Intestacy Rules
| Author | Lesley King/Peter Gausden |
| Pages | 269-275 |
Intestacy Rules
Reference is made in Chapter 1 to the fact that making a will can avoid the application of the intestacy rules.
The following is a mere outline of how the intestacy rules apply. They justify a place in this book because they represent the default position if there is no will dealing with property that is nonetheless capable of being disposed of by will. Consequently, some knowledge of them is important to anyone involved in advising on the benefits of making a will. For further information, the reader should refer to a more detailed work.
The intestacy rules are derived from the AEA 1925, as amended, and apply only to property which is capable of being left by will.
EXAMPLE
Leticia dies without a will leaving her husband, Malcolm, and their two children. Leticia and Malcolm owned their house as beneficial joint tenants and had a joint bank account. Leticia had taken out a life assurance policy for £200,000 which she wrote in trust for the two children. She owned various investments worth £350,000.
Leticia dies intestate but the intestacy rules do not affect Leticia’s share of the house or bank account (which pass to Malcolm automatically by survivorship). Nor do the rules affect the life policy (which passes to the children under the trust). Only her investments pass under the intestacy rules.
1 Order of entitlement on intestacy
The intestacy rules first direct payment of the funeral, testamentary and administration expenses, and any debts of the deceased. Any balance (after paying any pecuniary legacies in the will if it was a partial intestacy) is called the ‘residuary estate’ and section 46 of the AEA 1925 sets out who inherits it and in what order. Those entitled are divided into classes in descending order of entitlement as follows:
270 Wills: A Practical Guide
(a) surviving spouse or civil partner, but if none,
(b) issue on the ‘statutory trusts’, but if none,
(c) parents, equally if both alive, but if none,
(d) brothers and sisters of the whole blood on the ‘statutory trusts’, but if none,
(e) brothers and sisters of the half blood on the ‘statutory trusts’, but if none,
(f) grandparents, equally if more than one, but if none,
(g) uncles and aunts of the whole blood on the ‘statutory trusts’, but if none,
(h) uncles and aunts of the half blood on the ‘statutory trusts’, but if none,
(i) the Crown, Duchy of Lancaster or Duke of Cornwall (as bona vacantia).
Some of the terms in this list require explanation.
A ‘spouse’ is the person of either sex married to the deceased at death, whether or not they were then living together. A divorced spouse is excluded (but only once the decree absolute is granted). A ‘civil partner’ means a party to a civil partnership registered by a same sex couple under the Civil Partnership Act 2004 as amended. In Official Solicitor to the Senior Courts v Yemoh & others [2010] EWHC 3727 (Ch), [2010] All ER (D) 213 (Dec), the court held that two or more persons could fall within the category of ‘surviving spouse’ for the purpose of...
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