In everything but name

The Inheritance (Provision for Family and Dependants) Act 1975, which allows those excluded from a will to bring a claim for reasonable provision from it, has received enormous attention over the summer in light of the decision in the case of Ilott v Mitson [2015] EWCA Civ 797. There was, however, another decision reached in the case of Chekov v Fryer [2015] EWHC 1642 (Ch), which deserves similar attention.

In Chekov v Fryer, Ms Chekov and Mr Fryer had divorced and on Mr Fryer's death, Ms Chekov made a claim under the 1975 act for provision from his will, despite the terms of their divorce order providing, in accordance with section 15(1) of the act, that neither party should be entitled to claim against the other's estate on death unless they were married to each other.

Expressly excluded

The couple were not married to each other at Mr Fryer's death, but they were cohabiting, and Ms Chekov claimed on the basis of being a 'cohabitee'. A cohabitee is one of the potential categories of claimants under the act, provided the cohabitation has been going on for at least two years before the date of death, and the claimant is not a spouse or former spouse (both of which can potentially claim as such, under different categories).

The deceased's sons argued that the terms of the divorce order precluded any application against the estate, and in any event, that Ms Chekov was expressly precluded from claiming as a cohabitee because she was a former spouse of the deceased. The claimant argued that the consent order could not exclude the right to claim as a cohabitant (a category not yet in existence at the time of the divorce order) and if it did, the act should be construed purposively.

It was held that even though a divorce order precludes claims by the parties under the act, this refers to claims in the capacity as spouse or civil partner only, and does not prevent a former spouse claiming as a cohabitee. Ms Chekov could claim as cohabitee despite being a former spouse, as she was unable to claim in the 'former spouse' category because of the terms of the divorce order.

To seasoned practitioners, this will seem logical. However it is the first case to my knowledge where a divorced spouse has been permitted to claim against the estate of the former spouse, despite seemingly being barred from doing so in the divorce order; the case has made headlines for this reason.

Divorcing spouses will need to be made aware that their separate estates are not necessarily out of bounds to each other on death, if they choose to later cohabit. However the quality of cohabitation is key. A claim will only be successful in this category if the cohabitation is as husband and wife or as civil partners, and is in the same household during the whole period of two years immediately prior to the deceased's death.

Moving out

The case raises another interesting point. We live in a world where the price of property may mean that, upon divorce, a couple have no option but to continue to cohabit for a period. It is not unforeseeable that, unwittingly, as a couple try to divide up their assets, they continue to cohabit for two years or more following their divorce, and potentially fall into this trap. The case is therefore as relevant to family lawyers as it is to those who practice in wills and probate.

Divorced couples in this situation should take care to ensure that there can be no confusion over the nature of their relationship. The test as to whether the claimant was living with the deceased as their husband or wife, is whether, in the opinion of two reasonable people, the two people in question were living together as husband and wife bearing in mind the 'multifarious nature of relationships'. To prevent their dirty washing being aired in public (and before a court, no less), affected couples would be wise to heed the lessons of Chekov v Fryer before sharing keys again. 

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser