Rights on death

Cohabitants may have rights on death to reasonable financial provision against a deceased’s cohabitant’s estate, but must prove their entitlement.

Consideration may also be given to any rights under a tenancy, the tax implications of the death of a cohabitant, pension provision and claims under the Fatal Accidents Act 1976. See Practice Notes: Rights on death of cohabitant and Pension rights of unmarried cohabitants on members’ death.

Inheritance (Provision for Family and Dependants) Act 1975

A cohabitant may claim against a deceased’s estate pursuant to section 1(1A) of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) on the grounds that the disposition of the deceased’s estate effected by their will or the law relating to intestacy does not make reasonable financial provision for them. I(PFD)A 1975, s 1(2) defines reasonable financial provision for the class of applicants that includes cohabitants as limited to that which would be reasonable for the applicant to receive for their maintenance. The level of maintenance is determined in the context of the lifestyle the applicant had with the deceased rather than the lifestyle prior

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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