Intestacy and Family Provision Claims on Death

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

This project is complete. Government has accepted our recommendations in part. The Inheritance and Trustees' Powers Bill was introduced into the House of Lords on 30 July 2013 and received Royal Assent on 14 May 2014

This project considered two areas of the law of inheritance and certain aspects of trustees’ powers.

Intestacy

When a person dies “intestate”, that is without leaving a valid will disposing of the whole of his or her property, the distribution of any money and other assets (the deceased’s “estate”) among surviving family members is governed by a set of legal rules known as the intestacy rules.

Family provision

Whether or not the deceased left a 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 (“the 1975 Act”).  This is often referred to as a claim for family provision.

These are both important areas of the law, affecting a large number of families at times of financial and emotional vulnerability.  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 intestacy rules must strive to reflect the needs and expectations of modern families.  Where the rules (or the deceased’s will) fail to make adequate provision for close family members or dependants, it is important that the law does not place unnecessary obstacles in the way of a valid family provision claim.

The intestacy rules date back to 1925 and have not been comprehensively reviewed for more than 20 years (when the Law Commission last considered this area of the law).  The 1975 Act has not been the subject of a full review since it was enacted.

The project

Work on this project began in October 2008.  In October 2009 we published a consultation paper (Law Commission Consultation Paper No 191) reviewing the current law, discussing options for reform and putting forward questions for consultees, including provisional proposals for reform.

In May 2011 we published a supplementary consultation paper that set out broader options for reform of statutory provisions which enable trustees to distribute income or capital from the trust fund to or for the benefit of beneficiaries who are not yet entitled to take such funds outright.

We received almost 150 consultation responses from members of the public, lawyers and other professionals and organisations – including law firms, charities and professional bodies. The project also benefitted from significant new research. This included focus group research commissioned for the project, a large-scale survey of public attitudes to will-making and intestacy, funded by the Nuffield Foundation, and analysis by HM Revenue & Customs of the value of testate and intestate estates (available below).

Recommendations and implementation

On 21 March 2013 Government announced acceptance of the recommendations set out in Parts 2 to 7 of our Report, which would be given effect by the draft Inheritance and Trustees’ Powers Bill annexed to the Report. This draft Bill was published for consultation by the Ministry of Justice between 21 March and 3 May 2013, following which the Inheritance and Trustees’ Powers Bill was introduced into the House of Lords on 30 July 2013, receiving Royal Assent on 14 May 2014.

The Inheritance and Trustees’ Powers Act 2014 includes reforms that will:

  • ensure that where a couple are married or in a civil partnership, assets pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;
  • simplify the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants;
  • protect children who suffer the death of a parent from the risk of losing an inheritance from that parent in the event that they are adopted after the death;
  • amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;
  • remove arbitrary obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership; and
  • reform trustees’ statutory powers to use income and capital for the benefit of trust beneficiaries (subject to any express provisions in the trust instrument).

Government has also announced that the recommendations set out at Part 8 of our Report, which would be given effect by the draft Inheritance (Cohabitants) Bill annexed to the Report, will not be implemented during this Parliament. This Bill contains further provisions that would give certain unmarried partners who have lived together for five years the right to inherit on each other’s death under the intestacy rules. Where the couple have a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died.

The Bill is set out at Appendix B of the final report (available below) and is drafted on the basis that the law is as it would be after enactment of the Inheritance and Trustees’ Powers Bill. We have also produced an alternative version of the Inheritance (Cohabitants) Bill (also available on this page) which does not assume that our other recommendations are already in force.

Documents and downloads

Project details

Area of law

Property, family and trust law

Commissioner

Professor Elizabeth Cooke