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

Reforming the intestacy rules to make sure that when loved ones die without a will, their estate is fairly distributed to family members or loved ones. Our recommendations were implemented in part by the Inheritance and Trustees' Powers Act 2014.

Download the report

Download the summary

The problem

It’s thought that around 40% of adults do not have a will. When a person dies without one, the distribution of their assets is governed by a set of legal rules –  the intestacy rules.

In addition to this, certain family members and dependants may apply to court for reasonable financial provision from a deceased estate – whether there is a will or not.

These laws can be a lifeline for people when they have suffered a loss. But the rules had not been reviewed in more than 20 years and research at the time indicated that nearly a quarter of those aged 55 to 64 had has personal experience of the human and economic costs associated with intestacy.

The project

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 further supplementary consultation paper.

As part of the project we benefited from 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

We made recommendations to:

• 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).
• provide protections for certain unmarried partners who have lived together for five years, giving them the right to inherit on each other’s death under the intestacy rule

Result

On 21 March 2013 Government announced acceptance of the recommendations set out in Parts 2 to 7 of our Report. This would be given effect by the draft Inheritance and Trustees’ Powers Bill annexed to the Report.

This became the Inheritance and Trustees’ Powers Act 2014 receiving Royal Assent on 14 May 2014.

Government 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 that Parliament.