Draft Inheritance and Trustees’ Powers Bill

Closed 3 May 2013

Opened 21 Mar 2013

Results Updated 30 Jul 2013

A total of 22 responses to the consultation paper were received. Of these, just under half were from associations, some of which represent many thousands of professionals.  The remaining respondents consisted of 8 individuals, 2 firms of solicitors, one barristers’ Chambers and the Land Registry (the Government department responsible for registering the ownership of land and property in England and Wales).

The consultation paper sought the views of respondents on proposed reforms concerning intestacy and family provision.  Respondents were asked for comments on the draft Bill and the explanatory notes, for views in relation to an additional ground of jurisdiction for family provision claims, and views on the Impact Assessment. 

The overall response was supportive of the proposed reforms and did not raise any significant doubts about the accuracy of the impact assessment. Differing views were expressed over the proposed additional ground and these are covered in our response.

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Overview

Introduction
 

Consultation on the draft Inheritance and Trustees’ Powers Bill. This Bill gives effect to the recommendations in parts 2–7 of the Law Commission’s report, Intestacy and family provision claims on death.

The consultation is aimed at those with an interest in succession law, probate and private international law, in particular practitioners, professional groups and academics, in England and Wales.

Background
 

In 2008, the Law Commission began work on a project considering two areas of the law of inheritance and certain aspects of trustees' powers:

  • Intestacy: When a person dies “intestate”, that is without leaving a valid will disposing of the whole of his or her property, the distribution of any money and other assets (the deceased’s “estate”) among surviving family members is governed by a set of legal rules known as the intestacy rules.
  • Family provision: Whether or not the deceased left a will, certain family members and dependants may apply to court for reasonable financial provision from the estate, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). This is often referred to as a claim for family provision.
     

These are both important areas of the law, affecting a large number of families at times of financial and emotional vulnerability.

Studies suggest that around 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 intestacy rules must strive to reflect the needs and expectations of modern families.

Where the rules (or the deceased’s will) fail to make adequate provision for close family members or dependants, it is important that the law does not place unnecessary obstacles in the way of a valid family provision claim.

The intestacy rules date back to 1925 and have not been comprehensively reviewed for more than 20 years (when the Law Commission last considered this area of the law). The 1975 Act has not been the subject of a full review since it was enacted.

In October 2009, the Commission published a consultation paper2 reviewing the current law, discussing options for reform and putting forward questions for consultees, including provisional proposals for reform.

In May 2011, a supplementary consultation paper followed that set out broader options for reform of statutory provisions which enable trustees to distribute income or capital from the trust fund to or for the benefit of beneficiaries who are not yet entitled to take such funds outright.

Almost 150 consultation responses were received, from members of the public, lawyers and other professionals and organisations – including law firms, charities and professional bodies. The project also benefitted from significant new research.

This included focus group research commissioned for the project, a large-scale survey of public attitudes to will-making and intestacy, funded by the Nuffield Foundation, and analysis by HM Revenue & Customs of the value of testate and intestate estates.

The resulting report, Inheritance and family provision claims on death,3 was published on 14 December 2011. It sets out and explains recommendations for reform of the law and presents two draft Bills to implement the necessary changes, the first of which is the Inheritance and Trustees Powers’ Bill that is the subject of this consultation.

Audiences

  • Legal professionals
  • Judiciary

Interests

  • Law
  • Probate
  • International law