The Defender was appointed Executrix Dative for the estate of her half-brother (the deceased). The Pursuer had co-habited with the deceased for about 2 ½ years before his death but they had not entered into a civil partnership. The deceased died intestate and without issue. He was survived only by the Defender. Section 29 of the Family Law (Scotland) Act 2006 allows an application to be made by a surviving cohabitant where the deceased cohabitant died intestate and was domiciled in Scotland for an order for payment of a capital sum from the deceased’s net intestate estate or for transfer of property. The Court has discretion in making such an order, having regard to a number of matters set out in Section 29(3). The Pursuer sought payment of the deceased’s entire net intestate estate or, alternatively, an order for transfer of heritable property. Following the deceased’s death, the Pursuer had received a half share of the lump sum death benefit payable from the deceased’s employers’ pension scheme. The other half was paid to the Defender as the deceased’s half-sister. The Pursuer also received an adult dependent’s pension from the pension scheme. The Pursuer argued that, in exercising its discretion in terms of Section 29, the Court should not take into account the period of co-habitation or length of co-habitation. While the Defender accepted that the Pursuer qualified to make an application under Section 29, she argued that no award should be made standing the sums already received by the Pursuer. The Defender argued that the duration of the relationship was relevant, particularly having regard to the significant benefits received by the Pursuer as a result of that relationship. The Sheriff held that the Pursuer and the deceased were co-habitants in terms of Section 25 of the 2006 Act and that, immediately before his death, the deceased was domiciled in Scotland. The Pursuer was entitled to make a claim in terms of the 2006 Act but, having regard to the provisions of Section 29(2)(3)(4) and (10), the quantum of the said claim was assessed at nil. The Sheriff found the Pursuer to have been a witness of limited credibility and reliability. He had tried to minimise the role of the Defender in the deceased’s life and to mislead the Court in an attempt to support his claim to the deceased’s net intestate estate. The Sheriff accepted the Defender’s evidence about her relationship with the deceased who had been a much loved and missed sibling. The Pursuer had benefited from a considerably enhanced standard of living while during his relationship the deceased, including significant gifts, rent free accommodation, holidays and the opportunity to change his career and he had been well provided for following the deceased’s death. Decree of Absolvitor was granted. It was suggested that this was the first decided litigation in this area and, on that basis, a fair approach would be to award no expenses to or by either party.
Court: Sheriff Court (Scotland)
