1 April 2020 | Comment | Article by Oliver Black

Can an unmarried partner make a claim against an estate?

There is a common misconception about the legal status of “common law” partners. Strictly speaking, there is no such thing. As lawyers dealing with claims regarding wills and inheritance, we’re often asked by clients “can I make a claim against my partner’s estate?”

In short, it depends on your individual circumstances and, ultimately, the claims which might be available. These could include the following:

1. A claim under the Inheritance (Provision for Family and Dependants) Act 1975

This Act allows people to make a claim for money or property from a deceased person’s estate where they have some financial need.

For unmarried partners to be able to claim, they must have been living with the deceased for a period of at least two years immediately prior to the death:

  1. in the same “household” as the deceased; and
  2. as a married couple or civil partners.

While this may seem pretty black and white, in many cases, it’s not quite so straightforward. For example, “household” has been generously defined by the courts, with people being treated as living in the same household despite not physically residing in the same home, for instance where they pooled their finances together (such as in the case of Banfield v Campbell [2018] EWHC 943 (Ch)), shared bills and living costs or otherwise were in a committed relationship, even if living apart. Generally, the main criterion is that there was an acknowledgement of the relationship by third parties.

Similarly, the term “immediately” has been loosely defined such as in the case of Kaur v Dhaliwal [2014] EWHC 1991 (Ch) and the court adopts a pragmatic approach, allowing people to claim even where, for instance, the cohabitation was broken by a period of hospitalisation or residency in a care home.   

We acted for the successful unmarried partner in the case of Thompson v Ragget [2018] EWHC 688 (Ch), which was widely reported given the large award made to our client despite her age and circumstances.

2. A claim against a will

For an unmarried partner to challenge a will, there must usually be an earlier will which benefits them. Without such a will there is unlikely to be any benefit in trying to challenge the will.

If an unmarried partner does receive more under an earlier will, however, then the last will can be challenged on one or more of the following grounds:

  • A failure to meet the necessary legal formalities
  • Lack of mental capacity
  • Where the deceased did not know or approve the content of their will
  • Where the deceased was unduly influenced
  • Fraud or forgery

In many cases, a challenge to a will can be combined with a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

3. A claim to enforce a broken promise

The law can allow people, including unmarried partners, to enforce broken promises either under the legal doctrine known as “promisory” or “proprietary estoppel” or what is known as a “common intention constructive trust”.

In the former, a person usually has to show that:

(i) A promise was made to them by the deceased.

(ii)They relied on that promise.

(iii) As a result of relying on that promise, they have suffered some loss.

If you can show this then you can apply to court to enforce the promise. One of the leading cases in proprietary estoppel is Davies v Davies [2016] EWCA Civ 463 in which our client was awarded £500,000.

Common intention constructive trusts most often arise where partners shared a home together. In such a case there is, as the name suggests, generally a common intention between the partners to own a home together. However, for whatever reason, that home may only have been purchased in one person’s name. If, despite the original common intention, the person who owns the property breaks that agreement, it may be possible to make a claim.

This was the position in the cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53.

We are acting for a number of unmarried partners and are proud to have helped them deal with these claims.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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