Wills for Unmarried Partners

In the last issue of ECA, Ralph P. Ray examined the importance of providing the most appropriate Will for second marriage situations. Following on from this article Anne Edis examines the subject under the increasingly common circumstance of the partners being unmarried

In todays climate, where more people live together than are in marital relationships, it is important to consider the position of unmarried partners for whom the law makes less than favourable provision. Whilst recent changes in succession law make some acknowledgement for the hetrosexual relationship as the law stands at present the same sex partnership is not catered for. The only recourse may be to a claim under the Inheritance (Provisions for Family and Dependents) Act 1975 and that in itself may carry inherent problems. The Law Reform (Succession) Act 1995 attempts to bring into account the cohabitee who has lived with their partner as husband or wife for the period of two years preceeding death in the same household. This has opened up the situation for claims under the 1975 Act since January 1996. However, this must be regarded as less than satisfactory for those who are in a long standing relationship. Remember too that the Act only opens up the claim for the making of reasonable provision. The Law Commission in its recommendations was attempting to acknowledge "a fair balance in recognising the contribution which each cohabitant may make to their common household and welfare, while preserving a distinction between the respective claims of married and unmarried partners" Law Com No. 187 para 60. This brings into play similar criteria to those of dependency under the Fatal Accidents Act 1976 (Sec.(1)(3)(b). The definition of reasonable provision will be restricted to that normally used in matrimonial matters. Is this what your clients want?

Almost certainly the answer has to be No. It is therefore important that when wills are prepared that the fullest questions are asked to ensure that the nature of any relationship and the ownership of any property is fully ascertained. A will is the means by which the testator disposes of his or her property. It is therefore important that extensive enquiries are made to ensure that the testator is aware of the rights and obligations that he/she has and of any potential claims which may be made against the estate.

Such considerations should also extend to discussion about such matters as the nomination of life assurance and pension policies as well as death in service benefits. This should be seen as part of the overall advice to the client and it is not inappropriate for Conveyancers to be reminded that their clients need to make a will when purchasing a property and in particular purchasers who are not married. Tenancy in common will produce difficulties if death occurs and the partners are unmarried.

Inheritance tax should not be overlooked as an issue which will almost certainly have to be addressed more frequently if intestacy occurs so that the opportunity for tax planning is a further issue to be considered.

So what are the principal considerations?

They are in fact very little different from those for any other clients but they need a sensitive and careful approach to the client and their personal circumstances. They also require a full explanation to be given to the client of the consequences of their action or inaction on their partner in the event of their (the testators or intestates) death.

In the present pattern of paying for long term care; providing for partners or spouses and children then it may be appropriate to make provision, by way of the life interest will trust.

Consideration will need to take into account the total picture of the current partner and lifestyle together with the need to consider whether there are former partners who might have a claim upon the estate of the deceased.

It is therefore important to ensure that the client's level of awareness is raised at an early stage to ensure that a workable will is produced and that proper provision is made and unnecessary distress avoided.