In the last week there has been a lot of press coverage on the rise of cohabiting relationships and the consequent fall in the number of married family units. The statistics released by the Office for National Statistics come at a time when the Law Commission is also consulting about Will reform.
As a solicitor who specialises in preparing Wills and sorting out efficient estate planning the Will reform proposals made fascinating reading. I suspect I may be in the minority in finding them interesting. If the reforms do come about they could make wide sweeping changes. In my opinion, it is vital that everyone makes a Will and, equally as importantly, gets it reviewed every few years or when circumstances change. That advice is particularly important for couples in cohabiting relationships. They are potentially financially vulnerable so cohabitees need a cohabitation agreement in place during the relationship, and as importantly, both they and their partner need to prepare Wills to protect each of them in the event one of them passes away.
Making a Will is something that a lot of people put off doing, either because they don’t like to think about mortality or because they assume that they don’t need to bother as their property will pass to their loved ones under intestacy rules. If you are married then under the intestacy rules your estate might pass to the family members you would like it to go to but there are no guarantees it will do so.
If you are in a cohabiting relationship it is often assumed that your ‘common law husband or wife ‘will get all the property on your death under the same intestacy laws. That isn’t correct. To most people’s surprise there is no legally recognised concept as a common law husband or wife and so if you die without a Will your cohabitee won’t inherit your assets or estate unless he or she makes a legal claim against your estate. That can be messy and expensive, if for example, under intestacy laws your estate will pass to your parents or siblings.
The other common misconception is that if you are living with a partner and you jointly own a house your surviving cohabitee will automatically inherit the family home as your share in the home will pass to the co-owner. That isn’t necessarily the case as it all depends on how the house was jointly purchased. In some situations, your share in the property could pass under intestacy rules to a relative or relatives. Potentially your cohabitee could make a claim against your estate to get your share in the house so they can stay in the family home. The possible expensive Court litigation could be avoided by making a Will or reviewing and amending an existing Will.
Most people will assume that any law reforms will make it simpler to make a Will. In some ways that is correct as electronic Wills are being suggested as one possible way forward. Another proposal is that the Court would have the power to rectify problems with Wills that would otherwise fail. In my view, whether these reforms eventually become law or not, it is simpler and ultimately less stressful and expensive to get your Will drawn up professionally in the first place to minimise the risk of claims against your estate and Court proceedings.
Most of us understand the need to sort out insurance for loved ones and wouldn’t contemplate buying a house without a solicitor’s help. Using a professional to prepare a Will should be on the same ‘to do’ list as another one of life’s essentials, whatever your family circumstances and whether or not the law on Wills is eventually reformed. It need not be anything like as expensive as you might think!
For more information about drawing up a Will or to discuss any aspect of estate planning please give me a call on 01625 728012 or email me at [email protected].