Fifty, or even thirty years ago, if you had asked a school classroom to draw a picture of the typical British family, chances are the pupils would have drawn a picture of a husband and wife and one or two children. Yes, statistically it is likely that there would have been a few single-parent families in the representations, but ideas of the nuclear, heteronormative family were, back then, entrenched and largely unchallenged.

Today, more and more children belong to families made up of single parents, co-habiting parents, same-sex couples, step-families, and mixed families living across different households. Inevitably, the changing structure of “family” has had to be recognised in family and probate law and, on occasion, makes the related legal processes more challenging.

One recent case has tested the division of financial assets on the breakdown of a new-style family unit in relation to a couple who had cohabited and children from a previous marriage: the England and Wales Court of Appeal probate case of Kahrmann v Harrison-Morgan [2019] EWCA Civ 2094.

The background

The deceased in this contested probate claim, Dr Kahrmann, was a high net worth individual who fathered two daughters with his former spouse as well as twin sons with Ms Hilary Harrison-Morgan, with whom he cohabited for a number of years in one of a number of expensive London residences to which he had ownership rights.

Dr Kahrmann and Ms Harrison-Morgan eventually separated, but Ms Harrison-Morgan continued to reside in a Belgravia property.

Complications

In 2014, a property developer sought to buy the Belgravia property, however, the £16 million offer was contingent on Ms Harrison-Morgan vacating the property.

Shortly after the property purchase negotiations began, Dr Kahrmann died suddenly. At the time of his death he was intestate (without a Will).

The contention

Following Dr Kahrmann’s death, the development company continued the negotiations resulting in the quick sale of the Belgravia property which Ms Harrison-Morgan duly vacated. The £4.4 million profit from the sale was split between Dr Kahrmann’s daughters and Ms Harrison-Morgan – both parties received £2.2 million.

However, after consulting the family’s lawyers, one of the children decided to challenge the validity of this position.

The daughter argued there was an express common intention constructive trust in favour of her father’s estate that stemmed from an agreement made between Dr Kahrmann and a former business partner. She argued that, by paying the purchase price of the property directly to Ms Harrison-Morgan and Dr Kahrmann’s children rather than to the estate, the developers were in breach of trust. Instead, she argued, the monies should have been paid to the estate and distributed evenly between Dr Kahrmann’s children.

The court’s view

Despite Ms Harrison-Morgan’s initial success in proving her case at the England and Wales High Court in July 2018, following an appeal made by one of Dr Kahrmann’s daughters at the Court of Appeal, a Judge has since overturned that decision. Furthermore, Ms Harrison-Morgan has been ordered to now repay the £2.2 million she received from the sale of the property as well as a six-figure sum in legal costs.

Additionally, Dr Kahrmann’s ex-wife, the mother of the two daughters, has demanded that Ms Harrison-Morgan return a number of antiques and paintings that Ms Harrison-Morgan states were gifted to her by Dr Kahrmann when he vacated the property.

Is this the end?

The case is due to be appealed in the Supreme Court, so there is, as yet, no definitive answer as to what this means for others in similar positions. The appeal also means that all orders in the case, including the £ 500,000 costs order against Ms Harrison-Morgan, must be stayed pending the application to appeal. Watch this space.

The new family unit and complex probate claims

In modern society the shape of the family unit has changed so dramatically from the post-war nuclear family that complex probate disputes are becoming increasingly common, particularly in relation to families involving cohabitation, divorce and step-relationships. If the terms of a Will are not crystal clear or, more drastically, if there is no Will, the distribution of an estate can be fraught with controversy, acrimony and risk of litigation.

In such a situation, finding the right contested probate lawyer for your circumstances can be extremely important, however, if a Will is drafted with the advice of an experienced and expert solicitor for Wills, contention could, hopefully, be avoided.