Unpacking legal myths By Amanda Hamilton, National Association of Licensed Paralegals
It doesn’t matter if your Common Law husband (or wife) makes a mistake with their Will because a Will always guarantees that their wishes will be followed after their death, and besides a court will understand that they don’t know what they don’t know. There are a number of legal myths contained in that sentence – let’s take a look at each:
Myth 1:
‘Common Law Wife or Husband’.
Many people have been caught out by the myth that living with someone over a long period of time gives that partner rights in common law. There is no such thing as a ‘common law wife or husband’.
If you live with a partner but are not married and have not entered into a civil partnership (CP), then that partner is a cohabitee. Married or CP partners have benefits in respect of inheritance, pension rights and tax. Unmarried partners do not. So, if you are living with your partner, and you are not married or in a civil partnership, and you wish to secure their future, then you would have to make a Will and leave your property and all your assets to them, otherwise your partner’s relatives could come along and take everything. This will apply regardless of the length of time you have been living together.
Of course, one can argue that if the partner (whose name is not on the title deeds to the property in which the couple has lived) has contributed to the outgoings of the home, then that partner may have some beneficial interest in the property. This translates as being able to have a share of the proceeds of sale should the property be sold. How much would be dependent on the amount of contribution over a number of years. Contributions could include paying for grocery shopping on a regular basis, cooking, cleaning, paying utility bills or contributing to the mortgage payments. The extent of the share in profits on sale would be down to the court to decide if the ‘owner’ of the property and the partner do not come to an agreement.
But the best way to tackle the situation is either to get married or alternatively, make a Will.
Myth 2:
‘Making a Will is a declaration of a deceased’s intention regarding who shall benefit from their estate after their death’.
This is a true statement provided the Will is valid and has been properly ‘executed’ i.e. properly signed and witnessed according to statute. However, as with all legal principles, there are always exceptions.
As an example, a Will can impliedly be revoked by a subsequent marriage. So, if there is a Will made by an individual, and there is no mention in the Will of that individual marrying, then if the testator (the person making the Will) subsequently marries without amending the Will or making a new one, then the marriage will revoke the existing Will, meaning that the deceased will die intestate.
Dying intestate means that the person who is first in line inherits the estate. In this case, that would be the surviving spouse, even if the spouse is not included in the original Will, and even if the deceased really wanted his/her estate to go to someone else.
There has been a campaign in the House of Commons to change the law to stop predatory marriages and prevent the exploitation of elderly and vulnerable individuals: there has been a spate of recent court cases in which an older woman has been persuaded by a younger man to get married and not long after such a marriage the woman has died, leaving beneficiaries under the Will (the family of the deceased) to challenge the rule (that automatically revokes the existing Will upon marriage) in courts.
So, the lessons are: always make a Will; ensure it has been properly executed; update a Will when circumstances change.
Myth 3:
‘You can’t be expected to know what you don’t know’
The fact that you are unaware of the law is no defence.
For example, if you decide to buy a property and then rent it out, you may need to have a licence from the local authority to do so. Recently, a friend of mine bought a house in the North of England and decided to rent it out. A few months after finding a tenant, she received a warning letter from the local authority stating that she was a landlord without a licence, and she would be taken to court for non-compliance. She was totally ignorant of the need for this. Luckily, she managed to sort it out (at great cost) before it got to court. As she said to me: ‘you don’t know what you don’t know’! But not knowing is not an acceptable defence – it is your responsibility to ensure you are aware of the law and your legal requirements and obligations.
If you find yourself in a difficult legal situation, and need some expert advice or help, then it’s often worth contacting a paralegal in the first instance. Paralegals can do almost everything a solicitor can (with the exception of certain reserved activities) and they charge considerably less per hour. To find a qualified, licenced paralegal search the National Paralegal Register: https://www.nationalparalegals.co.uk/national-paralegal-register/
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk
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