Intestate Succession Flashcards
Criticisms of the current law
Produce different results based on whether estate is largely heritable / moveable.
Prior rights can often exhaust the estate meaning than spouses take majority - fair? Esp when spouse isn’t parent of all / any of deceased’s children
Prior rights set at financial value rather than just asset itself, parties forced to sell property to get cash
Recommendations of SLC
No longer asset specific - rules operate on while estate. Issue continues to inherit whole estate where just them
Spouse / CP only - should take all, not parents, siblings etc
Spouse & issue - spouse takes majority up to £300k threshold
Stepchildren - continue to do same
No right to buy - £300k threshold sufficient
Spouse not parent of all / any of deceased’s children? No change, uncertainty!!
Spouse takes all?
Less asset specific way, much more likely to get more, doesn’t depend on whether have house etc
But bad where relatively short marriage or parents separated
Also most estates less than £300k so spouse takes all in most situations - Gretton recommends lower
English position
Spouse getting £300k threshold similar to £250k threshold. Also get personal chattels and life interest in 1/2 estate
England also doesn’t deal with second spouse issue.
Netherlands
Wilsrecht - where surviving spouse is other parent and remarries, can bring claim. Also where surviving spouse was child’s stepparent can burning action at any time
Ireland
2/3 to spouse and remainder distributed in equal shares to issue / parents
USA
Spouse gets all if no parent or issue survives. Get less if children of estate who are not descendants of surviving spouse.
Alberta
Separation does make a difference
How are second spouses treated in Scotland?
All the same, lot of uncertainty as to what to do. Norrie and SLC uncertain.
Policy reasons for not imposing different rules for 2nd spouses
Presuming that stepparent will be unreliable and parent reliable
How are second spouses treated in England?
Same as Scotland but ability to claim under inheritance (provision for family and dependants) act 1975.
Kerridge - life interest only - all they really need
Infinite search for heirs - Why not?
Expense and difficulty of tracking relatives down
Laughing heirs issue
Might go against deceased’s wishes. If had choice, would they really want it to go to someone who they didn’t know at all
Might prefer to go to charity via state
But - might be better to go to some family member rather than state
Infinite search for heirs in Scotland
We do have unlimited search, as do Ireland but most other countries impose restrictions
How are half siblings treated in Scotland?
If only survived by half, they take all but if full and half, full defeats half.
But proposed that they should inherit equally - reconstituted families ^
What approach should be taken when it comes to half siblings?
Equal (UPC) too simplistic, ignores reality that many are not close to half siblings, laughing heirs. Assumption of closeness only. But simple, ignores trotting over past history of family.
Dependent on how much of a family eg if father supported.
Some through representation (Germany) - good, focuses on their parents share.
Half as much (Florida) - based on relationship, only half as much a sibling. Consistent with law’s preference for blood relationships
Brashier advocates discretionary system based on variety of factors.
