Testing the succession rights of cohabitants as contained in the Family Law (Scotland) Act 2006 against a foreign dispute that has made the press, finds them wanting
Any of you who became hooked, like me, on Stieg Larsson’s Millennium Trilogy will have been equally intrigued by the tragic legal dispute which followed his sudden death.
For those not familiar with this story, Larsson was a Swedish left-wing journalist who wrote three thrillers which together formed this work. Tragically, Stieg died suddenly of a heart attack in 2004, shortly after hearing that the first book was to be published. The Girl with the Dragon Tattoo became a bestseller in Sweden and then throughout Europe, as did the two further novels. The Swedish film of the first book has just been released here and there is a Hollywood version planned.
The interest for family lawyers in this story is that following Larsson’s death, his partner of 32 years, Eva Gabrielsson, has been cut out of his estate by Larsson’s family. Eva and Stieg had never married because his campaigning journalism had made him a target for right-wing extremists and they feared that if their address was made public – required according to Swedish laws on marriage registration – he would be at great risk. He died intestate and under Swedish law his partner was entitled to nothing.
Sadly, Stieg’s father and brother, who will inherit, seem unwilling to share the fruits of Stieg’s literary success with Eva and litigation is underway. According to a recent Observer interview, Eva is not optimistic. She believes that she cannot win her case under cohabitation law and may have to pursue a case claiming co-authorship of the books.
Reading that, my initial, rather smug thought was that it was a pity Eva and Stieg had not lived in Scotland, and he had died after the Family Law (Scotland) Act 2006 came into force. However, on closer examination, I am not so sure that Eva would be any better off under Scots law as it presently stands.
Hurdles to clear
Let’s assume that Eva and Stieg were domiciled in Scotland, living here as husband and wife at the time of his death and he died intestate. Eva is thus able to make a claim under s 29 of the Act. However Eva was in deep shock and grief for months after Stieg’s sudden death. The first book was not published until the following year. Would she even have considered seeing her lawyer within six months of his death when it was by no means clear that there was anything of value to claim and she was still grieving? Her first hurdle is therefore the requirement of s 29(6) that “Any application under this section shall be made before the expiry of the period of 6 months beginning with the day on which the deceased died”. If she was at all slow in seeking advice, there is no provision in the Act for dispensing with this requirement.
Assuming Eva did see her lawyer and timeously intimated a claim against the estate, what would be the basis of the claim? She would have no difficulty in establishing that she and Stieg had been living together as husband and wife at the time of his death. Thus, the requirements of s 25 are met.
Under s 29 the court may make an order for payment of a capital sum or for transfer of property, heritable or moveable. Before making such an order the court must have regard to the matters mentioned in subs (3), which are:
- “(a) the size and nature of the deceased’s net intestate estate;
- (b) any benefit received, or to be received, by the survivor– (i) on, or in consequence of, the deceased’s death; and (ii) from somewhere other than the deceased’s net intestate estate;
- (c) the nature and extent of any other rights against, or claims on, the deceased’s net intestate estate; and
- (d) any other matter the court considers appropriate”.
Beyond that, no guidance is given as to what factors shall determine whether to make an order and if so in what amount. The only limitation is under subs (4) which provides: “An order or interim order under subsection (2) shall not have the effect of awarding to the survivor an amount which would exceed the amount to which the survivor would have been entitled had the survivor been the spouse or civil partner of the deceased.”
The starting point is therefore the size and nature of the estate.
The book sales are estimated at 30 million euro – the books are now outselling Dan Brown in Britain. The film rights too are likely to be in six, if not seven, figures. So, a very large estate, the nature of which would present little restriction to the court as to how it could be divided. It would be open to the court to consider transferring rights to one of the books to Eva under s 29(2)(a)(ii), rather than make a one-off capital payment.
Looking at s 29(3)(b), possible benefits to be considered are rights under a life insurance policy or a pension. This issue arose in Savage v Purches 2009 Fam LR 6. This was an application under s 29 by a same-sex cohabitant on his partner’s death after a cohabitation of two and a half years. The defender was the deceased’s sister. Mr Savage had received over £120,000 in death benefit and an annual pension of £9,000 from his partner’s pension scheme. He sought an order for the whole of the net estate.
The pursuer was found to have established the right to make a claim, but its value was assessed as nil. The factors in the decision were the sums already received, that the length of the relationship represented only a fraction of his partner’s life, and that his partner had made no testamentary provision for him although he had done so for a previous cohabitant. The other benefits were accepted by the sheriff as being “on such a scale in themselves as to militate against the making of any award”.
We will assume that Stieg left no pension – he owned a radical magazine and is not likely to have had much disposable income.
Subsection (3)(c) requires that the claims by Stieg’s father and brother be considered. He and Eva had no children so they seem to be the sole beneficiaries under Swedish law. How would the court approach this factor?
I suggest that the closeness of the relationship would be taken into account. Here, the connection in blood is close but Eva argues that Stieg rarely spoke to his family. They did not understand his work as she did.
The sheriff in Savage also considered this issue, which seems to have been of considerable importance in the final decision. He did not accept Mr Savage’s evidence that his partner and the defender were estranged, commenting on “the warmest and most authentic emotion heard in court” being that of the defender. Would the allegedly strained relationship between Stieg and his father and brother sway the court into making a more generous award to Eva? It seems that the court could take this approach. The father and brother were not dependants of Stieg during his life. Their claim is to the whole of the estate, and the court would not have to be concerned that any share awarded to Eva would be significantly to their detriment given the very large amounts they would each still receive.
The court is also given a very wide discretion by subs (3)(d) to take into account “any other matter the court considers appropriate”. That would allow it to reflect factors such as the length and nature of the cohabitation. We know that Eva and Stieg lived together for 32 years and she describes herself as his collaborator. It is possible that she could provide evidence that she contributed to his work and probably also that her own work was neglected to support his.
They co-owned their apartment. It appears that the title to Stieg’s half falls into his estate. An order for transfer of his share could be sought under s 29(2)(ii). Factors which might be considered would be how the payments for the apartment were shared. Given the wide discretion, the court may feel that Eva should at least obtain the home she shared with Stieg.
The issue of the house does, however, bring us to the biggest problem Eva’s claim would face – the limitation imposed by s 29(4). She cannot receive more from the estate than a spouse or civil partner would get. The prior rights of a spouse, where there are no children, would give her the house they lived in (provided its value did not exceed £300,000, in which case she would have that amount), the furniture and furnishings up to a value of £24,000 and cash of £75,000. There would then be the widow’s legal rights to assess, in this case to one half of the net moveable estate. The balance of the estate would go to the surviving father and brother.
One difficulty would be in assessing the value of the widow’s share. According to Gloag & Henderson, it is “the actual realised value and not the estimate as at the date of death which determines the amount of the estate for the purpose of calculating the legal rights”. At the date of Stieg’s death I doubt that much income had been established as the first book had not been published – he had only signed a deal. Given the value of the estate now, the overriding limitation imposed by s 29(4) provides a very harsh outcome for Eva. One wonders what is the justification for this? After a stable, monogamous and apparently very close relationship spanning 32 years, I suggest that equity would require a rather more generous settlement than the current law of Scotland would provide.
Commission to the rescue?
This limitation would of course also apply if Stieg and Eva had been married. What, though, if the draft bill in the Scottish Law Commission’s recent Report on Succession had been brought into force? Without going further into the realms of speculation it is worthwhile to comment briefly on this. The Commission recommends that s 29 should be repealed. It proposes a similar two stage test which would first determine whether the applicant and the deceased had been cohabiting at the time of death, and thereafter provides for the cohabitant to apply for a proportion of the estate, to be expressed as a percentage.
As with the present law, “a cohabitant’s rights of succession should reflect the quality of the relationship which the couple had. Put another way, unlike a spouse or civil partner, a cohabitant has to ‘earn’ her right to a share of an intestate estate or to be protected from disinheritance. To that extent the distinction between marriage and civil partnership and cohabitation should be maintained”.
In determining the percentage of the estate which can be claimed, the Commission recommends three matters to be taken into account:
- “(a) the length of the period of cohabitation;
- (b) the interdependence, financial or otherwise, between the cohabitant and the deceased during the period of cohabitation; and
- (c) what the cohabitant contributed to the life together of the cohabitant and the deceased (whether such contributions were financial or otherwise) as for example running the household, caring for the deceased and their children or any children accepted by them as children of the family”.
This would offer the court rather more guidance than the present law on how to approach calculation of the cohabitant’s share, but would still leave a reasonable measure of discretion.
The maximum percentage which can be awarded is 100% of the sum which would have been due to the spouse or civil partner under intestate succession or legal share. Thus far, the outcome for Eva would not, in my view, be very different. However, if we look at the Commission’s recommendations for changes to the order of priority for intestate succession, there is one change which would lead to an entirely different outcome. The Commission’s recommendation is that “where a person dies intestate survived by a spouse or civil partner but not by issue the spouse or civil partner should inherit the whole of the net intestate estate”.
Therefore, in the scenario I have considered, Eva could claim 100% of the estate.
Hard cases make bad law and I suspect that hypothetical cases may do the same. It is however important as we seek to test the current law in practice that we also give thought to the case for change. Rather than struggling to understand and implement the provisions on cohabitants in the 2006 Act, should we be considering an immediate overhaul? The awkwardness of the use of the concept of economic disadvantage in s 28 for claims where the cohabitation ends otherwise than by death might also usefully be replaced by the approach set out by the Commission for claims on intestacy.
- Elizabeth Welsh, Elizabeth Welsh Family Law Practice and Chair, Family Law Association