The commencement order for the above was made on the 1st December and the act comes into force with effect from the 1st day of February 2012 and is designed to rectify the vacuum that occurs following the disclaiming or forfeiture of a beneficial interest.
At the present time when a person entitled to an estate under intestacy disclaims their beneficial interest that estate is in limbo; there is no automatic means whereby the beneficial interest can be transferred to someone else and the same applies where a sole residuary legatee and devisee disclaims and they are also the person who would be entitled to any undisposed of estate.
In the case of a person who has forfeited his/her right to benefit as a result of public policy, as in the case a beneficiary convicted of murdering the deceased, the transfer of the estate is not clear. The Probate Registry will, by virtue of s.116 of the Supreme Court Act 1981, facilitate the appointment of a personal representative but this does not solve the larger problem of distribution.
The new Act states that a person entitled to an interest in an estate who disclaims or forfeits that interest will be treated as having died immediately before the intestate thereby allowing their interest to be dealt with in the same way as it is now for those who have pre-deceased an intestate.
The same applies where there is a Will but consideration has to be given to the wording of the gift that is being disclaimed or forfeited. Section 33 of the Wills Act 1837 is also amended by the act.
Nothing in the new Act prevents the continuing application of the terms of the Forfeiture Act 1982.
The new Act has an interesting effect upon minors who have children. At the moment a minor has to survive to the age of 18 years or marry or form a civil partnership to attain a vested interest in an estate of an intestate. Currently if the minor dies before attaining the age of 18 years unmarried and not in a civil partnership the interest goes back to the situation as at the date of the intestate for the purposes of distribution. As a result of the new Act, if the minor had a child who was alive at the date of death of the intestate, then the minor’s interest transfers to that child.
The new act applies only to deaths on or after the 1st February 2012.
The new act can be seen on the Office of Public Sector Information web site. Type in the title and you will be able to download a copy of the act.