter.  But it is clear that Lucian Freud had received professional advice and the law does permit secret arrangements like this. Historically, in Victorian times, men who had a mistress and illegitimate children wanted to be able to provide for them without their legitimate family finding out after their death; secret trusts provided an opportunity for them to retain a veneer of respectability.”

She went on to add:

“Generally speaking it’s not a course of action that would be recommended by solicitors because of the risk of a dissatisfied family member challenging the trust.  Also, of course, the Will maker is relying heavily on his trustees to do what they are asked to do after he has died!  The best way to try to prevent disputes after your death is to make a Will with the benefit of expert legal advice from a solicitor.”

Sarah Young is a Partner with Ridley and Hall solicitors in Huddersfield. She specialises in inheritance disputes and has a particular interest in cases involving missing people and financial abuse.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on her direct dial 01484 558838 or her mobile 07860 165850.

Nephew Wins High Court Battle with Animal Charities

Seven animal charities who were beneficiaries of an estate have lost a High Court battle with the deceased’s nephew.

June Fairbrother died in April 2011. She had made a Will in 1998, leaving her home, valued at £350,000 to charities.

Ms Fairbrother’s nephew, Kenneth King, moved in with his aunt during her final years to care for her and he argued, successfully, that she had gifted the property to him shortly before her death to enable him to remain there and care for her cats and dogs.

Mr King relied on an unusual legal doctrine called ‘donatio mortis causa’ which is a gift made in contemplation of death. The gift only takes effect on death and there must be a delivery of the gift or something representing the gift which is accepted by the recipient of the gift. In this case, Mr King stated that his aunt had handed him the title deeds and said the house would be “yours when I go”.

The deceased had signed documents which although not valid wills, had left the property to Mr King. The judge decided that this was ‘powerful and corrobative evidence’ that her intentions had changed from what was set out in her last valid Will.

Lawyers representing the charities argued that Mr King was unreliable; he had twice been made bankrupt and had been jailed for acting as a company director when disqualified. They alleged his argument was “too convenient by far”.

It is thought that the animal charities are considering appealing this decision.

Disputes such as this, which commonly involve estates being left to charities, are not unusual. Ridley & Hall have an expert contentious probate department who can offer specialist legal advice in inheritance disputes.

Helen Dandridge is a contentious probate solictor at Ridley & Hall. For an initial consultation if you need advice on inheritance disputes please contact Helen on 0843 289 4640 or by e-mail.

Ridley & Hall Listed in Legal 500 for 4th Successive Year

Ridley & Hall is delighted to announce that we have been listed in the Legal 500 in three separate areas; contentious probate, family and private client work.

The Legal 500 is a trusted directory providing comprehensive information on the UK’s recommended leading law firms.

Our Contentious Probate team, headed by partner Sarah Young has been listed as a third tier specialist department and highlights Sarah’s work in missing people.

Sarah commented; “I am delighted that the hard work and dedication of my team, and the work of our family and private client teams has been recognised by the Legal 500.”

In addition to her specialist knowledge and experience of dealing with complex contentious probate claims, Sarah is one of leading experts in missing people and has acted for many relatives who are seeking orders in relation to missing relatives.

Our expert Family team have been listed in the Legal 500 for a fourth consecutive year, which team leader and qualified mediator Vicky Medd is extremely proud of.

“When legal aid was abolished for the majority of private family law cases, many thought this would mean the end of family departments,” commented Vicky, “however with our range of fixed fee packages which we can tailor to an individual’s needs and financial circumstances, we are able to continue to grow as a department.”

Finally, the Private Client department which specialises in a range of services including Wills, probate and Lasting Powers of Attorney has also been re-listed for a fourth time. The head of department, Jill Waddington and her team have extensive experience in complex probate and inheritance tax matters.

Managing Partner, Adam Fletcher, commented, “The recognition from Legal 500 reiterates our commitment to delivering a high standard of service to our clients. Furthermore, it demonstrates that the practice provides, not only the usual services you would expect from a high street firm, but we are also leading the way in niche areas such as kinship care, court of protection and missing people.”

The Presumption of Death Act 2013

Each year in the UK around 250,000 people are reported missing.  Most of them are found but a significant minority each year remain missing.  The Presumption of Death Act 2013, which marks a significant reform in the area of law relating to missing people, will come into force in England and Wales on 1st October 2014. It follows similar Acts in Scotland and Northern Ireland.

In the absence of a body it is very difficult to register a person’s death or to obtain a death certificate.  There is no legal mechanism which allows someone to manage the affairs and assets of a missing person.   A power of attorney, if one exists, should only be used if a person is known to be alive.  A missing person exists in a legal limbo where dependants may have no access to funds, debts will be unpaid and houses repossessed.

Many people believe that the common law presumption of death means that no application for a death certificate can be made until 7 years have passed.  It is, in fact, possible at any point after a person’s disappearance to apply to a Probate Registrar for a ‘leave to swear death order’.  The Order enables probate to be granted to the estate of a missing person which can then be administered.  However, if a surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, currently a separate application must be made to court for a decree of presumed death and dissolution of marriage.

The new Act provides a procedure for an application by an interested party to the High Court for a declaration of presumed death.  The court will make a declaration if it is satisfied that either the missing person has died or that the missing person has not known to be alive for the past 7 years.

Notice of the application must be served and it must be advertised in accordance with rules of the court (details yet to be published).

A declaration is conclusive proof of the date of the missing person’s presumed death.  It will dissolve their marriage or civil partnership and will have the same effect as regards property ownership as death.    The declaration becomes conclusive when it is final and no longer subject to appeal (probably 21 days), after which the court will send a copy of the declaration to the Registrar General who will make an entry in a new Register of presumed deaths.  A certified copy of the entry will be available from the Registrar on payment of a fee (amount to be confirmed).

If it later becomes clear that the declaration is incorrect – e.g. the missing person returns – an application can be made to the High Court for an order to vary or revoke the declaration.  The court cannot make a variation order where more than 5 years have passed since the date of the original declaration unless there are exceptional circumstances.  A variation order cannot affect interests in property which someone has acquired as a result of the declaration of presumed death.  It will also not revive a marriage or civil partnership, but it does provide the court with power to make an order relating to property interests (within certain limits).

If someone has applied for a declaration of presumed death or a variation order you may intervene in the proceedings if you are the missing person’s spouse, civil partner, parent, child or sibling.  Otherwise you must ask the court for permission to intervene.

The current ‘leave to swear death’ procedure is still relevant, as it will continue to be available after 1st October 2014.  An application under NCPR, rule 63 is made to a Probate Registrar by way of an affidavit and other supporting evidence where necessary.  As no hearing is required it is likely to remain an attractive option in some cases as it will be cheaper than an application under the Act, which requires a hearing before a high court judge.  For spouses and civil partners however, the new procedure will probably be more cost effective if a dissolution is required.

The campaign for presumption of death law reform is part of the charity Missing People’s wider “Missing Rights” campaign launched in December 2010, which also includes ongoing calls for a system of guardianship to be introduced.  Presumption of death allows families to resolve a missing loved one’s affairs in cases where a return it unlikely, whereas guardianship would enable families to manage and maintain their affairs in case of a return.

A Ministry of Justice consultation closes on 18th November 2014 in relation to guardianship.

The new Act has been welcomed by those of us who see the devastation that a disappearance can wreak on a family and the proposed guardianship system would be a hugely helpful in mitigating the trauma caused to a family when a loved one goes missing.

Sarah Young is a Partner with Ridley & Hall solicitors in Huddersfield. She specialises in contentious probate cases and has a particular interest in cases involving missing people and supports the work being done by the charity Missing People.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on her direct dial 01484 558838 or her mobile 07860 165850.

What You Need to know About the New Inheritance Act 2014

On the 1st October 2014, the Inheritance and Trustees’ Powers Act 2014 will come into force.

The Act is a result of a six year project by the Law Commission, based on studies which have suggested that between half and two thirds of the adult population do not have a Will and those who need one most are, in fact, the least likely to have one.

Amongst other things, the Act makes changes to the Inheritance (Provision for Family and Dependants) Act 1975. That act allows certain family members and dependants to apply to court for reasonable financial provision from the estate, under the Inheritance Act. This applies whether or not the deceased made a Will.

Firstly, the law now makes it clear that a claim can be brought under the Inheritance Act before a grant of representation is made, something that was unclear before.

It has always been the case that only certain categories of people can bring a claim under the Inheritance Act, and the Inheritance and Trustees’ Powers Act will widen that category in relation to children. Currently, a child of the deceased is entitled to bring a claim under the Inheritance Act, as is a step child providing that the deceased was married to their parent at the time of death. From the 1st October the requirement for the relationship to be have been acquired by marriage will be removed – the deceased must ‘stand in a role akin to that between a parent and a child’.

Helen Dandridge, solicitor, commented:

“The obvious situation where this would occur would be in relation to a cohabiting couple where there are children of one cohabitant only, from a previous relationship. However, it could also apply to children who are looked after by family members or kinship carers; as long as they have been acting in a parental role at the time of their death.

“In reality, it is not envisaged that this will create a floodgate of new applicants as there has always been the ‘catch all’ provision that “any person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased” can apply for financial provision.”

Further changes are made to the ‘balance sheet’ requirement for applicants who apply under the catch all provision referred to above. Currently, an applicant under that category had to show the deceased was “making a substantial contribution in money or money’s worth towards the reasonable needs of that person”. In reality that meant the applicant had to show the deceased contributed more to the relationship than the applicant did. The requirement from October will be simply to show the deceased made a substantial contribution to the applicant’s reasonable needs.

Finally, there will also be changes to the matters to which the court must have regard to when considering an application under this Act. An applicant who was maintained by the deceased immediately prior to their death can apply irrespective of whether the deceased had formally assumed that responsibility. The court is directed to consider that as a factor but it is no longer a threshold criteria for making a claim.

Finally, Helen commented:

“Despite the new Act being designed to bring intestacy and inheritance laws more in line with the needs and dynamics of modern families, the Act does still stop short of all the reforms recommended by the Law Commission, particularly in relation to cohabitants.”

Helen Dandridge is a solicitor at Ridley & Hall and works in the Contentious Probate department. For more information please contact her on 01484 538421 or by e-mail.

Alternatively, if you have any questions in relation to inheritance disputes, please contact our Contentious Probate team free on 0843 289 4640.

When is a Cohabitee not a Cohabitee…?

A recent case has highlighted the trauma and expense that will disputes can cause for cohabitees.

Harjinder Kaur met Harcharan Singh Dhaliwal (known as Harry) in May 2005,  a few months after his wife of 25 years had committed suicide.  Harry had been charged with her manslaughter by allegedly triggering the suicide.  He was acquitted in March 2006, by which time he had been engaged to Harjinder for 9 months.

They kept their relationship secret from Harry’s two sons Sandeep and Amitoz for as long as possible as they (correctly) believed that the sons would not approve of the relationship.

The couple often spent the night together at Harjinder’s flat and worked together full time, 7 days a week. In July 2007 they moved in together permanently, having previously had short periods of living together in a number of properties. Harry died on 7th June 2009.

Harjinder brought a claim for a share of Harry’s estate. The dispute between her and Harry’s two sons was in relation to how long the couple had lived together before his death.

The Inheritance (Provision for Family and Dependants) Act 1975 provides that a co-habitee can make a claim against the estate of their deceased partner, provided that they have lived together for a period of two years immediately before the deceased’s death.

Following a hearing at the high court on 1st and 2nd April 2014 the judge found that Harjinder was able to bring a claim under the Inheritance Act despite having lived with Harry for only 1 year and 49 weeks (3 weeks short of the strict 2 year requirement).  An earlier 3 month period of cohabitation, it was argued, should be counted towards the 2 year total.  The judge decided that there had been a “settled relationship … evidenced not simply by their living under the same roof”.  The test to be applied was “whether their relationship had irretrievably broken down or rather was merely suspended”.

With more than two million unmarried couples living together it is likely in the future that there will be more and more inheritance disputes involving unmarried couples. Often, family life can be a complicated affair with many couples having had previous partners or spouses and children from those relationships.   Unfortunately after a death it is often the case that old resentments between siblings and/or step parents can surface which makes this kind of litigation very emotional (and expensive).

Partner Sarah Young comments:

“If you live with someone for more than 2 years then your partner will be entitled to make a claim against your estate if you do not make “reasonable” financial provision for them.  It’s especially important that you are aware that if you own a property and your partner moves in and starts paying towards the mortgage on a regular basis, or for building work, they may acquire an interest in the property.”

She warns, “Most people don’t want to make a will or see a solicitor; they just hope that everything will be alright…but failing to plan can be a disastrous legacy for your loved ones.”

Sarah Young is a Partner with Ridley and Hall solicitors in Huddersfield and specialises in will disputes. Sarah has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538838 or mobile 07860 165850.

Litigation Team at Ridley & Hall Grows to Deal with ‘Ticking Timebomb’

Ridley & Hall are pleased to announce that Helen Dandridge qualified as a solicitor on 1st September 2014.

Helen, who has a first class degree in law from the University of Northumbria, joined the firm in March 2010. At that point she was working as a paralegal in the Family department before she began her training contract.

She has now joined the Litigation department and will specialise in contentious probate and financial abuse claims, alongside Partner Sarah Young.

Sarah said, “Helen has been an exceptional trainee and I am delighted to have persuaded her to join my team. The work that I do is growing significantly  – I think that’s because of a number of reasons, including the fact that we have an ageing population where dementia is unfortunately a factor.”

Provisional figures from the Health and Social Care Information Centre produced on 30th July 2014 show that 344,000 patients had a recorded diagnosis of dementia in 2013/14. This is a rise from 319,000 in 2012/13 and from 213,000 in 2006/07, when the data was first collected.

Sarah Young sees these figures as telling; “Inheritance disputes, especially those involving a issues about a will maker’s mental capacity, are on the rise. I’m also finding that allegations of financial abuse affecting the elderly and vulnerable often surface after a loved one’s death, when family members find that their inheritance has been siphoned off.”

Helen commented, “I  enjoy contentious probate and Inheritance Act claims because each case is different and it really is an area of law which turns on the facts of the individual case. I also  have a genuine interest in helping victims of financial abuse; cases can be complicated and difficult to prove but I’m determined to make a difference.”

For more information on contentious probate and inheritance disputes, please call Ridley & Hall on 01484 538421 and ask to speak with Sarah Young or Helen Dandridge.

Financial Abuse and the Care Act 2014 – Does Anyone Care?

On 14th May 2014 the Care Act received royal assent.  The Act is designed to reform the law relating to care and support for adults (and the law relating to support for carers).  It also makes provision for safeguarding adults from abuse or neglect.  But does the Act go far enough to protect those at risk of abuse and in particular financial abuse?

Financial abuse can be described as “types of mistreatment where someone forcibly controls another person’s money and/or financial assets”.  It is the second most prevalent type of mistreatment after neglect.  Older people, particularly those with dementia, are at greatest risk of financial abuse.

In 2011 an enquiry into mistreatment of elderly people revealed that there were almost one in four cases of abuse reported (around 23,000.00) were of financial abuse.  It is likely that that figure is actually much higher as many cases are unreported.  The charity Action on Elder Abuse is deeply concerned about the extent of abuse and neglect uncovered in hospitals and care homes recently and considers that current systems and law have been insufficient to deter abuse and that too often those few perpetrators who reach the courts receive sentences that the public consider too lenient.  They are seeking a new criminal charge of elder/adult abuse to cover circumstances where an adult uses their relationship or position to cause or allow an older person or dependent adult to suffer unnecessary physical pain, mental suffering, injures their health, or steals, defrauds or embezzles their money or property.

The charity is concerned that the adult safeguarding clauses in the Act are insufficient to ensure the protection of people who are subject to abuse.

One of the difficulties of financial abuse in particular is that in many cases the abuse is carried out by a son or a daughter who take the view that they are simply getting their inheritance in advance, or attorneys appointed under a power of attorney – the very person appointed to a position of trust.  The temptation to take money and to say “well it’s what they would have wanted me to have” for example alongside an ignorance of what the legal duties and responsibilities of an attorney are, can lead to gross abuses of trust.

Sarah Young, Partner at Ridley & Hall Solicitors says: “It can be difficult to spot the signs of financial abuse – or if wrong doing is suspected, to prove it.  In many cases the facts do not become apparent until after the victim’s death; I often get enquiries about this and, depending on the amounts, it is possible to do something about it”.

Awareness of the potential signs of financial abuse can help to limit or prevent this unpleasant crime:

• Signatures that do not resemble the older person’s normal handwriting – or a signature when the person is too unwell to be able to write.
• Sudden changes in bank accounts or unexplained large withdrawals.
• The sudden and unexplained transfer of assets to someone else.
• Deliberate isolation of an older person from friends and family, resulting in the care giver alone having total control.
• Change of ownership of a property.
• The purchase of items that the person does not require.
• Numerous unpaid bills or overdue rent when someone else is supposed to be paying the bills – or apparent lack of amenities that the older person should be able to afford.

Sarah Young adds “The law relating to social care has largely remained unchanged for 40 years and the new Care Act will repeal many pieces of outdated legislation and bring social care law into one single modern piece of law.  Whether it will effectively safeguard vulnerable adults from financial abuse remains to be seen”.

Sarah Young is a Partner with Ridley and Hall solicitors. She specialises in will disputes. Sarah has a record of bringing the most complex cases to a successful conclusion.

Sarah Young, Specialist in Financial Abuse cases

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.

Consider the Legal and Financial Implications of Cohabiting

Why I won’t be saying “I do”

A recent article in Essentials Magazine entitled – “Why I won’t be saying I do” in which the article’s author Tamar Cohen expresses her views on marriage prompted a response from Ridley & Hall partner Sarah Young, a solicitor who specialises in disputed Wills cases. Whilst the article concentrates on the numbers of marriages ending in divorce, whether parents being married is important to children and whether some people just might prefer to avoid the wedding day event, the attention to legal and financial implications was perhaps understated as Sarah Young explains:

“I felt that I had to write in response to the article “Why I won’t be saying I Do” in Essentials Magazine April issue.  Tamar Cohen refers to couples getting hitched “often for practical reasons like pensions or tax”. As a solicitor specialising in Will disputes I was concerned that your readers might think that nowadays it doesn’t really make much difference whether you’re married or not, as far as your legal and financial position is concerned.

Unfortunately, that is not true.  There is no such thing as a ‘common law’ wife or husband; if you’re living with someone and your unmarried partner dies then your legal rights are much more limited than if you were married. A deceased’s estate passes in accordance with their Will or intestacy. If the family home is in joint names that is often not a problem (because usually the house goes automatically to the surviving partner), but any other assets and liabilities go into the deceased’s estate. As most people (two thirds) don’t make a Will – and many of them are out of date anyway – the problem is that often the Will or the intestacy leaves an unmarried partner with nothing at all.

At the moment, this could mean that a surviving partner (no matter how long the cohabitation has lasted) can be left penniless on their partner’s death.  The Inheritance Act 1975 does provide a safety net -  it is possible to make an application to court if you are the unmarried partner of someone who has died who hasn’t made reasonable financial provision for you, but this can be complicated and expensive and it usually has to be done within six months of a Grant of Probate being taken out, so just at the time that someone has been bereaved is feeling at their most vulnerable. I had a case where my client, in her nineties, had lived with her partner for over 50 years. But because the house was in his name, his family tried to kick her out of the house the day after he died!

I have dealt with many tragic cases, especially those involving a sudden death. Inheritance Act cases can involve mothers having to sue their own children, or the deceased’s children from a previous relationship (as they are often the next of kin in an intestacy situation). This can just add to the trauma of the whole situation for a surviving partner.

Legal Aid used to be available for these cases but was abolished by the government in April 2013.

The legal horrors do not stop there; if you and your partner separate then, again, you have far fewer rights as a cohabitee than you do as a spouse.  You have no right to claim financial provision. Say that the property you live in is in your partner’s sole name, but you have contributed to the mortgage and/or building works over the years.  You would have to go to court to argue that a trust had arisen as a result of your contributions and that it had always been intended that you should have a share of the property, but that can be difficult to prove. Women are especially at risk as they are more likely to stay at home to bring up the children and miss out on the opportunity to earn money.

It is not that I am suggesting that everyone should get married!  But anyone who is cohabiting, or thinking about cohabiting, needs to do it with their eyes wide open and be aware of the legal and financial implications for them and any children they may have if their partner dies or they should split up.

It is possible (though I accept not particularly romantic!) to have a cohabitation agreement. Any property should be held in a way that makes it clear as to who owns what.  Everyone should make a Will and review it regularly.

Sometimes disputes are inevitable, but I very much wish that I didn’t have to get involved in cases where just a little bit of pre-planning and open communication could have avoided a huge amount of heartache and expense.  No one likes to think about their death or relationship breakdown, but we’re letting them down if we don’t have these conversations with our families and loved ones.

For further advice, please contact Sarah Young on 0843 289 4640.