rules of intestacy in will disputes

When a Successful Will Dispute Means the Rules of Intestacy Matter

When challenging a will, claimants should consider what outcome would result in the event that the will is declared invalid. If the courts declare the only will of a deceased person invalid, the estate will be distributed according to the rules of intestacy. It is important when contesting a will, to be mindful of how these rules would distribute the property if the claim is successful, and specifically, whether they would produce a desirable outcome. In England and Wales, the rules of intestacy are as follows:

Married Couples and Civil Partners

If the deceased person was married or in a civil partnership, then the surviving partner will inherit under the intestacy rules. If their estate was worth £250,000 or less, the value of the estate will all be left to their spouse or civil partner. However, if their property is worth more than £250,000, the first £250,000 will be left to the surviving partner (as well as all of the deceased person’s possessions), half of the remainder will go to the partner, and the other half will be divided equally between their children or direct descendants.

When a married couple co-own a property, it might be left directly to the surviving partner. Joint ownership can take the form of either tenancy in common or a beneficial joint tenancy. If the couple were beneficial joint tenants, then the surviving partner will inherit the property, and this will not form part of the £250,000 limitation. However, if they are tenants in common, the surviving partner will not automatically inherit the property and the first £250,000 of the estate will include the value, or part of the value of the property.

This means that if a married couple are beneficial joint tenants of a property worth £500,000, the surviving partner will inherit the house. Any additional wealth will be left to the surviving partner, up to £250,000 and any remainder will be divided between the partner and the children of the deceased.

Children and Direct Descendants

If the deceased person had no spouse or civil partner, the estate will be divided equally between the children. If the deceased person had children and grandchildren, then only the children will inherit. If one of the children has died, then the grandchildren from that child will inherit their deceased parent’s share of the estate. Money will not be directly left to grandchildren or great grandchildren under the intestacy rules unless their parent (and for great grandchildren, their grandparent) related to the deceased person, died first.

Other Relatives

If there is no spouse or civil partner, and no children or direct descendants, the rules of intestacy say that the estate will be divided equally between the deceased person’s parents. If there are no surviving parents, the estate will be divided equally between the deceased person’s siblings. Like the rule for grandchildren, any nieces or nephews will only inherit if their parent related to the deceased has also passed away. In the absence of any siblings, the intestacy rules will benefit half siblings of the deceased, and if there are deceased half siblings, then their children will benefit in their place as nieces or nephews.

Grandparents will benefit in the absence of all the above family members. Aunts or uncles will inherit if there are no surviving grandparents. The children of aunts or uncles (the cousins of the deceased) will only benefit if the aunt or uncle related to the deceased has died. Half aunts or half uncles would benefit if there were no aunts or uncles and their children would similarly benefit if the half aunts or uncles were deceased.

People who Cannot Benefit Under the Intestacy Rules

Those who cannot inherit through intestacy rules include:

  • Friends
  • Partners who are not married or in civil partnership
  • People who are related to the deceased through marriage

It is possible for the above types of individuals to be successful at contesting a will, only to find that the intestacy rules do not benefit them. In a will dispute where there is no previous valid will, it is therefore important to understand the consequences of the intestacy rules that will be applied if the will is declared invalid.

If the Deceased Person Had No Living Relatives

If there are no relatives of the deceased person, then under the intestacy rules, the estate will pass to the Crown.


In the event that a claimant in a will dispute is successful, that is, the judge declares the will invalid, it is possible that the rules of intestacy will divide the estate in an undesirable way. A family member could successfully contest a will, only to discover that the intestacy rules benefit another of the deceased person’s relatives instead. Claimants challenging a will should be aware of the above intestacy rules, to avoid the situation where they gain nothing from the invalidation of the will, and additionally have to pay a large legal bill for the will dispute.