Where there is a will, there is a claim

That is because couples who have a common-law marriage cannot apply for financial provision under the Succession Act 1974’s intestacy rules.

Bermuda’s intestacy regime allows only a spouse, former spouse who has not remarried, child or grandchild who was being maintained by the deceased, to make an application. Cohabitees, even after years together, are simply not included.

This stands in stark contrast to the United Kingdom’s Inheritance (Provision for Family and Dependants) Act 1975, as expanded by the Law Reform (Succession) Act 1995, that allows long-term partners living “as if that person and the deceased were a married couple or civil partners” for at least two years to seek provision from the deceased estate.

Until Bermuda law catches up, cohabiting couples must turn to private estate planning. Clear and up-to-date wills, powers of attorney and formal legal arrangements are essential to protect each other in the event of death or incapacity.

Parties falling within the Succession Act’s narrow class (ie, spouse, former spouse who has not remarried, child or grandchild), may still be required to demonstrate that the estate has not made reasonable financial provision for their maintenance.

For a spouse, the court will not consider whether such provision is required for their maintenance, merely that it is reasonable for the spouse to receive it. Other applicants must prove that a maintenance award is “reasonable in all the circumstances”.

When deciding an application, the court weighs factors including the financial resources and needs of the applicant, any other application or any other beneficiary of the deceased’s estate.

In addition, the court will consider any obligations the deceased may have had to the applicant, the contents of the deceased’s estate, any physical or mental disability of the applicants or beneficiaries and any other matters, inclusive of the parties’ conduct, that the court may consider relevant.

In the case of Ingham v Sandoval, Bermuda’s Supreme Court denied a claim for financial provision brought by the son of the deceased who was excluded from his late father’s will.

The court considered that there must be more than a mere blood relationship for a claim to be successful, and that the son’s application lacked “some sort of moral claim” to maintenance from the deceased’s estate.

Although the court offered little guidance on what constitutes such a claim, it signals a low threshold, especially for dependents with a clear expectation of financial support.

The threshold for the reasonable expectation of financial support is illustrated in recent British case law.

In the Supreme Court case of Illot v The Blue Cross, a successful claimant who was reliant on state benefits and was not given any financial provision under her mother’s will was awarded £50,000 (about $66,000).

Conversely, the unsuccessful claimants in the High Court matter of Miles v Shearer were not found to have the strained financial circumstances necessary to be able to establish a need for maintenance.

Similar to the “moral claim” identified by the Bermuda court in Ingham, the UK courts clarified that awards should be linked to the applicants’ need for financial provision to be made, and not to create unintended gifts or legacies from the deceased parent’s estate.

As the decisions show, estate planning is not merely prudent, it is essential.

At a minimum, everyone should have a valid will and a power of attorney in place. These estate planning documents should be reviewed and updated periodically, particularly following major life events such as marriage, divorce, the birth of children or the acquisition of significant assets.

For all intents and purposes, “marriage” has the same meaning as “domestic partnership” and “divorce” the same meaning as “dissolution” which can be found in section 50 of the Domestic Partnership Act 2018.

The importance of estate planning is especially critical for cohabiting partners. While cohabitation before marriage is increasingly common, Bermuda law does not provide automatic inheritance rights for surviving partners.

Without proper planning, a surviving cohabitee may be left without legal recourse or financial support.

If you have been excluded from a loved one’s estate, whether the deceased was a spouse, former spouse and you have not remarried, parent or grandparent, you may have a claim against the estate under the Succession Act.

Seeking timely legal advice can help clarify your rights and protect your interests.

First Published in The Royal Gazette, Legally Speaking column, November 2025