News | Legal News

28 September 2016

Woman who failed in bereavement damage challenge set to appeal

A woman is to appeal a court ruling, after failing in her bid to win greater legal recognition for unmarried couples.

Jakki Smith's battle has already led a High Court judge to express the hope that Parliament "might improve the current state of the law".

The 58-year-old NHS worker says that her inability to claim bereavement damages is an unjustified interference with her right to private and family life under Article 8 of the Human Rights Act, and unjustified discrimination under Article 14.

Retired prison governor, 66-year-old John Bulloch, died in October 2011 after an infection was missed.

Ms Smith, his partner of 16 years, discovered she was not entitled to bereavement damages, which are paid out if a person dies as a result of negligence - but only to spouses or civil partners.

Earlier this month, in London, Mr Justice Edis ruled there is no compatibility between the 1976 Fatal Accidents Act and Ms Smith's convention rights, saying he has no power to intervene.

However, he described how a previous Labour government had published a draft Bill to remedy the problem, which never became law, and the Law Commission has also made recommendations in favour of reform.

He said: "Legislation was thought necessary by the Law Commission and the government in 2009 to achieve this reform and I agree with them.

"It is to be hoped that the outcome of this litigation may provoke some further discussion in Parliament for further legislation which might improve the current state of the law."

Thomas Bird, solicitor in the B P Collins wills, trusts and probate team comments: "The intestacy rules which apply if someone dies without a Will, do not include provision for a cohabitee. People that have been living together for two years or more as spouses or civil partners are able to make a claim against their deceased cohabitee's estate under the Inheritance (Provision for Family and Dependants) Act 1975, if they wish for the estate to make provision for them.

"This therefore acts as a reminder that cohabitees, although this would not have necessarily aided Ms Smith in this case, of the importance of having a Will in place to provide for one another, in order to avoid the need for the survivor to make a claim and incur otherwise avoidable legal charges."

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