The Forfeiture Rule and the Law of Succession ... - Law Commission

leaving one or more children. Since 1991, illegitimacy is not a bar to intestate
inheritance and these children qualify as grandchildren of the intestate. 88
However, the intestate’s property does not reach them through their parent, as
the parent never attained a vested interest. Nor can the grandchildren inherit
direct from the intestate, as the parent did not predecease the intestate as
required by the intestacy laws. 89 The property will therefore devolve on the other
relatives. As this problem would not arise if the child were married, the law of
intestate succession still in effect discriminates against illegitimate grandchildren.
4.31 We agree that this is an anomaly, and that it is sufficiently closely related to the
Re DWS (deceased) problem to justify addressing in the same reform. There are
three possible solutions.
(1) The Chancery Bar Association, in its original response, suggested that,
after every mention of “or marry under that age” in the intestacy
legislation, there should be inserted “or die under that age leaving
surviving issue”. The problem with that approach is that the parents
would then acquire and lose a vested interest at the same moment (that
of their death), requiring the succession rules to be applied twice, with
undesirable inheritance tax consequences. This solution is radically
different from that suggested for the forfeiture and disclaimer cases, in
that it depends on the grandchildren’s position among the heirs of their
parents rather than of the intestate. 90
(2) Another possibility would be to provide that the children of the intestate
acquire a vested interest on the birth of any issue. This is a reform of the
law of inheritance that goes well beyond the solution of the problem
under discussion.
(3) A third is to make specific provision that children who fail to attain a
vested interest because they die before majority or marriage should be
deemed to have predeceased the intestate. This would raise the question
whether an analogous provision should be made for wills containing a gift
for a person conditional on that person attaining a given age or marrying
under that age.
On consideration we favour the third option, which is now endorsed by the
Chancery Bar Association. A provision to this effect is contained in the draft Bill.
We do not recommend an analogous provision for wills, as it is likely that where
there is a conditional gift of this kind there will be a default gift to the
grandchildren.
4.32 This problem is not confined to cases where the minor was a child of the
deceased. It can also arise where the minor was a grandchild, sibling, uncle or
88 Family Law Reform Act 1987, s 18.
89 Administration of Estates Act 1925, s 47(1)(i) in fine.
90 This may not make much practical difference, as a minor (other than one on active military
service) cannot make a will: Wills Act 1837, s 7.
32