Dependency claims by cohabitees

Dependency claims by cohabitees

17 May 2018

Former solicitor Nicola Laver is a freelance legal journalist/editor and an author and legal copywriter

A testator’s desire to prevent a dependant’s own children from benefitting from the estate must not prevent reasonable financial provision being made for the dependant. Thompson v (1) Ragget (2) Hodges (3) Dyer (4) Evans (5) Berisha [2018] EWHC 688 (Ch), 29 March 2018 demonstrates the mistake a testator made, which led to a costly but avoidable dispute. 

What is the background?

The testator, T, and his partner, J, lived together for around 42 years in a farmhouse on his estate. T died in early 2017, leaving his net estate of £1.5m to two tenants of one of his properties. He deliberately excluded his partner, J, even though he had supported her financially throughout their cohabitation. 

In a letter of wishes, dated the same day as his will, T stated his reasons: ‘In my will I have specifically made no provision for my partner, Joan Thompson and her children, Gary, Lee, Dean and Sharon. I currently have no contact with Joan's children. I have no issue with Gary, but I have concerns regarding Lee, Dean and Sharon and do not trust them. I feel that they have previously taken advantage of me and have already received/taken monies from me during my lifetime. I do not want Joan or her children to inherit from my estate’ (para 2). 

He also said that he did not believe J needed anything from his estate as ‘[she] has her own finances and is financially comfortable’ (para 3).

Over the years, Joan worked, without pay, to help further T’s farm and caravan site business; she also cared for T’s elderly mother for up to three years before she died. As they both grew older, each developed health issues which needed care.

After a serious fall, which hospitalised J, social services became concerned that the conditions in the farmhouse were no longer appropriate for her, and J moved to a care home; however, T wanted her home, so they moved to a caravan near the farmhouse, and he bought a cottage on the estate for them to move into. T died shortly afterwards, and J brought a claim for reasonable financial provision out of the estate under the Inheritance (Provision for Family and Dependants) Act 1975

In particular, J wanted to move into the cottage and sought an outright transfer of it into her sole name. She also applied for financial provision to cover various costs, including renovation and moving costs, maintenance costs and outgoings. However, the tenants, who accepted that T had not made reasonable provision for J in his will, said that she should only have a life interest in the cottage.

What did the court decide?

J’s GP gave evidence that she was fit enough, and it was in her best interests to live in her own home, with a suitable social care package. An expert occupational therapist said that she could live adequately with the supervision and care of her son and daughter-in-law.

As for T’s obligations to the two tenants, the court found, on the evidence, that he had not assumed responsibility for them. However, it was a different matter when it came to J: T had personally acknowledged his responsibilities as her main carer. Furthermore, the court was unclear how he could say that J was financially comfortable: this was not a fair reflection of her true financial situation.

The court took the view that T’s ‘predominant motive’ was to prevent any of his assets to fall into the hands of Joan’s children; however, this was not a good enough reason for leaving her without provision (para 28). His wishes ‘should not hinder the reasonable provision for her maintenance’ (para 48). This was a mistake leading to no provision at all being made for her, resulting in a dispute which was entirely avoidable. 

An order for the outright transfer of the property to J was made, together with the sum of £160,000 for her ongoing costs.