The intestacy[1]rules could be deemed to
provide adequately, especially where the surviving spouse[2] is concerned as they will receive
the statutory legacy[3] and will take the personal
chattels[4] with a ‘personal
connection’[5]
to the intestate absolutely[6] which may not have been
the intention of the deceased had he made a will. Intestacy is too favourable
to the spouse, even if there are issue[7] or other surviving
relatives who can claim under intestacy[8], this seems unfair as the
spouse is a contractual relative[9] and takes priority over
the blood relations[10] of the deceased. The
spouse is not entitled to any chattels used by the intestate for business
purposes[11]
which does not make adequate provision, because where the spouse is benefitting
from such business, he or she is unable to acquire those chattels to then carry
on the business and therefore suffers a detriment upon the death of the
intestate. This does not seem fair, but the courts recognise that the business
must be continued and the chattels are utilised for the purposes of that
business[12]
. The Law Commission recommend that, in order for the provision for spouses to
be made more adequate, the definition of personal chattels[13] should be modernised in
order to ensure that the spouse receives more of the estate[14] through providing a
modern[15] definition, replacing the
current ‘omnium gatherum[16]’.
Adequate provision is
made for the purpose in enabling the surviving spouse to acquire the
matrimonial home[17].
If the matrimonial home[18] is held as a joint
tenancy, the surviving spouse will take absolutely through ius accrescendi[19] which, after the spouse
receives both the matrimonial home and the statutory legacy, it may be that the
entire estate has been disposed of and therefore; only the spouse has been
provided for which is unfair as this is of overriding importance[20] and the issue are
inadequately provided for, therefore should receive more of the estate[21]. The opposite effect,
however is apparent when the matrimonial home is held as a tenancy in common
which gives the spouse too little in that they do not receive the interest of
the intestate in the matrimonial home automatically[22] and therefore, unable to
purchase the intestate’s interest, can be made homeless and in these
circumstances, the intestacy rules are unfair and lack provision for the
spouse. Intestacy provides a
safeguard in which the spouse is able to retain[23] the matrimonial home through
appropriation[24]
in order to purchase the interest of the intestate in the home, this ensures
that the spouse receives adequate provision in avoiding homelessness, which is
fair as it allows the spouse to purchase the interest of the intestate in the
matrimonial home by making payments, however, although very favourable to the
surviving spouse[25],
does not always provide adequately as the spouse must have been residing in the
matrimonial home upon the death of the intestate which highlights the harsh
nature of intestacy in that if the surviving spouse is separated but still
married and therefore does not reside in the matrimonial home, he or she is
unable to benefit from this provision and is therefore unable to acquire the
matrimonial home.
Where intestacy fails to provide, the family provision
legislation[26]
acts as a safety net as the courts have discretion[27], although conditions must
be satisfied for family provision[28] in order for the courts
to exercise discretion. Under Intestacy, the surviving spouse will receive
most, if not all of the estate, however under the family provision legislation[29], a number of other people
can claim on the estate, even if the deceased made a will which includes former
spouses[30] and parties to a
polygamous marriage[31]. This is far from fair,
intestacy seems to value the institution of marriage and civil partnerships by
presuming that the intention of the deceased is to pass the estate to the
spouse, the family provision legislation opens the floodgates and allows people
who are no longer related contractually to claim on the estate, intestacy
recognises the presumed intention of the deceased under intestacy, was not to
allow the estate to pass to the former spouse because the marriage has been
annulled, showing that the deceased no
longer intended to provide for the spouse. If the deceased had died intestate
whilst a decree of judicial separation was in force, then the surviving spouse
is able to claim on the estate of the deceased under family provision[32], which would give to them
the adequate provision which intestacy does not provide in that the surviving
spouse is deemed to have predeceased[33]. The approach taken under
intestacy is fairer and better reflects the intention of the intestate because
a decree of judicial separation, one assumes, is enforced precisely because it
is the intention of the deceased to not pass any of his estate to the
judicially separated spouse, however the family provision legislation
challenges this in order to provide for everyone instead of acting in
accordance with the presumed intention of the deceased and raises the question
of whether the intestate owes a duty to provide for his family after his death,
or for cohabitants and dependants[34]. The family provision
legislation does strike a balance under s15(1)[35], in that the spouse
receives a lump sum[36] as maintenance to benefit
him or her in the way in which they would have benefitted had the marriage
continued, otherwise, the former spouse can claim on death,[37] furthermore, upon the execution
of s.15(1) the former spouse can then not return upon the death of the deceased
to attempt to claim on the estate which is a fair provision in this statute
because it closes the floodgates to prevent former spouses from claiming when
the decree absolute[38]
represents the clear intention of the deceased that the former spouse should
not receive any of the estate which is recognised under intestacy as former
spouses cannot claim, therefore intestacy better reflects the presumed
intention of the intestate[39].
Intestacy makes provision for the issue to claim on the deceased’s
estate[40], which is unfair when
compared with what the contractually related spouse receives, which means the
issue are not adequately provided for as blood relatives. Where intestacy
unfairly fails to provide adequately for the issue of the deceased, they may
claim under the family provision legislation which is fair in that there is
provision for a child to claim on the estate which may have passed to the
spouse through intestacy. The problem is of course, that even a child claiming
under family provision will usually be in competition with a surviving spouse[41], it is not fair that,
taken together, both intestacy and the family provision legislation provide the
spouse with an automatic right where the issue have no such right to claim. The
burden of proof is on the child to show there was loco parentis[42]
in which adequate provision was made, reflecting the maintenance[43] they received during the
lifetime of the deceased[44]. The wording of this particular subsection
under family provision is sufficiently wide in order for the applicant to rely
upon the conduct of the deceased[45] which may provide
adequate provision for those who claim under this subsection, although it may
not have been the intention of the deceased to pass any of his estate on to a
child of the family or somebody who was maintained by the deceased, which is
unfair and challenges the intention of the deceased which has been embodied in
his will, the ability of a parent to cut a child out from the will goes to the
root of basic English law[46]and therefore it is right
that intestacy makes no provision for such claims for children of the family,
better reflecting the presumed intention of the deceased. Family provision, in
relation to a child of the family ensures that applicants who, were not children
of the deceased, but were treated by the deceased as ‘a child of the family in
relation to a marriage or civil partnership’[47] can claim on the estate,
this is a more modern approach as it is common that people will go onto remarry
others with children to a previous marriage and effectively raise that child,
which as a result, the family provision legislation provides that they can
claim on the estate where intestacy prevents[48] them from doing so. The
family provision legislation, although framed to give testamentary freedom[49], will recognise claims by
children, regardless of age[50], in special circumstances[51] which provides adequately and is fair in
comparison to intestacy, which when regarding the nature of it, in relation to
the favourability of the spouse, an adult child may not receive any of the
estate. The interpretation of the family provision legislation by the courts
when exercising discretion, in relation to applications made by adult children
is fair as the courts will consider the question of need and will make
provision to those in special circumstances and not the able-bodied[52] with an earning capacity
for the foreseeable future[53], which is fair because as
Oliver J stated in Re Coventry, the adult child in employment is able to provide
for himself. For those who contribute
with money, or money’s worth, the family provision legislation is unfair and
the courts find it most difficult dealing with the question of full valuable
consideration[54]
in which if somebody was being maintained by the deceased[55] and contributed full
valuable consideration, then they will receive very little from the estate.
This approach is unfair as family provision provides for people who do not
contribute full valuable consideration as in the case of Re Viner in which the
court held that the poorer one is, the more likely one is to have a valid
claim. This is a fair provision in which dependant people are adequately
provided for, but on the other hand, the major issue with this legislation, in
that it is a vigorous jurisdiction with widening classes of applicants and
greater numbers of claims[56] because the courts have
more discretion which although can be seen as a fairer approach in judging each
case on its own merits[57] and in differing from intestacy,
the presumed intention of the deceased is again being challenged and people can
claim on the estate which may be contrary to this intention.
Intestacy makes no
provision whatsoever for cohabitees[58] on the death of the
intestate which means that where two people are cohabiting and the home is in
the name of the intestate only, the surviving cohabitee will have no
opportunity to keep the property under intestacy and as a result face costly
litigation and uncertainty[59], therefore parliament
should make provision under intestacy for ‘qualifying cohabitees’[60] to be given adequate
provision and to modernise the rules which heavily favour the institution of
marriage. The harsh nature of intestacy however, is offset by the family
provision legislation[61] which, taken together, makes
adequate provision for the family of the intestate providing that all of the
conditions are satisfied[62] even making provision for
cohabitees where the cohabitation is unlawful[63], which is unfair as the
court allows people to claim where the law has been broken, which shows that the
family provision legislation consists of a very large scope in which to
encompass as many applicants as possible. The onus must be upon the surviving
cohabitee to show that they and the deceased lived as husband and wife[64]. In the case of Re Watson[65], the court held that a
cohabitee who slept in a separate bed from the deceased had a claim on the
estate, which is an unfair provision because where two people are cohabiting
and leading separate lives, it could mean that the surviving cohabitee could
have a claim under family provision, which is contrary to the presumed intention
of the deceased recognised by intestacy.
Taken together, the intestacy rules and the family provision
legislation make adequate provision although, only to certain members of the
deceased’s family. Both areas of law are very favourable to the spouse because
under intestacy, the spouse automatically has the right to possession[66] and this automatic right
is also provided to the surviving spouse under the family provision legislation
and not blood relatives who are subject to the burden of proof. It is wholly
unfair that former spouses[67] are able to claim under
the family provision; this is contrary, not only to the presumed intention of
the deceased upon death, but the intention of the deceased during his lifetime,
hence why there is a decree absolute or a decree of judicial separation in
force. Intestacy may not give adequate provision to the family members of the
deceased compared to the family provision legislation, but intestacy better
reflects the presumed intention of the deceased by providing that the estate is
disposed to the surviving spouse and the issue.
[1]
Can be full or partial where the intestate omitted to make a will or failed to
dispose of any or part of the estate and therefore loses control of his/her
estate (See Re Skeats [1936] Ch. 683)
[2]
This include Civil Partners (Civil Partnership Act 2004)
[3]
Statutory legacy of £250,000 under Family Provision (Intestate Succession)
Order (SI 2009/135) at a rate of 6% of interest per annum (See Intestate
Succession (Interest and Capitalisation) Order 1983 No. 1374)
[4]
As defined under s55(1) The Administration of Estates Act 1925. Includes carriages and horses (Re Hutchinson [1955]
Ch. 255) Furniture, (Re Crispin WT [1975] Ch. 245 where a collection of clocks
was held to fall under s55 as well as a stamp collection in Re Reynolds WT
[1965] 1 WLR 19.) or jewellery (Re Whitby [1944] Ch. 210)
[5]
Russell LJ defined personal chattels as goods with a personal connection to the
intestate (Re Crispin WT [1975] Ch. 245.)
[6]
Personal chattels in the ordinary sense of the word (See Re Crispin Wills Trust
[1975] Ch. 245.)
[7]
Direct lineal descendent.
[8]
See Law Commission paper Intestacy and Family Provision Claims on Death (Law
Com No. 331) at page 22. They recommend that the spouse should receive assets
in all cases where there are no issue or other descendants.
[9]
The spouse is related contractually to the deceased through marriage or civil
partnership.
[10]
Namely, the issue of the deceased.
[11]
See Re Ogilby [1942] Ch. 288.
[12]
Per Simonds J, Re Ogilby [1942] Ch. 288 at 290. ‘My attention has been called
to a number of cases in which the word "business" has been used, but
I have to consider the word in the context in which I find it’
[13]
S55(1) definition described as having ‘an anachronistic flavour’ Law Commission:
Intestacy Claims on Death (Law Com No 331) Page 48, Para 2.98
[14]
Law Commission: Intestacy Claims on Death (Law Com No 331) Page 22, Para. 1.87
[15]
‘Intestacy rules date back to the 1925 statute’ (Jonathan Raynor Intestacy
reform to help co-habitants (2011) LS GAZ 15th December 2 (2) )
[16]
Described as such by Vaisey J In Re
Chaplin [1950] Ch. 507, at 509
[17]
Per Buckley LJ in Re Phelps [1979] 3 ALL ER 373 at page 377
[18]
See s5 Intestates Act 1952
[19]
The survivorship clause of 28 days (see also s184 Law of Property Act 1925,
Commorientes: the younger is deemed to have survived the elder.)
[20]
Textbook on Succession Andrew Borkowski 2nd edition Oxford
University Press 2002 Page 17.
[21]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at page 22.
[22]
The Intestate’s interest in the matrimonial home forms part of the residuary
estate.
[23]
Under the Matrimonial Causes Rules 1988. (Although the spouse cannot insist on
having the matrimonial home appropriated by the personal representatives)
[24]
Equalisation payments can be made to purchase the interest
[25]
Only in certain circumstances (see Para. 1(1) Intestates Act 1952 whereby the matrimonial
home forms part of a building, agricultural land or a home used for something
other than domestic purposes.)
[26]
Inheritance (Provision for Family and Dependants) Act 1975.
[27]
Re W (A Minor) (Claim from Deceased’s Estate) [1995] 2 FCR 689 where the court
exercised discretion in allowing an application under family provision on
behalf of a child which was 3 years late.
[28]
Re Salmon, Deceased
[1981] 1 Ch. 167. The court refused an application made under family provision
which was 4 ½ months late.
[29]
S 1(1)(a) Inheritance (Provision for Family and Dependants) Act 1975 which
allows the following to claim on the estate of the deceased: (1) Judicially
separated spouses (2) Parties to a void marriage providing they married in good
faith (3) Parties to a voidable marriage providing the marriage has not been
annulled (4) Parties to a polygamous marriage.
[30]
S1(1)(b) Inheritance (Provision for Family and Dependants) Act 1975 where the
marriage or civil partnership has been dissolved or annulled providing the
applicant has not re married.
[31]
See Re Sehota (Deceased) Surjit Kaur v
Gian Kaur and another [1978] 3 ALL ER 385.
[32]
Under s1(1)(a) The Inheritance (Provision for Family and Dependants) Act 1975.
[33]
S21 Family Law Act 1996.
[34]
Textbook on Succession Andrew Borkowski 2nd edition Oxford
University Press 2002 Page 252 Para 8.1. See also s.18(2) Matrimonial Causes
Act 1973.
[35]
S.15 (1) The Inheritance (Provision for Family and Dependants) Act 1975, the
‘clean break’ order.
[36]
If one cannot afford to pay a lump sum to a former spouse, one will pay
periodical payments.
[37]
See Re Crawford [1983] The deceased had been paying weekly periodical payments
to his former spouse for 11 years, the court awarded her £35,000 out of his
estate worth £65,000
[38]
Marriage is dissolved or annulled.
[39]
See Re Seaford (deceased); Seaford v
Seifert [1968] 1 ALL ER 482. The court held that there could be no divorce
after death.
[40]
Held on the statutory trusts until the issue reach the age of 18 or have
married before reaching 18.
[41]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at Para. 6.4
[42]
Deceased acted as a parent, providing financial maintenance or love and
affection for the applicant. (See Re Callaghan Deceased [1984] 3 ALL ER 790)
[43]
Maintained by the deceased through (1) Substantial contributions, (2) money or
money’s worth, (3) towards the reasonable needs of the applicant.
[44]
See Re Viner [1978] C.L.Y 3091. The deceased only paid £5.00 a week for 6
months to his elderly sister, the court held that she had a valid claim.
[45]
Per Booth J in Re Callaghan Deceased [1984] 3 ALL ER 790 - Citing the judgment
of Mr Michael Wheeler QC in Leach v Linderman [1983].
[46]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at Para. 6.14. Under the heading consultation responses.
[47]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at Para. 6.27. Under the heading children of the family.
[48]
Intestacy makes no provision for step children
[49]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at Para. 6.6
[50]
Law Commission paper Intestacy and Family Provision Claims on Death (Law Com
No. 331) at part 6, Para 6.2. Under the heading of ‘adult children’.
[51]
Namely a special circumstance or moral obligation See Re Hancock
[52]
‘By able-bodied and comparatively young men in employment’ Per Oliver J in Re
Coventry [1980] Ch. 461.
[53]
‘The adult child is in employment
[54]
Per Arnold J in Re Wilkinson [1978] Fam. 22 at 25.
[55]
For example, the provision of free accommodation (See Re Wilkinson [1978] Fam.
22 and Malone v Harrison [1979] 1 WLR 1353 where all living expenses were paid)
[56]
The Inheritance (Provision for Family
and Dependants) Act 1975: recent cases and developments
By Emily Exton,
Julian Washington, 2008. Through the Westlaw database.
[57]
See Re Beaumont Deceased: Martin v Midland Bank Trust Co
Ltd - [1980] 1 All ER 266. Megarry VC at 271, exercised discretion in holding a hospital
admission, being involuntary, will not destroy a claim.
[58]
Textbook on Succession by Andrew Borkowski 2nd edition: Oxford
University Press 2002, Page 11.
[59]
Lord Lester of Herne Hill in the second reading of the Inheritance
(Cohabitants) Bill in the House of Lords, Friday 19th October 2012.
[60]
The Law Commission Intestacy Claims on Death (Law Com No 331)
[61]
A recommendation made by the Law Commission: Distribution on Intestacy (Law
Com. No. 187.) s2 Law Reform (Succession) Act 1995 added a new category in
which cohabitees are able to claim under the family provision legislation.
[62]
S2 Law Reform (Succession) Act 1995 in which 3 conditions must be satisfied in
order for cohabitees to be able to claim (1) Must be living in the same
household (2) Living similarly to a husband and wife or civil partners (3) Must
do so for at least 2 years before the death of the intestate.
[63]
See Witkowska v Kaminsky [2006] W.T.L.R 1293 – The court held that the
applicant could claim on the estate of the deceased despite the cohabitation
being contrary to the Immigration Act 1971.
[64]
Living together as husband and wife is ‘a commitment to permanence the
relationship must be an emotional one of mutual lifetime commitment’ Per
Evans-Lombe J in Southern Housing Group v Nutting [2005] 1 F.L.R. 1066.
[65]
Per Neuberger J in Re Watson [1999] 1 F.L.R. 878
[66]
S46(1) The Administration of Estates Act 1925
[67]S1(1)(a)
The Inheritance (Provision for Family and Dependants) Act 1975.
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