Succession

Question 1

Requirements for a will

Answer 1

CWSW (Capacity, writing, signature, witnesses)

1. Capacity (general, non-formal requirement)

Formal requirements (s.78):
2. In writing
3. Signed at the foot of the writing by the testator or someone acting at his direction and in his presence.
4. Attested by signatures of two witnesses who saw the testator sign the will.

Question 2

Signature cases

Answer 2

Re Goods of Kieran

Re Goods of Rice

Derinzy v Turner

Question 3

Re Goods of Kieran

Answer 3

Two illegible scrawls intended to be a signature of initials suffice as a valid signature.

Question 4

Re Goods of Rice

Answer 4

Blank pages between operative parts of the document and the signature are permitted.

Question 5

Derinzy v Turner

Answer 5

Blank space again not an issue.
“At foot” was intended to relax the Statute of Frauds requirement that the signature be at the foot of the operative part of the will.

Question 6

Witnesses cases

Answer 6

Shire v Glascock

Re Devlin

Clark v Early

Re Delahunty

Question 7

Shires v Glascock

Answer 7

Valid witnesses through a broken window from another room.

Question 8

Re Devlin

Answer 8

Properly witnessed although the testator didn’t confirm to her bank manager and his clerk that the doc was a will.

Question 9

Clark v Early

Answer 9

Here there was no attestation clause and both witnesses were dead so couldn’t confirm.

Held (IESC): a will valid on its face is presumed to have been duly executed. YET the absence of an attestation clause here meant that there was insufficient evidence to admit the will.

Question 10

Re Delahunty

Answer 10

Held (IEHC, 2021): Presumption of regularity applied to a carbon copy of a will, the original having been lost after a break-in to the solicitor’s office. Court affirmed that presumption of due execution is strong and there is strong evidence to the contrary required to rebut it.

Question 11

Gifts to attesting witnesses

Answer 11

Re Willis. (s. 82 Succession Act)

Question 12

Re Willis

Answer 12

Exception to the rule in the circumstances. The sister of the testator, who had been left all of his property, signed at her brother’s request after the required number of signatures had already been reached. Court overlooked it.

Question 13

Lost wills cases

Answer 13

Presumption: was intentionally destroyed by the testator.

Welch v Phillips

Sugden v Lord St Leonards

Re Curtin

Question 14

Welch v Phillips

Answer 14

Presumption applied: destruction with intention of revocation.

Question 15

Sugden v Lord St Leonards

Answer 15

Contents of lost will were proved as the daughter of the Lord Chancellor had read it to him every night for several years such that she had committed it to memory.

Question 16

Re Curtin

Answer 16

Court held that hearsay evidence is only admissable to show the contents of a will when the presumption of revocation has been rebutted.

Here, the presumption wasn’t rebutted as the copy of the lost will was possibly kept only as a template. In contrast to Re Delahunty, the evidence was that the testator intended to create a new will.

Question 17

Interpretation cases

Answer 17

General rule: the court carries out the testator’s intentions (armchair principle)

Re Patterson

Thorn v Dickens

Re Julian

Rowe v Law

Re Collins

Heron v Ulster Bank

Question 18

Re Patterson

Answer 18

Principles:
On a holistic reading, the court may “do violence” to a certain clause if it is inconsistent with the intention of the will.

To determine intention, the court adopted the “armchair principle”

Question 19

Thorn v Dickens

Answer 19

“All to mother.” Testator habitually referred to his wife as “mother.”

Question 20

Re Julian

Answer 20

The testator, a Protestant, had bequeath a large sum to a Catholic institute with a very similar name to a Church of Ireland institute. Extrinsic evidence would have shown that she intended to leave the gift to the former. The court did not allow such evidence, however, and the gift was granted to the Catholic institute.

Question 21

Rowe v Law

Answer 21

s. 90 SA 1965 introduced partially to address perceived injustice of Re Julian. The section provides that extrinsic evidence is admissable to show the intention of the testator or to help construct a will or explain any construction.

In Rowe v Law, the court interpreted this section in a restricted manner: s.90 only permits evidence when there is ambiguity or where the intention of the will requires explanation.

O’Higgins CJ delivered a strong dissent.

Question 22

Re Collins

Answer 22

5 judges supreme court affirmed this narrow approach.

Question 23

Heron v Ulster Bank

Answer 23

“Lowry Principles” (POSCRO)

1. Plain
2. Other parts
3. Scheme + intention
4. Construction (rules of)
5. Rule of law (preventing an interpretation)
6. Other judgments

Question 24

Rules of construction

Answer 24

1. Will speaks from date of death
2. The whole document must be considered to decipher meaning.
3. s.99 Presumption of Operation (the courts will make gifts operative where possible).

Question 25

Revocation

Answer 25

s.85

By destruction of the will with necessary intention.

Or by marriage. Wills will say “in contemplation of marriage” to avoid this.

Question 26

Re Shannon

Answer 26

Elderly lady crossed people off her will so thoroughly that names could not be read.
Court held that those gifts were intended to be revoked, even though they had not been done in the formla manner.

Question 27

Residuary legatee

Answer 27

Receives whatever is left after the will has been executed.

Question 28

Alterations

Answer 28

s.85

1. Wills are ambulatory until death
2. Alterations must be made with the same formality as the will itself.
3. A codicil is the formal alteration document.

Question 29

Intestate succesion

Answer 29

S. 67

1. Spouse everything
2. Children (1/3 among issue, per stirpes) Spouse (2/3)
3. Neither spouse nor children–parents
4. Siblings
5. Children of siblings (with no per stirpes)
6. Next of kin in equal shares
7. State is the ultimate intestate successor (s.73)

Question 30

Spousal legal right share

Answer 30

S. 111

1/2

If children, then 1/3

Question 31

Doctrine of election

Answer 31

s.115

Question 32

Re Urquhart

Answer 32

If gift, must elect for LRS.

Didn’t survive her by 1 month and so gift failed, yet couldn’t elect for LRS either.

Question 33

Re Cummins

Answer 33

If not gift, LRS is the default.

Question 34

Appropriation

Answer 34

S. 56

May take dwelling place to make up LRS. If not enough, may rely on share of dependants.

Question 35

FM v TAM (Re GM)

Answer 35

Kenny J contrasted s. 117 to other jurisdictions. Standard is that of a reasonable and prudent parent.

Questions to consider (DAM NL):

1. During life, provided for?
2. Age of applicant, prospects
3. Means of testator
4. Number of children, financial position etc
5. Legal right share of spouse

Question 36

L v L

Answer 36

S. 117 is about a moral, not a legal obligation.

Question 37

DR v CR

Answer 37

Romantic relationship, qualified co-habitant s.117 claim. Succeeded, got 45% of estate.
CPA 2010

Question 38

Timing under s.117

Answer 38

6 months to make the application

Question 39

EB v SS

Answer 39

40 year old alcholic not provided for. Mother had discharged her moral duties.

Grandchildren irrelevant.

“Charity begins in the home” vs “wasting good money on bad.”

Question 40

Re IAC

Answer 40

Finlay CJ approved of FM v TAM, adding further qualifications.

1. Ask from date of death
2. Relatively high onus of proof (courts will not grant awards lightly)

Question 41

Re NSM

Answer 41

1. Reasonable parent assumed to understand taxation and costs of litigation.
2. No positive duty to leave child anything.
3. Duty to a child depends on all the circumstances
4. Duty is to provide according to means, not to make adequate provision.

Question 42

S. 121

Answer 42

Never been invoked in Ireland successfully. 3 years before death rule.

Question 43

S. 120

Answer 43

Loss of succession rights. “slayer rule”

Question 44

Banks v Goodfellow

Answer 44

Capacity–“sound and disposing mind” which includes:
1. Testator understands nature of the document
2. Testator understands extent of their property
3. Understands any potential claims on property.

Question 45

Re O’Reilly

Answer 45

Although the testator had dementia, there was sufficient evidence from the solicitor that she satisfied the three limbs of Banks v Goodfellow