INTESTACY FOLLOWING THE DEATH OF A MINOR CHILD
Synopsis: The current rules under which both natural parents benefit seem unfair to single parents and there have been calls for new rules to be introduced
To be able to make a Will in England and Wales and in Northern Ireland (*) a person must be over 18 years old (with the exception of members of HM Forces in active service where the age limit is 16) and have capacity to do so. If the individual is over 18 but lacks capacity it is possible to apply to the Court of Protection for a statutory Will. However, when a person is under age 18, that option is not available.
When a child dies before reaching age 18 their estate falls to be distributed under the rules of intestacy. In England and Wales this means that both the natural parents are equally entitled. In most cases the estate of the child is not likely to be considerable but a recently highlighted problem is illustrated by the case of a disabled child who has become entitled to compensation, which is frequently substantial. In a single parent family the chances are that the single mother (or, less likely, the single father) would have looked after her disabled child for many years, successfully pursuing a claim for compensation and dedicating her life to that child’s welfare, frequently without any help from the child’s other parent.
In the event of the child’s death each parent is entitled under the law to 50% of the child’s estate after inheritance tax and liabilities have been paid. This could represent a very significant sum and it is this result that is being called into question as unfair and unreasonable. Under the current rules there is no solution to this problem. It has been suggested that the problem could be avoided if the powers of the Court of Protection were extended to allow the making of statutory Wills for a child under age 18. The Court is probably ideally placed to consider what should be the best outcome in these circumstances.
The Law Commission is considering changes in this area of the law so hopefully they will address this issue as well. Some of the difficulties outlined above may also be possible to avoid by using an appropriate trust to hold any compensation funds. Specialist advice should always be sought in such circumstances.
(*) In Scotland the age limit is 12.
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