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WESA – Intestacy Rules Will Be “Parentelic”

intestacy and wesa

WESA #16 – Intestacy Rules Will Be “Parentelic”

One of the most significant changes under WESA and the Intestacy Rules is the change from that of distributing assets by way of consanguinity to that of “parentelic”.

Under sections 86-89 of the Estate Administration Act  and its predecessors, for many decades  estates have been distributed on an intestacy  on the basis of lineal consanguinity,  that subsists between persons of whom one is descended in a  direct line from the other, such as between  son and  father ,grandfather or great-grandfather and so upwards in the direct ascending  line, or alternatively between son ,and grandson ,great son and so downwards and the direct descending line.

So under the current system, where there is no spouse or descendants ,the persons in the nearest degree of consanguinity share in the estate.

WESA  considered this to be unfair in certain circumstances  as it is possible for one side of the deceased person’s family to take the whole of the estate although there are also relatives on the other side.

Section 23 implements what is known as parentelic  distribution scheme where the deceased dies with no spouse or descendants, parents or descendants of parent surviving him or her.

Under the Parentelic system:

1)  descendants of the nearest common ancestor always take before descendants of a more distant ancestor;

2)  distributions are more likely to be divided between the two sides of the deceased person’s family;

3)  the need to find and provide noticed more distant relatives is diminished because only persons of the fourth  or lesser degree of relationship to the intestate Mary may inherit ( for example, first cousins of the deceased would inherit, but not children  warned of the first cousins )

If there is no person of the fourth or lesser degree of relationship surviving the intestate, the property may escheat to the crown.

This scheme of distribution has not changed where the deceased dies without a spouse, but leaves descendants , parents , or descendants of parents  given the combined operation of sections 23 and 24 .

No spouse but intestate leaving descendants or relatives

23 (I) This section applies if a person dies without a will and without leaving a surviving spouse.

(2)   Subject to subsection (3) and section 24, if a person dies without leaving a surviving spouse, the
intestate estate must be distributed

(a)            to the intestate’s descendants,

(b)       if there is no surviving descendant, to the intestate’s parents in equal shares or to the intestate’s surviving parent,

(c)        if there is no surviving descendant or parent, to the descendants of the intestate’s parents or parent,

(d)       if there is no surviving descendant, parent or descendant of a parent, but the intestate is survived by one or more grandparents or descendants of grandparents, (i)     an equal part to the surviving parents of each of the intestate’s parents, in

equal shares of the part, but if a parent of the intestate has no surviving parent, that part to the descendants of that grandparent in equal shares, and (ii)    for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate who have

(A)     a surviving parent, or

(B)     a surviving descendent of the parent referred to in clause (A),

(e)       if there is no surviving descendant, parent, descendant of a parent, grandparent or
descendant of a grandparent, but the intestate is survived by one or more great-
grandparents or descendants of great-grandparents,

(i)     an equal part to the surviving grandparents of each of the intestate’s

parents, in equal shares of the part, but if a grandparent of the intestate has no surviving parent, that part to the descendants of that great-grandparent in equal shares, and

(ii)    for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate who have

(A)     a surviving grandparent, or

(B)     a surviving descendent of the grandparent referred to in clause (A), or

(f)        if there is no person who is entided under paragraphs (a) to (e), the whole intestate
estate passes to the government and is subject to the Escheat Act

(3)   For the purposes of this section, persons of the 5th or greater degree of relationship to the
intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate
to which those persons would otherwise be entided must be distributed to other descendants entitled to
the estate.

(4)      If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $ 150 000, or a greater amount if prescribed.

(5)      If the net value of an intestate estate is less than the spouse’s preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.

(6)      If the net value of an intestate estate is the same as or greater than the spouse’s preferential share under subsection (3) or (4),

 

(a)            the spouse has a charge on the intestate estate for the amount of the spouse’s preferential share under subsection (3) or (4), and

(b)            the residue of the intestate estate, after satisfaction of the spouse’s preferential share, must be distributed as follows:

(i)     one half to the spouse;

(ii)    one half to the intestate’s descendants.

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