Sign of the times

A recent death certificate our researchers came across read: “Sarah Ann Hewitt, female, 43. Wife of Edward Hewitt, boiler maker. Cause of death: shock to system from injuries inflicted by Edward Hewitt (wilful murder).” In light of the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act coming into force on 1 February, the ultimate result of such an occurrence could now have a very different result.

Forfeited right

As the law currently stands, had the Hewitts any children, they would automatically have been deprived of their parents’ estates (irrespective of the fact that Mr Hewitt was “duly executed in pursuance of sentence passed upon him” less than three months later). The well-known forfeiture rule has in the past meant that Mr Hewitt’s right to Mrs Hewitt’s estate had been forfeited the moment he unlawfully killed Mrs Hewitt (the result would have been the same had he merely unlawfully aided, abetted, counselled or procured the death). Mr Hewitt’s issue also lost their entitlement.

This state of affairs was challenged in the case of Re DWS (deceased) [2001] Ch 568, in which the child of a man who killed both of his parents could not inherit his grandparents’ estates. There was much resistance to upholding the status quo, the main arguments being that it was not fair for entirely innocent parties to be punished for their parents’ crimes. Further, grandparents would generally prefer their estate to go to their grandchildren, in addition to the general rule that intestacy law favours direct descendants above siblings and other relatives.

The change (which will not operate retrospectively), announced on 6 December 2011, means that, from February onwards, Mr Hewitt ?would have been treated as a predeceased spouse, that is as if he had died just before his wife. His children ?would therefore have been able to benefit from ?their mother’s estate.
Although there must be some question as to the cases in which a few ambitious mothers might have fewer qualms about applying themselves to do away with their husbands if their children will continue to be entitled to benefit from their father’s estate, there is little doubt that the result attempts to redress the main concerns relating to the previous rule.

Changing times

The forfeiture rule also used to apply to someone who refused their entitlement. Every once in a while, our researchers are faced with beneficiaries so traumatised by their relationship with the deceased, or holding such contempt for the deceased, that they simply completely refuse to have anything to do with the deceased or their estate. No amount of visits from researchers suggesting giving it away to charities or other family members will reassure the heirs. From now on, such a refusal will be treated as if the refusor had predeceased the deceased, so that their share can be distributed to their issue without having to have recourse to the courts and with minimal wrangling.

The final major change introduced by the Act truly reflects a sign of our times: where a beneficiary of an intestacy dies unmarried and a minor, their child or issue will now be entitled to their share, irrespective of when the death of the unmarried minor takes place, and the unmarried minor will be treated as if they had died before the deceased (section 3). Despite newspaper headlines of “Thirty-something grandmothers”, this is no longer such a unique phenomenon.
While traditionally an unmarried minor could not pass on an inheritance having never attained a vested interest, the illegitimate grandchild of the estate, recognised by section 18 of the Family Law Reform Act 1987 as a potential beneficiary, will from now on be entitled to inherit what would have been their parent’s share of the deceased’s estate. The changes apply to any beneficiary who fails to attain an absolutely vested interest because the beneficiary dies without having reached 18 and without having married or formed a civil partnership, and dies leaving issue, not just grandchildren.

The laws of intestacy look to be very interesting indeed for 2012.

Kasia Oberc is a relationship manager at Fraser & Fraser. Find who you’re looking for; email ?legal@lostkin.co.uk or call 020 7832 1430

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