The case of Thompson v Raggett is widely heralded as a landmark case in furthering the recognition of cohabitee relationships, but QualitySolicitors Acklam Bond's Head of Probate and Elder Law, Frederick Parkinson, has expressed concern as to the implications of the case for those seeking to rely on utilising life interest trusts to minimise the impact of any self-funding care assessment.
“It is very important,” says Frederick “that proper advice is sought and obtained from professional legal advisers before embarking on any care fees planning, there are a number of legal and investment options available not all of which are known to untrained, non-specialist will writers. Quality Solicitors Acklam Bond’s specialist legal services are supported and complimented by specialist accounting and financial advisory service providers that have been carefully screened and selected for their specialist knowledge in this important area.”
Although commentators have focused on the 42-year cohabitation that had persisted between Joan Thompson and her deceased partner, more worryingly for those looking to address future care planning by Will, the court has exhibited a clear willingness to set aside a Will so as to achieve financial independence for the surviving cohabitee (which has obvious implications for those seeking to limit the crippling costs of self-funded care by ring-fencing funds away from the survivor).
The basic facts of Thompson v Raggett were that the deceased Wynford Hodge had decided not to make any financial provision in his Will for his cohabiting partner’s children to which end (perhaps to ensure that his partner did not frustrate his wishes after his death) he made no provision for his partner either: although he did leave a candid non-provision letter articulating this reasoning.
The Deceased’s net estate was in the region of £1.5million.
Joan Thompson and the Deceased had lived together for some 42 years and Joan was totally dependent financially on the deceased during his lifetime.
Joan Thompson faced her own future with modest savings of some £2,500 and with her only income consisting of a state benefit and disability living allowance totalling £1,114 per month.
Joan Thompson was in poor health but was nevertheless assessed as capable of living at home provided adaptations were made to the property she decided to live in.
Counsel acting for those opposing the application had sought to argue that reasonable financial provision should centre on maintenance and that (with reference to the case of Re Myers) this dictated that Joan Thompson should be granted a life interest in the deceased’s property as opposed to having the property transferred outright to her.
Rejecting this submission, His Honour Judge Jarman QC made clear that:
“The real issue in this case, in my judgment, is what amounts to reasonable financial provision for Mrs Thompson's maintenance. The powers of the court to make orders to provide for such provision are set out in section 2 of the Act and are very wide. It is not in dispute that this includes provision for her accommodation and care needs…. All cases are fact sensitive and in the present case that possibility is a reality. Mrs Thompson is elderly and in need of care. There is detailed evidence as to such need.”
Helpfully for legal advisers: HHJ Jarman QC articulated the practical considerations in determining the question of reasonable financial provision:
Ø Age of the applicant (here 79 years of age)
Ø The period of cohabitation (here 42 years)
Ø The Applicant’s contribution to the welfare of the Deceased and the Deceased’s family (Joan had cared for the Deceased’s mother)
Ø The length of time the Applicant was being maintained by the Deceased
Ø The extent of the Deceased’s maintenance
Ø The extent to which the Deceased had assumed responsibility for her maintenance
Some commentators have argued that the case panders to the expectations of government that those with money should pay for their care regardless of their nursing care needs.
However, the wording of HHJ Jarman QC’s judgement betrays a desire to give Joan Thompson the financial independence that the Deceased had withheld from her during her lifetime and which he sought to withhold from beyond the grave:
“Given the very long period of cohabitation and given that that it is [members of the family] who will be providing the care for his mother at the cottage, in my judgment it is reasonable to provide for her maintenance accommodation in which [the family carers] have no interest.”
This case is a wake-up call too for those who embarking upon cohabitee relationships in the misguided belief that death will end both the relationship and the financial obligations of the Deceased.
“The message of this case: the surviving cohabitee is not to be ignored” says Frederick “and the surviving cohabitee’s care needs are as much a risk to the family’s expectation of inheritance as those of a surviving spouse.”