Joy Williams lived with her partner, Norman Martin for 18 years in a home they owned together. However, when he died unexpectedly in 2012, she found that, because they were not married, Mr Martin had not made a will, and the couple owned the property as Tenants in Common, Mr Martin’s share of the house did not pass to her, but instead became part of his estate.
Under the rules of intestacy, Mr Martin’s wife was entitled to inherit, despite the fact that she and Mr Martin were separates. Ms Williams made an application under the Inheritance (Provision for Family and Dependants) Act 1975 for ‘reasonable provision’ out of his estate and a court decided this week that it was fair and reasonable for her to receive her partner’s share of the house.
Mr Martin’s widow, who had contested the claim, now faces having to pay legal costs of around £100,000.
This type of case shows why it is so very important to ensure that you have an up to date will, and that you understand the implications of different ways of owning property. Ms Williams and Mr Martin may have assumed that because they were long term cohabitees, that they would have gained automatic rights against one another. This isn’t the case.
Darrell Collins, Head of the Private Client department and an expert in Wills and Probate explains “If an unmarried partner dies, their surviving partner has no automatic right to any part of their estate. If they have not made a will, then their assets will pass to their spouse, if they have one, or if they are not married, to their blood relatives, under the intestacy rules – so assets may go to an estranged spouse (where they are separated but not yet divorced) or where there is no spouse, to their children, parents or siblings.”
This means that an unmarried person may be forced to make an application to court in order to claim any part of their late partner’s estate. This is of course very stressful, and expensive, and there is no guarantee of success. To make a claim, the surviving partner must have been living with the deceased for the whole of the 2 years immediately before their death, and they must have lived together as husband and wife / civil partners, or that they were being financially maintained by their partner immediately before his or her death.
Provided that they can establish this, the court can then be asked to decide whether the deceased partner made ‘reasonable provision’ for them, and if not, can adjust the terms of their will, or the intestacy rules, to make reasonable provision.
In Ms Williams’ case, Judge Nigel Gerald decided that it was reasonable to transfer Mr Martin’s share of the house which he and Ms Williams shared, to Ms Williams. The house was said to be worth around £320,000 so (assuming that the couple owned equal shares) this was equivalent to around £160,000.
There are also problems if the relationship ends as a result of separation, rather than due to the death of one partner,
Marjorie Taylor of our family department explains “A lot of people mistakenly believe that if you live with someone, you can become a ‘common law husband’ or common law wife’, or may have automatic rights to property or assets owned by your partner in the event of separation, or if one of you dies. However, English law doesn’t recognise the concept of a common law spouse, and this can lead to problems where a relationship breaks down”
Cases like this illustrate how important it is to have a will, and to update it regularly so that it accurately reflects your wishes. Had Mr Martin made a will, his partner and wife could have been spared the stress, delay and expense of fighting in court over his estate. In this case, the problem regarding the ownership of the house came about following Mr Martin’s death, but similar issues can arise when the relationship of an unmarried couple breaks down,. We would always recommend that you consider having a formal cohabitation agreement in place if you move in with a partner, so that you are both clear about how you will share any property or other assets which you buy or own during the relationship.
If you would like advice about making or updating your will, contact our
Private Client Department. If you are cohabiting or plan to do so, and would like advice about a cohabitation agreement, please contact our
Family Department
