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

More documents

Recommendations

Info

EXPLANATORY NOTES New section 33A (continued) A similar situation can arise under section 33 of the Wills Act 1837. Where a will contains a gift to a child, and that child dies before the testator, the gift is (unless the will states otherwise) to go to that child’s descendants, but that no grandchild or remoter descendant may inherit if their parent was still alive when the testator died. The same problem can arise here as in the intestacy case, and the rule introduced by new section 33A solves it in the same way. Where the child disclaims or forfeits the gift, he or she is treated as having died before the testator, and the grandchildren can inherit. Subsection (3) of the new section provides that, as in the intestacy situation, this new rule gives way to any order the court may make under the Forfeiture Act 1982. Subsection (4) confirms that the new rule gives way to any specific provision in the will about what happens to the gift in circumstances such as forfeiture and disclaimer. New section 33B This corresponds to new section 46B of the Administration of Estates Act 1925. Where an interest under a will is forfeited, and the new rule in section 33A results in an interest being taken by a person under 18, the court may appoint the Public Trustee to be the trustee of the relevant property for that person. The court, and the Public Trustee, are charged with ensuring that the offender does not benefit from the trust. Subsection (4) This makes a consequential amendment to section 33(3) of the Wills Act 1837, and corresponds to subsection (5) of clause 1 in the intestacy situation. As explained above, section 33(3) excludes a grandchild or remoter descendant of the testator whose parent was still alive at the testator’s death. Subsection (4) inserts the words “subject to section 33A”, to avoid inconsistency with the rule introduced by that section. CLAUSE 3 This inserts new subsections (4B), (4C) and (4D) after the new section 47(4A) of the Administration of Estates Act 1925. The inserted subsections concern a special situation, in which a child of an intestate dies unmarried, but leaving children. The problem arises if the child dies after the intestate, but before attaining the age of 18. In this situation, the grandchildren are effectively disinherited. They cannot inherit directly from the intestate grandparent, because their parent was still alive at the grandparent’s death (section 47(1)). Nor can they inherit via the parent, because the parent never attained a vested interest in the grandparent’s estate. The same problem can arise where the person who dies under the age of 18 is a grandchild, sibling, uncle or aunt of the intestate, or a descendant of any of these. 43
4 44 Law Reform (Succession) Bill (4C) The beneficiary is to be treated for the purposes of this Part as having died immediately before the intestate. (4D) The residuary estate (together with the income from it and any statutory accumulations of income from it) or so much of it as has not been paid or applied under any power affecting it is to devolve accordingly.”. 4 Commencement, extent and short title (1) This Act comes into force on such day as the Secretary of State may by order made by statutory instrument appoint. (2) But the order may not provide for this Act to come into force before the end of three months beginning on the date on which it is passed. (3) This Act extends to England and Wales only. (4) This Act may be cited as the Law Reform (Succession) Act 2005. 5 10
Page 1 and 2: The Law Commission (LAW COM No 295)
Page 3 and 4: THE LAW COMMISSION THE FORFEITURE R
Page 5 and 6: (3) The review should also consider
Page 7 and 8: SUMMARY OF RECOMMENDATIONS 1.14 The
Page 9 and 10: PART 2 THE PRESENT LAW FORFEITURE O
Page 11 and 12: to a partial intestacy. 30 This may
Page 13 and 14: 2.11 All the judges 44 agreed that
Page 15 and 16: 2.17 The question in this project,
Page 17 and 18: does not exist or because it does n
Page 19 and 20: PART 3 FORFEITURE ON INTESTACY SUMM
Page 21 and 22: is, the entire estate would go to t
Page 23 and 24: press coverage but generated little
Page 25 and 26: (3) In almost all cases several rel
Page 27 and 28: mentioned an analogous problem in c
Page 29 and 30: PART 4 WILLS, DISCLAIMER AND OTHER
Page 31 and 32: default beneficiary to benefit as i
Page 33 and 34: The deceased 4.18 It seems likely t
Page 35 and 36: leaving one or more children. Since
Page 37 and 38: the responses for extending the dee
Page 40 and 41: APPENDIX 1 DRAFT LAW REFORM (SUCCES
Page 42 and 43: CLAUSE 1 EXPLANATORY NOTES This cla
Page 44 and 45: EXPLANATORY NOTES New section 46B (
Page 48 and 49: CLAUSE 3 (continued) EXPLANATORY NO
Page 50 and 51: share remains separate and becomes
Page 52 and 53: (4) If the killer is a grandparent,

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

Create successful ePaper yourself

Delete template?

Save as template?