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Cohabiting? Make sure you have a Will in place

07 March 2016

A woman in England, Joy Williams, recently won a legal battle to inherit her late partner Norman Martin’s share in the house which they owned and lived in together. The couple had been together for 19 years and were not married to each other. Mr Martin, however, had never divorced his first wife.

The way the title was held meant that Mr Martin’s share in the house did not pass automatically to Ms Williams. Mr Martin’s wife was entitled to make a claim on his estate and this included his share of the house. This meant that Ms Williams had to fight for a share of the estate on the basis that her future security was at risk.

Ross Brown
Ross Brown, Partner

Although the law in Scotland is different from that in England, this case flags up the importance of cohabitants taking specialist legal advice to ensure that their wishes are given effect to in the event of death.

In Scotland, cohabitants have the right to make a claim on the estate of their cohabitant, but only when there is no Will in place. The Scottish Government is currently consulting on the possibility of extending this to estates where there is a Will, but there is no indication of how long it will take for this to become law.

According to current legislation, a Court can make an award to a cohabitant out of the deceased’s estate if an application is made to it. However, any award can only be made from whatever is left in the estate (if anything) after any other claims on the estate are settled, including any claims made by their spouse.

However, in reaching a decision on whether the cohabitant should receive anything from the estate, the Court must consider a number of different factors. These include the size and nature of the estate, any benefit received by the surviving cohabitant as a result of the death, the nature of any other claims against the estate, and any other relevant factors. Unfortunately, there is very little case-law about this and therefore a great deal of uncertainty about what rights a cohabitant might have.

As a result, it is crucially important for individuals to take specialist legal advice to ensure that the necessary provision is made for their cohabitant in the event of their death. This will involve making a Will as well as putting a cohabitation agreement in place. A cohabitation agreement also allows the parties to agree what happens to their assets if they separate in the future.

Contact: Ross Brown, Partner rbr@bto.co.uk T: 0141 221 8012 

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