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consequences of the death of a family member
very in-depth and clear lecture notes from student at city university of London studying family law. I personally revised from these notes and achieved a 2:1 in this module.
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Consequences of the death of a family memberDevolution of property on death
DEVOLUTION OF PROPERTY BY WILL
Freedom of testamentary disposition
Formal requirements for the validity of the will
S.7 Wills Act 1937: the will of a person under age is not valid
S.9 Wills Act 1937: must be made in writing, signed in the presence of at least two witnesses who
must attest and sign.
A will is revoked by the testator’s subsequent marriage (S.18)/ civil partnership (S.18B)
Exception
Will made in contemplation of marriage/ civil partnership and the testator did not intend it
to be revoked.
A will is revoked by the testators subsequent divorce/ annulment (S.18A)/ dissolution of civil
partnership (S.18C)
S.18A(2) subsection (1)(b) above is without prejudice to any right of the former spouse to apply for
financial provision under the Inheritance (Provision for Family and Dependents) Act 1975.
DEVOLUTION OF PROPERTY ON INTESTACY
S.46 Administration of Estates Act 1925: table of rules
Spouse has priority over other beneficiaries but s/he may have to share some of the estate with the
children.
Deceased leaves spouse/ civil partner and no children
The surviving spouse receives all of the estate absolutely.
Spouse is a person whom deceased was marriage at time of death whether or not living together.
Where the parties were divorce or separated, the spouse will not benefit S.18(2) MCA 1973
Where the intestates spouse dies within 28 days of the intestate, the estate is distributed as if the
spouse had not survived the intestate.
Deceased leaves spouse and children/ grandchildren
Spouse: all personal chattels, a fixed sum (statutory legacy £250,000) and one half of the balance of
the estate.
Children/ grandchildren: the other half of the balance of the estate (held on trust for them), entitled
to maintenance until they are 18, then entitled to the capital.
Primary beneficiaries are the children, grandchildren are included only by substitution where a child
died before the intestate.
, *if the estate is worth less than £250,000, the spouse gets everything and the child will get nothing.
Deceased leaves no spouse, but blood relatives
Estate is divided between the relatives in the highest category in the following list:
Children or grandchildren
Parents
Bothers or sisters of the whole blood (or their children)
Brothers of sisters of the half blood (or their children)
Grandparents
Aunts or uncles (or their children)
Whichever relative is highest on the list will take the whole estate, the others will take nothing. If
more than two relatives in the highest category, they will share the estate equally.
Principle of substitution: if a brother or sister dies before the intestate, leaving children, their
children take their shares.
Deceased leaves no surviving spouse/ civil partner and no blood relatives
The estate passes to the Crown (bona vacantia)
The crown may give some of it to persons for whom the deceased might have been expected to
provide.
Inheritance (Cohabitants) Bill 2011
Cohabitation Rights Bill 2017-19
3 years minimum threshold but if the couple have children, there is no threshold.
THE MATRIMONIAL HOME
If the matrimonial home belonged to the deceased only, and forms part of the estate
The surviving spouse can retain the matrimonial home in full or partial satisfaction of their interest in
the estate.
If the property is worth more than the spouse’s entitlement, the spouse may retain it by paying the
difference to the personal representatives- will form part of the rest of the estate.
If the spouses were joint tenants
House is devolved to the surviving spouse
If the spouses were tenants in common
The deceased’s share forms part of his estate and passes according to will/ law of intestacy.
LEGAL STEPS FAMILY MEMBERS CAN TAKE IF THE DECEASED FAILED TO MAKE ADEQUATE
PROVISION
Inheritance (Provision for Family and Dependants) Act 1975
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