Michael King gives an overview of the intestacy rules
The Administration of Estates Act 1925 as amended by the Intestates’ Estates Act 1952, the Family Law Reform Acts of 1969 and 1987 and the Civil Partnership Act 2004 forms the basis of the current law of intestacy. The 1925 act was revolutionary as it overturned centuries-old sets of rules some of which had their origins in the feudal system of the medieval period.
Before 1925 there were two sets of rules governing succession on intestacy: one applied to realty (i.e. land) and the other to personalty (i.e. assets other than land). Devolution of land on intestacy was governed by the Inheritance Rules that originated at a time when it was not possible to dispose of land by will. After it became possible to do so, the Inheritance Rules still applied in cases of intestacy.
The main feature of the Inheritance Rules was primogeniture whereby the land passed on death to the eldest son, known as the heir at law. Over the centuries the rules evolved to take account of inheritance by persons other than the eldest son, particularly in situations where a deceased person was not survived by sons.
A parallel set of rules developed in respect of personalty and the first statutory provisions were enacted by the Statutes of Distribution in the 17th century. The regime enacted by the Statutes of Distribution seems less alien to us than the Inheritance Rules as it included provisions for the spouse and children of a deceased person and it also included the rule whereby assets vest in a personal representative who is responsible for distribution.
The 1925 legislation swept away the old rules and introduced a unified system of succession on intestacy that applied to both realty and personalty. It effectively abolished primogeniture so that the rights of a surviving spouse now take precedence over those of the children of the deceased.
Some traces of the old rules remain. The Inheritance Rules still apply to land that is ‘entailed’ which is land that can only pass to the ‘heirs of the body’ i.e. lineal descendents of the first holder of the entail and to succession to the Crown, most hereditary peerages and baronetcies which still pass to the eldest son and cannot be disposed of by will. However for most estates the pre-1925 rules have been abolished and it is only in very rare cases that they are still relevant.
One of the features of the 1925 legislation as amended is the order of entitlement starting with the spouse or civil partner of the deceased and ending with the Crown which is effectively a default intestate successor. Another is the rather complicated rules for distribution which depend upon who survives the intestate. There is a summary of the intestacy rules as they now stand in my article on intestacy entitled “What happens when someone dies without a will” also on this website.
The rules enacted in 1925 and 1952 were to some extent meant to reflect what was believed to the wishes of the ‘average testator’ (and presumably, the average testatrix) and attempts were made discover what these were by means of surveys of wills so as to find out the most common kinds of testamentary provisions. But there are features of the rules that most probably do not reflect the wishes of the ‘average testator’ such as the life interest in half the residue that arises when the value of the estate exceeds the statutory legacy as it seems unlikely that the ‘average testator’ knows anything about the nature of life interest trusts and it is unlikely that he or she would be happy about the estate going to the Crown in default of other successors.
Nevertheless the 1925 act and subsequent legislation were successful in reflecting changing social attitudes. The survey that preceded the 1925 legislation, for example, revealed that the majority of testators left most of their assets to their spouses. The Intestates’ Estates Act 1890 had already introduced a statutory legacy of £500, but for widows only. The 1925 act increased the statutory to £1,000 and because of the equal application of the act to both sexes the statutory legacy for the first time became available to widowers. The Intestates’ Estates Act 1952 further improved the position of surviving spouses by giving them the right to acquire the matrimonial home in full or part satisfaction of their interest in the estate of the intestate. It also increased the statutory legacy to £5,000.
Since 1952 the statutory legacy has been increased a number of times and is now £250,000 when the intestate is survived by issue and £450,000 when there is no issue. As social attitudes evolved during the course of the last century and into present, the rules were amended to include as beneficiaries persons who had previously been excluded. The Family Law Reform Act 1969 gave to illegitimate children the right to inherit on the death of a parent and the Family Law Reform Act 1987 extended this right to enable them to inherit on the death of a sibling. The Civil Partnership Act 2004 introduced civil partnerships for same sex couples and gave to civil partners the same inheritance rights as spouses.
It is worth noting that the intestacy rules are not “written in stone”. The statutory order of entitlement, for example, can be varied if a successful claim is brought against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 and it can also be varied by the beneficiaries who, if they are all over 18 and have mental capacity, can agree to a distribution that is entirely different to the statutory order of entitlement.
REFERENCE
Borkowski, A. (2002) Textbook on Succession. Oxford: Oxford University Press
July 2012
Disclaimer:
The Administration of Estates Act 1925 as amended by the Intestates’ Estates Act 1952, the Family Law Reform Acts of 1969 and 1987 and the Civil Partnership Act 2004 forms the basis of the current law of intestacy. The 1925 act was revolutionary as it overturned centuries-old sets of rules some of which had their origins in the feudal system of the medieval period.
Before 1925 there were two sets of rules governing succession on intestacy: one applied to realty (i.e. land) and the other to personalty (i.e. assets other than land). Devolution of land on intestacy was governed by the Inheritance Rules that originated at a time when it was not possible to dispose of land by will. After it became possible to do so, the Inheritance Rules still applied in cases of intestacy.
The main feature of the Inheritance Rules was primogeniture whereby the land passed on death to the eldest son, known as the heir at law. Over the centuries the rules evolved to take account of inheritance by persons other than the eldest son, particularly in situations where a deceased person was not survived by sons.
A parallel set of rules developed in respect of personalty and the first statutory provisions were enacted by the Statutes of Distribution in the 17th century. The regime enacted by the Statutes of Distribution seems less alien to us than the Inheritance Rules as it included provisions for the spouse and children of a deceased person and it also included the rule whereby assets vest in a personal representative who is responsible for distribution.
The 1925 legislation swept away the old rules and introduced a unified system of succession on intestacy that applied to both realty and personalty. It effectively abolished primogeniture so that the rights of a surviving spouse now take precedence over those of the children of the deceased.
Some traces of the old rules remain. The Inheritance Rules still apply to land that is ‘entailed’ which is land that can only pass to the ‘heirs of the body’ i.e. lineal descendents of the first holder of the entail and to succession to the Crown, most hereditary peerages and baronetcies which still pass to the eldest son and cannot be disposed of by will. However for most estates the pre-1925 rules have been abolished and it is only in very rare cases that they are still relevant.
One of the features of the 1925 legislation as amended is the order of entitlement starting with the spouse or civil partner of the deceased and ending with the Crown which is effectively a default intestate successor. Another is the rather complicated rules for distribution which depend upon who survives the intestate. There is a summary of the intestacy rules as they now stand in my article on intestacy entitled “What happens when someone dies without a will” also on this website.
The rules enacted in 1925 and 1952 were to some extent meant to reflect what was believed to the wishes of the ‘average testator’ (and presumably, the average testatrix) and attempts were made discover what these were by means of surveys of wills so as to find out the most common kinds of testamentary provisions. But there are features of the rules that most probably do not reflect the wishes of the ‘average testator’ such as the life interest in half the residue that arises when the value of the estate exceeds the statutory legacy as it seems unlikely that the ‘average testator’ knows anything about the nature of life interest trusts and it is unlikely that he or she would be happy about the estate going to the Crown in default of other successors.
Nevertheless the 1925 act and subsequent legislation were successful in reflecting changing social attitudes. The survey that preceded the 1925 legislation, for example, revealed that the majority of testators left most of their assets to their spouses. The Intestates’ Estates Act 1890 had already introduced a statutory legacy of £500, but for widows only. The 1925 act increased the statutory to £1,000 and because of the equal application of the act to both sexes the statutory legacy for the first time became available to widowers. The Intestates’ Estates Act 1952 further improved the position of surviving spouses by giving them the right to acquire the matrimonial home in full or part satisfaction of their interest in the estate of the intestate. It also increased the statutory legacy to £5,000.
Since 1952 the statutory legacy has been increased a number of times and is now £250,000 when the intestate is survived by issue and £450,000 when there is no issue. As social attitudes evolved during the course of the last century and into present, the rules were amended to include as beneficiaries persons who had previously been excluded. The Family Law Reform Act 1969 gave to illegitimate children the right to inherit on the death of a parent and the Family Law Reform Act 1987 extended this right to enable them to inherit on the death of a sibling. The Civil Partnership Act 2004 introduced civil partnerships for same sex couples and gave to civil partners the same inheritance rights as spouses.
It is worth noting that the intestacy rules are not “written in stone”. The statutory order of entitlement, for example, can be varied if a successful claim is brought against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 and it can also be varied by the beneficiaries who, if they are all over 18 and have mental capacity, can agree to a distribution that is entirely different to the statutory order of entitlement.
REFERENCE
Borkowski, A. (2002) Textbook on Succession. Oxford: Oxford University Press
July 2012
Disclaimer: