As Kate watched Tom drive off from outside their house that bleak Moray morning, it was the last time she would ever see him alive.
As usual, as he was leaving the house, he had kissed her and she had told him to “take care”.
An important question for all of us
Have you considered whether, when you die, your property and assets will actually go to the people you want to get them?
In most long-term relationships equivalent to marriage, there is unspoken agreement that, when one of the partners dies, the other will inherit all (or at least their “fair share”) of their deceased partner’s estate.
Unfortunately, there is no guarantee that will happen unless you have made a Will.
About 70% of people do not have a Will. The reasons include the fact that:
- Some people are uncomfortable thinking about their own death.
- Others consider that a Will is an expensive luxury.
- You may have concerns about the complexity of it, or
- You may think you do not have enough property to leave to justify making a Will.
This article gives an example of a situation where the lack of a Will caused a lot of heartache.
It is a fictional story but it has its basis in several real situations we have had to deal with, over the last few years.
Back to Kate and Tom’s story
Kate had separated from her husband in 1995.
She met Tom, through a mutual friend, in 2002.
Kate lived in Moray and Tom had his home near Glasgow.
After about a year, Tom found a job as a delivery driver in Moray and they decided to move in together.
Using money Tom had saved, as a deposit, they bought a house in Forres.
Tom formed a very good relationship with Kate’s two children, who also lived locally. Tom had never been married and had no children.
Tom also got on well with the three “step-grandchildren” who came along after he and Kate began their relationship.
Kate bonded well with Tom’s family. They went with Tom’s sister and parents on several foreign holidays.
When Tom’s mother was seriously ill, they visited her frequently in hospital in Edinburgh and they were with her when she died.
A tragic accident
In February 2011, Tom was killed in a road traffic accident.
He was at work at the time, driving his van. It was in collision with a lorry.
The accident was due to the negligence of the other driver.
Kate and Tom had lived together for nearly eight years. She was shattered by his death.
Kate discovered that Tom had not left a Will.
His father and sister consulted an Edinburgh lawyer and they were appointed as Tom’s executors.
The home which Kate and Tom had shared was owned in Tom’s name only.
Kate had never got divorced from her husband. She had remained on good terms with him.
After she began her relationship with Tom, it had been her intention to get divorced but there was no property from the marriage to divide up and so there was no real urgency and she never got round to doing it.
Kate could make a claim for compensation arising from Tom’s death
Tom’s fatal accident resulted from the negligence of another person.
Kate as a cohabitee, at the time of Tom’s death, was eligible to make a claim for damages for “loss of society” from the insurers of the other driver.
She contacted a solicitor and, after a few months, they were able to settle the claim by agreement, without the need for a court action.
Kate also had a claim for financial provision from Tom’s estate
The Family Law (Scotland) Act 2006 makes provision for the cohabitee of a deceased person to make a claim on their estate providing
- there is no will in existence and
- the cohabitee makes the claim within six months of the date of the death.
The six month time limit is a very short one and has been the subject of widespread criticism. In many cases, the value of a deceased person’s estate is not fully known within six months of the date of death.
Because of the time limit, it was necessary for Kate to raise a court action against the executors in order to preserve her right to claim from the estate.
The court action was a distressing experience for Kate. The fact that Kate was still married could not prevent her from making a claim on the estate but the executors tried to use that fact against her.
The executors also questioned the strength of the relationship which had existed between Kate and Tom and whether, if he had not died, it would have lasted much longer anyway.
Negotiating matters through her solicitor, it was possible for Kate to settle the financial claim on the estate before the case got to the stage of a final court hearing.
It was a draining and depressing experience for Kate on top of losing the man she loved – and the home they had shared.
As we have seen, if someone dies as the result of an accident, relatives (including a cohabitee) can make a claim for compensation, as long as the accident was due to the negligence of another person.
A claim for fatal accident compensation will not be possible in all cases.
However, the close relatives of a deceased person can make a claim on any estate left behind. This can include interests in houses, motor vehicles, life policies, bank accounts and various other sorts of assets.
The way in which any claim on the deceased’s estate proceeds depends on whether the deceased has left a Will.
In the case of married persons, they can claim successfully on the estate even if their spouse has made a Will which does not leave anything to them (through claiming Legal Rights) or their spouse has left no Will at all (in which case they are covered by the law of intestacy).
For unmarried persons, as we have seen above, whilst there is some legal protection given by the 2006 Act, it is still in many respects unsatisfactory, not least due to the short time limits which make it likely that it will be necessary to raise a court action to keep any claim alive.
There was some consolation for Kate in that she was able to make successful claims for fatal accident compensation and for provision from Tom’s estate.
If the accident had happened due to Tom’s fault, Kate would not have been able to make any claim for compensation.
If Tom had had children of his own, it might have reduced the size of Kate’s claim on the estate to a very small amount.
On the other hand, the absence of a Will meant there was a lot of unnecessary anguish for Kate. Given the background, if Tom had left a Will which bequeathed everything to Kate, it is unlikely that Tom’s family would have raised any major objection.
The lack of a Will meant that a dispute with Tom’s family was almost inevitable.
You would like to think that their shared love for Tom would have brought Kate and Tom’s family (especially the executors) together. They could have benefited from mutual support in their bereavement.
Instead, their relationship was left in tatters.
No Will means no guarantee your loved ones will inherit what you would have wanted them to get and, in some cases, it might prevent them receiving anything at all.
How we can help
Our website has a lot of practical information about the actions required after a person’s death.
If you have any questions about any matters raised by this article or you would like to ask about the possibility of making a Will, please feel free to get in touch with us for a chat.
All initial enquiries are free of charge and without obligation.
Image: Detail from Photo by Jenelle Ball via unsplash.com