Why Cohabitees should make Wills

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Or risk your Estate not being left to the person you care for the most.

Following a recent case heard in the High Court we are reminded that unmarried couples, who are not Civil Partners, have few rights when one of them dies, and it also reminds us of the dangers of not updating your Will following a change of circumstances.

In this case a Mr Martin had left his wife about twenty years ago to live with his new partner, a Miss Williams. They bought a house together which they declared to be owned as ‘tenants-in-common’. This meant that their own share of the house would not automatically pass to the survivor when the first of them died. Where there is a second relationship and the parties have children from their first relationship it is common for houses to be owned in this way to enable the respective shares to be passed on to their own children, but it does require the parties to update their Wills to state that.

Although he lived with Miss Williams for twenty years or so Mr Martin never divorced his wife and never changed his Will, which left all his estate to his, by now, estranged wife.

After Mr Martin died his half of the house which was owned with Miss Williams therefore passed back to his wife and not to Miss Williams. Many people might agree with Miss Williams’ view that this should not have happened and that as his partner of twenty years standing Mr Martin’s estate should have passed to her. However, although it is often thought that English law upholds the idea of a ‘Common Law Spouse’, there is currently no effective law stating that. Accordingly Mr Martin’s share of his house passed under his Will to his estranged wife.

Miss Williams was forced to go to Court making a claim under the Inheritance (Provision for Family and Dependants) Act on the basis both that she had been co-habiting with Mr Martin for at least the two years prior to his death and that she was financially dependent on him. The Court agreed and awarded her his share of their house.

The problem would not have arisen had Mr Martin updated his Will leaving his estate to Miss Williams. Where people have children from an earlier relationship they may prefer not to leave their share of the new property to their new partner outright. They may instead choose to leave their share of the house in trust for the survivor allowing them to live there for the rest of their life with that share of the property reverting back to their own children after the survivor has died.

The problem of cohabitees not having automatic rights to inherit may change in the future. The Cohabitation Rights Bill was laid before Parliament last summer, though nothing further has happened since and there has been no official timescale published to indicate likely progress.

In the meantime we would advise cohabitees to consider reviewing their Wills.

If you would like to enquire about making a will or require advice in any other area of Wills, Trusts & Probate please contact the Wills, Trusts & Probate Team or Paddy Appleton on 01832 273506.

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