Intestate Succession and the Inheritance (Provision for Family and Dependants) Act 1975
This project will involve a general review of the law of intestacy (the rules governing the inheritance of assets where a person dies without leaving a will which disposes of the entirety of his or her estate). It will also consider the operation of the Inheritance (Provision for Family and Dependants) Act 1975 under which family members and dependants may apply to court for reasonable financial provision from the estate of a deceased person.
Aspects of the current law that are likely to be examined include the entitlements of different members of the deceased's family, the role of the statutory legacy, the effect of other gifts by the deceased, the rules of bona vacantia and the relevance of various factors not taken into account by the current rules. The review of the 1975 Act will address the classes of person eligible to apply under the Act, the remedies available and the procedure governing the making of applications.
Background
In 2005, the Department for Constitutional Affairs (as it then was) carried out a consultation on the statutory legacy currently paid to surviving spouses on an intestacy. It concluded on the basis of that consultation 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 is currently undertaking a project on the Scottish law of succession and issued a Discussion Paper in August 2007.
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. National Consumer Council research suggests that more than 27 million adults in England and Wales do not have a will and that those who need one most are the least likely to have one. The NCC claims that nearly one quarter of 55 to 64 year-olds have personal experience of the human and economic costs associated with intestacy or know someone who has. The current law is designed to reflect what the deceased might have wanted, but will not always achieve that; and it may operate unfairly in cases where there has been a second or subsequent marriage or civil partnership. The problems caused range from inconvenience, to serious hardship or distress. Equally, applications under the family provision legislation can be expensive, and damaging to family relationships.
The 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 1975 Act, which was based on Commission recommendations, has not been subject to a fundamental review since its introduction.
Work on the project is due to begin in late 2008 and 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.
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