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Intestacy Rules
DEATHS INTESTATE AFTER 1952
Right of Surviving Spouse
Rights of Issue under the Statutory Trusts
Rights of other Relatives
Rights of Issue under the Statutory Trusts
Issue
Where the intestate does not leave a surviving spouse or, in the case of an intestate dying on or after 1 January 1996, the intestate’s spouse survives but dies before the end of the period of 28 days beginning with the day on which the intestate died, the issue of
an intestate take the whole of his residuary estate upon the statutory trusts. Where there is a surviving spouse, the issue take upon the statutory trusts subject to his or her interests; accordingly, they take immediately one-half of the residuary estate less the personal chattels, and the fixed net sum, and take the other half upon the death of the surviving spouse
The statutory trusts
Where any part of the residuary estate of an intestate is directed to be held on the statutory trusts for the issue of the intestate it is held in trust, in equal shares if more than one, for all or any of the children or child of the intestate, living at his death, who attain the age of 18 or marry under that age, and for all or any of the issue living at the death of the intestate who attain the age of 18 or marry under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking. A posthumous child or issue can take under these provisions.
Advancements
The statutory power of advancement and the statutory provisions for maintenance and accumulation of surplus income apply to the shares of infant beneficiaries.
Where, in the case of an intestate dying before 1996, any part of the residuary estate held on the statutory trusts for issue was divisible into shares, then any money or property which, by way of advancement or on the marriage of a child of the intestate had been paid to the child by the intestate or settled by the intestate for the benefit of the child (including any life or less interest and including property covenanted to be paid or settled) had, subject to any contrary intention expressed or appearing from the circumstances of the case, to be taken as being so paid or settled in or towards satisfaction of the share of the child or the share which the child would have taken if living at the death of the intestate and had to be brought into account at a valuation (the value to be reckoned as at the death of the intestate) in accordance with the requirements of the personal representatives. Advances by the personal representatives under the statutory power might also have to be brought into hotchpot. These provisions are abolished in relation to deaths on or after 1 January 1996.
What payments constituted advancements
In the case of an intestate dying before 1996 it may still be necessary to determine what payments were made by way of advancement. For the purpose of determining whether a payment is made by way of advancement a distinction is drawn between sums given as casual payments or to relieve a child from temporary difficulties, and sums given to start a child in life or make a provision for him. The latter only are deemed advances by way of portion, but if the gift made by the intestate was of a large amount there is a prima facie presumption that it was given by way of portion. No general rule can be laid down as to what is and what is not to be considered a portion, for the time and manner of the gift have in every case to be considered, as must any intention expressed or appearing from the circumstances of the case. Payments for education or maintenance, or apprenticeship, or gifts of jewellery or clothing, or small allowances, are not advances.
The payment which is made as a provision for a child is nonetheless a portion because it will not necessarily be permanent, or because it is not paid directly or entirely to him; accordingly, where a father makes a provision for a son on his marriage, or a daughter’s portion is paid to her husband who covenants to lay it out in land to be settled, these are advances, and the whole sum paid, not merely the value of the child’s life interest, is to be brought into account.
Extent of the doctrine
The doctrine relating to advances applies on the partial intestacy of a person dying before 1996, and in such a case benefits taken by children or remoter issue under the will have to be brought into account. Advances by a mother, where she is the intestate, must be brought into account. A widow is not entitled to the benefit of the doctrine for the purpose of ascertaining the amount of her share of her intestate husband’s estate, for the intention is merely to secure equality among the children. Children of the intestate bring into account all advances made by him at a value determined as at his death in accordance with the requirements of the personal representative. These provisions apply where all the provisions of a will, including the appointment of an executor, fail, for that is a total intestacy.
Advances are taken without interest up to the date of the intestate’s death, but from the death (in as much as the distribution is referred back to the actual date of the death) interest is allowed.
Receipts by minors
A minor who is married has power to give valid receipts for the income of his or her share or interest, and personal representatives may permit any minor contingently interested to have the use and enjoyment of any personal chattels in such manner and subject to such conditions, if any, as they may consider reasonable, and without being liable to account for any consequential loss. Where the trusts for the issue fail by the death of all before attaining an absolutely vested interest, the residuary estate together with all accumulations of income, or so much of it as has not been paid or applied under any power affecting it, is distributed as if the intestate left no issue surviving him.
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