Commentary on Sections Section 1 – Disclaimer or forfeiture on intestacy
8.Section 1 amends Part 4 of the 1925 Act, which sets out how a deceased person’s estate is to be distributed in the absence of a will or to the extent that a will is not valid.
9.Subsection (2) inserts a new section 46A into the 1925 Act.
10.Subsection (1) of the new section 46A specifies that the new section applies where a person ("X") disclaims an inheritance or is disqualified from inheriting from another person because of the forfeiture rule.
11.Subsection (2) of the new section 46A provides that for the purpose of deciding who should inherit X’s interest in the deceased’s estate in these situations, X should be deemed to have died immediately before the intestate. This overcomes the requirement in the present law of intestacy that a child cannot inherit in place of his or her parent if that parent is still alive (see Administration of Estates Act 1925, s 47(1)). The effect of the reform is that if a person disclaims or is disqualified under the forfeiture rule, the inheritance to which he or she is no longer entitled will go to the next person listed in the order of priority in section 46 of the 1925 Act, even though the person who disclaimed or suffered the forfeiture is still alive.
12.Subsection (3) of the new section 46A provides that the new rule will not limit the court’s power under section 2 of the Forfeiture Act 1982. Under this section, the court has the power to modify the effect of the forfeiture rule where the offender has not been convicted of murder; for example, by allowing the killer to inherit all or part of the estate. Accordingly, the rule introduced by the new section 46A gives way to any order made by the court under section 2 of the Forfeiture Act 1982.
13.Subsection (3)  makes a consequential amendment. At present, section 47(1) of the 1925 Act, which defines the statutory trusts for descendants on intestacy, provides that no grandchild or remoter descendant may inherit if his or her parent is still alive when the intestate dies. This is inconsistent with the new section 46A, which treats the offender as having died before the deceased. Subsection (4) therefore inserts the words "subject to section 46A" into section 47(1), to ensure consistency with the new rule.
14.Subsection (4)  makes another consequential amendment to ensure consistency with the new rule. It inserts a new subsection after section 47(4) of the 1925 Act, stating that subsections (2) and (4) of section 47 are subject to the new section 46A. Section 47(2) provides that, where no descendant of the intestate attains a vested interest by reaching the age of 18 or marrying or entering a civil partnership under that age, the estate is to be distributed as if the intestate had died without issue. Section 47(4) applies a similar rule to the statutory trusts for siblings or issue of siblings, which are defined by section 47(3) of the 1925 Act. Section 47(4A) prevents the new section 46A duplicating or conflicting with section 47(2) and (4).