Succession Law

Question 1

What is a partial intestacy?

Answer 1

When someone dies with a will, but the will fails to account for all of their property. Property that is unaccounted for will be disposed with intestacy rules.

Question 2

When an intestate dies with a spouse or civil partner and no issue, who takes the estate?

Answer 2

Spouse/civil partner takes whole estate

Question 3

When an intestate dies with a spouse and issue, how is the estate divided up?

Answer 3

Spouse takes 2/3 of the estate
The remaining 1/3 is divided among the issue

Question 4

When intestate dies leaving issue but no surviving spouse, how is the estate divided up?

Answer 4

The entire estate goes to the issue.

Question 5

What is a per stirpes division?

Answer 5

When one of the parents dies prior to their issue dying. In these circumstances, the issue of the deceased child is treated as an asset of their estate.

Question 6

When an intestate dies leaving neither spouse/CP, nor issue, how is the estate divided up?​

Answer 6

The estate is distributed to his/her surviving parents in equal shares.

Question 7

Where a person dies intestate with neither spouse/CP, issue or surviving parents, how is the estate divided up?

Answer 7

The estate goes to siblings in equal shares. (If a sibling, who has predeceased the intestate, died having left issue, then those issue take the share of their deceased parent in equal shares.)

Question 8

Where a person dies intestate with neither spouse/CP, issue or surviving parents, nor surviving siblings, but their siblings have issue, how is the estate divided up?

Answer 8

If there are no surviving siblings, then any children of those siblings take in equal shares.

Question 9

Where a person dies intestate with no surviving spouse/CP, issue, parents, siblings, children of siblings, how is the estate divided up?

Answer 9

An intestate’s property goes to the next of kin in equal shares. This is based on blood relation ONLY. Arrived at by counting up to the nearest ancestor and then counting down to their surviving offspring. Any located will take an equal share.

Question 10

If no one can be found, where does intestate stuff go?

Answer 10

To the state!

Question 11

What happens to an existing will if the testator subsequently marries?

Answer 11

It is considered revoked.

Question 12

When does the will speak from?

Answer 12

Date of the testator’s death

Question 13

What is the presumption of operation?

Answer 13

The court will lean in the direction of making gifts operative where possible. ​

Question 14

O’Connell v Bank of Ireland

Answer 14

Supreme Court confirmed that extrinsic evidence is only admissible where there is ambiguity.

Question 15

Where a testator leaves a spouse/CP at death, what share are they entitled to?

Answer 15

One half (legal right share)

A spouse may appropriate a dwelling house in satisfaction of the right share if they were living there prior to the death of the deceased. Chattels can also be appropriated up to the value of the legal right share.

Question 16

Where a testator leaves a spouse/CP at death and they have surviving children, what share is the spouse/CP entitled to?

Answer 16

One third

Question 17

What happens when the will leaves a bequest to the spouse/CP?

Answer 17

They must elect to either accept the bequest or to rely on their half share.

Question 18

What is a section 117 challenge?

Answer 18

Children are not given direct rights under the Succession Act. ​

​Instead they are given a right to challenge the provision made for them in a will of a parent. ​

​Section 117 is without prejudice to the legal right share of a surviving spouse / CP.

IF SOMEONE DIES INTESTATE SECTION 117 does NOT APPLY

Adopted children can bring section 117 proceedings against the estates of their adoptive parents but not their natural parents. Neither step children nor foster children can apply under S117. Again, these are areas that may merit further analysis and discussion.

Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.​

The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

Question 19

L v L

Answer 19

The question of a section 117 challenge is a moral one, not a legal one

Question 20

Re GM

Answer 20

moral obligation must consider:​

The amount left to the surviving spouse/legal right share​

The number and age of the testator’s children and their position in life at the testator’s death ​

The means of the testator ​

The age, position and prospects of the applicant ​

Whether proper provision was made during the testator’s life. ​

Question 21

Re: IAC

Answer 21

The existence of a moral duty must be judged by reference to the facts at the date of death. ​

There is a relatively high onus of proof and the court will not make an order simply because it would have formed a different will. ​

The court should be reluctant to intervene where there is evidence of financial assistance in the course of the testator’s life and there is evidence of a caring relationship. ​

Question 22

Re: NSM

Answer 22

The court must attribute knowledge of the amount of tax payable on his death and knowledge of the cost of litigation. ​

The duty to a child will depend on all the circumstances including of that child’s own children. ​

The relationship of parent and child does not per se create a moral duty to leave property to the child by will. ​

The duty is to make proper provision according to means – not to make adequate provision. ​

Question 23

How does section 121 impact a will?

Answer 23

Ordinarily a will takes effect from death and does not effect inter vivos dispositions. ​

s.121 allows the court to order the reversal of transactions undertaken 3 years prior to death with the intention of defeating either​

The legal right share or ​ Section 117 rights. ​

Has never been successfully invoked in Ireland

Question 24

What does s.120 loss of succession rights pertain to?

Answer 24

Where a person is convicted of murder, manslaughter, or attempted murder of the deceased they are not entitled to a share in the deceased’s estate or to make a s.117 application. ​

Where a person is convicted of an offence against the deceased, or a spouse of child of the deceased they are likewise prohibited.

Question 25

What is Donatio Mortis Causa ?

Answer 25

An instance of informal succession - a gift made by a person during their lift. Gift must be made when a person is in contemplation of their death. Death does not have to be imminent but should be “on the horizon.” Giving control of property to someone that you intended to give them upon your death.