Wednesday 16 November 2011

A case in the news recently highlights the brutal but necessary advice that must be given to co-habitees. They must not assume that they will be treated as though they are married by the law if there are any disputes after they split up –  or if one of them dies.

So called ‘toy boy’,  retired architect Leonard Taylor, 72, lived with Doris Luker, who was 22 years his senior.  A week before she died she gave him a cheque for £61,000.00. Then, in her Will, she also left him the house they shared, her car and £28,000.00 in cash.  The rest of her estate was to be divided between two charities, the British Heart Foundation and the Cancer Research Campaign.  However after Mr Taylor had taken his share there was nothing left for them.  The charities (backed by the Will’s executors) took the case to Court to argue that the £61,000.00 cheque must be presumed to be a loan and repaid to the estate  – unless it could be proved to be an outright gift.

On 4th November Mr Taylor lost his attempt to overturn a decision that he must repay the money, at the Court of Appeal.  Lord Justice Etherton said “The law presumes, in the absence of evidence to the contrary, that the payment of money implies an obligation to repay it”.  The wheelchair bound pensioner must return the money as well as facing legal costs of up £100,000.00 which means, according to his barrister, that he will lose his home.

The couple had begun their relationship in 1985 when he was 46 and she was 68.  They later lived together for 15 years at her home in Hall Green, Birmingham. Mr Taylor was his partner’s sole carer for 3 years until she died in October 2003.  By all accounts they enjoyed a “long term, loving, supporting relationship”. Had the couple been married, a “presumption of advancement” would have applied – which assumes that cash and property transfers between close family members are outright gifts.  However because they were not married the opposite presumption (that it was a repayable loan) persuaded the judges.  Mr Taylor’s barrister sought to argue that the presumption of advancement argument should not apply in a domestic context involving cohabitees but the Court of Appeal was not prepared to overturn an earlier Court’s finding that there was not enough evidence to explain the transaction away as a gift.

Although the circumstances of this case are unusual, and are unlikely to crop up on a day to day basis, it is a stark warning to cohabitees that the legal system in England and Wales does not recognise cohabitees as having the full range of rights that are enjoyed by married couples.

The myth of the common law spouse continues to cause  huge legal bills, as well as uncertainty, stress and anxiety  – and as this case shows it is by no means just younger people that are affected.

Ridley and Hall partner Sarah Young is an expert in contentious probate and Inheritance Act claims.  She has experience of claims involving older clients and warns that couples need to think about their legal rights carefully; “in a recent case, a very elderly, infirm lady who had been living with her partner for nearly half a century was almost evicted from the home that she had shared with him (but was in his name).  Her late partner’s family served her with possession proceedings immediately after his funeral.  It shows how high emotions can run when someone dies. Families should never assume that their loved ones will be  treated as they would like by their family after death.”  Sarah has a sensitive, practical approach to cases and as a member of Solicitors for the Elderly and the Association of Contentious Trusts and Probate Specialists, has experience in helping bereaved cohabitees and others in disputes following the death of a loved one.

For further information please contact Sarah Young on 01484 538421