Developing the Intestacy Rules

The rules on Intestacy are developing to reflect the ever changing modern family, however implementing them still often results in unfairness.At present if someone dies without a will, then the Intestacy rules will apply as to the division of their estate. The Provision for Family and Dependants Act (PDFA) 1975 governs claims against an estate whereby a certain relative who has been omitted from a will or via the intestacy rules can make a claim against an estate. Both have developed quite widely over the past 20 years to take into account the ever changing family set up, including giving civil partners the same rights as a spouse and giving unmarried partners the ability to make a claim against an estate.

This area of law will soon be updated further under the Inheritance and Trustees Powers Bill which is currently going through parliament.  The bill deals with the often difficult areas of adoption and surrogacy amongst other things and its purpose is to try and make the law apply and work for as many different family set ups as possible.

Despite the proposed changes in this area, there may still remain unfairness under the intestacy rules and under the PDFA, particularly in relation to parents who survive their children. In many Court of Protection cases, minors (children under 18) receive large awards from the results of clinical negligence, for example cerebral palsy. This can often result in large pay-outs which are held in trust for their benefit during their lifetime. However, if the minor was to pass away either before attaining 18 or after without having made a will, then under the intestacy rules, providing they have no children of their own, their parents would automatically inherit their estate which would include any money held as part of their medical negligence settlement.

As you can imagine, quite often, this can be a substantial sum of money. In today’s ever changing society, it is not uncommon for parents to separate resulting in one parent raising the children. At present, the intestacy rules and the PDFA do not recognise this situation and if the child was to die intestate, both parents would receive an equal share of their estate. Although the parent who raised the child may be able to make a claim under the PDFA, the court will only look at whether they were being maintained in any way, not whether or not it is morally correct. 

In conclusion, the current law and the proposed changes do go some way to reflect the changing modern family, however there does perhaps need to be further expansion of the category of claimant under the PDFA to include parents.  As with most areas of law, there is a fine balance between creating flexible legislation that recognises today’s ever changing society, yet ensuring that the law is clear and certain to avoid any misinterpretation and injustice. However, with the ever increasing number of complex family arrangements, this area of law is one that is going to constantly have to change and adapt. It is therefore clear from this that making a will is even more important than ever in today’s ever changing society.

If you would like to discuss making a will, please contact our Wills solicitors.

Jennifer Wilkinson

About Jennifer Wilkinson

Jennifer Wilkinson is an Associate Solicitor within the Wills, Probate, Trusts and Tax Department at Forbes Solicitors. Jennifer’s blogs cover her specialisms of Will writing, dealing with the administration of estates, paying for care, powers of attorney and court of protection issues. Jennifer is also a member of Solicitors for the Elderly and specialises in matters specifically relating to elderly clients.
This entry was posted in Wills, Tax, Trusts and Probate and tagged , .