Kingsley Napley's LGBTQ Blog Series 2020

Same Sex Relationships and Probate Disputes

19 February 2020

In 2011, research commissioned by the well-known charity Stonewall concluded that people over 55 who were in a same sex relationship were less likely to see biological family members on a regular basis.  Over half of the people surveyed felt that their sexual orientation had, or would have, a negative effect on getting older and would make life more complicated.
 

In considering that research, it is perhaps unsurprising that we are dealing with an increasing number of enquiries and cases where the family of a deceased person are challenging the validity of the will because they left a significant proportion of their estate to their same sex partner and their family either did not know (or did not approve) of the deceased’s relationship.

A separate survey of 2,000 people conducted by Macmillan Cancer Support found that 42% of people over 55 had not made a will. In those circumstances, the deceased’s estate would pass under the rules of intestacy and where there is no surviving spouse or civil partner, the estate would pass to other surviving members of the family, perhaps leaving the surviving partner with no financial maintenance or provision. It is also possible that if the deceased did not want to upset their family, they may have left a will which excluded their partner. If that person was financially dependent on the deceased, this could have devastating consequences.

These cases can be difficult because they deal with a range of sensitive and personal issues, not only dealing with the death of a loved one but, in addition, having personal circumstances of a person’s relationship potentially scrutinised and analysed.

Validity challenges

Validity challenges may arise where the deceased has written a will which includes their partner, perhaps to the detriment of beneficiaries who were previously included in wills. These beneficiaries may not have been aware of the deceased’s relationship, either because they were not close or because the deceased did not inform them of that relationship.  This may lead to allegations that the will is invalid due to coercion or undue influence by the partner over the deceased. Alternatively, there may be an allegation that the deceased could not have known or approved the contents of their will.

Regardless of the nature of the deceased’s relationship, in the UK everyone is entitled to dispose of their estate as they wish (known as testamentary freedom). Although the deceased’s choice may be unpopular, this does not make the will invalid.

In order to prove that the deceased was unduly influenced into changing their will, it is necessary to show that the influence was such that it overpowered the will of the deceased and that they were coerced into changing their will; it needs to be more than just persuasion. This can be very difficult to prove and there remain only a handful of successful cases. The court will look for evidence that the deceased would not have made the gifts without being subject to influence. In order to demonstrate that these were the wishes of the deceased, the beneficiary is likely to need to produce evidence that there was a loving relationship and the deceased would have wanted to leave the gift to them.

A deceased also has to know and approve the contents of their will and so, if the deceased leaves their entire estate to a partner who was not previously named in a will, there will need to be evidence that they knew and approved what the implications of that gift may be. If the will has been prepared by a solicitor, this is likely to be easier because the solicitor should have recorded the deceased’s reasons for wanting to dispose of their estate in a particular way. As per the above however, people over 55 may be reluctant to approach a solicitor and discuss their personal information. This may mean that the will is homemade and it will become more difficult to produce evidence from the deceased that this was their wish.

 

Inheritance (provision for family and dependants) Act 1975

Under this act, if you fall within a certain category of potential claimants, and you can show that the deceased’s will has not made reasonable financial provision for you, then you may be able to make a claim under the act. The court will consider a number of circumstances to come to their decision, and they have a wide discretion to make orders to enable a reasonable financial provision to be made. Under section 2 of the act, civil partners are entitled to bring a claim. However, what if you were not in a civil partnership with the deceased?

The act also states that any person, who immediately before the death of the deceased was being maintained, either wholly or partly by the deceased, may also bring a claim. This means that if you were in a relationship with the deceased and were being maintained by them, you may be entitled to make a claim against the estate. It would then take careful consideration of the applicant’s relationship and the extent to which they were being maintained, in order to fully consider what they may be able to seek by way of maintenance.   Cohabitees may also have a potential claim under the 1975 Act if they have not been left reasonable financial provision

 

Both of the above claims will require examination of the facts and supporting evidence.

If the family of the deceased are accepting and aware of the relationship, it may be easier to settle these types of matters without having to issue a claim however, in circumstances where the other beneficiary’s entitlement will be reduced by any claim, and particularly if the family are not aware of the relationship, it is possible that any such claim will be contentious.

It is therefore important to seek advice as soon as possible if you consider that you may have a claim, or be faced with a claim, following the deceased’s death.

For further information, please contact Laura Phillips or a member of the Contentious Trusts and Probate team.

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