Why Should Cohabitees Prioritise Making A Will?

Making a Will is important for all and, given the lack of protection in law for cohabitees, it should be a must. Timms Sara Hilliard discusses….

More and more people are choosing to live together, rather than to enter into a marriage but unfortunately, the law has not kept up with the implications of this.

The Cohabitation Rights Bill, has not yet passed through Parliament but it is an attempt to provide a platform for disputes, akin to the Matrimonial Causes Act 1973.

At the present time, where a dispute over property arises between co-habitants, all that can be relied upon is trust law, such law is complex and has evolved in quite different factual situations to those of a cohabitation scenario. Likewise, when considering the debts of the parties, which may have been incurred for a joint benefit, the application of strict contractual principles may well result in an unfair consequence. Where chattels are concerned, there are no legal parameters at all and consequently there is a high risk of disputes between ex cohabitants descending into expensive and damaging squabbling. As matters stand, ex-cohabitants who are financially able to consult lawyers may well find themselves spending more than they would otherwise do because of the lack of appropriate law aimed to address their particular difficulties.

So, it stands to reason that if there is little protection in lifetime for a cohabitee, equally, there is little protection on death, if a will is not prepared.

It has been a sad fact, that unmarried couples who have been together for a long period of time and one has suddenly died intestate (without making a Will), that the deceased’s estate has not always gone in accordance with what may have been expected by the surviving partner eg. if a cohabitant dies and does not have children, it would be the parents that would receive the estate, not the surviving cohabitee or if there are children, the children would be entitled to the entire estate and the surviving cohabitee could find themselves left with little to no protection.

A Will can tackle some of these issues, for example, by preparing a life interest will. A cohabitee could leave their share in the home to whoever they want, but give a life interest to their partner, to stop anyone trying to force the surviving partner out. Although not always tax friendly, at least some protection can be achieved for a loved one, left behind.

For more information or assistance in preparing a Will, please contact me on 01332 364436 or via email at s.hilliard@timms-law.com.

Sara Hilliard
May 2022