Draft Inheritence and Trustees’ Powers Bill

When a person dies “intestate” (that is without leaving a valid will disposing of the whole of his or her property) their estate is distributed in accordance with legal rules known as the intestacy rules. According to the Law Commission, “studies suggest that between a half and two thirds of the adult population do not have a will and that those who need one most are the least likely to have made one”.

The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) enables certain family members and dependants to apply to court for reasonable financial provision from a deceased person’s estate. (This is often referred to as a claim for family provision.) The 1975 Act provides a means for someone to challenge the distribution of an estate, under a will or under the intestacy rules, by applying to court for a share, or an increased share, in the estate. If the claim is successful, then the way in which the estate is distributed will be changed.

In October 2008, the Law Commission began work on a project dealing with intestacy and family provision claims on death. In December 2011, the Law Commission published a final report and two draft bills. The Law Commission found “many instances where the current law is outdated, confusing or places unnecessary obstacles in the way of those with a valid claim to share in a deceased person’s assets”. It recommended a package of reforms “that would modify the current legal rules to reflect modern social expectations and to remove arbitrary or unduly technical aspects, while leaving intact the fundamental structure of the English law of “succession” to property on death”.

On 21 March 2013, Lord McNally, Minister of State for Justice, announced that the Government had accepted the Law Commission’s recommendations, with minor amendments, in all areas except for the recommendations relating to rights for cohabitants on intestacy. On the same day, the Government published for consultation the Draft Inheritance and Trustees’ Powers Bill which was produced by the Law Commission with its report. The consultation ends on 3 May 2013.