Unit 1 chapter 1 and 4 Validity of Wills and How Property Passes on Death & Intestacy

Property That Passes Independently of a Will or Intestacy Rules

• Some assets are not distributed according to a will or intestacy rules. These include:

  • Joint property (held as joint tenants)

  • Insurance policies (especially those written in trust)

  • Pension benefits (where trustees have discretion)

  • Trust property (held in trust for someone else)

• 1.2.1 Joint Property

  • Beneficial Joint Tenants: When one joint tenant dies, their interest automatically passes to the surviving joint tenant(s) through the doctrine of survivorship.

    • Example: If George and his brother Harry own a house as joint tenants, George’s share will automatically pass to Harry, not according to George’s will.

  • Tenancy in Common: The deceased’s share does not pass by survivorship but instead forms part of their estate and is distributed under their will or intestacy rules.

• 1.2.2 Insurance Policies

  • A simple life insurance policy belongs to the policyholder, and when they die, the proceeds are paid to their personal representatives (PRs) and distributed under the will/intestacy rules.

  • However, if a policy is:

    • Written in trust for specific beneficiaries, or

    • Assigned to named beneficiaries,

    • Then, the proceeds go directly to those beneficiaries, bypassing the will or intestacy.

  • Key Point: If a policy is written in trust or assigned, the policyholder no longer owns it, and it does not pass through their estate.

• 1.2.3 Pension Benefits

  • Many pension schemes pay lump-sum death benefits if an employee dies while in service.

  • The trustees of the pension fund have discretion to distribute the lump sum to dependents.

    • Employees may leave a letter of wishes, but this is not legally binding on the trustees.

  • Some pension schemes require the lump sum to be paid to the deceased’s personal representatives, meaning it is distributed under the will or intestacy rules.

• 1.2.4 Trust Property

  • A person may have an equitable interest in a trust.

  • If they have a life interest, it ends on their death, and the property passes according to the trust terms, not the will.

    • Example: Susan creates a trust for her husband for life, with the remainder to her children.

    • When her husband dies, the trust property goes to her children, not to the husband’s will beneficiaries.

• 1.2.5 Analysis of Beneficial Entitlements on Death

  • Solicitors will first look at assets that pass outside the will, then those that pass under the will, and finally those that pass under intestacy rules.

  • Priority Order of Distribution:

    • Property passing outside the will (joint property, pension benefits, insurance, trusts).

    • Property passing under the will (assets specifically given to beneficiaries).

    • Any remaining property passes via intestacy rules.

Will Terminology Notes

1. Key Terminology in a Will

1.1 Testator/Testatrix

• Testator: A male person who makes a will.

• Testatrix: A female person who makes a will.

• The will must be signed by the testator in the presence of two witnesses, who also sign the will.

2. Common Clauses in a Will

2.1 Revocation Clause

• Purpose: Cancels any previous wills or codicils (amendments to a will).

• Example (Clause 1 in Finlay’s will):"I revoke all former wills, codicils and testamentary dispositions."

• Ensures only the most recent will is legally valid.

2.2 Direction for Disposal of the Body

• Testators may express wishes regarding their burial, cremation, or organ donation.

• Example (Clause 2 in Finlay’s will):"I wish my body to be cremated."

• Key Point: These instructions are not legally binding, so testators should inform family members of their wishes.

2.3 Appointment of Executors

• Executor (male) / Executrix (female): The person responsible for administering the estate after the testator’s death.

• Duties of an Executor:

  • Collect all assets of the deceased.

  • Pay off any debts and inheritance tax.

  • Distribute the remaining estate according to the will.

  • Apply for probate (a legal document confirming the will’s validity).

• Example (Clause 3 in Finlay’s will):"I appoint George Marston of 3 Station Road, Cambridge to be my executor."

• Key Point: The ability to choose an executor is one of the main reasons for making a will.

3. Types of Gifts in a Will

Gifts (also known as legacies or devises) are the assets given to beneficiaries under a will.

3.1 Specific Gifts

• Definition: A clearly identified asset that the testator owns at death.

• If the asset no longer exists at the time of death, the gift fails (this is called "ademption").

• Example (Clause 4 in Finlay’s will):"I give the gold watch which I inherited from my father to my nephew James Brand."

3.2 General Gifts

• Definition: A gift of an item that matches a description, even if it does not exist at the time of death.

• If the testator does not own the item at death, the executor must purchase it from the estate funds.

• Example:"I give 100 shares in X plc to my son."

3.3 Demonstrative Gifts

• Definition: A gift that is paid from a specific fund (e.g., a bank account).

• If the fund no longer exists, the amount must be paid from the general estate.

• Example:"I give £500 to X to be paid from my Nationwide savings account."

3.4 Pecuniary Gifts (Monetary Legacies)

• Definition: A fixed sum of money left in the will.

• Example (Clause 5 in Finlay’s will):"I give £10,000 to the charity Cancer UK."

3.5 Residuary Gifts

• Definition: A gift of whatever is left after all debts, taxes, and other legacies have been paid.

• This is often the largest gift in a will.

• Example (Clause 7 in Finlay’s will):"I give all the rest of my property after deducting debts and legacies to my sister Megan Wilson."

4. Probate Process

After the testator’s death, the executor must:

• Apply for probate at the Probate Registry.

• Collect assets, such as property, money, and shares.

• Pay debts and taxes, including inheritance tax.

• Distribute the estate according to the will.

• If there is no will, the estate is distributed under intestacy rules.

The Requirements for a Valid Will

A valid will must meet three key requirements:

1. Capacity – The testator must have the necessary legal and mental capacity.

2. Intention – The testator must intend to create a will and approve its contents.

3. Formalities – The will must comply with the execution requirements of the Wills Act 1837.

Failure to meet any of these requirements invalidates the will.

1. Capacity

1.1 The Test for Capacity

• A testator must be 18 or over (with limited exceptions).

• They must have the mental capacity to make a will.

• The test for testamentary capacity comes from Banks v Goodfellow (1870), requiring the testator to:

  • Understand the nature of making a will and its broad effects.

  • Know the extent of their property, even if they don’t remember every detail.

  • Understand the moral claims they ought to consider (e.g., family members).

• The testator must not suffer from an insane delusion that affects how they dispose of their property.

1.2 Capacity at the Time of Will-Making

• General rule: The testator must have capacity at the time of execution of the will.

• Exception (Parker v Felgate (1883)): If the testator had capacity when giving instructions but lost capacity before execution, the will is valid if:

  • The instructions were given to a solicitor.

  • The will was prepared according to those instructions.

  • At execution, the testator understood they were signing their will.

1.3 Mental Capacity Act 2005

• Introduced a statutory test for capacity but does not apply to wills.

• The Banks v Goodfellow test remains the legal standard for testamentary capacity.

• If a person lacks capacity to make a will, a statutory will may be made under the Court of Protection.

1.4 The ‘Golden Rule’

• Kenward v Adams (1975) introduced the ‘golden rule’ for solicitors drafting wills for testators with questionable mental capacity.

• A solicitor should:

  • Obtain a medical report confirming capacity.

  • Ask the doctor to witness the will.

  • Record their own assessment of the testator’s capacity.

• This evidence can help prevent future challenges to the will.

1.5 Burden of Proof on Capacity

• General rule: The person asserting the will is valid must prove the testator had capacity.

• Presumption of capacity: If the will appears rational and the testator showed no signs of confusion, capacity is presumed.

• If someone challenges the will, they must prove lack of capacity.

• A will drafted by a solicitor, especially with a medical opinion, is hard to challenge.

• Example: Challenge to Capacity

  • Case: Mary’s will left her estate to charity, excluding her estranged son Wesley.

  • Wesley claims Mary lacked capacity because she ignored his moral claim.

  • The court will assume Mary had capacity unless Wesley proves otherwise.

  • If the will was prepared by a solicitor with no signs of confusion, Wesley’s challenge will fail.

2. Intention

2.1 Meaning of Intention

• The testator must:

  • Intend to make a will (not another type of document).

  • Know and approve its contents when signing it.

• Parker v Felgate (1883) exception: If the testator knew and approved the contents when giving instructions, the will remains valid even if they later lose understanding before execution.

2.2 Presumption of Knowledge and Approval

• General rule: If a testator had capacity, signed the will, and read it, they are presumed to have approved its contents.

• Exceptions:

  • Blind, illiterate, or non-signing testators – Proof of knowledge and approval is required for the probate registry to issue a grant of probate.

  • Suspicious circumstances – If the will was prepared under unusual circumstances like someone who is a major beneficiary, the person defending the will must prove knowledge and approval.

• Example: Suspicious Circumstances (Wintle v Nye (1959))

  • Nye, a solicitor, drafted a will for an elderly testatrix who was of limited intelligence, making himself the main beneficiary.

  • The court refused to presume she knew and approved its contents due to suspicious circumstances.

  • Nye had to prove she understood the will—he failed, and the will was declared invalid.

• Example: Presumption Not Applying (Gill v Woodall (2010))

  • Mrs. Gill, a Yorkshire farmer, left her entire estate to the RSPCA, despite being close to her daughter.

  • She had severe anxiety and likely panicked when meeting her solicitor.

  • No evidence showed she read or understood the will.

  • The Court of Appeal rejected the presumption, and the RSPCA had to prove she knew and approved the will.

  • They failed, and the daughter inherited under intestacy rules.

2.3 Avoiding Suspicion

• A solicitor should:

  • Not accept instructions from a third party (e.g., a relative).

  • Interview the testator alone to confirm their wishes.

  • Ensure the testator reads and understands the will.

3. Challenging a Will

• A person challenging a will must prove:

  • Force or fear – The testator was coerced through actual or threatened injury.

  • Fraud – The testator was misled into making the will.

  • Undue influence – The testator’s freedom was overcome by coercion, not just persuasion.

• Example: Possible Undue Influence

  • Case: Arthur (90 years old) left his estate to Yvonne, a care worker, who wrote the will for him.

  • Arthur signed the will properly, but his niece, Bella, challenges it.

  • Suspicious circumstances: Yvonne wrote the will herself and was the main beneficiary.

  • The court will not presume knowledge and approval—Yvonne must prove Arthur understood the will.

  • If she provides evidence, Bella must then prove undue influence, which is very difficult.

4. Mistakes in a Will

• If a mistake was made in drafting the will (e.g., wrong wording), the Probate Registry may omit the mistaken words.

• However, if the testator misunderstood the legal meaning of the words, the will still stands as written.

Summary of Will Validity Requirements

This structured approach ensures clarity on how wills are validated and how challenges may arise. Let me know if you need further case law explanations or a comparison with intestacy rules! 🚀

Requirements Under Section 9 of the Wills Act 1837

A will is only valid if it meets the following four conditions:

1. The will must be in writing.

2. The will must be signed by the testator (or by someone else at their direction and in their presence).

3. The testator’s signature must be witnessed by two witnesses present at the same time.

4. Each witness must sign the will or acknowledge their signature in the testator’s presence.

Key point: There is no requirement for the witnesses to sign in each other’s presence.

Explanation of Section 9 Requirements

2.1 The Will Must Be in Writing

• The law does not specify any particular materials or format for a will.

• It can be typed, handwritten, in Braille, or even shorthand.

• Unusual example: A will written on an eggshell has been admitted to probate.

• Electronic wills stored on a computer are not valid, as they could be easily altered fraudulently.

2.2 The Will Must Be Signed

• The testator should sign the will themselves.

• Any kind of signature is acceptable as long as the testator intends it to represent their name.

• Example (In the Estate of Cook [1960]): A testator signed a will as "Your loving mother." The court accepted this as a valid signature.

• Alternative forms of signing:

  • Crosses and thumbprints have been accepted as valid signatures.

  • If unable to sign, a testator can direct someone else to sign on their behalf, as long as it’s done in their presence and at their clear direction.

2.3 The Testator Must Intend to Give Effect to the Will

• The testator must intend that their signature will make the will legally binding.

• Example: If a testator writes "The last will and testament of Kenneth Brown" on an envelope but does not sign the actual will inside, the name on the envelope may not count as a valid signature.

2.4 The Signature Must Be Witnessed

• The will must be signed or acknowledged in front of two witnesses present at the same time.

Key rules about witnessing:

• The witnesses must be physically present and have an unobstructed view of the testator signing.

• They do not need to know the contents of the will, only that the testator is signing a legal document.

• If the testator has already signed, they can later acknowledge their signature in front of the witnesses.

Examples of Valid Execution

• Scenario 1: A testator signs in front of one witness; a second witness later enters and acknowledges the signature. Both sign later in presence of the testator. ✅ This is valid.

• Scenario 2: A testator signs in front of two witnesses. One signs immediately, the other signs after the testator leaves the room, and acknowledges their signature later. ✅ Valid.

Who Can Be a Witness?

• No restrictions on who can witness, but they must:

  • Understand their role as a witness.

  • Be physically and mentally present.

• If a witness is a beneficiary (or their spouse/civil partner), the will is still valid, but the gift to that witness (or their spouse) is void (Section 15 Wills Act 1837).

3. Remote Witnessing

• During the Covid-19 pandemic, legislation temporarily allowed remote witnessing via video conferencing for wills made between 31 January 2020 and 31 January 2024.

• Key requirements:

  • Must be on a live video call (no pre-recorded videos allowed).

  • The testator must physically sign the will (electronic signatures not valid).

  • The will must be sent to the witnesses for physical signature in the testator’s virtual presence.

  • Execution not complete until both witnesses have signed. If the testator dies before all signatures are added, the will is invalid.

• Note: Governments advise making wills in the conventional way if possible.

4. Privileged Wills (Exception to Formalities)

• Exception: Wills made by military personnel on active service or mariners/seamen at sea.

• These can be oral and do not have to comply with Section 9.

• Example: A soldier in Northern Ireland said, "If I don’t make it, make sure Anne gets all my stuff." The court accepted this statement as a valid will, passing all his property to Anne.

5. Burden of Proof for Valid Execution

5.1 General Rule

• The person claiming the will is valid must prove proper execution.

5.2 Presumption of Due Execution

• If a will includes an attestation clause, the court presumes it was properly executed.

• Without an attestation clause, the Probate Registry requires an affidavit of due execution from a witness. If no witness is available, an affidavit of handwriting may be needed.

6. Solicitors’ Duties in Will Execution

• Solicitors must ensure clients understand proper signing and witnessing.

• Key responsibilities:

  • Advise that witnesses cannot be beneficiaries.

  • Check that Section 9 formalities are met.

  • Supervise execution where possible.

• If execution happens at home, ask for the will to be reviewed later.

6.1 Negligence Claims Against Solicitors

• Solicitors can be sued for negligence if they fail to advise on execution.

• Example (Humbleston v Martin Tolhurst Partnership [2004]): A will left the estate to the cohabitee but was invalid due to lack of signature. The court found the solicitors negligent and ordered damages.

Summary of Execution Formalities

Chapter 4: Intestacy

• Intestacy laws dictate how property is distributed in the absence of a valid will, typically following a hierarchy of heirs.

The Operation of the Intestacy Rules

1. Overview of Intestacy Rules

• The intestacy rules are contained in the Administration of Estates Act 1925 (AEA 1925).

• They determine who inherits a deceased person’s property if they die without a valid will.

• The rules automatically apply and cannot be overridden except in limited cases (e.g., a claim under the Inheritance (Provision for Family and Dependants) Act 1975).

2. Situations Where the Intestacy Rules Apply

The intestacy rules operate in three situations:

Total Intestacy

Occurs when no valid will exists due to:

• The deceased never making a will.

• The deceased’s will being revoked (e.g., by destruction or marriage).

• The deceased’s will being invalid (e.g., improper execution).

• The will failing to dispose of any of the estate (e.g., only naming executors but not beneficiaries).

Partial Intestacy

Occurs when a valid will exists but does not distribute the entire estate.
Causes:

• The residuary gift fails (e.g., if the named beneficiary dies before the testator and no alternative is named).

• The will does not include a residuary clause (a sweeping-up provision for the remainder of the estate).

• The intestacy rules apply only to the unallocated part of the estate.

3. The Mandatory Nature of Intestacy Rules

• The rules apply automatically to every intestacy case.

• Individuals cannot exclude specific people from inheriting under the rules unless they make a will.

Exceptions:

• Certain court orders can override the intestacy rules, e.g., claims under the Inheritance (Provision for Family and Dependants) Act 1975.

• These claims allow dependents (e.g., children, spouses, cohabitees) to apply for financial provision if they were not adequately provided for.

4. Property Not Covered by Intestacy Rules

• The intestacy rules only apply to assets that can be disposed of by will.

• They do not apply to:

  • Jointly owned property passing by survivorship.

  • Life insurance policies or pensions written in trust for named beneficiaries.

  • Assets with named beneficiaries, such as bank accounts held in trust.

Example: Sheree's Estate

• Sheree dies intestate, leaving:

  • A house owned jointly with her husband, Isaac.

  • A life assurance policy of £100,000 held in trust for their children.

  • Investments worth £150,000.

How her estate is distributed:

• ✅ House → Passes to Isaac by survivorship (not affected by intestacy).

• ✅ Life policy → Passes to the children under the trust terms.

• ⚠ Investments (£150,000) → Distributed under intestacy rules.

Summary of Key Points

These rules highlight the importance of making a will to ensure assets are distributed according to personal wishes rather than statutory rules.

1. The Statutory Trust

Under section 33 of the Administration of Estates Act 1925 (AEA 1925), a statutory trust applies to all property (real and personal) when a person dies intestate. The estate is held in trust by the personal representatives (PRs), who administer the estate.

The statutory trust is similar to express trusts in wills and includes a power of sale.

1.1 Duties of the Personal Representatives

PRs must:

• Pay funeral expenses, administration costs (e.g., legal fees, tax), and the debts of the deceased.

• Sell estate assets if necessary to cover these expenses.

• Distribute the residuary estate (remaining assets after expenses and debts) according to intestacy rules (section 46 AEA 1925).

• Appropriate assets (section 41 AEA 1925) instead of selling if the beneficiary consents.

2. Overview of the Rules of Distribution

Intestacy laws were reformed in the early 20th century to reflect an "average" will. The presumed intention of the deceased is that most people leave their estate to family. The current intestacy laws only benefit family members, excluding:

• Friends

• Charities

• Unmarried partners (no matter how long the relationship lasted)

3. Distribution Where There Is a Surviving Spouse or Civil Partner and Issue

3.1 Definition of Spouse / Civil Partner

• The term "spouse" applies only to the legally married partner at the time of death. Ex-spouses are excluded once the divorce is final.

• Re Seaford [1968]: A wife remained a "spouse" under intestacy because her husband died before the divorce was final.

• Void marriages, like if they are underage(e.g., bigamy) = no rights under intestacy (Shaw v Shaw [1954]). Where Mrs shaw discovered that his first wife was alive and they were married

• Voidable marriages (e.g., forced marriage) = still valid until annulled.

• Civil partners have the same rights as spouses.

Important Exclusion: Cohabitants (unmarried partners) do not inherit under intestacy.

3.2 Definition of "Issue"

• Issue = direct descendants (children, grandchildren, great-grandchildren, etc.).

• Adopted children are considered issue.

• Step-children are NOT included unless formally adopted.

3.3 Entitlement of a Spouse or Civil Partner

The residuary estate (remaining estate after debts and expenses) is divided as follows:

• Spouse/civil partner receives:

  • All personal chattels (tangible personal property, excluding business assets or investments).

  • A statutory legacy (£270,000 as of 6 Feb 2020) + interest.

  • Remaining estate:

    • 50% goes to the spouse/civil partner absolutely.

    • 50% is held on statutory trusts for issue (children and grandchildren).

Survivorship Rule: The spouse must survive the intestate for 28 days to inherit. If the spouse dies within 28 days, the estate is distributed as if they had also died.

4. The Family Home Under Intestacy

• If jointly owned as beneficial joint tenants → Passes automatically to the surviving joint tenant (outside intestacy rules).

• If owned solely by the intestate or as tenants in common → Part of residuary estate and subject to intestacy distribution.

• The spouse/civil partner can request ownership of the home in satisfaction of their inheritance. If the home’s value exceeds the spouse’s entitlement, they must pay the difference ("equality money")

  Example of the Family Home Under Intestacy

  If John and Mary owned their home as tenants in common, John’s share of the property would form part of his residuary estate upon his death. If John passed away without a will, the home would be subject to intestacy distribution. Suppose John's share of the house is valued at £300,000, and the total estate entitlement for Mary is £270,000 due to intestacy laws. Mary can request ownership of the home as her share, but since its value exceeds her entitlement, she would need to pay John’s estate the difference of £30,000 (referred to as "equality money"). This ensures that she remains the owner while also fairly compensating the estate.

5. Applying the Statutory Trusts

Under s 47 AEA 1925, the following principles apply:

(a) Primary Beneficiaries: The Deceased’s Children

• The first people entitled to inherit under the statutory trusts are the intestate’s children who are alive at the intestate’s death.

• Grandchildren (or further descendants) do not inherit unless their parent (the deceased’s child) has already died.

(b) Children’s Interests are Contingent

• A child’s entitlement under intestacy is contingent on them reaching 18 years old or marrying/entering a civil partnership under 18.

• This means that they do not automatically inherit at birth; they must reach a legal threshold before the inheritance is confirmed.

(c) If a Child of the Intestate Dies Before the Intestate

• If one of the deceased’s children predeceases them, that child’s share is passed down to their own children (grandchildren of the deceased), divided equally.

• This ensures that the share is kept within the same family line rather than reverting to the surviving siblings of the deceased child.

• Example (Per Stirpes Distribution):

  • If Alice dies intestate, leaving three children: Ben, Charlie, and David, but Charlie has already died, then:

  • Ben and David each take one-third of the estate.

  • Charlie’s one-third share is divided equally among Charlie’s children (if any).

  • This method ensures family branches receive equal shares, rather than every individual receiving an equal share.

(d) What Happens if a Child Dies Before Inheriting?

• Normally, if a child or issue (grandchild, etc.) inherits under intestacy but dies before reaching 18 (or before marrying), their share would be lost and redistributed among surviving beneficiaries.

• However, an amendment to s 47 AEA 1925 preserves the share by treating them as if they had predeceased the intestate.

• This allows their children (if any) to inherit their share instead.

• The child’s issue must be alive at the intestate’s death to inherit.

Example of Statutory TrustsJoanne dies intestate, survived by:

• Husband Kenneth.

• Children: Mark (20), Nina (16).

• Deceased daughter Lisa, who had two children: Oliver (6) and Paul (4).

Distribution of Joanne's £590,000 Estate

6. Distribution Where There Is No Issue

If the intestate only leaves a spouse/civil partner (no children), they inherit everything.

7. Distribution Where There Is No Surviving Spouse or Civil Partner

Hierarchy of beneficiaries:

1. Issue (children, grandchildren, etc.) (on statutory trusts).

2. Parents (if no issue).

3. Siblings of the whole blood (and their issue).

4. Siblings of the half blood (and their issue).

5. Grandparents.

6. Uncles/aunts of whole blood (and their issue).

7. Uncles/aunts of half blood (and their issue).

8. Crown (bona vacantia) (if no other relatives exist).

8. Special Cases

8.1 Bona Vacantia (Ownerless Property)

If no relatives exist, the estate passes to:

• The Crown (government).

• Duchy of Lancaster (for estates in Lancashire).

• Duchy of Cornwall (for estates in Cornwall).

• The Crown may distribute assets to dependents on a discretionary basis.

8.2 Adopted Children

• Treated as biological children of their adoptive parents.

• Cannot inherit from their biological parents after adoption.

• Exception: If an adopted child had a contingent inheritance from a biological parent before adoption, they keep that right.

• This means that if the biological parent died before the child was adopted, and the child was entitled to inherit only if they reached 18 or married, they keep that right even after adoption.

Example of Contingent Inheritance

• Before Adoption:

  • John’s biological father dies and leaves him a share of his estate on the condition that he reaches 18.

  • At this point, John is 10 years old.

• Adoption Happens:

  • John is later adopted by new parents.

  • Normally, adoption would mean he loses all inheritance rights from his biological father.

• Exception Applies:

  • Since John had a contingent inheritance (dependent on turning 18), he still gets the inheritance when he reaches 18, despite the adoption.

8.3 Illegitimate Children

• Treated the same as legitimate children. If the father is unknown, intestacy assumes he predeceased the child unless proven otherwise.

• If an illegitimate child dies intestate (without a will) and their father is unknown, the law automatically assumes that the father is already dead.

• This means that the child’s estate will not pass to the father or the father’s family unless clear proof is provided that the father was alive at the time of the child’s death.

• This rule removes the need for personal representatives (PRs) to search for the father or his family, simplifying the distribution of the estate.

8.4 Children Born Through Assisted Reproduction (Human Fertilisation and Embryology Act 2008)

The Human Fertilisation and Embryology Act 2008 provides legal recognition of parenthood for children born through assisted reproduction (e.g., IVF, sperm donation) and surrogacy. It establishes who is legally considered a parent under UK law, which is crucial for determining inheritance rights under intestacy rules.

3. Impact on Intestacy and Inheritance Rights

The Act ensures that children born through assisted reproduction and surrogacy inherit from their legal parents under intestacy laws.

3.1 Intestacy Rights for Children Conceived Through Assisted Reproduction

• A child conceived through donor sperm or eggs inherits from their legal parents, not from their genetic donor.

• If the legal parent dies without a will, the child will inherit under the standard intestacy rules.

Example:

• Jane, married to Sarah, undergoes IVF with a sperm donor.

• Jane gives birth, making her the legal mother (Section 33).

• Sarah is the legal second parent (Section 42).

• If Sarah dies intestate, the child inherits from Sarah, even though there is no biological connection.

3.2 Intestacy Rights for Children Born Through Surrogacy

• If a Parental Order is granted, the child inherits from the commissioning parents.

• If no Parental Order is granted, the child remains the legal child of the surrogate and inherits from her family.

Example:

• David and John use a surrogate, Emma, to carry their baby.

• A Parental Order is granted, making David and John the legal parents.

• If John dies intestate, the child inherits from John.

• If no Parental Order was granted, the child would still legally belong to Emma and inherit from her instead.

Conclusion

Intestacy rules favor close blood relatives but disadvantage cohabitants, step-children, and friends. The only way to control inheritance is to make a will. The statutory trusts ensure children inherit even if they are minors at the time of the