David Borrowman, Managing Partner, The Caesar & Howie Group

Caesar and Howie have recently been on the winning side in a case dealing with the right of unmarried Cohabitants under the Section 29 of the Family Law (Scotland) Act 2006, in what is believed to be the first reported case dealing with how much a surviving cohabitant is entitled to receive from the estate of their deceased cohabitant

The act gives cohabitants the right to apply for payments out of the deceased’s estate. In this case Savage v Purches which called at Falkirk Sheriff Court, the firm successfully represented a family member entitled to inherit the estate against the claim of a person who had lived with the deceased for just over two years.

James Savage and Graham Voysey were persons of the same sex and cohabited as if they were civil partners for two years and eight months. Neither party had issue or spouses. On death the occupational pension scheme of the deceased paid to the surviving cohabitant Pursuer a lump sum payment of around £124,000.00 plus a pension of £8,000.00 net per annum, the replacement value of which was actuarially assessed at £298,900.00. The scheme also paid a lumps sum of £124,000.00 to the only surviving relative of the deceased - the executor - and nothing was paid into the estate. The Pursuer sought payment of the entire net intestate estate totalling around £185,000.00.

That claim was rejected by the Sheriff. Martin Monaghan family law partner at Caesar and Howie commented “I think this is a good common sense result and it shows the Act does not give cohabitants who live a relatively short time with someone excessive rights to their estate. My client and I were very pleased with this result”.

The issues arising concentrated on the statutory interpretation of “matters” in sections 29 (2) (a) and (3) and whether this interpretation is restricted to matters arising after the date of death thereby making, for example, the duration and nature of the prior cohabitation irrelevant in assessing quantum. Other issues comprised quantifying the intestate estate and whether this included the expenses of administering the executry, and considering and quantifying what benefit the surviving cohabitant Pursuer had already received arising out of the death of his cohabitant with particular emphasis on the valuation of a monthly pension.

Sheriff Arthurson determined that the surviving cohabitant be entitled to receive nothing as the benefits already received by the Pursuer from outwith the estate - £422,900.00 - were “of such a scale to mitigate against the making of any award in favour of the Pursuer in terms of section 29”. The Sheriff went on to criticise the credibility and reliability of the Pursuer and determined that “there was a distinct whiff of avarice about the whole action raised by the Pursuer” and, inter alia, that “the matters” did entitle it to consider issues arising during the relationship and in particular the duration of the relationship itself, and that an actuarial replacement valuation of the monthly pension received was an appropriate way of assessing the benefit the surviving cohabitant had received.