Our inheritance dispute lawyers are often asked about the impact of divorce, a common question being 'can I claim on my ex husband's estate?'
Many people are surprised when we tell them that inheritance claims can be made against the estates of ex husbands and ex wives. In fact, a the courts will even allow an Inheritance Act claim to be made by a former spouse against the estate of their ex where the Divorce Order specifically stated that no such claim should be made. The following case illustrates how this can occur.
When Mr Fryer and Miss Chekov got divorced in 1981 the Divorce Order stated that 'Neither party shall be entitled to claim against the estate of the other under the Inheritance Act 1975 unless the parties shall remarry.'
Although they did not remarry, the couple continued to live together in the same property following their divorce.
Upon Mr Fryer’s death his entire estate passed under his will to his sons from a previous marriage.
Miss Chekov brought an Inheritance Act claim against Mr Fryer’s estate on the basis that his will did not make reasonable financial provision for her.
She argued that the final divorce order only prevented her bringing a claim as a former spouse, but did not prevent her from claiming as a cohabitee.
Mr Fryer's sons accepted that their father and Miss Chekov had lived together, but said this was not as cohabitees within the meaning of the Inheritance Act. Under the Act cohabitees can only bring a claim if they have lived together as man and wife in the 2 year period immediately before the death. The sons said that Miss Chekov was not eligible to bring a claim as she had not cohabited with their father as ‘man and wife’.
The meaning of ‘man and wife’ has tended to be construed widely by the courts and it is recognised that relationships take many different forms.
However, the sons said that as the parties had expressly excluded each other from their estates when they divorced the claim should be barred. The court rejected that argument and allowed Miss Chekov’s claim.
The judge felt that it would be illogical for Miss Chekov’s inheritance claim to fall outside the Act where following their divorce the couple had continued to cohabit.
The facts of this case are not as unusual as it might be thought. We acted for a gentleman who was in a very similar position to Miss Chekov. Following divorce the couple had continued to cohabit and we also took the view that the terms of the divorce settlement should not preclude a claim under the Inheritance Act. In that case our arguments were accepted by the estate and a negotiated settlement took place.
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