Family – L8: Consequences of the death of a family member
Devolution of property on death
Devolution of property by will:
Freedom of testamentary disposition
Formal requirements for the validity of the will – Wills Act 1837:
- s. 7 The will of a person under age is not valid. (can only enter a contract over
18)
- s. 9 must be made in writing, signed in the presence of at least two witnesses,
who must attest and sign.
- The law tries to save guard freewill
A will is revoked by the testator’s subsequent marriage/ civil partnership
- Under s. 18 Wills Act 1837 (for marriage)
- Under s. 18 B (for civil partnership)
- Exception: if will is made in contemplation of marriage/ civil partnership, and
the testator did not intend it to be revoked (or intended that a disposition in the
will should not be revoked by the marriage) then the will will stand
- Why does marriage have an impact on the will? – it’s a fundamental change –
EG: left things to their family before he was married, now that he is married he
wants to leave it to his new wife.
A will is revoked by the testator’s subsequent divorce/ annulment/ dissolution of
civil partnership
- For married couples - s. 18A Wills Act 1837 divorce/ annulment
- For CP - s. 18C Wills Act 1837 dissolution/ annulment of civil partnership
- WHY? Divorce clearly marks a change the relationship of the spouse and
potentially a change in intentions
s 18A (2) Subsection (1)(b) above is without prejudice to any right of the former
spouse to apply for financial provision under the Inheritance (Provision for Family
and Dependants) Act 1975
Devolution of property on intestacy:
Rules for the distribution of estate on intestacy:
- s 46 Administration of Estates Act 1925 – established a table of rules depending
on who has survived. The table allocates a certain portion to them.
- Under s46, Spouse has priority over other beneficiaries (other relatives), but s/he
may have to share some of the estate with the children
Deceased leaves spouse/ civil partner and no children:
- The surviving spouse receives all of the 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 –
s18(2) MCA 1973
- Where the intestate's spouse dies within 28 days of the intestate, the estate is
distributed as if the spouse had not survived the intestate – they will not be
treated as a surviving spouse
Deceased leaves spouse and children/ grandchildren
- Spouse:
, o all personal chattels – car, jewellery, the furniture – any object of value
possessed by the deceased.
o fixed sum = known as ‘statutory legacy’ because it is a right given by statute
– currently £250,000 [125.000 before 1 February 2009]
o one-half of the balance of the estate – after you deduct the ‘statutory legacy’
- Children/ grandchildren
o the other half of the balance (held on trust for them) entitled to maintenance
until they are 18, then entitled to the capital
o primary beneficiaries are the children; (grandchildren are included only by
substitution = where a child has died before the intestate)
o if there are 2 children, it will be split – children are treated equally
- If estate worth less than £250.000 – the spouse will get everything and the
children will receive nothing.
Deceased leaves no spouse, but blood relatives:
- Estate is divided between the relatives in the highest category in the following
list: (the ones in the higher catergorises get everything and the ones in the lower
categories get nothing)
1. children or grandchildren
2. parents
3. brothers or sisters of the whole blood (or their children)
4. brother or sisters of the half-blood (or their children)
5. grandparents
6. aunts or uncles (or their children)
- Whichever relative is highest on the list will take the whole estate, the others
will take nothing.
- If more than two relatives in the highest category, they will share the estate
equally.
Principle of substitution: if a brother or sister dies before the intestate, leaving
children, their children (i.e. nephews and nieces of the intestate) take their shares
- “issue” – the offspring of that person
- EG: no spouse or parents, he had a brother and a sister who died and left 2
nieces – the brother will get 50% and the nieces get 25% each (because the sister
would have gotten 50%)
- Those who inherit by substitution, are only entitled to the share their parent
would have gotten.
Deceased leaves no surviving spouse/ civil partner and no blood relatives
- the estate passes to the Crown (bona vacantia)
- the Crown may give some of it to persons for whom the deceased might have
been expected to provide
- Inheritance (Cohabitants) Bill 2011
- Cohabitation Rights Bill 2017-19
- Cohabitants have to be living together for 3 years – but if the couples have
children, there is no threshold.
Before 1 October 2014 (Inheritance and Trustees’ Powers Act 2014):
If deceased left spouse, no children/ grandchildren, but parents/ siblings of the
whole blood (or issue of sibling)
Spouse:
- all personal chattels
Devolution of property on death
Devolution of property by will:
Freedom of testamentary disposition
Formal requirements for the validity of the will – Wills Act 1837:
- s. 7 The will of a person under age is not valid. (can only enter a contract over
18)
- s. 9 must be made in writing, signed in the presence of at least two witnesses,
who must attest and sign.
- The law tries to save guard freewill
A will is revoked by the testator’s subsequent marriage/ civil partnership
- Under s. 18 Wills Act 1837 (for marriage)
- Under s. 18 B (for civil partnership)
- Exception: if will is made in contemplation of marriage/ civil partnership, and
the testator did not intend it to be revoked (or intended that a disposition in the
will should not be revoked by the marriage) then the will will stand
- Why does marriage have an impact on the will? – it’s a fundamental change –
EG: left things to their family before he was married, now that he is married he
wants to leave it to his new wife.
A will is revoked by the testator’s subsequent divorce/ annulment/ dissolution of
civil partnership
- For married couples - s. 18A Wills Act 1837 divorce/ annulment
- For CP - s. 18C Wills Act 1837 dissolution/ annulment of civil partnership
- WHY? Divorce clearly marks a change the relationship of the spouse and
potentially a change in intentions
s 18A (2) Subsection (1)(b) above is without prejudice to any right of the former
spouse to apply for financial provision under the Inheritance (Provision for Family
and Dependants) Act 1975
Devolution of property on intestacy:
Rules for the distribution of estate on intestacy:
- s 46 Administration of Estates Act 1925 – established a table of rules depending
on who has survived. The table allocates a certain portion to them.
- Under s46, Spouse has priority over other beneficiaries (other relatives), but s/he
may have to share some of the estate with the children
Deceased leaves spouse/ civil partner and no children:
- The surviving spouse receives all of the 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 –
s18(2) MCA 1973
- Where the intestate's spouse dies within 28 days of the intestate, the estate is
distributed as if the spouse had not survived the intestate – they will not be
treated as a surviving spouse
Deceased leaves spouse and children/ grandchildren
- Spouse:
, o all personal chattels – car, jewellery, the furniture – any object of value
possessed by the deceased.
o fixed sum = known as ‘statutory legacy’ because it is a right given by statute
– currently £250,000 [125.000 before 1 February 2009]
o one-half of the balance of the estate – after you deduct the ‘statutory legacy’
- Children/ grandchildren
o the other half of the balance (held on trust for them) entitled to maintenance
until they are 18, then entitled to the capital
o primary beneficiaries are the children; (grandchildren are included only by
substitution = where a child has died before the intestate)
o if there are 2 children, it will be split – children are treated equally
- If estate worth less than £250.000 – the spouse will get everything and the
children will receive nothing.
Deceased leaves no spouse, but blood relatives:
- Estate is divided between the relatives in the highest category in the following
list: (the ones in the higher catergorises get everything and the ones in the lower
categories get nothing)
1. children or grandchildren
2. parents
3. brothers or sisters of the whole blood (or their children)
4. brother or sisters of the half-blood (or their children)
5. grandparents
6. aunts or uncles (or their children)
- Whichever relative is highest on the list will take the whole estate, the others
will take nothing.
- If more than two relatives in the highest category, they will share the estate
equally.
Principle of substitution: if a brother or sister dies before the intestate, leaving
children, their children (i.e. nephews and nieces of the intestate) take their shares
- “issue” – the offspring of that person
- EG: no spouse or parents, he had a brother and a sister who died and left 2
nieces – the brother will get 50% and the nieces get 25% each (because the sister
would have gotten 50%)
- Those who inherit by substitution, are only entitled to the share their parent
would have gotten.
Deceased leaves no surviving spouse/ civil partner and no blood relatives
- the estate passes to the Crown (bona vacantia)
- the Crown may give some of it to persons for whom the deceased might have
been expected to provide
- Inheritance (Cohabitants) Bill 2011
- Cohabitation Rights Bill 2017-19
- Cohabitants have to be living together for 3 years – but if the couples have
children, there is no threshold.
Before 1 October 2014 (Inheritance and Trustees’ Powers Act 2014):
If deceased left spouse, no children/ grandchildren, but parents/ siblings of the
whole blood (or issue of sibling)
Spouse:
- all personal chattels
