Succession rights for cohabiting couples

Published: 26 October 2018

Cotswold are members of the Society of Will Writers and we are sharing a story on their website relating to the succession rights for cohabiting couples?

"The judgement for Banfield v Campbell [2018] EWHC 1943 (Ch) was handed down, with the result being that the claimant was awarded a life interest in half of the net proceeds of sale of the deceased’s property rather than a lump sum.

The claimant, Mr Banfield, brought a claim against his deceased partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that her will failed to make reasonable financial provision for him following her death on a holiday flight to the Canary Islands in 2015.

Mrs Cambell’s will left the residue of her estate to James, her son from a previous relationship, on the condition he reach 25 and a gift of £5000 to Mr Banfield who in the will was described as a ‘friend’. Considering the will was written in the early stages of their relationship this description was likely apt for the time.

Mr Banfield brought a claim under section 1(1A) of the 1975 Act as a cohabitant of the deceased who was living as a spouse, and also under section 1(1)(e) as a person being maintained by her immediately before her death.

There was some dispute over whether Mr Banfield was entitled to bring a claim under section 1(1A), with James alleging that he lived more like a lodger by the time of Mrs Campbell’s death. The basis for this claim was that by 2011 the claimant and deceased were no longer sharing a bed, largely because Mr Banfield found it more comfortable to live downstairs due to ongoing health issues. It was held that this was no reason to conclude that they were not living together as though they were married though, and witness statements suggested that Mrs Campbell had made it clear that she did not wish to be on her own. He was able to bring his claim under this section.

He was also able to bring his claim as a person being maintained, as immediately before the deceased’s death he was being maintained by way of rent-free accommodation and had been for a number of years. Although the actual date that they began to cohabit was also disputed, it was agreed that by 2001 he had moved in with the deceased.

The judge accepted that reasonable financial provision had not been made for Mr Banfield and were sympathetic towards the position he had been left in especially regarding his housing needs. As he was not married to the deceased the judge could only award what was necessary for his maintenance, as the maintenance standard is a lower standard of provision than the surviving spouse standard. This did not equate to awarding him a capital sum large enough to allow him to purchase his own home.

The result was that the judge ordered the property to be sold and Mr Banfield given a life interest in half of the net proceeds of sale to be used towards providing accommodation for him. The main reason given for this is that in this case the award of a lump sum as maintenance was not appropriate as the deceased had a child from an earlier marriage to whom she wanted to pass on capital to.

A further reason given is that awarding a lump sum to the claimant would be depriving the deceased’s son, whom the deceased indicated she intended to receive the bulk of her estate in a letter of wishes. It was suggested that where a lump sum of 50% or more was sought it was likely to be more appropriate to award a life interest to provide housing rather than a lump sum."

This case highlights the important of keeping your planning up to date and regularly reviewing wills as relationships evolve and change. It also provides an interesting look into what is considered ‘reasonable provision’ when maintaining cohabitants. For the full judgement click here. Our legal financial experts provide fast, convenient and simple: conventional wills, mirror wills, property and financial affairs LPA, health and welfare LPA.