How a common law partner can go against your will - Spear's Magazine
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How a common law partner can go against your will

How a common law partner can go against your will

A cohabiting partner may have more claim to your possessions that you realise, write Jemma Goddard and Andrew O'Keeffe

The recent case of Thompson v Ragget and others [2018] offers a stark reminder that a 'common law' husband or wife may be entitled to receive a substantial proportion of their deceased partner's estate, even if this goes entirely against the terms of their partner's will.

The case concerned an elderly couple, Wynford Hodge and Joan Thompson, who had cohabited for 42 years. Mr Hodge created a will just two months before his death leaving no interest in his estate to Ms Thompson. The will was accompanied by a detailed letter of wishes giving reasons for this, namely that Ms Thompson would need to move into residential care after his death, for which she had her own finances.  Notwithstanding Mr Hodge's careful preparations, following his death, Ms Thompson brought a claim for financial provision from his estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act). The claim was successful. The judge found that Ms Thompson could live independently but did not have the financial means to do so, contrary to the letter of wishes. Ms Thompson was awarded a cottage worth £225,000 outright plus £28,800 to pay for adaptions to the property and a further lump sum of £116,000 with which to supplement her limited income.

The estate was worth a total of £1.5 million, so the 'disappointed' beneficiaries named in the deceased's will still inherited a substantial estate. The judge was also quick to dismiss Mr Hodge's letter of wishes, as his reasons for excluding Ms Thompson had proved to be unfounded. Add to that, the length of Ms Thompson's cohabitation with Mr Hodge, during which time she had been entirely dependent on him, it is perhaps not surprising that she received the award she did.

However, in the earlier case of Negus v Bahouse and another [2007], a judge overruled the deceased testator's will, and awarded money that would otherwise have passed to the deceased's adult son, to the deceased's partner of eight years instead.

It is, in fact, possible for a cohabiting partner to bring a claim under the Inheritance Act after just two years of cohabitation.  To qualify, the claimant must have lived with the deceased 'as husband and wife', or as civil partners, for the two years immediately preceding the deceased's death.  Whether or not these conditions are satisfied is always a question of fact, and it is not always obvious that a person is eligible to bring a claim.

The consequences for an estate if such a claim is brought are likely to be significant.  The claimant will be entitled to receive such financial provision as is required for his or her maintenance, which is determined in the context of the claimant's lifestyle with the deceased, however luxurious that lifestyle might be, and not the claimant's lifestyle before the cohabitation began. In Negus v Bahouse, the judge accepted that the claimant required £55,700 per annum to maintain the lifestyle to which she had grown accustomed. Despite the claimant receiving assets worth £569,000 outside of the deceased's will, the judge awarded her a further lump sum of £200,000 with which to supplement her income, a flat worth £290,000 and £40,000 for renovations.

The deceased's son received the remainder of the residuary estate worth £1.95 million. The fact remains, however, that significant sums of money were diverted away from the deceased's intended beneficiary.

The testator's intentions are, however, only one factor that a court will consider when faced with a claim under the Inheritance Act. Ultimately, the testator's intentions will be overridden if they do not result in sufficient financial provision being made for the cohabiting partner. It may, therefore, be that your partner is not only eligible to bring a claim, but that he or she may receive a large proportion of your estate as a result.

Taking advice at the time of making your will is paramount, as there are steps you can take to make your will as robust as possible against challenge helping prevent possible later litigation and inevitable family discord. Leaving a detailed letter of wishes should provide a level of protection, provided that it is well reasoned and stands up to scrutiny.

Jemma Goddard is a solicitor and Andrew O'Keeffe is partner and head of Private Client at Wedlake Bell LLP