Intestate Succession

Question 1

Spouses and Children rules

Answer 1

• Section 67(1) – Where an intestate dies survived only by a spouse or a civil partner and no issue, the spouse/CP takes the whole of the estate.
• Section 67(2) – Where an intestate dies survived by a spouse and issue:
   The spouse takes 2/3 of the estate.
   The remaining 1/3 is divided among the issue.
• Where an intestate dies leaving issue but no surviving spouse the entire estate goes to the issue.
• Adoption Act – Adopted children treated as biological children for the purposes of succession law but informal adoption and surrogacy situations difficult

Question 2

Parents

Answer 2

• Section 68 - if a person dies intestate leaving neither spouse/CP, nor issue, then the estate is distributed to his/her surviving parents in equal shares.

Question 3

Siblings

Answer 3

• Section 69 – where a person dies intestate with neither spouse/CP, issue or surviving parents the estate goes to siblings in equal shares (per stripes distribution).
   If a sibling, who has predeceased the intestate, died having left issue, then those issue take the share of their deceased parent in equal shares.
• If there are no surviving siblings, then any children of those siblings (nieces and nephews in common language) take in equal shares

Question 4

Next of Kin Rules

Answer 4

in section 71:

(1) Subject to the rights of representation mentioned in subsection (2) of section 70, the person or persons who, at the date of the death of the intestate, stand nearest in blood relationship to him shall be taken to be his next-of-kin.

(2) Degrees of blood relationship of a direct lineal ancestor shall be computed by counting upwards from the intestate to that ancestor, and degrees of blood relationship of any other relative shall be ascertained by counting upwards from the intestate to the nearest ancestor common to the intestate and that relative, and then downward from that ancestor to the relative; but, where a direct lineal ancestor and any other relative are so ascertained to be within the same degree of blood relationship to the intestate, the other relative shall be preferred to the exclusion of the direct lineal ancestor.

Question 5

The State

Answer 5

• Section 73 establishes the State as the ultimate intestate successor.
• State Property Act 1954 - s28/s29 – Min for PER can waive those state rights in favour of someone else (maybe for moral reasons e.g. brother or sister in law) but matter of discretion