Intestacy fails to take account of the modern world of the family, as Emma Holland explained to The Times in June 2022.
You can read the article as it was originally published here (subscription required).
What are the risks?
Making a will often languishes on to-do lists – but the pandemic forced people to confront their own mortality and led to a surge in demand.
While wills are by no means foolproof, without one families can be left to rely on the intestacy rules, which dictate automatically who inherits an estate and in what proportions. These rules, drafted in the early 20th century, reflect the social norms of 100 years ago and are now out of date.
The rules work by prioritising people who the law recognises as spouses and children. If there is none, they move on to other blood relatives, starting with parents, moving through various categories until half-cousins. If no one is identified, the estate passes to the Crown.
As they stand, these rules could potentially exclude those who were important to the deceased, despite not fitting into the traditional definition of family.
Old rules, modern world
This causes a range of issues. Most noticeably, the rules do not recognise cohabiting partners who are neither married nor in a civil partnership. Cohabitation has in recent years become increasingly commonplace – a recent study indicated that approximately one in five couples living together in the UK fell into this category.
Problems also arise for those who married abroad if their union is not recognised in the UK, with the result that the surviving partner is not acknowledged under the rules.
Stepchildren also will not automatically inherit as the default rules do not acknowledge the “blended” family, namely, those comprising a combination of parents, new partners and children from different relationships.
Today blended families make up approximately one in three in the UK. Consequently, these family members could unexpectedly find themselves left with nothing. In these cases, they can bring a claim to the deceased’s estate for “reasonable financial provision”, yet this involves significant time, expense and, often, emotional turmoil.
On top of this, the rules do not take account of rifts or estrangements with relatives who fall within the categories of people who automatically inherit. They will stand to inherit even though the deceased did not want them to benefit.
How could this change?
Should the intestacy rules be amended to acknowledge that people often wish to provide for non-blood relatives and, vice versa, exclude relations with whom they have fallen out? It would require clever drafting to address the nuances.
For example, issues arise over whether a cohabitee of one month should be treated equally to a cohabitee of ten years? Should a child be disinherited in light of a recent major argument notwithstanding an otherwise close relationship?
Rather than assist with family harmony, such changes would likely trigger disputes. In reality, the non-uniform nature of the modern family means that one-size-fits-all rules are unlikely ever to be appropriate.
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