Inheritance - The Court is adapting its approach to modern living

04 December 2009

David Wilsondiscusses the subject of inheritance and looks at an interesting case that shows that the court is finally adapting its approach to modern living.

 The subject of inheritance is often a delicate one not least because it goes hand in hand with bereavement. The disposition of property belonging to someone who has died is usually dealt with by those closely affected by the death. In an ideal scenario everyone will make a Will dealing with what should happen to their property when they die and the Will would meet the needs and wishes of all that person’s family and friends.

However in reality not everyone makes a Will and not everyone is content with the Wills that are made.

When a person dies without making reasonable financial provision for someone who is dependant on them, the court may make an award to the dependant person. The court will take into account the claimant’s needs and resources and weigh them against what would be reasonable for their maintenance.  

For a claim by the partner of the deceased to be successful, the claimant has to have lived with the deceased “as husband or wife” for at least two years prior to the death.  

The claimant can apply to the court for what is commonly known as “family provision”. The court has the power under the Inheritance (Provision for Family and Dependants) Act 1975 to make a range of orders that have the effect of modifying the distribution of an estate. The legislation represents a limited but significant exception to the principle that we can dispose of our property as we wish by a Will.

Generally such cases will be straightforward, the dependant will have lived in the same property and will have been maintained by the deceased.  However, this is not always the case.  

Recently a woman was allowed to bring a claim for financial provision despite the fact that her postal address had never been changed from her previous residence (which she retained) and that address was also shown as her address on the electoral roll.  

Her partner died in 2007 and she successfully argued that they had co-habited since 2002 and she had gradually moved in with him. The deceased’s family contested the claim. The family argued that as the woman had not changed her postal address, her relationship with the deceased was not openly and unequivocally displayed to the outside world. The case led to a great deal of detailed factual evidence being presented but the decision seems to have been swayed in no small part by evidence of the couple’s domestic arrangements for which there were several witnesses whose testimony supported the claimant. The deceased’s family were unable to produce evidence to rebut the assertion that the couple were living together as man and wife.

The court held the view that marriages are multifarious. The woman had been subject previously to a bitter divorce and in those circumstances there was nothing inconsistent with her living with the deceased as “man and wife” whilst retaining a different address as security or in case the relationship broke down.

This is an interesting case as most cases deal with the extent to which the claimant was maintained by the deceased.  It represents the court’s adapting its approach to modern living.

If you are considering making a claim under the Inheritance Act it is essential that you seek specialist advice at the earliest opportunity. Any claim must be brought within six months of a grant of representation being issued.

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