Intestacy and family provision claims on death: Resolution’s response to Law Commission Consultation
PAPER No 191
This response has been prepared by Resolution’s Cohabitation Committee.
As part of its Changing Family Law for Changing Families campaign, Resolution is seeking greater basic protection for cohabitants and their children when cohabiting relationships are brought to an end, whether by separation or death.
Resolution very much welcomes the Law Commission’s consideration of the place of cohabitants in the intestacy rules and as applicants for family provision. This helpfully builds on the recommendations in the Cohabitation Report of 2007 (Para 4.4) for legislative reform to entitle cohabiting couples to apply for financial relief on separation in certain circumstances together with
reform of certain existing legislation applying on death.
The results of a public consultation conducted in 2008 by Resolution and the Odysseus Trust confirmed wide support for cohabitation reform among family law practitioners, NGOs, academics and others and were reflected in Lord Lester’s Cohabitation Bill 2008/2009. The Bill included provisions to amend existing legislation allowing a surviving cohabitant to make claims on the
death of the other so that the Inheritance (Provision for Family and Dependants) Act 1975 would take account of the general approach of the Bill and extend certain rights under the 1975 Act.
Accordingly, Resolution has a particular interest in the position of cohabitants and limits its response to the proposals that would affect them. The issue of intestacy was not addressed in our response to the Cohabitation Report and formed no part of the Cohabitation Bill, so we welcome the opportunity to set out our policy in this area.
Cohabitants – Intestacy
Para 4.59 We provisionally propose that a cohabitant of the deceased should have an entitlement on intestacy, subject to conditions.
Resolution agrees with this proposal.
Under the present law, surviving cohabitants have no entitlement on intestacy and must, if they are unable to reach agreement with those who are entitled, bring proceedings for family provision under the 1975 Act, with the emotional and financial costs that this involves.
Society has indeed changed since the 1989 Report and surveys demonstrate wide-spread and growing support for the view that “deserving” cohabitants should be provided for. Further, it is clear that there is still a wide-spread belief that cohabitants are already protected, compounded by the fact that such a low proportion of them (only 12% in the 2006 British Social Attitudes Survey) make a will.
As a preliminary point, Resolution accepts that the intestacy rules, which are after all to automatically apply in the absence of a will, should be as simple and clear as possible to avoid problems for administrators and difficulties in dealing with what are in most cases likely to be quite modest estates. It is not felt, however, that the proposals (as amended below) would in fact create significant practical difficulties for even lay administrators. It ought to be a simple matter for them to determine whether the deceased had a child with a cohabitant or was in a cohabiting relationship satisfying a clear minimum duration requirement.
In the event of a child born of the relationship but after the death of the deceased, it would usually be possible to obtain DNA evidence as to paternity and, in an appropriate case, to make an application to the court for a declaration of parentage under Section 55A of the Family Law Act 1986 (as happens at present to support applications by or on behalf of dependent
children under, for example, the 1975 Act or the Fatal Accidents Act 1976).
Para 4.60 We provisionally propose that for the purposes of the intestacy rules a cohabitant should be defined as a person who immediately before the death of the deceased:
(1) was living with the deceased as a couple in a joint household; and
(2) was neither married to nor a civil partner of the deceased.
Resolution broadly agrees with the proposed definition of cohabitant, although the words “in a joint household” may be superfluous. The appropriate test is that of “living together as a couple”. It is suggested that “in the same household” would be better if such any qualification were needed. This is the form of words used in Section 1 (3) of the Fatal Accidents Act 1976 as amended.
Some commentators raise the possible difficulty of defining a cohabitant as a valid reason for not making any provision for them under the intestacy rules.
Resolution agrees with the Commission that the potential difficulties here have been over-stated. The answer will usually be obvious. If there is any dispute, then there are well-established “sign-posts” (similar to those suggested at Para 4.51) to determine whether or not two individuals are living together “as a couple” in the context of social security legislation (as in the cases of Crake v Supplementary Benefits Commission and Butterworth v Supplementary Benefits Commission  1 All ER 498) where the expression “living together as a man and wife” in the Supplementary Benefits Act 1976 has been judicially interpreted. More recently, the courts have continued this approach in relation to the same expression in the Social Security Contributions and Benefits Act 1992 (in the case of Kimber v Kimber  1 FLR 283) applying the test of that of “a reasonable person with normal perceptions”. Resolution does not believe that there is a need for a statutory checklist or indeed any further definition for these purposes.
In addition, it will be necessary for any definition to exclude individuals who fall within prohibited degrees of relationship (for example, where one is the parent or sibling of the other).
Para 4.68 We provisionally propose that if the deceased and a surviving cohabitant are by law the parents of a child born before, during or after their cohabitation:
(1) there should be no minimum duration requirement for an entitlement on intestacy of the surviving cohabitant; and
(2) the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse.
Resolution welcomes the proposal that surviving cohabitants should automatically qualify where there is a child of that relationship. This is consistent with the approach taken in the Cohabitation Bill, in which a cohabitant parent would have been able to seek financial relief regardless of the length of the relationship. Given that most intestate estates are small in size, the likelihood is that for many of these, without such an entitlement at present, the necessary route for a surviving cohabitant with child would be an application under the 1975 Act, either in his or her own right or on behalf of the dependent child.
Although careful to say that it is not Resolution policy to equate the status of cohabitant with that of spouse, it is appropriate that the surviving cohabitant where s/he had a child with the deceased should have the same entitlement as a spouse (at least in the situation in which there is no surviving spouse). As noted, this matches the approach taken in the majority of other common-law
It is important to emphasise that Resolution’s proposals for cohabitation law reform are not seeking to equate the position of spouse and cohabitant upon separation. However, when the relationship is brought to an end by death rather than separation it can be assumed that at that point the relationship is still subsisting and that both parties remain committed to it. Broadly, it is likely to be what the deceased would have wanted. Clearly, one cannot know how long a relationship brought to an end by death would have continued had the death not occurred.
It is understood from the Consultation Paper that in the majority of cases, and whether or not the deceased had any other surviving relatives, the surviving spouse takes the whole estate under the current intestacy provisions and noted that the Law Commission is suggesting this as a possible outcome for the surviving spouse in all cases. Resolution does not feel able to comment on this particular proposal (Para 3.96) although Cohabitation Committee members have expressed concern as to how this would operate in the larger estates, particularly after a short second relationship and where there are descendants of an earlier relationship.
Para 4.79 We provisionally propose that any duration requirement should be fulfilled only by a continuous period of cohabitation.
Resolution broadly agrees with this proposal.
Although it is necessary that any period be a fixed period because of the need for simplicity and certainty, the definition would need to ensure that those who were living apart for reasons of work commitments, imprisonment, ill-health or hospitalisation of one or the other, would still be treated as cohabitants for the purpose of this legislation. This is the point that arose in Re Watson
(Deceased)  1 FLR 878 where the deceased had spent the last 3 weeks of his life in hospital. The court said that “as a matter of ordinary language” the deceased had not ceased to be part of that household and would have returned there had he not died. Similarly in Gully v Dix  1 FLR 918, the court accepted that the fact that the claimant under the 1975 Act spent 3
months living apart from the deceased after a relationship of 27 years would not count against her in circumstances where the parties themselves did not consider that their relationship had ended.
In the Cohabitation Bill it was proposed that any one or more periods together totalling not more than six months during which the parties ceased living together would be disregarded. It is suggested that the same provision apply here.
Para 4.80 We provisionally propose that, if the deceased and a surviving cohabitant had not had a child together, the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse, if the cohabitation had continued for at least five years before the death.
Resolution welcomes this proposal which is in line with the provisions of the Cohabitation Bill as amended at Committee Stage in the House of Lords. It had originally been suggested by Resolution that cohabitants without children would have to meet a minimum duration requirement of two years, but discussions at Second Reading reinforced the view that there would be
insufficient support for such a short period with many commentators clearly saying that a period of not less than five years should be required in order to demonstrate a sufficient degree of commitment.
Para 4.85 We provisionally propose that, if the cohabitation had continued for between two and five years before the death, and the couple had not had a child together, the surviving cohabitant should be entitled under the intestacy rules to 50% of the amount which a spouse would have received from the estate.
Resolution does not agree with this proposal.
The introduction of a graduated scheme adds another layer of complexity for what will, in most cases, be a small estate. Both the length of time and the proposed division are arbitrary. Our policy is that this class of cohabitant would have no claim for financial relief upon their relationship ending by separation, save in cases of exceptional hardship. It is already law that this class of surviving cohabitant may make an application under the 1975 Act, whether dependent on the deceased or not, and we do not believe that there is need for further provision.
Para 4.95 We provisionally propose that, if the deceased and a surviving cohabitant are by law the parents of a child born before, during or following their cohabitation, or their cohabitation had continued for at least five years before the death, the surviving cohabitant should be entitled to the deceased’s personal chattels outright.
Resolution agrees with this proposal. This is entirely consistent with the surviving spouse analogy.
Para 4.96 We provisionally propose that, if the cohabitation had continued for between two and five years before the death, and the couple had not had a child together, the surviving cohabitant should be entitled to exercise a right of appropriation over the deceased’s personal chattels, up to the value of his or her entitlement under the intestacy rules.
Resolution disagrees with this proposal for a number of reasons. Principally because it is not agreed that there should be any entitlement under the intestacy rules for this class of cohabitant (Para 4.85 above).
Para 4.107 We provisionally propose that a cohabitant should have no entitlement under the intestacy rules if the deceased left a surviving spouse.
Resolution supports this proposal.
It is fair to say that this was quite a finely balanced decision. However, as a matter of principle, it must be right that the intestacy rules should not be an exception to the general rule about the legal consequences of a marriage or civil partnership not ended by divorce or dissolution. We also see the advantages of practicability for the administrators in dealing with unusual cases. If the view were to be taken that the surviving cohabitant was equivalent to a surviving spouse, then this would lead to a conclusion consistent with the recommendation in Scotland, with the surviving cohabitant and surviving spouse sharing the entitlement. At the present time, however, it is felt that such an alternative may not attract wide-spread support.
Para 4.111 We invite consultees’ views as to the approach to be taken where more than one cohabitant satisfies our proposed conditions for eligibility under the intestacy rules.
Although this scenario is likely to be rare, Resolution proposes that all eligible cohabitants should be treated together as a class and that they should share equally. Either, or both, could apply for alternative provision under the 1975 Act. It has to be the case that the rules should be kept as clear and simple as possible for the administrators of the estate.
Cohabitants – 1975 Act claims – family provision
Para 4.122 We provisionally propose that if the surviving cohabitant and the deceased are by law together the parents of a child, there should be no minimum duration requirement for the survivor to be entitled to apply under Section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975, provided that the cohabitation was continuing at the date of death.
Resolution welcomes this proposal which is in line with our proposed amendment to the 1975 Act in the Cohabitation Bill to allow cohabitants with children, as well as those living together for two years, to claim.
Para 4.123 We invite consultees’ views as to whether, where the couple had not had a child together, the current two-year qualifying period for the survivor to be entitled to apply under Section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975 should be retained.
Resolution agrees with this proposal which is again in line with our existing policy.
Para 4.124 We provisionally propose that in all cases in order to qualify for an award under the Inheritance (Provision for Family and Dependants) Act 1975 as a cohabitant the applicant must have been living together as a couple in a joint household with the deceased immediately before the death.
Resolution agrees with this proposal, with proper allowance being made for hospitalisation etc. Again, there is a question as to whether the words “in a joint household” add anything to the definition (and whether “in the same household” would be clearer if such an expression is needed).
Para 4.134 We provisionally propose that the Inheritance (Provision for Family and Dependants) Act 1975 be amended so that “reasonable financial provision” for a cohabitant is defined as such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive, whether or not that provision is required for the applicant’s maintenance.
Resolution supports this proposal which also resonates strongly with the suggested provisions contained in the Cohabitation Bill.