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Focus on Will, Trust and Estate Disputes

Planning is everything when it comes to protecting your partner

A Recent Court Case Highlights The Need For Unmarried Couples To Prepare For Any Situation

Paula Myers, National Head of Contentious Probate at Irwin Mitchell, specialises in contesting Wills and handling trust disputes. Here she outlines the legal challenges that can occur when an unmarried couple live together and one of them unexpectedly passes away.

When a person dies without leaving a valid Will, their property must be shared out according to certain rules. These are called the rules of intestacy.

However, it is not always common knowledge that partners who live together but are not married or in a civil partnership do not have intestacy rights.

We are frequently consulted by individuals who make contact because their long standing partner has died and they are uncertain and vulnerable about their future and financial security. In some cases, this means that it is not clear whether they can continue to live in their house and may have to leave a property which they have called home for many years.

These days it is often women who find themselves in this position as they have a longer life expectancy than men. This isn’t always the case though and a number of our clients are men whose girlfriend has passed away or are in same sex relationships.

Depending on their circumstances they may all have a valid claim in law should this scenario sadly arise.

Many cohabitees, who live together in a relationship but are not married, are simply unaware that they do not have the same legal protection as spouses and there is no such thing as a common law partner.

This means we are often faced with delivering difficult news when a client is already in a shocked and emotional state from losing their loved one.

A Case In Point

Last month we successfully took a case to trial in the Central London County court. The court has unlimited jurisdiction to hear more complex cases that may involve larger sums of money or a difficult subject area.

Naturally, most cases do not reach the stage of a trial but this case, which was well reported in the media because of the public interest story, ended up before a judge for five days.

Our client, Miss Williams, was the long standing cohabitee of Norman Martin and they were together for eighteen years, living together as life partners.

They were planning their retirement together when Mr Martin, aged 69, died unexpectedly from a heart attack despite no prior symptoms.

The couple lived together early on in their relationship and then subsequently purchased a property together. Often inseparable they holidayed, shopped, entertained and were part of each other's lives and extended group of friends and family.

Mr Martin carried Miss Williams's mother's coffin when she died and they attended all family events together as a couple on both sides of the family.

Unfortunately, Mr Martin did not get around to updating his Will, which was something the couple planned to do in their retirement together. An old Will was in existence which left everything to Mr Martin's estranged wife, from whom he had not divorced although plans had been in place to separate their assets at the time he left the matrimonial home in the early nineties.

Mrs Martin did not accept that her relationship was over with Mr Martin and she would not recognise the relationship with Miss Williams of eighteen years. She contested the claim for one half of the house, even though she obtained the matrimonial assets and Mr Martin's pension.

The judge held that Miss Williams was entitled to bring a claim and that she could demonstrate that she and Mr Martin had lived together as husband and wife for a period of in excess of two years which is a requirement of the law.

To the outside world, they were a couple and a number of people thought that they were married. Mr Martin presented Miss Williams with his mother's wedding ring which she still wears today and in court, the judge was persuaded by the evidence of Miss Williams and her version of events.

A Case Of Better Safe Than Sorry

The judge ruled that unfair financial provision had been left for Miss Williams and that the property should be transferred to her outright.

In addition to the house, the judge ordered Mrs Martin to pay £100,000 towards costs after she had contested the claim and brought it to a trial after a four- year legal battle.

Whilst pleased with the result, this case highlights the problems that failing to make plans can cause. If the Will had been updated, if a cohabitation agreement had been put in place or if difficult conversations had taken place, then we may not have had reached this stage.

The reality is that the result is likely to be far from what Mr Martin would have wanted for the love of his life and in reality he would probably have left some of his pension provision for Miss Williams.

This cannot happen now and Miss Williams continues in employment at the age of 69 to help her make ends meet.

This real life example should highlight the problem that failing to plan can create and is hopefully a wakeup call for many to make the plans that they have put off for some time.

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