Inheritance and the importance of making a will

11 Oct 2018

The recent Supreme Court judgment in the well-publicised case of Northern Ireland woman Siobhan McLaughlin, emphasises the importance of co-habitees ensuring their legal affairs are in order particularly the importance of setting out one’s wishes in a will.  That’s the contention of Orla Mallon, partner at BLM.

The Supreme Court has recently delivered its judgment in the case of Northern Ireland woman, Siobhan McLaughlin. Its decision is interesting not only from a family law perspective but also from the much wider perspective of estate planning, that is to say, the importance of preparing a will to ensure that your wishes are fully met.

Ms McLaughlin had co-habited with her partner, John Adams, with whom she had four children for 23 years when he passed away in 2014.  They had never married.

Following the death of her partner Ms McLaughlin applied for Widowed Parent’s Allowance and was surprised to be refused this on the basis that under section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the benefit was only open to those who had been married or in a civil partnership. Ms Mc Laughlin applied for a judicial review of that decision on the grounds that section 39A of the 1992 Act was incompatible with the European Convention on Human Rights (the ECHR).

The Supreme Court decided in a four: one majority verdict that section 39A of the 1992 Act was in this instance incompatible with article 14 of the ECHR and amounted to unjustified discrimination against both Ms McLaughlin and her children. The Court deemed that the purpose of Widowed Parent’s Allowance was to cater for the interests of children following the death of a parent, the relevant consideration in this case not being the legal status of the relationship but the co-raising of the children. 

While the Court noted that the exclusion of unmarried couples from receipt of Widowed Parent’s Allowance would not always be discriminatory it foresaw that it would amount to as much in a significant number of cases. It is certainly expected that the case will have wide-reaching implications in Northern Ireland given that recent data suggests that 14 per cent of parents in the province are co-habiting rather than married.

While in this case the Supreme Court found in Ms McLaughlin’s favour it does highlight the fact that in many instances co-habiting couples are still faced with the fact that their relationship does not afford them with the same legal protection afforded to married couples. This lack of protection can often lead to a surviving co-habitee receiving no financial support from the estate of their partner. This serves to emphasis the importance of setting out one’s wishes in a will.

Whilst the case was brought in Northern Ireland it has UK effect as the wording of eligibility criteria in the legislation in the rest of the UK is the same. The Supreme Court cannot change the law but by saying that it is incompatible with the Human Rights Act, it is putting pressure on the UK's legislatures to change the law and ensure that it is human rights compliant.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Orla Mallon

Orla Mallon

Partner,
Belfast


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