Laura Mackin

Partner

Wills, Trusts and Probate


“But we are common law husband and wife, so you are protected...”

Laura Mackin

The recent case of Ms Joy Williams demonstrates that a person who you might think of as a ‘common law’ husband or wife is not automatically afforded any legal entitlement on the death of their partner. 

Ms Williams had lived with her partner Mr Martin for 18 years, most recently in a house they owned jointly as tenants in common. This meant that on his death his half share of the house passed in accordance with his will. Mr Martin was estranged from his wife but not divorced and his will, which had been made many years previously, named her as the beneficiary. Even if Mr Martin had not made a will, Ms Williams, as his partner, would have received nothing under the default provisions know as the intestacy rules. To secure complete ownership of the house Ms Williams had to bring a claim under the Inheritance Act, which is both a lengthy and costly process. 

Laura Clark comments: “This case demonstrates why individuals need to make sure they have a properly drafted and up-to-date will to cater for their circumstances. Relying on an old will or having no will means that your wishes may not be followed and claims such as this might arise. There is a common misconception that living with a partner affords them the same rights as if they were your husband or wife, but this is not so. The costs of the claim both emotionally and financially will be high and highlight the need to get your affairs in order.” 

The court in this case ruled that Ms Williams should receive Mr Martin’s share of the property and that her legal costs of £100,000 should be paid by Mr Martin’s widow. Mrs Martin has indicated that she will appeal the judgement and if so, costs might be expected to double. 

Katie Beal, Associate in the Family and Matrimonial department at Fraser Brown comments: This case also demonstrates the importance of separated spouses formalising their affairs by way of a divorce and obtaining a court order setting out the division of the matrimonial assets. Had divorce proceedings been issued and a court order obtained, setting out what was to become of the property, it is unlikely that this case would have ever come before the courts. Mr Martin and Ms Williams might also have considered entering into a cohabitation agreement setting out, amongst other things, how they intended the property to be divided upon relationship breakdown or in the event of one partner’s death. 

For more information contact Fraser Brown Solicitors on 0115 9888 777.

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