Family lawyers warn intestacy law change may be unworkable

29 OCT 2009

Family lawyers are warning the Law Commission against unworkable changes following the publication today of its consultation Intestacy and Family Provision Claims on Death.

In the consultation paper the Law Commission examines options to extend the protection of the intestacy rules to unmarried partners who have lived together for some time or have a child. Under current law, unmarried partners have to go to court to claim reasonable provision from a partner's estate, which critics say involves great financial and emotional costs.

Other proposed reforms would improve the rights of children who are adopted after the death of a parent, and would end the unequal treatment of half-brothers and sisters in inheritance law.

However, Christina Blacklaws, Senior Partner of London family lawyers Blacklaws Davis, says that in seeking to make changes to inheritance law to reflect changes in society, the Law Commission risks recommending a system which could prove to be "unworkable in practice".

"As a family lawyer, I fully support changes to the law which allow additional rights to unmarried partners who have lived together a long time or have children where the deceased partner left no will. However, we have to ensure that any changes to the law are clear and fair. For example, an unmarried partner without children would need to show that they had lived together 'continuously' for five years under the present proposals to gain the same share of the deceased partner's estate as a spouse. This is bound to lead to difficulties of proof and evidence and with it possible challenge from other potential beneficiaries," Ms Blacklaws said.

"For couples the simple answer may be for them to sign a mutual declaration, evidenced and witnessed by a lawyer, confirming the length of their cohabitation and that it has been continuous: under the present proposals couples would be well advised to do that after 2 years, since this is the starting point for a claim entitling them to one half of the other's assets on death without leaving a will".

She concluded: "there is bound to be huge debate over these proposals which could, potentially, have a massive impact on unmarried partners. Lawyers will be keen to ensure that the opportunity for reform does not translate into uncertainty and frustration".

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