Comments | davefreer: Inheritance and nanny

davefreer

Inheritance and nanny

Oct 30, 2009 14:00

I was interested to see a UK law commission has produced a position paper on what they see as potential law-changes with regard to inheritance and people who die intestate. They're proposing that marriage no longer be pre-requisite for someone to inherit the estate. If you've been together for two years the surviving partner gets half the estate, ( Read more... )

Comments 5

reverancepavane October 31 2009, 09:24:34 UTC

And I quote (my emphasis):
The 1975 Act states that the couple must have been living "as husband and wife" or "as civil partners" during that two-year period. The courts look at all the circumstances to decide whether that description applies. [cp191 s54]
And furthermore (again, my emphasis):
For the administrators of an intestate estate, identifying a cohabitant is different from identifying a spouse or blood relative. Cohabitation cannot be proved by production of a certificate, as can marriage or civil partnership. But in most cases it will be obvious whether the deceased was living as a couple with a partner. In many cases where that is disputed, there would have been litigation under the current law, because cohabitants can already apply for family provision. [cp191 s63]
It's actually to clean up the existing law, which requires the cohabitant to sue for family provision (expensive and traumatic), especially because of the popular (and mistaken) perception that the vast majority of cohabitating couples is that they are in a "common ( ... )

davefreer October 31 2009, 10:50:04 UTC

You could as easily make Edna Joe's sister. Yep it would be perjury - and impossible to prove and therefore quite likely. The spinster sister thing still seems entirely ridiculous to me - 1)Even if they were engaged in sex what possible harm would it do - not like they'll have babies. 2)A co-habiting relationship does not presume sex anyway. Incest rules exist for a genetic reason (and not actually that good a reason). I can't say it appeals to me, but it strikes me in cases like this as being as logical as hanging for homosexuality. Co-habiting does presume interdepence - which accurately describes such a relationship ( ... )

reverancepavane October 31 2009, 12:52:35 UTC

A co-habiting relationship does not presume sex anyway.
This is your fundamental mistake. You're using the English meaning of the word, rather than the legal definition, which pre-supposes the direct opposite (or at least, the potential for it). The important words here are "as man and wife" or "as civil partners," both of which have their own definitions under law.
And as I said, it seems to have been recommended to deal with people's misconception about the idea of there being such a thing as common law spouse, which an advertising campaign completely failed to do. In the majority of cases that it will apply to it obliviates the need to dispute the probate (under the existing family provisions part of the act). As it is, as the law stands, if Fred still wished to commit perjury he could still challenge the probate under this provision, claiming a right to the estate on those grounds.
It's also why the proposed changes are only going to be valid in England and Wales. Scotland has a different method of dealing with inheritance, ( ... )

davefreer October 31 2009, 13:47:06 UTC

My fundament is never mistaken! I am willing to bet (say a signed copy of whatever the latest book is against a glass red plonk (making this a no risk bet for me)) that legal the definition may make - in not so many words with room for evasion - the assumption that sex could possibly take place but not that must or does. If the latter for eg. then war hero Joe who lost his wedding tackle and became quadruplegic, could never marry Edna - who he met in physio, who is also quad - where although consumation might be desired, ain't going to happen.

reverancepavane November 1 2009, 03:51:35 UTC

You are right, of course. I totally agree sex is not necessary in defining a cohabitating couple, but it is a litmus comparison that the Court will use in judging whether a couple is in fact cohabitating or simply living together. Which is what I was attempting to say, however clumsily. In other words, is the relationship such that they could have registered a civil partnership or gotten married, but didn't.
If you really want to see weasel-wording read the Law Commision statement defining cohabitation (or rather specifically not defining it). They've reached new heights in order to avoid upsetting anyone on any side of the argument.
Then again, in proof of your point, here in Oz the government can have some strange ideas as to what constitutes cohabitation. In one instance, they attempted to prosecute one acquaintance for social security fraud because the share house she lived in as a student had a roster for doing household tasks (which was an obvious sign of the fact that a relationship existed between herself and a male member ( ... )