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Intestacy and Family Provision Claims on Death The Law Commission Consultation Paper No 191 INTESTACY AND FAMILY PROVISION CLAIMS ON DEATH A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission for England and Wales was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell and Professor Jeremy Horder. Kenneth Parker QC was a Law Commissioner when the text of this paper was finalised, on 30 September 2009. The Chief Executive is Mr Mark Ormerod CB. Topic of this consultation: This Consultation Paper reviews the intestacy rules and the law of family provision claims on death. The intestacy rules, contained in the Administration of Estates Act 1925, apply when a person dies without disposing of all his or her property by will, and they determine how that person’s property is to be inherited. Whether or not the person who died left a valid will, certain family members and dependants may make a claim against the estate for reasonable financial provision. These claims are made under the Inheritance (Provision for Family and Dependants) Act 1975. We discuss the current law and set out a number of provisional proposals and options for reform on which we invite consultees’ views. Scope of this consultation: The purpose of this consultation is to generate responses to our discussion, provisional proposals and questions with a view to making recommendations for reform to Parliament. Our proposals and questions are listed in Part 8. Geographical scope: This Consultation Paper refers to the law of England and Wales. Impact assessment: The impact of the current law and potential reforms is considered throughout this Consultation Paper and consultees are invited to give their views on social and other impacts generally. Appendix C focuses on quantification of the impacts of the current law and options for reform, and requests information and comments from consultees. Duration of the consultation: from 29 October 2009 to 28 February 2010. How to respond Please send your responses either – By email to: [email protected] or By post to: Jack Connah, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0296 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, where possible, you could also send them electronically (for example, on CD or by email to the above address, in any commonly used format). After the consultation: In the light of the responses we receive, we will decide our final recommendations and present them to Parliament. We hope to publish our final report in Autumn 2011. It will be for Parliament to decide whether to make any change to the law. Code of Practice: We are a signatory to the Government’s Code of Practice on Consultation and follow the Code criteria, set out on the next page. Freedom of information: We will treat all responses as public documents in accordance with the Freedom of Information Act 2000 and we may attribute comments and include a list of all respondents' names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE: We will disregard automatic confidentiality statements generated by an IT system. Availability of this Consultation Paper: You can view or download the paper free of charge on our website at: www.lawcom.gov.uk/docs/cp191.pdf. iii CODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible. Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Law Commission’s Consultation Co-ordinator is Correna Callender. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Correna Callender, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Email: [email protected] Full details of the Government’s Code of Practice on Consultation are available on the Department for Business, Innovation and Skills website at: www.berr.gov.uk/files/file47158.pdf. iv THE LAW COMMISSION INTESTACY AND FAMILY PROVISION CLAIMS ON DEATH CONTENTS Paragraph Page PART 1: INTRODUCTION 1 The significance of this area of the law 1.4 1 Background to the present project 1.11 3 Previous Law Commission work 1.15 4 Distribution on intestacy 1.16 4 Family provision 1.18 5 The forfeiture rule 1.19 5 Cohabitation 1.21 5 An introduction to this project 1.22 6 Information and resources 1.32 8 Will studies 1.38 9 Public attitude surveys 1.42 11 Work with the Probate Service and HM Revenue & Customs 1.46 12 The structure of this Consultation Paper 1.48 12 Impact assessment 1.53 13 Human rights 1.55 13 Acknowledgments 1.58 14 v Paragraph Page PART 2: CURRENT LAW 15 Introduction 2.1 15 Historical context 2.2 15 Administration 2.11 17 The intestacy rules 2.13 17 Total or partial intestacy 2.14 17 How the intestacy rules distribute the estate 2.17 18 Bona vacantia 2.31 21 Assets inherited outside the will and the intestacy rules 2.33 22 Applications for family provision 2.41 24 Overview 2.45 24 Eligibility and provision for the different categories of applicant 2.59 28 The deceased’s assets and orders which can be made 2.88 36 Diagram summarising the intestacy rules 2.91 37 PART 3: THE SURVIVING SPOUSE 38 Introduction 3.1 38 Impact of the current law 3.6 38 The statutory legacy 3.6 38 Estate size 3.11 40 Changing patterns of home ownership 3.14 41 The risk of a surviving spouse losing the family home 3.22 43 Surviving spouse but no children 3.29 44 vi Paragraph Page Surviving spouse and children 3.37 46 All to spouse in every case 3.43 47 Sharing options 3.61 50 Questions 3.95 58 Children from other relationships 3.98 58 Personal chattels 3.112 61 A value limit? 3.116 62 Heirlooms 3.121 63 The definition of personal chattels 3.124 64 Updating the statutory legacy 3.134 66 The notional divorce test 3.145 68 PART 4: COHABITANTS 70 Introduction 4.1 70 Previous work in this area 4.4 70 The 1989 Report 4.5 71 The Cohabitation Report 4.9 72 The intestacy rules 4.14 73 The case for reform 4.14 73 Implementing reform for cohabitants 4.41 80 Conclusions 4.58 84 What should the cohabitant receive? 4.62 84 Cohabitants who have had a child together 4.66 86 Cohabitants who have not had a child together 4.69 86 Personal chattels 4.89 91 Cohabitants and other relationships 4.97 92 vii Paragraph Page Family provision 4.112 95 Eligibility 4.112 95 Reasonable financial provision and the “maintenance standard” 4.125 98 Other recommendations in the Cohabitation Report 4.135 100 PART 5: CHILDREN 102 Introduction 5.1 102 Children, intestacy and family provision 5.3 102 Distribution among children and other descendants 5.20 106 Trusts for children on intestacy 5.36 110 The conditions for absolute entitlement 5.38 110 Trustees’ powers of maintenance and advancement 5.43 111 Adoption 5.54 114 PART 6: OTHER RELATIVES, DEPENDANTS AND BONA VACANTIA 118 Introduction 6.1 118 Claims for family provision 6.2 118 Children of the family 6.2 118 Dependants 6.10 120 Other relatives 6.32 125 Parents and siblings 6.37 126 Full siblings and half siblings 6.48 128 Other relatives 6.55 131 Unmarried fathers 6.64 133 Bona vacantia 6.69 134 The Crown and the Duchies 6.70 134 Is reform needed? 6.78 136 viii Paragraph Page PART 7: THE ADMINISTRATION OF ESTATES 138 Introduction 7.1 138 Small estates 7.4 138 Appropriation and self-dealing 7.9 139 Survivorship provisions in the intestacy rules 7.21 142 Accounting for other benefits 7.32 144 The rules of hotchpot 7.32 144 Benefits received in a foreign jurisdiction 7.36 146 Domicile 7.40 147 Habitual residence 7.44 148 Applicable law 7.48 149 Joint tenancies 7.57 151 The six-month time limit 7.58 151 Valuing the share 7.61 152 Applications before grant of representation 7.66 152 Pension sharing 7.71 153 PART 8: LIST OF PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS 157 APPENDIX A: QUANTIFYING IMPACT 165 APPENDIX B: ILLUSTRATIONS FOR PART 3 177 APPENDIX C: HM REVENUE & CUSTOMS’ ANALYSIS OF NET ESTATES REPORTED FOR PROBATE 182 ix GLOSSARY “1975 Act”: the Inheritance (Provision for Family and Dependants) Act 1975.
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