Jacqueline Emmerson has warned before that the rights of a Cohabitee are not the same as those of a Spouse, especially upon death. However, every now and again the law favours the Cohabitee over other family members.
In the case of Banfield v Campbell, Andrew Banfield was the long term partner of Sarah Campbell who unfortunately died aged 63 on a flight to the Canary Islands. Sarah had a son James from her first marriage but her husband died when James was only 10 and Sarah was 40. Two years later she began a relationship with Andrew and he eventually moved into her home.
In 2001, after her relationship with Andrew began, she made a will leaving him £5,000 and the rest of her estate to her son.
Andrew made a claim against Sarah’s estate in accordance with the Inheritance (Provision for Family & Dependents) Act on the basis that Sarah had not made sufficient provision for him. James pointed out that he was not even sure his mother and Andrew had still been in a relationship, as far as he was concerned Andrew was more like a lodger.
Claims under this statute are not particularly common and often it is an adult child or non working partner who seeks a settlement from an estate.
Unusually in this case Andrew was not penniless, he had £10,000 spare per year and he also had savings of over £270,000. His argument was that Sarah had made provision for his housing needs during their long relationship and he now needed to be rehoused. He would need to purchase a property worth £450,000 and therefore he required a settlement large enough to allow this to happen. James stated that Andrew’s property needs would cost £220,000 and therefore he only required £100,000 by way of settlement. Either way these are huge figures when Sarah intended to benefit her son and not Andrew.
The judge determined that Andrew had not been left sufficient monies or assets by Sarah.
“The circumstances of the present case provide an example of the vulnerable position in which cohabitants find themselves if they unexpectedly survive their partner,” said the judge.
However, he went on to say that Andrew was not entitled to a lump sum absolutely. He ordered the sale of Sarah’s home, which was worth £750,000, half was to be given as a lifetime interest to enable Andrew to purchase a home for himself. Upon Andrew’s death James would then receive that share of his mother’s estate.
What a costly mess! The legal fees to take that case through the court would have been in the region of at least £20,000.
So how are you going to write your will if you are a Cohabitee?
Had Sarah and Andrew just become flat mates, should Sarah have made a new will and in that will excluded Andrew on the basis that they were no longer in a relationship?
Are you a Cohabitee living in a house owned by your partner?
Are you the owner of that property, do you have children from a previous relationship?
Ultimately life changes constantly. You should therefore review your will on a regular basis. At Emmersons solicitors we offer all of our clients a FREE review of their wills every year. It never ceases to amaze me how many of our clients do actually change their wills on a regular basis.
One of our clients popped in to have some documents signed, “How is your girlfriend?” we asked. “Oh we split up last year,” was the reply.
“Didn’t you receive our letter reminding you to review your will?”
“Oh yes but I forgot all about it.”
“So would you like your entire estate to pass to your ex girlfriend then?”
As you can imagine we were instructed to rip up that will and await new instructions.
Many of our clients come in to make a will in the company of their spouse or partner; they have children from previous relationships. Therefore it is necessary to plan their estates properly. What about a life assurance policy to cover either children or partner and a pension to benefit those still financially dependent? This is the way pension trustees tend to pay out monies in any event.
Why not plan ahead?
Ed died suddenly at the age of 44 leaving a child who lived with her mother. Ed was divorced but never had the time to sort out his financial settlement with his ex wife. So the house that they owned together passed straight to his ex wife, as a joint owner her rights came from what is known as Surviorship rather than inheritance.
After the divorce Ed bought another house for himself. He later met another woman and she moved into his home. She did not work and therefore she was financially dependent upon Ed. I knew that he did not make a will, I had reminded him to do so for years.
However, he was always really busy at work. I knew Ed quite well and I also knew that the only person he really cared about was his daughter. Let’s hope she gets on well with her mum because she will have been battling with Ed’s new partner for a share in her father’s estate.
If you don’t have a will and you are cohabiting then you should give some thought to your current circumstances. If you have a will is it fit for purpose? You can bring your will in to us and we shall give honest advice as to whether you will require a new one.