A father has lost his appeal over a finding that his deceased son’s cohabiting partner is entitled to proper provision from the deceased’s estate, which includes an apartment in Dublin valued at up to €460,000.
The deceased died in his 30s following an accident. Because he left no will, Irish law provides that his estate, subject to the outcome of his partner’s application for proper provision out of the estate, passed equally to his parents.
The application was under the 2010 Act relating to civil partnership and rights and obligations of cohabitants. The main asset in the estate is the apartment, now mortgage-free after the deceased’s father applied his son’s life assurance policy to discharge the mortgage loan in full.
Under the law, unmarried cohabiting partners can be entitled to provision from the estate in some circumstances, including long relationships where the pair’s finances were interdependent. “Proper provision” is flexible and can vary to take into account circumstances including income, health and standard of living.
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After the Circuit Court ruled the partner was entitled to proper provision, the father appealed.
While accepting his son was in an intimate and committed relationship with his partner at the time of death, and the partner is a “qualified cohabitant” under the 2010 law, he argued his son had made proper provision for his partner while he was alive and the partner is not entitled to further provision out of the estate.
In her recently published High Court judgment, Ms Justice Nuala Jackson dismissed the appeal.
The couple, the judge noted, lived happily together for about five years before the deceased’s death. At the time of death, more than 10 years ago, they were cohabiting in the apartment and had discussed marriage abroad because same-sex marriage was not then legal in Ireland.
The purchase of the apartment was a joint endeavour, but was primarily funded by the deceased and the mortgage was solely in his name, the judge said. The evidence was a joint mortgage was discussed but the partner’s then immigration and financial status made the process easier if the deceased was the sole borrower.
The couple operated a joint account for day-to-day expenses, including the mortgage. Both contributed to this, but the deceased made a larger contribution as he earned more, she said. Both were advised about making wills when the property was purchased, that was not done and she found “nothing unusual” in that as they were young “and busily attending to affairs of life rather than death”.
The partner, who has a progressive disability, works part-time and has returned to studies, remains in the apartment and rents a room in it to lodgers. He gave evidence about emotional trauma suffered after the death of his partner and the stress of the litigation. His evidence was that if he had to leave the apartment he would be homeless.
The deceased’s parents, the judge said, are comfortably off and there was no evidence of financial need by them or their other adult children.
On foot of the evidence, she said she could not accept the father’s argument the partner is self-sufficient. He is “entirely dependent” upon the apartment for his accommodation needs, she said.
The evidence was the deceased and his partner had established a joint home and each contributed to that in accordance with their means, she said. There appeared to have been a “clear agreement or understanding” between them about that.
In the circumstances of this case, proper provision was not made for the partner during the deceased’s lifetime and the partner is entitled to proper provision from the estate, she held. To decide there was sufficient provision while the relationship was ongoing, and that ceased on the death of the deceased, would “entirely defeat” the relevant provision of the 2010 Act.
