I have an estate where the deceased died intestate, a bachelor without children, no surviving parents or grandparents and no siblings. Therefore, his aunts and uncles will inherit under the Intestacy Rules. Several aunts and uncles predeceased the deceased leaving children and I understand the children of the aunt or uncle who has died will inherit the aunt or uncle’s share equally.
If an uncle had a child and that child died before the deceased leaving a child of their won, can that child inherit? In other words, can the uncles grandchild inherit or is it only children of the uncle?
In addition, it is my understanding that an adopted child of an uncle is treated the same as a child of the whole blood.
The intestacy rules use the word ‘issue’ rather than ‘children’ so I believe that the grandchildren would be entitled to share in the estate. Adopted children count as the children of the adoptive parent for succession purposes.
Firstly, yes an adopted child of an uncle would be treated in the same way as a biological child.
The uncle’s grandchildren, or a first cousins once removed, would be entitled to inherit where their parent predeceased the deceased.
Section 46 of the Administration of Estates Act 1925 creates ‘the statutory trusts’ and sets out the order of entitlement.
The relevant distribution class as you’ve described, per the statutory trusts created by section 46(1)(v), is that of uncles and aunts of the whole blood equally, and then their issue per stirpes. This means that if the relevant uncle died before the deceased intestate then that uncle’s children (or their issue) will take the share that their parent would have taken per stirpes.
In the circumstances described, the estate will pass to the aunts and
uncles equally, regardless of whether they are related to the mother or
father of the intestate.
Where an aunt or uncle has predeceased the interstate, their shared will
devolve their issue on a stirpital basis.
If an individual is adopted, and potentially a member of the class of
issue, it will be necessary to consider both the date of the adoption
and who the adoptor(s) were. If adopted only by a deceased beneficiary
they will be a child of the half blood, and so may be excluded if in
competition with children of the whole blood.
There was a case a few years ago (decided by Mark Herbettrt QC) in which
an adopted child successfully challenged their exclusion from a 1940s
settlement distributable as on an intestacy. Unfortunately, I am
currently without access to my library and cannot bring the case name to
mind, but I am sure other contributors will recall it. It may, or may
not, be relevant.
Paul, you advise that “if adopted only by a deceased beneficiary
they will be a child of the half blood”. In what circumstances would they be deemed a child of the whole blood? If the deceased beneficiary adopted the child with his wife?