Succession: Reform of Intestacy Rules (short essay answer)

Essay answer:

Intestacy law is governed by the Administration of Estates Act 1925 and the Non-Contentious Probate Rules. The law on intestacy is somewhat controversial, particularly as regards the benefit received by the surviving spouse on the intestacy of a partner. It has been said that the law has developed in line with the rising property market – giving spouses a more realistic chance of being able to remain in the matrimonial home – although for the issue left in any given case, this is arguably unfair and fails to give effect to the deceased’s true wishes.

The current intestacy rules under Part III AEA set out that where the deceased leaves issue who have obtained the age of 18, the surviving spouse will be entitled to a take a fixed net sum of £250,000 with a rate of 6% interest, personal chattels – for example, a yacht in Re Chaplin, and a watch collection in Re Crispin’s WT – and a life interest in half of the residue. There has been some debate as to the effectiveness of retaining life interests as they as somewhat outdated, however, the courts have not yet reformed this. The residue of the estate once these have been distributed will be shared by any issue on life interests.

Usually it would be pertinent to ascertain which assets within the estate can be classed as personal chattels, however the fixed net sum provided for ‘spouses with issue’ already exceeds the general assets of many individuals. Thus, the surviving spouse in many instances will be entitled to the whole of the estate. Unfortunately this means that none of the issue will take any benefit.

This outcome demonstrates just a handful of the problems associated with not leaving a will. In the extreme, the estate may pass bona vacantia under s.46 AEA. More common problems, however, relate to not fulfilling the deceased’s wishes. Intestacy law, for example, will not concern itself with delving into family relationships to ascertain whether the deceased really would have wanted his spouse and issue to benefit – the rules, by nature, have to be rigid in order to apply to a multiplicity of circumstances, but this often doesn’t suit individual situations.

The law of intestacy also only makes provision for family, perhaps because it would be too cumbersome to attempt to provide for friends too. Thankfully the Inheritance (Provision for Family and Dependants) Act 1975 provides a solution to this problem, although attaining locus standi can bring a plethora of its own problems.

In conclusion, although the rules of intestacy may be seen as unfair, this stresses the importance of creating a valid will. As stated above, there may be some redress through the family provision legislation although the certainty of this is not guaranteed as the courts are often reluctant to provide for grown-up children, as demonstrated in Re Coventry.