Changes to the Law of Intestacy and Family Provision … But Do They Go Far Enough?

Lawyer Naomi Ireson considers the changes that will shortly come into force in relation to inheritance law

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REFORMS TO CLAIMS MADE UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 

  1. Claims can now be brought before a grant of representation is issued.  This is of benefit to clients where the personal representatives delay in obtaining a grant with a view to avoiding court proceedings being issued against them.  It also avoids the costs and litigation of obtaining a citation forcing personal representatives to obtain the grant.
  2. Applications under section 9 of the 1975 Act, which enables the deceased’s severable shared property held under a joint tenancy to be treated as part of the estate, can now be brought outside of the six-month time-limit from the date of the grant at the court's discretion.  Previously the court could not exercise its discretion to extend time.
  3. Claims by a “child of the family" can now be made by any person who was treated by the deceased as a child of the family, not only in relation to a marriage or civil partnership, but in relation to "any family" in which the deceased had a parental role.  Despite this development, the relationship between the deceased and the applicant must still be akin to that between a parent and a child. This confirms the ability for grandchildren to bring an Inheritance Act claim against their grandparents’ estate where they were raised by them instead of their parents.
  4. Claims pursuant to section 1(1) (d) have also been extended to include a single parent family.
  5. Claims by those who have been maintained by the deceased will be affected by the removal of the need for a "balance sheet" assessment. At present the applicant has to show that the deceased contributed more than the applicant did as failing that, the applicant cannot be said to have been maintained by the deceased.  However, the new rules will simply require the deceased to have been making a substantial contribution towards the reasonable needs of the applicant. Of importance is the fact that contributions made between people within a domestic context will no longer be weighed against one another.
  6. The "deemed divorce test" pursuant to subsection 3 (2), under which the court has to have regard to what provision would have been made during ancillary relief proceedings in a divorce, has now been amended. The Court will have regard to whether the deceased maintained the applicant, the duration of that maintenance, the basis on which it was provided and the extent of maintenance which the deceased contributed.  The court also has to consider whether the deceased assumed responsibility for the applicant’s maintenance.
  7. Under the new section 3(4) (a), for claims brought under section 1(1) (e), the court has to look at the basis of the maintenance and the extent of the contribution made.

THE REFORMS TO THE INTESTACY RULES

  1. Where somebody dies without a will, leaving a spouse or civil partner but no children, their estate will pass to their spouse or civil partner in full.  Under the old rules, parents or siblings would have an interest in the estate if it was worth more than 450,000.
  2. Where somebody dies without a will leaving a spouse and children the rules have been amended so that the spouse inherits the first £250,000* absolutely. The balance will now be split equally with one half to the spouse absolutely and the remaining half passing to the children in equal shares.  Under the earlier intestacy rules, the spouse inherited a life interest in one half of the remainder. 
  3. A surviving spouse is now entitled to the deceased’s personal chattels  and the definition has been amended to include 'tangible moveable property' except for property: (a) consisting of money or securities for money, (b) used at the death of the intestate solely for business purposes, (c) held at the death of the intestate solely as an investment.

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*NOTE: The statutory legacy has been increased to £270,000 as from 6 February 2020. Inheritance law is constantly evolving and it is therefore important that you speak to an expert lawyer for up to date advice