Intestacy and Next of Kin (Part 2)

29 March 2023


We previously looked at some of the closer relationships when it comes to next of kin and intestacy. In this blog we are looking at who is the next of kin if there is no spouse, issue, parent, brother, sister, niece or nephew. We saw that the system of calculating next of kin under the Succession Act is to go up the line and then down the line so to speak. One calculates your next of kin by counting up through your lineal ancestor and then back down to the nearest relative. This has interesting consequences. Which can be demonstrated in the diagram below.

The above diagram sets out the operation of section 71(2). One can see from the diagram when looking that even though Person E is the aunt/uncle of the deceased, they are in the same degree of relationship as the Great grandparent of the deceased. This is somewhat counterintuitive. The natural inclination is that ones aunt/uncle is a closer relation to you than your great-grandparent. That might be true from a laymans perspective of relations but not per the Succession Act.

There is an important qualification to this rule, which makes the operation of the rule more sensible. This is contained in s. 71(2) of the Succession Act 1965 which provides that

but where a direct lineal ancestor and any other relative are so ascertained to be within the same degree of blood relationship to the intestate, the other relative shall be preferred to the exclusion of the direct lineal ancestor.

In summary this states that where two relations are in equal degree the “younger” of the two is selected. Put another way, when two relations are in the same degree, you exclude the older, ie the “direct lineal ancestor”. The rationale for this was contained in the common law principle as outlined in the case of Evelyn v Evelyn (1754) 3 Atk 762. In this case Lord Hardwicke outlined the reasoning for the above rule. He stated that it assumed that the lineal ancestor

By the course of nature is old, must be supposed to have been provided for, and may very probably be in a dying condition, and not want it.

So as a consequence the younger of the two is selected. Given that this case goes back to the mid 18th century, it does show the historic nature of the rules of probate and how they have persisted over time.

Hope this helps and if you have any probate, will drafting or capital acquisition issues, please do not hesitate to reach out through our solicitor query service.