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Modern family units: fair provision in Musa v Holliday

The recent Court of Appeal decision in the case of Musa v Holliday has highlighted some of the difficulties faced by the courts in making fair provision in modern family units, and how they are being more and more flexible in their application of the law to provide for those left behind when a member of the family dies.

Background to Musa v Holliday

The deceased had seven children: one (a minor) to his current partner with whom he was cohabiting; and six (all adults) from a previous marriage. His estate was highly complex and involved assets both in the UK and in Northern Cyprus. The net value of the UK assets was estimated to be around £1m.

The partner made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the deceased had failed to make reasonable provision for her: in fact he had made no financial provision whatsoever as he died intestate (without a Will) and an unmarried partner is not entitled to anything in those circumstances. The estate was due to pass equally between the children.

The court's perspective on an acrimonious relationship

The law provides that where a couple are unmarried but have been living together as husband and wife for at least two years, the court can award such amount as is reasonable for the maintenance of the partner. The trial judge found that the partner required £60,000 per annum by way of maintenance, and should be allowed to remain in the family home with the child of the relationship.

It is usual for the court in these circumstances to award the partner only the right to live in the property rather than the property itself, however as the relationship between the partner and the deceased's other children was so acrimonious (one of them had allegedly even tried to arrange the murder of the partner), the judge felt an outright award of the family home should take place and that the mortgage on the property should be discharged from other assets. She was also awarded the deceased's share in a cemetery to provide her with an income.

The older children appealed and the appeal Judge found the award to be entirely reasonable in the circumstances, with the highly acrimonious relationship between the partner and the older children being a significant contributing factor to the need to create a 'clean break' situation.

The importance of making a Will

The case reminds us of the need to take proper professional legal advice and to make a Will to ensure that all moral and legal responsibilities have been met (rather than leaving your relatives to fight it out amongst themselves). Perhaps rather cynically, it advocates maintaining cordial family relations, as but for the acrimonious relationship between the partner and the older children, it is likely the partner would have received only a 'right' to live in the property for life, rather than the property itself: this would ultimately have passed to the children.

DWF are able to assist whether you are taking a more pro-active approach to your estate planning; or have found yourself in the sticky position of needing help and advice after a loved one has died.

 

Steven Dawson

Director - Head of Costs Services

I am a partner and Head of the Costs Services team.

Sectors