Intestacy
There is little that the law can do directly to ease the trauma of bereavement for those who are
left behind but it is important to have clear legal rules governing the dealings with the
property of a person who died. That is, in particular, to a case where there is no will; the law
must step in to determine the distribution of money and other assets among the surviving
family members and dependantsi.
Therefore making a Will is the only certain way to ensure that you provide for your family or
loved ones as you would wish. If you die without a Will in place then the Intestacy Rules
will decide how your assets are to be distributed. The intestacy rules can produce unexpected
results – particularly if you have married for a second time or if there are children from a
pervious relationship. The intestacy rules do not recognise cohabitees so if you die without a
Will in such a case, your partner would have to apply to the Court for an appropriate share of
your estate. A simple Will is all that would be needed to ensure that your partner and
children were properly provided for in such a case.
As an example, if John, who has children from a previous marriage Lucy and Larry, enters
into a civil partnership with Burt and John’s estate is worth two hundred thousand pounds,
although John loves Burt he would also want to ensure that there is reasonable provision
made for his children on his death. Under the rules of the intestacy this would not happen as
Burt is his civil partner and would have the right to all of John’s estate.
The current rules of Intestacy enacted in the Administration of Estate Act 1925. Before 1925
intestate succession passed realty through the heir-at-law system, this passed property to the
eldest son. If there was no son or any issue, realty devolved equally on the daughters of the
intestate. Next entitled would be the siblings, however, if there were no siblings the estate
would pass to the intestate’s parentsii. The intestate widow was strictly not entitled, however
a widoweriii took a life interest of his wife’s estate. In terms of personalty a widow took a
one-third of the personalty, in comparison a widower would entitled to all of his wife’s
personalityiv.
The Administration 1925 repealed the previous rules with regard to how succession to realty
and personality, and gave primacy to the surviving spouse, ending the difference between
widows and widowers as to entitlement. In consequence, in most intestacies after 1925, the
surviving spouse took the whole estate, the personal chattels of the intestate and a life interest
in half the remaining residue if there was issuev.
On a total intestacy the residuary estate is distributed according to the order of entitlement
specified in section 46 Administration of Estate Act 1925. The surviving spouse has the
dominant position and is able to appropriate the matrimonial home. If there is no surviving
spouse, the issue of the intestate take the whole estate equally on statutory trust. The next-of-
kin can only take if there are no issue. If there are no surviving relatives, the estate passes to
the crown.
Also it is worth considering what will happen to the personal Chattels in the case of intestacy,
in most cases these will pass to the remaining spouse. Personal chattels are defined in section
55 of the Administration of Estate Act 1925 which lists a wide range of chattels including
‘articles of household or personal use or ornament’ but excludes money, securities for money
(e.g. shares) and chattels used as the intestate’s death for business purpose. The leading
decisions are,
1) Re Crispinvi -a collection of clocks was held to be ‘furniture’ and a collection of
watches was held to ‘articles of personal use’.
2) Re Reynold’svii – Stamp albums were held to be ‘articles of personal use’ since the
deceased collected stamps as a hobby.
3) Re Chaplinviii – a large yacht used for private pleasure cruises was held to be an
‘article of personal use’.
4) Re Hutchinson [1955]ix – racehorses were held to be horse’s, and these personal
chattels (since horses are one of the categories specifically listed in section 55 of
the Administration and Estate Act 1925.
5) Re MacCulloch’s Estatex – a Canadian decision which held that the test of whether
chattels were used for business purpose or otherwise at the intestate’s death was to
enquire what was the dominate use at death.
Summary
The deceased’s estate, if dealt with under the rules of intestacy, will be distributed in
accordance of the section 46 of the Administration of Estate Act 1925. The effect of these
rules will vary depending on the size of the intestate’s estate, as larger estates may not result
in the wishes of what the testator would want. Also complexities of modern families and
extended families may not be best served under the intestacy rules.
i Intestacy and Family Provision Claims on Death: Final Report – Executive Summary, Law Commission, pp1
ii Succession, Chapter 2 The evolutionof the intestacy rules, pp16, Borkowski
iii The muscular term of
iv The Statutes of Distribution 1670-1685
v Administration of Estate Act 1925, Section 46,
vi Re Crispin WT [1974] 3 All ER 772
vii Re Reynolds WT [1965] 3 All ER 686
viii Re Chaplin [1950] Ch 507
ix Re Hutchinson [1955] Ch 255
x Re MacCulloch’s Estate [1981] 44 NSR (2d) 666
