COMMON PRACTISE

Foreword:
· As previous mentioned it is crucial to once again notify that this section and all the other sections within this site is purely based on Common law standards. However, this can be a useful tool for those who do not live in a jurisdiction where Common law exists. Therefore the reader / client are advised to seek prudent advice with regards to this subject.

Heirs at Law

 

Interpretation

Ascendants are always excluded by their descendants provided that the ascendant is the common ancestor of the intestate and the person who excludes him.

If any person in any of the above categories predeceased the intestate their share is taken by their issue per stirpes e.g. if there were no issue and parents pre-deceased and brothers and sisters predeceased without issue and uncles and aunts predeceased leaving issue that cousins would inherit.
If there are brothers and sisters of the whole blood and also sisters of the half blood all of them share in the inheritance with half blood siblings taking a single share and whole blood siblings taking a double share

"Propers paternels" inherited by closest relatives on the father's side and
"propres maternels" by the closest relatives on the mother's side.
"Representation" permitted to the seventh degree. Division is "par souche"

Domicile

In England however where common law exist, the order of preference is different. If there are no issue priority goes to:

(1) Parents

(2) Siblings

(3) Grandparents

(4) Uncles and aunts

Compared and subject to other jurisdictions the order could differ.

As an example: In Scotland parents and siblings can inherit together in Northern Ireland includes a wide choice of next of kin ascertained according to the old degrees or relationship theory.

Subject to other jurisdictions, people living abroad and foreign residents living in another jurisdiction, the question of domicile therefore needs to be carefully considered.

Surviving Spouse

As mentioned the laws of the jurisdiction could translate matters differently, Like in the offshore jurisdiction of Jersey (Channel Island). In a situation of both spouse and issue surviving the spouse has an equal share with each of the children (or issuer per stirpes) of immovables and also life enjoyment of the matrimonial home.

In the above situation the spouse inherits the household effects, with the remainder going half to spouse and half to children (or issue per stirpes).

This is very different to the situation under English law although it must be remembered that England has a unified succession law which does not differentiate between movables and immovables. In England the spouse would receive the first ?125,000. plus all personal chattels including cars and valuable items plus a life interest in half of the remainder.

Common law marriages or relationships with "partners" may not count for anything subject to the laws of that jurisdiction as far as succession is concerned. The surviving partner may not receive nothing at all form the deceased partner's estate although if joint property is owned, including household effects, this could pass automatically.

If there has been a divorce or decree of judicial separation there could be no entitlement. Also, there could be no entitlement if the surviving spouse had deserted the deceased spouse without cause and such desertion was continuing. This hinges on the phrase "without cause".

If the matrimonial home is an asset of the movable estate (e.g. a share transfer property) than the spouse could have life enjoyment as well as receiving all or part of the capital value according to her overall entitlement of movables. The life enjoyment may have no value for Probate purposes although presumably it ought to for division purposes. Subject to the jurisdiction in question, this aspect of the law this could require further clarification.