Next of Kin & Human Rights

The phrase ‘next of kin’ crops up in daily life in two contexts. One is medical – hospitals want to know (I suppose in case they kill you) - and the other legal, when identifying your heirs and successors if you do die under the knife, or from neglect in a busy hospital ward. So what does the phrase mean and what is the difference (if any) in these medical and legal contexts?

Less obviously, what might your human rights as a European have to do with it?

The phrase is used widely by organisation who want to know from a practical point of view who to contact if there is an emergency whilst you are in their care. In practice you can probably satisfy this need of the organisation by nominating anyone you please, but you may have no legal obligation to do so – eg naming someone in the back of your passport to be contacted in emergency.

In the case of schools or organisations running holiday camps for children,  they may not accept your child on a course for strict insurance or health and safety reasons, unless someone is nominated as a contact if parents/legal guardians are not available.

If you have died an undertaker will want to know who is going to pay for  the funeral, although in the absence of a volunteer to assume personal contractual liability, the local authority will have final responsibility. Funeral expenses are a first charge on your estate from which the volunteer can claim repayment, even in priority to HMRC’s claim to arrears of tax, but that does not help if you die insolvent.

There is no universal legal definition of next of kin in the UK, but there are particular circumstances where the phrase is used in legislation.

In the Mental Health Act 2005 there is a list of family members in obvious priority order – spouse, child, parent, sibling, grandparent, grandchild, uncle/aunt, nephew/niece. But this is really just a checklist of people who might be contacted by “the authorities” if you are found wandering in the street with total memory loss, in which case it is too late for you to nominate the appropriate individual.

More important, in the Administration of Estates Act 1925 there is reference to ‘statutory next of kin’ followed by a list of people in priority order to inherit your possessions if you die ‘intestate’. Click here for a table giving the rules in England and Wales , but note this does not cover Scotland or Northern Ireland, let alone ‘foreign’ countries. Also note that unmarried partners do not get a mention and have no legal rights to inheritance.

Nowadays when many UK people own property abroad, or have a spouse from a different country, there can be conflicts of law over ‘next of kin’ entitled to inherit assets located in each country with the possibility that different heirs will be entitled to different types of asset (eg a house but not the furniture, or bank accounts), and also different people may be liable for paying death duties.

To make matters even more complex the European Convention on Human Rights has in a recent case been found to override the  Administration of Estates Act 1925 and other UK legislation retrospectively in unusual circumstances going back to 1948. Adopted children were on a technicality going to be excluded as heirs, but were instated as their exclusion would have been ‘unfair discrimination’. Maybe there is some good to be found in European human rights legislation being applied in the UK after all?

What lessons can be learned from all of this?

  1. Don’t ignore the request to name your ‘next of kin’ but pick whoever seems sensible for good practical reasons.
  2. Make a Will if you have not done so already, and take advice if you own assets in more than one country.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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