Intestacy Notes

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  • Topic: Intestacy, Estate, Will
  • Pages : 33 (8217 words )
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  • Published : October 11, 2011
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Topic: Introduction to the law of intestacy.

Students must be able to:

|LOS 1 |describe the evolution of the rules of intestacy. | |LOS 2 |distinguish between total intestacy and partial intestacy. | |LOS 3 |understand essential terms used in the law relating to testacy and intestacy. |


Distriution of Real Property before 1926
Rules of inheritance dictated that real property (realty) passed to the heir-at-law who was the eldest son. If there were no surviving sons or their issue, realty devolved equally on the daughters of the intestate. The order in which the realty passed is as follows: i. Eldest son or issue;

ii. Other sons or issue;
iii. Daughters equally or issue;
iv. Brothers and sisters or issue.

After the Inheritance Act 1833 came into force, the intestate’s parents were given priority over collaterals.
If there were no next of kin, realty passed to the intestate’s lord or the Crown. Intestate’s widow was not entitled but the widower took life interest in the whole of his wife’s real property (an interest known as curtesy). Under the customary rules of dower, the widow came to be entitled to 1/3 of her husband’s real property on his death. Both curtesy and dower faded in importance as methods were found to defeat these customary rights.

Distribution of Personal Property before 1926
Statute’s of Distribution 1670-1685 - the widow took 1/3 of personal property (personalty) if there were issue, but 1/2 if there were no issue. A widower was entitled to all of his wife’s personalty. If there was no surviving spouse, the issue took all the personalty. Other next of kin could take if there were no issue.

The Crown was entitled if there were no surviving relatives within the prescribed categories.

Administration of Estate’s Act (AEA) 1925
AEA 1925 repealed previous rules as regards succession to realty and personalty and gave preference to the surviving spouse, ending the difference between widows and widowers as to entitlement. Therefore in most intestacies after 1925 the surviving spouse took the whole estate, being entitled to a statutory legacy of £1,000, the personal chattels of the intestate and a life interest in half the residue if there were issue.

Intestate’s Estate’s Act 1952
This Act brought about significant changes whereby the surviving spouse was given the right to the matrimonial home and the statutory legacy was increased to £5,000. The Inheritance (Family Provision) Act 1938 was made applicable to intestacy by the 1952 Act, thus allowing flexibility into the application of the rules by allowing certain family members of the intestate to claim provision out of the estate by way of maintenance. The Law Reform (Succession) Act 1995 abolished the hotchpot rule (which we will deal with later on), specifying that a spouse had to survive the intestate by 28 days in order to be entitled, and that cohabitants could apply for reasonable provision out of the estate.

Quick Answer Question
To whom did realty pass on intestacy before 1925 if there were no surviving sons?


When a person dies without making a will or the will he made is invalid, this is referred to as total intestacy. When a person leaves a will, but omits to leave a gift of residue or the gift of residue fails, this is referred to as partial intestacy.

The Distinction

|Total Intestacy |Partial Intestacy | |Deceased never made a will. |Deceased made a will but omitted to leave a gift of | |...
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