Learning Outcomes
After reading this article, you will be able to explain what partial intestacy is, identify the main causes and legal consequences, and apply the statutory rules for distributing assets not covered by a will. You will also be able to advise on practical steps to avoid partial intestacy and analyse how the intestacy rules operate alongside a will.
SQE1 Syllabus
For SQE1, you are required to understand the rules and practical implications of partial intestacy. Focus your revision on:
- the statutory framework for intestacy and how it applies when a will does not dispose of the entire estate
- the main causes of partial intestacy and how to identify them in practice
- the order of entitlement and statutory trusts for distributing assets not covered by a will
- the interaction between will provisions and intestacy rules, including the effect on beneficiaries and estate administration
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is partial intestacy, and how does it differ from total intestacy?
- If a will leaves specific gifts but omits a residuary clause, what happens to the remainder of the estate?
- Who inherits the undisposed portion of an estate on partial intestacy if the deceased is survived by a spouse and children?
- Name two common causes of partial intestacy.
Introduction
Partial intestacy arises when a valid will fails to dispose of the whole estate, leaving some assets to be distributed under the statutory intestacy rules. This situation can lead to unintended outcomes and often complicates estate administration. Understanding the legal framework, causes, and consequences of partial intestacy is essential for advising clients and answering SQE1 questions.
What is Partial Intestacy?
Partial intestacy occurs when a will is valid but does not cover all of the deceased’s property. The undisposed assets are distributed as if the deceased died intestate in respect of those assets.
Key Term: partial intestacy The situation where a valid will fails to dispose of the whole estate, so the undisposed portion is distributed according to the intestacy rules.
Causes of Partial Intestacy
Partial intestacy can arise in several ways:
- The will omits a residuary clause, so any property not specifically gifted is left undisposed.
- A specific gift fails (for example, because the beneficiary predeceases the testator and there is no substitute).
- A clause in the will is invalid (for example, due to uncertainty or lack of capacity).
- The will disposes of only part of the estate, intentionally or by mistake.
- New assets are acquired after the will is made and not included in the will.
Worked Example 1.1
A testator leaves £10,000 to each of three friends in a will but does not state who should receive the rest of the estate. The testator is survived by a spouse and two children. What happens to the remainder of the estate?
Answer: The remainder of the estate is not disposed of by the will and will pass under the intestacy rules. The spouse and children will inherit the undisposed portion according to the statutory order.
Legal Consequences of Partial Intestacy
When partial intestacy occurs, the undisposed assets are held by the personal representatives on statutory trust for those entitled under the intestacy rules.
Key Term: statutory trust A trust imposed by law on undisposed assets of an estate, requiring the personal representatives to distribute them according to the intestacy rules.
The will governs the assets it validly disposes of, and the intestacy rules apply to the remainder. This can result in beneficiaries under the will and under the intestacy rules being different people.
Distribution of Undisposed Assets
The undisposed assets are distributed in the same way as in a total intestacy, following the order set out in the Administration of Estates Act 1925 (as amended).
Key Term: order of entitlement The statutory sequence in which relatives inherit on intestacy, starting with spouse/civil partner and issue, then parents, siblings, and more distant relatives.
The main rules are:
- If there is a surviving spouse or civil partner and no issue, the spouse/civil partner takes all.
- If there is a surviving spouse/civil partner and issue, the spouse/civil partner receives personal chattels, a statutory legacy, and half the residue; the remaining half is shared among the issue on statutory trusts.
- If there is no spouse/civil partner, the estate passes to issue, then parents, siblings, and so on.
- If there are no entitled relatives, the estate passes to the Crown as bona vacantia.
Key Term: bona vacantia Property that passes to the Crown when a person dies intestate and has no entitled relatives.
Worked Example 1.2
A will leaves a house to a niece and £5,000 to a friend. The testator’s remaining assets are not mentioned in the will. The testator is survived by a spouse and one child. Who inherits the remaining assets?
Answer: The house and £5,000 pass under the will. The remaining assets are distributed under the intestacy rules: the spouse receives personal chattels, a statutory legacy, and half the residue; the child receives the other half of the residue.
Practical Implications
Partial intestacy can cause several difficulties:
- Beneficiaries may not receive what the testator intended.
- The estate may be distributed to distant relatives or the Crown.
- Administration is more complex, as both will and intestacy rules must be applied.
- Additional costs and delays may arise in tracing beneficiaries.
Revision Tip
To avoid partial intestacy, always include a clear residuary clause in a will and review the will after major life events or asset changes.
Avoiding Partial Intestacy
Solicitors should advise clients to:
- Include a comprehensive residuary clause in every will.
- Name substitute beneficiaries for specific gifts.
- Regularly review and update wills, especially after acquiring new assets or changes in family circumstances.
- Check for any uncertainty or invalidity in will clauses.
Worked Example 1.3
A testator leaves a will giving £20,000 to a brother and the residue to a spouse. The brother dies before the testator, and there is no substitute named. What happens to the £20,000?
Answer: The gift to the brother lapses and falls into residue. If there is a valid residuary clause, the spouse will receive the lapsed gift. If there is no residuary clause, the £20,000 will pass under the intestacy rules.
Summary
Partial intestacy arises when a will does not dispose of the whole estate. The undisposed assets are distributed according to the statutory intestacy rules, which may result in unintended beneficiaries. Careful will drafting and regular review are essential to prevent partial intestacy.
Key Point Checklist
This article has covered the following key knowledge points:
- Partial intestacy occurs when a will fails to dispose of the entire estate.
- The undisposed portion is distributed under the statutory intestacy rules.
- Common causes include missing residuary clauses, failed gifts, and invalid will provisions.
- The order of entitlement determines who inherits on intestacy.
- Solicitors should draft wills with comprehensive residuary clauses and review them regularly to avoid partial intestacy.
Key Terms and Concepts
- partial intestacy
- statutory trust
- order of entitlement
- bona vacantia
