Against my Will

Baroness Deech

The Inheritance (Cohabitants) Bill received its first reading on the 12th January.  It is based on a Law Commission Report, Law Com no. 331 (2011) which, after consultation, recommended that the law be changed so that cohabitants would have an automatic claim to the property of their partner if he or she died intestate, provided they had lived together for five years or two years if there was a child of the relationship. Under current law, the surviving cohabitant has no automatic claim on the estate of the deceased if he or she has not made a will. But they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, and the court will consider whether the surviving cohabitant should receive reasonable maintenance from the estate.  In simple language, it is proposed that the surviving cohabitant should have the same claim as a spouse to the estate, and also take all the chattels (personal possessions) of the deceased.  The current law of intestacy is that the spouse will take the first £250,000, and anything above that sum will be divided between the spouse and the children. If the deceased left a spouse but no children, the spouse gets the first £450,000 and the rest will be shared with the deceased’s parents, if still living, and brothers and sisters.  If the deceased left no spouse the estate goes to other relatives.

So the proposal would take the estate away from children and family and divert it to the surviving cohabitant.  At the moment the onus is on the cohabitant to make a claim under the 1975 Act if she has been left nothing; if  the law changed, the onus would be on the family to dispute the entitlement of the cohabitant.  They certainly would do this, in part because the definition of a cohabitant under the Bill is rather vague and leaves lots to dispute over, and also because there may well be resentment on the part of children and family if a “jilly-come-lately” moves in with the old man five years before his death and takes his property.

Of course if the deceased had made a will, he could leave the property as he wishes.  Many more married people make wills than do cohabitants, and it may be that the failure on the part of the latter to do so is precisely because they do not see themselves in that sort of relationship or because they want to preserve what they have for their children from a previous marriage. Of those who responded to the Law Commission consultation, more opposed the change than supported it.  But the Law Commission gave greater weight to the views of the organisations that supported it than the ordinary individuals who opposed it. 

I have blogged about cohabitation before – (Law in Action 23.11.09, Love and Marriage 7.1.11) – pointing out that people know very well what the difference is between marriage and cohabitation and that most people do not want to have the legal effects of marriage thrust upon them when they have chosen to cohabit in order to avoid these. I have received hundreds of letters from the public saying they do not want cohbitation to become marriage. The recent blogs from readers of the Guardian and the Telegraph make the same point.  The law should not force people into a status they do not want.  We condemn forced marriages.  We should also condemn forcing legal status onto two people who have done their best to avoid it.  The Bill would also discriminate against people who live together, but not as spouses, e.g. sisters or lifelong friends.  The surviving cohabitant would presumably get the inheritance tax deferment that spouses get at the moment, but which is denied to sisters living in the same house. 

This Intestacy Bill is a recipe for trouble.  Family disputes will become bitter; older parents will be warned off allowing someone to live in their home and take care of them; there will be no legal aid available for litigation, so the costs will eat up the very assets disputed; and the surviving cohabitant may take all the property away with her to a new relationship without benefiting the children.

14 comments for “Against my Will

  1. 26/01/2012 at 3:45 pm

    The issue of people not completing a Will makes me ponder how many other documents we probably should complete, but never get around to doing.

    There have been advertising campaigns to encourage people to draft a will, and the televisions are flooded with adverts exhorting us to switch electricity or car insurance.

    We know there are often benefits to doing these things, but we just don’t get around to it.

    I am as guilty as most. I just completed my first ever electricity supply switch, motivated in fact by a letter from the previous company telling me my bill was going up by £30 a month.

    I wonder if a group could draft a list of maybe 10 things the average person should be able to tick off as completed, and then encourage us to tick off each one over a year.

    Having a document with 8 boxes ticked and two remaining might be a surprising motivator in encouraging people to do those smallish tasks that would make all of us a bit better off.

  2. Lord Blagger
    26/01/2012 at 6:41 pm

    Here is what I do.

    1. I use a todo list. It has things like guarantee expiries, ID numbers such as passport and driving license. Medical info, etc.

    2. Email yourself a scan of important docs, so you can get them when you need them

    3. Anniversaries.

    4. I used a spreadsheet for bank and savings accounts, past pensions etc.

    [You need to tell past pension people of new address and update your trust document]

    That spreadsheet should list assets and liabilities. You need to track net wealth, because that’s the major thing you need to increase to be able to retire.

    [Don’t count on a state pension, or a cushy job in the lords on expenses, they have run up 7 tr of debts]

    5. Video your house, contents of cupboards included, and email it to yourself [on line account]. That way if your house burns down you have the evidence for the insurance claim

  3. Gareth Howell
    26/01/2012 at 6:49 pm

    I was acquainted a good many years ago, in the 1980s, with a young lady, in her early 30s, who took her step co-habitee mother to the Court of Appeal to regain possession of her father’s substantial family farm in Sussex.

    She had no luck in her quest, and it cost her a great deal of money. Plus ca change?

    The circumstances of sudden death and intestacy may be more diffiult than any Act of parliament can prescribe in detail, but that Law lords may be able to interpret in particular.

    I did not concur with their judgement, but then I am not a law Lord nor even a lawyer
    in any conventional sense of the word.

  4. DanFilson
    26/01/2012 at 6:55 pm

    I quite like the idea of a checklist of things to do before you untimely die, though many people will think this tempting fate to advance the magic date. More important is to tell beneficiaries where you have put the Will once prepared and to ensure the revocations and codicils are also there and not scattered all over the house.

    On the general issue, I incline to agree with Baroness Deech. If people want to marry or enter a civil partnership, they can do so unless it would be bigamous or incestuous. Giving the unmarried rights runs all sorts of risks.

    My near neighbours from 1977 to 2006 were a couple who quite consciously never married. They raised thee fine children who seemed to suffer no disadvantage. If one of them dies there may be an immediate charge to Inheritance Tax as the property will not be passing from one spouse to another. On the other hand, they may have benefited in some way from separate taxation, though I cannot really see how as separate taxation has existed for decades now, and there is no tax disadvantage to being married so far as I know (there might be some VAT issues if both are trading and their combined turnovers take them above the registration level when as individuals they would not, but I’m no VAT expert).

    My second example is a youngish couple who had known one another around 2 years, and the one nursed the other through his dying illness. The deceased’s family – parents, siblings – were very harsh, and denied the survivor access to the hospital bedside and to the flat once they had the keys. Yes they should have married / entered a civil partnership, but it is not necessarily the first consideration when one party is already showing signs of the illness that will kill him. I can see how the five year rule would still exclude the survivor from any entitlements, there being no children.

    The third example is my own case. When the person whom I loved died, the siblings contacted me the day they learned and we helped clear the flat (in a sheltered housing block). The estate was negligible, and indeed there were few mementoes even. In short, the family did the decent and common sense thing, as legislation would have made no difference to the circumstances.

    For my part I remain to be convinced of the need for this change in law. Where low value estates are concerned, I wonder if the reason for non-marriage is linked to the benefits system. For high value estates, I suspect it is all about money, though I’m not quite sure how. I’d be more interested in issued like access to the hospital bedside, which fortunately was not an issue in my case.

    • 09/03/2012 at 10:34 pm

      its hard to read that peoples perception of cohabitation is that they can’t commit and think the relationship will not last i was once married for better or worse and those words kept me in a dangerous terrible marriage the piece of paper the oath until it nearly killed me i met my partner 24 years ago and i said if we do not have children i don’t want the piece of paper it doesn’t imply a happy loving relationship stay with me because you love me.never was there a day we didn’t love one another we were blissfully happy he was a wonderful man he died late last year and now my life of hell starts again in my grief after no relationship for 20 yrs with his siblings they arrived not when he was ill as i contacted them but 12 hours after he died and told me i was nothing and everything we owned is theirs i would not wish this agony on anyone we both thought after 24 years i was next of kin so all you out there who have said make sure people know their rights when they live together you are right we have to protect some from short relationships being ripped off by a partner but protection is needed for loving couples who spend their lives together and as they say evil people crawl out of the woodwork when someone dies they don’t love the deceased as they are only after money so all you cohabitees beware this could happen to you sal

  5. Senex
    26/01/2012 at 8:19 pm

    Animals cohabit people get married! Or is that just a coincidence?

    • Gareth Howell
      29/01/2012 at 10:12 am

      Animals cohabit people get married! Or is that just a coincidence?

      Roman Law would have it so, that those outside the Roman empire are mere beasts.(and cannibals).

      ‘Tis the Law of Contract, in which the noble baroness has an abiding interest.
      this particular old kernel being raised again and again over the years.

      In the Appeal court case which i mention above I actually knew both parties to the litigation, without either knowing that I did so, but the case went on for several years, so it may not have been surprising.

      I would have thought that the lawful children
      of the legator would have had full rights to an intestate estate, rather than the concubine or co-habitee, in possession of the property, but such was not eventually the case, since the Co-habitee won the Appeal court judgement for possession of the estate.

      They may merely have been interpreting the law as it was/is, and not how it ought to have been, in that particular case.

      I suppose the rights of a co-habitee, in the event of a removal van turning up while he/she was out, hired by the next-of-kin,to remove all the co-habitee’s possessions, and a change of all the locks, in a precise military style operation, those rights might have been invoked in a criminal court… but they might not!

  6. Rich
    27/01/2012 at 12:54 am

    I can see both sides of the argument and on balance agree with Baroness Deech. What really concerns me is that this is a Law Commission bill. Aren’t those supposed to be relatively uncontroversial? Or is this different from the sort of Law Commission bill subjected to a special procedure as it passes through Parliament?

    • Baroness Deech
      Baroness Deech
      27/01/2012 at 9:53 am

      You are right. The bill was introduced by Lord Lester, so I assume it will not be subject to the Law Commission special procedure. It is bound to be controversial.

  7. Baroness Murphy
    Baroness Murphy
    27/01/2012 at 11:34 am

    I agree with Baroness Deech on this one. The point Lord Lester makes is that women often cohabit under the delusion that they will have the same rights as a spouse, ie they are a ‘common-law’ spouse and that because cohabitation is now so common we should give those who do it the same rights as if they had married. A surprising number of lawyers seem to agree with this. Of course we know there is no such thing as a ‘common law wife’ in English law and it is clear that many young couples make a very determined decision not to engage in what they consider the bourgeois institution of marriage. I’m setting aside here the ‘drifting thinkers’ like Ed Milliband who don’t get round to organising a wedding until pressed! But I do not see the point of eliminating cohabitee status by default when all it takes to cure it is to educate girls about the reality of cohabitee status. Marriage is cheap…£73.50 plus £3.50 for the certificate! If course we must protect children’s support needs but the provisions of this bill are misguided. It may well have the unintended consequence of encouraging more young men not to make a joint home and family unit for bringing up children.

  8. maude elwes
    28/01/2012 at 1:28 pm

    Making a will is facing up to eventual demise. And this is nearly always not something we like to dwell on.

    People who cannot commit to each other and make the vow in public are saying to their community, I don’t trust this relationship will last, because I may find something better.

    If you marry, it is the natural order of things to assume the money pot is a joint venture. And that, that joint venture is a fifty fifty contract. So a split that way is right and proper.

    If one of the two in that joint venture dies, then it is the natural order that the other half of the equation retains what was always theirs during their time together.

    Those who are together for only whatever time may come before they change their mind, should make a will according to their position in that relationship.

    For example, already exists is in law a ‘tenancy in common’ and that should always be the option for those unsure of commitment.

    Couples should decide together how they are going to dispose of what they have on the status of their relationship and be up front when they go to the lawyer. My half goes to my kids,. or, my mother. Whatever the true wishes include.

    A funny story in my very ancient family. My great grandfather had a room he kept locked from his wife and family He traveled a great deal and would bring treasures back from every country he visited and these were numerous and worth a fortune, so the story goes. All the family, he had five children, believed that should he die, they would inherit whatever he kept in that room.

    Well, he died relatively young, and with glee they took the forbidden key to open the door to that special treasure trove. Only to find the one possession it held was a very expensive coffin. Very fine wood with gleaming brass handles. On top of it was a letter giving the chosen and paid for funeral parlour instructing a top of the line event.

    Along with this letter, was the name of his solicitor who had written up a will. Everything in that room, including the small things like beautiful Spanish shawls had been given secretly to his sister. Additionally, he had made over his main house that the family lived in and had the one he kept by the sea made hers as well. His wife and children got nothing. Even though she had always been faithful to him and nursed him devotedly through a long death.

    So, beware, always go to the lawyer together. And make sure you let everyone know what to expect.

    • DanFilson
      29/01/2012 at 10:11 pm

      That Will might well have been challengeable under present law if it made no provision for minor children or a surviving spouse, but the onus would have fallen on the surviving widow and children to sue, rather than any natural entitlement. As you say in effect, where there’s a Will there can be a capricious way.

  9. Gareth Howell
    31/01/2012 at 6:55 pm

    If some body took her late father’s co-habitee to the Court of Appeal in the mistaken belief that her father was dead, and the co-habitee had no right to be living in his home any more,or occupying his farm, what would you say about the litigant?

    • 22/06/2012 at 2:52 pm

      what maud elwes said is a load of rubbish i,m sorry but she has an idea in her head and thinks everyone ids the same i adored my partner and he did me we asumes like a lot of people we were next of kin after over 24 years do you have any idea what hell it is to have siblings of my deceased partner who he had nothing to do with turning up a few hours after his death and demanding everything even the things i bought myself it would send most people mad or suicidal we went through everything together even the hell of cancer then i have to deal with all this it’s not from lack of love or commitment it.s ignorance of the law he was too ill at the end after being in denial and tried to secure everything for me but he thought i was next of kin and i would be able to do the rest myself another thing when relatives like these get probate how can they do it all efficiently when they had no idea even the employment he did and knew nothing about him
      2012 and people in my position have no protection in law is disgraceful
      the courts must be aware that this is a moral issue and greed not love motivates many people the life and years of love and devotion meen nothing

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