INHERITANCE RIGHTS
Succession and Intestacy (so by will or intestacy)
-People’s property on death family have legally enforceable claim on estate even if there is no will
(1) deceased left will, 2) not will nor a will deal with deceased’s property
WHEN THERE IS A WILL
People free to dispose of property how desire, unless mentally incompetent freedom of
testamentary deposition (but law intervenes to ensure reflects wishes + allow claims on estate)
Awards can be made under 1975 Act even if evidence shows deceased not want them receive
Starting point: where will property is distributed according to it – ways to challenge will
o Argue not comply formalities in Wills Act 1837, or made by deceased while of unsound mind or
undue influence or will been revoked= if invalid for these then estate under rules of intestacy
o Also can argue particular property not belong (or wholly) to deceased e.g. house, although in
name of deceased, was held on trust for deceased + wife under constructive trust or PE so if
will give house to daughter, would only be able to give his share of house
o If anyone feels not provided sufficiently for= apply order payment out of estate under
Inheritance (Provision Family + Dependants) Act 1975class claimants spouses + other relative
FORMAL REQUIREMENTS FOR VALIDITY OF WILL
Wills Act 1837
s. 7: The will of a person under age is not valid (so not possible for a minor)
s. 9: Must be made in writing, signed in presence at least two witnesses attest + sign (recorded)
A will is revoked by the testator’s subsequent marriage/ civil partnership
s.18: (marriage) means fundamental change in life, so when drafted will could not foresee this
s.18B: (civil partnership) revocation by civil partnership
A will is revoked by the testator’s subsequent divorce/ annulment/ dissolution civil partnership
s.18A: Wills Act 1837 divorce/ annulment
s.18C: Wills Act 1837 dissolution/ annulment of civil partnership
WHY?
s.18A but former spouse can apply for financial provision under Inheritance (Provision for Family and
Dependants) Act 1975 if not well provided for, former spouse can apply under Inheritance Act
Where will this is easy part, where no will= problems as hard for court to assume what the
deceased wanted and look at all the family circumstances, or where there is a will but does not
consider the whole estate so this will be partial intestacy
WHEN THERE IS NO WILL (=INTESTACY)
(1) Law can ascertain what wishes deceased had looking at all evidence available or (2) decide
objectively what would be fair + just distribution (can be both, or evidence show not equal)
As formula not appropriate all cases, law has procedure application if statute produce injustice
Intestacy rules apply where not made will or made not dispose of entire estate depends on
whether deceased has surviving spouse or any surviving issue (child, adopted + outside marriage)
1
,Rules for distribution of estate on intestacy
s.46: Administration of Estates Act 1925
Table of rules deciding how the estate shall pass, based on different scenarios
Spouse priority over other relatives, but share with children so law provides spouse for most
DECEASED LEAVES SPOUSE/CIVIL AND CHILDREN/ GRANDCHILDREN
Spouse:
All personal chattels (e.g. car, jewellary, pets, furniture valuable objects)
Statutory legacy – currently £250k (not in statute, lord chancellor changes it, before 150k)
one-half of the balance of the estate (in addition to fixed sum)
Children/ grandchildren
Other half of the balance (held on trust for them)
Entitled to maintenance until they 18, then entitled to capital (held on statutory trust)
Primary beneficiaries are children; grandchildren included only by substitution (if their parents
died, then by substitution can inherit –not have right their own, take what belong to parents
If estate worth less than £250.000? = SPOUSE KEEPS IT ALL IF ESTATE WORTH LESS THAN LEGACY
DECEASED LEAVES SPOUSE/CIVIL AND NO CHILDREN – then receive estate absolutely
Spouse= person to whom deceased was married at time of death whether or not living together
*Where the parties were divorced or separated, the spouse will not benefit
Judicial separation – spouse cannot inherit on intestacy, if parties are judicial separated, if other one
dies than presumed partner is dead so will pass to other members – only if court order seperation
s.18 (2) MCA 1973
Where intestate's spouse dies within 28 days of intestate, distributed as if spouse not survived intestate
DECEASED LEAVES SPOUSE/CIVIL, NO CHILDREN, BUT CLOSE RELATIVES: spouse + no children, but
surviving parents, brothers/sisters, spouse entitled chattels absolutely +£200k statutory legacy + half
balance absolutely. Parents if none then brothers/sister (or their issue) entitled half remainder
IF THERE NO SURVIVING SPOUSE/CIVIL – higher in list= take estate absolutely, takes it all
1) Children of deceased or grandchildren;
2) Parents of deceased;
3) Brothers or sisters of whole blood, or their issue;
4) Brothers or sisters of half-blood, or their issue
5) Grandparents of deceased;
6) Aunts or uncles of deceased, or their issue;
If more than 1 relative in a category, share estate equally, if none related= to Crown, then Crown
can choose to give as a grace some property to friends outside intestacy rules (likely cohabitants)
DECEASED LEAVES NO SURVIVING SPOUSE/CIVIL AND NO BLOOD RELATIVES (very rare)
Estate passes to Crown (bona vacantia= ownerless goods) treasury may give to persons whom
deceased might be expected to provide e.g. cohabitant or home sharer
-There is no reference to cohabitant (major disadvantage law of intestacy not make any provision for
them) several attempts to reform the law (the bills)
2
, Inheritance (Cohabitants) Bill 2011 – suggested if at time of death, deceased living with someone for
5yrs, should give rise to right inherit – but reduced to 3yrs if children at time of death - unsuccessful
Cohabitation Rights Bill 2017-19 – different qualification
Principle of substitution
If a brother or sister dies before the intestate, leaving children, their children (i.e. nephews and
nieces of intestate) take their shares “issue” (in statute s.46, ‘issue’ is child of sibling)
-Rules does not mean spouse can automatically live in house (hard but mitigated by 2 rules: (1) if
home in joint name then house will belong absolutely to spouse and not part of deceased’s estate;
(2) even if house not in joint names rules permit spouse use statutory legacy purchase from estate –
but if house in sole name of deceased and worth more then statutory legacy= have to sell
-Intestacy rules do not provide for unmarried cohabiting partners nor good friends
-Too generous where deceased remarried and second spouse acquires estate from intestacy
The matrimonial home
If the matrimonial home belonged to the deceased only= forms part of the estate:
-The surviving spouse can retain matrimonial home in full/partial satisfaction of interest in estate
-If property is worth more than spouse’s entitlement, spouse may retain it by paying difference
(This is why statutory legacy varies, house prices increase/decrease, so allows spouse keep home
-If house in joint names, will belong absolutely to spouse and not part of estate
-If house in sole name of deceased and worth more than statutory legacy= have to sell
-If spouses in tenants in common: deceased’s share forms part of estate and passes will/intestacy
If deceased fails to make adequate provisions= apply under Inheritance Act
THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Only where deceased domiciled in England and Wales at time of death
Relatives or dependents feel inadequate sum left in will or intestacy, application to court for
order – burden on persuading court on applicant – no rights under Act; provides court discretion
Court is entitled to provide for someone not in will or would not be entitled on intestacy
Claimant can include person even if deceased made plan do not wish receive any money (policy
to ensure a dependent on deceased does not suffer an injustice on deceased’s death)
WHO CAN APPLY?
oSpouses/ former spouses (or civil partners) IF NOT REMARRIED/ENTERED ANOTHER CIVIL
oCohabitants (any person living 2yrs ending immediately when deceased died, same household, as
husband + wife [or civil partner]
oChildren (incl. posthumos, adopted, grown children, any treated as child familystep-children
oDependants (any person immediately before death maintained s.1(2) made substantial
contribution in money or money;s wiorth towards reasonable needs e.g. cohabitees, friends
Gully v Dix: claimant + deceased cohabit over 25yrs, she left house 3months before his death saying
she would return when he stopped drinkingheld due to length still lived same house
Maintenance must be substantial – Reece v Newbury: deceased provided applicant with flat in
London, no cohabitation nor sexual/emotional relationshipheld maintained as provide flat
Contribution must be in ‘money or money’s worth’: e.g. houseworking, nursing service
Maintenance not paid for by valuable consideration: problematic as can argue free
accommodation for care – Bouette v Rose: held mother maintained by disabled child (benefits)
3
Succession and Intestacy (so by will or intestacy)
-People’s property on death family have legally enforceable claim on estate even if there is no will
(1) deceased left will, 2) not will nor a will deal with deceased’s property
WHEN THERE IS A WILL
People free to dispose of property how desire, unless mentally incompetent freedom of
testamentary deposition (but law intervenes to ensure reflects wishes + allow claims on estate)
Awards can be made under 1975 Act even if evidence shows deceased not want them receive
Starting point: where will property is distributed according to it – ways to challenge will
o Argue not comply formalities in Wills Act 1837, or made by deceased while of unsound mind or
undue influence or will been revoked= if invalid for these then estate under rules of intestacy
o Also can argue particular property not belong (or wholly) to deceased e.g. house, although in
name of deceased, was held on trust for deceased + wife under constructive trust or PE so if
will give house to daughter, would only be able to give his share of house
o If anyone feels not provided sufficiently for= apply order payment out of estate under
Inheritance (Provision Family + Dependants) Act 1975class claimants spouses + other relative
FORMAL REQUIREMENTS FOR VALIDITY OF WILL
Wills Act 1837
s. 7: The will of a person under age is not valid (so not possible for a minor)
s. 9: Must be made in writing, signed in presence at least two witnesses attest + sign (recorded)
A will is revoked by the testator’s subsequent marriage/ civil partnership
s.18: (marriage) means fundamental change in life, so when drafted will could not foresee this
s.18B: (civil partnership) revocation by civil partnership
A will is revoked by the testator’s subsequent divorce/ annulment/ dissolution civil partnership
s.18A: Wills Act 1837 divorce/ annulment
s.18C: Wills Act 1837 dissolution/ annulment of civil partnership
WHY?
s.18A but former spouse can apply for financial provision under Inheritance (Provision for Family and
Dependants) Act 1975 if not well provided for, former spouse can apply under Inheritance Act
Where will this is easy part, where no will= problems as hard for court to assume what the
deceased wanted and look at all the family circumstances, or where there is a will but does not
consider the whole estate so this will be partial intestacy
WHEN THERE IS NO WILL (=INTESTACY)
(1) Law can ascertain what wishes deceased had looking at all evidence available or (2) decide
objectively what would be fair + just distribution (can be both, or evidence show not equal)
As formula not appropriate all cases, law has procedure application if statute produce injustice
Intestacy rules apply where not made will or made not dispose of entire estate depends on
whether deceased has surviving spouse or any surviving issue (child, adopted + outside marriage)
1
,Rules for distribution of estate on intestacy
s.46: Administration of Estates Act 1925
Table of rules deciding how the estate shall pass, based on different scenarios
Spouse priority over other relatives, but share with children so law provides spouse for most
DECEASED LEAVES SPOUSE/CIVIL AND CHILDREN/ GRANDCHILDREN
Spouse:
All personal chattels (e.g. car, jewellary, pets, furniture valuable objects)
Statutory legacy – currently £250k (not in statute, lord chancellor changes it, before 150k)
one-half of the balance of the estate (in addition to fixed sum)
Children/ grandchildren
Other half of the balance (held on trust for them)
Entitled to maintenance until they 18, then entitled to capital (held on statutory trust)
Primary beneficiaries are children; grandchildren included only by substitution (if their parents
died, then by substitution can inherit –not have right their own, take what belong to parents
If estate worth less than £250.000? = SPOUSE KEEPS IT ALL IF ESTATE WORTH LESS THAN LEGACY
DECEASED LEAVES SPOUSE/CIVIL AND NO CHILDREN – then receive estate absolutely
Spouse= person to whom deceased was married at time of death whether or not living together
*Where the parties were divorced or separated, the spouse will not benefit
Judicial separation – spouse cannot inherit on intestacy, if parties are judicial separated, if other one
dies than presumed partner is dead so will pass to other members – only if court order seperation
s.18 (2) MCA 1973
Where intestate's spouse dies within 28 days of intestate, distributed as if spouse not survived intestate
DECEASED LEAVES SPOUSE/CIVIL, NO CHILDREN, BUT CLOSE RELATIVES: spouse + no children, but
surviving parents, brothers/sisters, spouse entitled chattels absolutely +£200k statutory legacy + half
balance absolutely. Parents if none then brothers/sister (or their issue) entitled half remainder
IF THERE NO SURVIVING SPOUSE/CIVIL – higher in list= take estate absolutely, takes it all
1) Children of deceased or grandchildren;
2) Parents of deceased;
3) Brothers or sisters of whole blood, or their issue;
4) Brothers or sisters of half-blood, or their issue
5) Grandparents of deceased;
6) Aunts or uncles of deceased, or their issue;
If more than 1 relative in a category, share estate equally, if none related= to Crown, then Crown
can choose to give as a grace some property to friends outside intestacy rules (likely cohabitants)
DECEASED LEAVES NO SURVIVING SPOUSE/CIVIL AND NO BLOOD RELATIVES (very rare)
Estate passes to Crown (bona vacantia= ownerless goods) treasury may give to persons whom
deceased might be expected to provide e.g. cohabitant or home sharer
-There is no reference to cohabitant (major disadvantage law of intestacy not make any provision for
them) several attempts to reform the law (the bills)
2
, Inheritance (Cohabitants) Bill 2011 – suggested if at time of death, deceased living with someone for
5yrs, should give rise to right inherit – but reduced to 3yrs if children at time of death - unsuccessful
Cohabitation Rights Bill 2017-19 – different qualification
Principle of substitution
If a brother or sister dies before the intestate, leaving children, their children (i.e. nephews and
nieces of intestate) take their shares “issue” (in statute s.46, ‘issue’ is child of sibling)
-Rules does not mean spouse can automatically live in house (hard but mitigated by 2 rules: (1) if
home in joint name then house will belong absolutely to spouse and not part of deceased’s estate;
(2) even if house not in joint names rules permit spouse use statutory legacy purchase from estate –
but if house in sole name of deceased and worth more then statutory legacy= have to sell
-Intestacy rules do not provide for unmarried cohabiting partners nor good friends
-Too generous where deceased remarried and second spouse acquires estate from intestacy
The matrimonial home
If the matrimonial home belonged to the deceased only= forms part of the estate:
-The surviving spouse can retain matrimonial home in full/partial satisfaction of interest in estate
-If property is worth more than spouse’s entitlement, spouse may retain it by paying difference
(This is why statutory legacy varies, house prices increase/decrease, so allows spouse keep home
-If house in joint names, will belong absolutely to spouse and not part of estate
-If house in sole name of deceased and worth more than statutory legacy= have to sell
-If spouses in tenants in common: deceased’s share forms part of estate and passes will/intestacy
If deceased fails to make adequate provisions= apply under Inheritance Act
THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Only where deceased domiciled in England and Wales at time of death
Relatives or dependents feel inadequate sum left in will or intestacy, application to court for
order – burden on persuading court on applicant – no rights under Act; provides court discretion
Court is entitled to provide for someone not in will or would not be entitled on intestacy
Claimant can include person even if deceased made plan do not wish receive any money (policy
to ensure a dependent on deceased does not suffer an injustice on deceased’s death)
WHO CAN APPLY?
oSpouses/ former spouses (or civil partners) IF NOT REMARRIED/ENTERED ANOTHER CIVIL
oCohabitants (any person living 2yrs ending immediately when deceased died, same household, as
husband + wife [or civil partner]
oChildren (incl. posthumos, adopted, grown children, any treated as child familystep-children
oDependants (any person immediately before death maintained s.1(2) made substantial
contribution in money or money;s wiorth towards reasonable needs e.g. cohabitees, friends
Gully v Dix: claimant + deceased cohabit over 25yrs, she left house 3months before his death saying
she would return when he stopped drinkingheld due to length still lived same house
Maintenance must be substantial – Reece v Newbury: deceased provided applicant with flat in
London, no cohabitation nor sexual/emotional relationshipheld maintained as provide flat
Contribution must be in ‘money or money’s worth’: e.g. houseworking, nursing service
Maintenance not paid for by valuable consideration: problematic as can argue free
accommodation for care – Bouette v Rose: held mother maintained by disabled child (benefits)
3
