Intestacy and Family Provision Claims on Death
Consultation Paper
On 29 October 2009 we published a Consultation Paper reviewing the law of intestacy and family provision claims on death. The intestacy rules govern the inheritance of assets where a person dies without leaving a will disposing of the whole of his or her property. Whether or not the deceased left a valid will, certain family members and dependants may apply to court for reasonable financial provision from the estate, under the Inheritance (Provision for Family and Dependants) Act 1975 – this is known as a claim for family provision.
The Consultation Paper reviews the current law, discusses options for reform and puts forward questions for consultees, including provisional proposals for reform. Areas highlighted for potential reform include:
- the entitlement of a surviving spouse, where the deceased also left children (perhaps from another relationship), or other relatives;
- whether certain cohabitants should have a place in the intestacy rules, the conditions which have to be met, and how much of the estate they should receive;
- trusts for children on intestacy and the effect of adoption on a child’s entitlement;
- family provision claims by adult children;
- the distinction made in the intestacy rules between full brothers and sisters and half-brothers and sisters;
- the criteria to be met by dependants applying for family provision;
- family provision claims where the deceased did not have his or her permanent home in England and Wales.
Other documents
We have prepared an overview of the Consultation Paper, an executive summary and a press release.
The National Centre for Social Research was commissioned to conduct focus group research for this project. Read their final report.
Consultees can also access an interactive spreadsheet to explore options as to what a surviving spouse might receive under reformed intestacy rules.
Details of how consultees can respond to the questions and proposals are outlined at the beginning of the Consultation Paper. The consultation period closes on 28 February 2010. For further information on responding, please contact the team.
We will treat all responses as public documents in accordance with the Freedom of Information Act 2000 and we may attribute comments and include a list of all respondents’ names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. Please note that we will disregard automatic confidentiality statements generated by an IT system.
Background
Intestacy and family provision are important areas of the law, affecting a large number of families at times of financial and emotional vulnerability. Many tens of thousands of people die intestate each year, and it appears that this figure is rising. Studies suggest that between a half and two thirds of the adult population do not have a will and that those who need one most are the least likely to have made one. The problems caused range from inconvenience to serious hardship or distress. Applications under the family provision legislation can be expensive, and damaging to family relationships.
In 2005, the Department for Constitutional Affairs (as it then was) carried out a consultation on the statutory legacy currently paid to a surviving spouse on intestacy. It concluded that a wide-ranging review of intestacy and family provision was required and asked the Law Commission to carry out that review. The Scottish Law Commission has recently undertaken a project on the Scottish law of succession.
The Law Commission carried out work on intestacy in the late 1980s. Commissioners are of the view that subsequent changes in family structures and individual property holding are sufficiently great to justify a re-examination. The Inheritance (Provision for Family and Dependants) Act 1975, which was based on Law Commission recommendations, has not been subject to a fundamental review since its introduction.
Work on the project began on 1 October 2008. A report and draft Bill are expected in late 2011.
For more information, contact the property and trust law team or go to the team page.
NOTE - We are happy to provide information about our projects. However, we cannot give legal advice or deal with individual cases. Nor do we provide legal research to assist with student assignments. This does not affect your rights under the Freedom of Information Act 2000 to request information.