18th Feb 2016

A Tale of Two 'Wives'

Yesterday the BBC and The Guardian both reported the case of Joy Williams.

Ms Williams had lived with her partner, Norman Martin, for 18 years until his death but he had never divorced his wife, Maureen Martin.

Ms Williams and Mr Martin owned their own home, holding it as “tenants in common”. For co-owned property it is normally the case that the buyers are given the choice of owning either as joint tenants or tenants-in-common. When owning as joint tenants the share of the first person to die passes automatically to the surviving owner. When owning as tenants-in-common, the share of a deceased owner will pass by the terms of their Will and not automatically to the surviving owner. If there is no Will, it passes to family following strict rules of intestacy which do not include an unmarried partner.

In this case, Mr Martin had not made a Will to benefit his partner of 18 years and so his share in the property automatically went to his widow.

Although Ms Williams has been successful in legal proceedings, with the Judge saying that it was a “fair and reasonable result” that she should “retain an absolute interest” in the home she had shared with Mr Martin, that may not be the end of this sad story as there is a suggestion Mrs Martin may choose to appeal the court’s decision. Remember too that Mr Martin died in 2012 and so there has been nearly four years of heartache for everyone concerned.

Nobody of course can make any hard and fast guarantees, but this dreadful situation would probably have been avoided if Mr Martin had taken legal advice on his family situation and made a Will before his death. Had Mr Martin and Ms Williams taken advice on making Wills, they could have openly discussed with a solicitor what they intended to happen to their property on the death of either of them. If they had wished to ensure that their respective shares of the property would eventually pass to their own children, they could have considered using their wills to create trusts for the property. In Mr Martin’s case, this would have ensured that Ms Williams could remain in the property for the rest of her life, but on her death Mr Martin could have specified that his share of the property would pass to his daughters or even his wife if he so wished.

In addition to that, although they doubtless made the right decision in holding the property as tenants in common, Mr Martin and Ms Williams would have been wise to make a Declaration of Trust to set out how the sale proceeds of the property should be divided if the relationship broke down. We advise unmarried joint owners to do this at the time of purchase, ideally coupled with a Cohabitation Agreement. This documents out wider arrangements between the couple, e.g. who pays bills, who owns what. Remember: unmarried couples are unprotected by divorce laws – the court can’t decide who gets what so it makes sense for you to agree beforehand and get it documented.

Sadly the situation between the estranged Mr & Mrs Martin also highlights the need to sort things properly at the time of separation. Lots of people think they don’t want a divorce for personal reasons and, whilst that is understandable, it usually means mess for someone else to sort out – often alongside grief.

A Will, a Declaration of Trust and Cohabitation Agreement usually cost no more than a few hundred pounds each (and there are often savings to be made if you do them at the same time); compare that with costs of a legal wrangle over four years. £100,000 costs order in this case!

This particular case is perhaps a little unusual in that Mr Martin neither divorced his wife nor made a Will to ensure his partner would have some security in the event of his death, but it does highlight that we should all prepare for our futures. Mr Martin and Ms Williams apparently lived happily together for those 18 years, probably completely ignorant of the difficulties that lay ahead for Ms Williams. Had they taken proper legal advice at the time they bought their home together, the likelihood is that this case would never have got to court. A salutary reminder for us all.

This is a joint blog by Berwins’ Family, Life and Residential Teams to illustrate what can go wrong in our complicated relationships, often only discovered when it’s too late to do anything about it. Although all our teams have their own specialties, we work together to ensure that our clients get the best possible legal advice. There will be someone in this story you relate to, someone you know who needs to know this and get advice now. The Martins/Williams tale is unusual but it’s not at all uncommon.

Written by Sarah Smith, Helen Dawson & Diane Scott of Berwins Solicitors.

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