Succession - Restraints on Testamentary Freedom

Question 1

Legal Right Share

S.111 Succession Act, 1965 states?

Answer 1

S.111: (LEGAL RIGHT)

• (1) If the testator leaves a spouse a spouse and no children, the spouse shall have a right to one-half of the estate
  (2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate

_____

Right of surviving spouse [New]

Question 2

What does Intestacy mean?

Answer 2

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration

Question 3

What is a testator?

Answer 3

The author of a will

Question 4

Legal Right Share

S.117 Succession Act 1965 states?

Answer 4

S.117:

• (1) 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.
  (2) 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 fair as possible to the child to whom the application relates and to the other children
  (3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any decision or bequest to the spouse or any share to which the spouse is entitled on intestacy
  (4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner
  (5) The costs in the proceedings shall be at the discretion of the court
  (6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.

_____

Provision for Children [New]

Question 5

Legal Right Share

What does S.118 of the Succession Act, 1965 say in regard to S.117 and S.111?

Answer 5

S.118 - Property representing the share of a person as a legal right and and property which is the subject of an order under section 117 shall bear their due proportions of the estate duty payable on the estate of the deceased.

_____
Estate Duty [New]

Question 6

Legal Right Share

What does S.112 of the Succession Act, 1965 say in regard to S.111?

Answer 6

S.112 - The legal right of of a spouse under S.111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.
________

Priority of legal right [New]

Question 7

Legal Right Share

Does S.111 Succession Act 1965 relate to spouse or children of the testator in question?

Answer 7

S.111 - relates to the spouse and it provides certain rights in respect of what a spouse can do to curtail if he/she is not happy with its content (right to contest the will)

S.117 - relates to the offspring of the deceased. They’re not provided with rights per se, just the right to challenge the contents of the will. Doesn’t have the same rights of the spouse. (right to challenge the will)

ONLY when a valid will exists.

Question 8

Legal Right Share

What was the main benefit of the Succession Act 1965?

Answer 8

The main benefit was to protect the spouse - it meant that albeit the testator/deceased was entitled to do what he pleased with the property upon death, 1965 provided boundaries within how to do this.

The cornerstone of the reform was the concept of dependency and the general idea that there were minimum standards of care and obligation that had to be discharged to certain classes of persons in the state - namely spouses and civil partners.

Question 9

Legal Right Share

What cases can be used as an example that the legal right share takes priority over all other gifts, bequests and shares on intestacy?

Answer 9

H. v O

Question 10

Legal Right Share

What is the right to elect?

Answer 10

SEE S.115 Succession Act 1965

The right of election occurs where there is no reference to the legal right share mentioned in the will. The spouse/ciil partner may elect to take either what is left to them or to seek their legal right share.
___________________________
The right to elect was considered a vital part in the process of the section 111 rights as was seen in the case of Re Urquhart.

S.115 - (1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise of bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right

Question 11

Legal Right Share

Case details for Re Urquhart?

Answer 11

Principle point - the court found that so long as the right of election was not exercised, the surviving spouse was not entitled to the legal right share

Question 12

Legal Right Share

Case details for O’Dwyer v Keegan?

Answer 12

Principle point (SC position - created more of a grey area and built upon Re Urquhart)

Husband and wife are in accident, both in coma, husband dies a few hours before wife. Neither had provided for the other in their wills. Because wife was in a coma, she did not ‘elect’ to take any legal right share that she may have been entitled to under S.111 of the 1965 act. Therefore, her relatives received ‘her’ 300,000 estate but her husband’s family received 2.4 million from ‘his’ estate.

The Supreme Court found however that the wife automatically became entitled to one half of her husband’s estate by virtue of s.111(1) of the 1965 Act - her estate was automatically enhanced.

Barron J said that the legal right of the spouse had in effect the same quality as an interest arising under a will or a share arising on intestacy and therefore, vests immediately on the death of the spouse. Therefore, the surviving spouse becomes automatically entitled to the legal right share and need not do anything to trigger the release of that share.

Question 13

Legal Right Share/Appropriation

Case details for Strong v Holmes?

Answer 13

The timing of the exercise of election and the date at which an application for appropriation can be made are not considered the same.

In Strong v Holmes, the court held that the date of valuation for appropriate was not the date of death or election for a legal right share, but the date of appropriation (the date at which the property is available for distribution).

Murphy J said:

In order to ensure that the appropriation was calculated to operate justly and equitably, it cannot unduly benefit one beneficiary at the expense of another. If, for example, the date of valuation were to be the date of death then the half share of the estate then valued at 11 million approximately would almost exhaust its present value of over 6 million.

Question 14

Appropriation

What sections of the Succession Act 1965 relate to the right to Appropriation?

Answer 14

Section 55 and 56

Question 15

What is testamentary freedom?

Answer 15

The freedom of individuals to dispose of their property upon death as they see fit.

Question 16

Appropriation

What is Appropriation?

Answer 16

The Succession Act 1965 provides another right in relation to property specific to the spouse or civil partner under section 55 and section 56 (as amended by section 70 of the Civil Partnership and Certain Rights and Obligation of Co-Habitants Act 2010). The right is called appropriation and allows the surviving spouse or partner to seek to have the dwelling in which they were ordinarily resident with the deceased at the time of the deceased’s death secured for the surviving spouse or civil partner. An application under section 56 of the 1965 Act can be made in either testate or intestate succession.

Question 17

What two issues arise in regard to making an application for appropriation?

FYI, an application can be made in satisfaction of the spouse’s or civil partner’s legal right share or entitlement on intestacy.

Answer 17

1. Value: If the dwelling (usually the former family household) is of greater value than the share the spouses’ legal right or interest under the will is, then, the spouse or civil partner may seek to pay the difference

Question 18

Appropriation

What two issues arise in regard to making an application for appropriation?

FYI, an application can be made in satisfaction of the spouse’s or civil partner’s legal right share or entitlement on intestacy.

Answer 18

1. Value: If the dwelling (usually the former family household) is of greater value than the share the spouses’ legal right or interest under the will is, then, the spouse or civil partner may seek to pay the difference to the estate in order to take the approbation of the dwelling. It is also
2. If the dwelling to be appropriated comes within the category of properties under s.56(6) of the Succession Act 1965, then the consent

Question 19

Appropriation

What two issues arise in regard to making an application for appropriation?

FYI, an application can be made in satisfaction of the spouse’s or civil partner’s legal right share or entitlement on intestacy.

Answer 19

1. Value: If the dwelling (usually the former family household) is of greater value than the share the spouses’ legal right or interest under the will is, then, the spouse or civil partner may seek to pay the difference to the estate in order to take the approbation of the dwelling. It is also possible to utilise the assets even under the trust of the issue to help purchase the appropriation and secure the dwelling. The rationale here seems to be that the issue, in this case, will be the ultimate beneficiaries of the dwelling through their surviving parent.

In a similar fashion to an election, the personal representatives are under an obligation to inform the surviving spouse or civil partner of the right to appropriate under s.55 of the Succession Act 1965. Though it has now been held that we’re the spouse or civil partner was not informed in a timely manner then time will run from the date of being informed of the right. This right is required under section 56(4) of the 1965 Act to be exercised within one year of the date of taking out of the representation on the estate.

2. If the dwelling to be appropriated comes within the category of properties under s.56(6) of the Succession Act 1965, then the consent of the court is required for any such appropriation.

This will be examined to show that according to H v H that (1) the appropriation will not make the property more difficult to dispose of and that (2) the appropriation will not produce a fall in the value of the estate that has not been appropriated. If it shows both of these to the satisfaction of the court, consent to appropriation will follow.

(a) where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate
(b) where the dwelling is held with agricultural land an estate or interest in which forms part of the estate
(c) where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house
(d) where a part of the dwelling was, at the time of the death, used for purposes other than domestic purposes

Question 20

Appropriation

What are the four categories of properties listed under s.56(6) of the Succession Act 1965?

Answer 20

(a) where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate
(b) where the dwelling is held with agricultural land an estate or interest in which forms part of the estate
(c) where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house
(d) where a part of the dwelling was, at the time of the death, used for purposes other than domestic purposes

Question 21

Appropriation

What are the four categories of properties listed under s.56(6) of the Succession Act 1965?

Answer 21

(a) where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate
(b) where the dwelling is held with agricultural land an estate or interest in which forms part of the estate
(c) where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house
(d) where a part of the dwelling was, at the time of the death, used for purposes other than domestic purposes

Question 22

Appropriation

According to H v H, what two factors are required in order to secure the consent of the court for appropriation (subject to section 56(6) of the Succession Act 1965)?

Answer 22

If the dwelling to be appropriated comes within the category of properties under s.56(6) of the Succession Act 1965, then the consent of the court is required for any such appropriation.

and this will be examined to show that according to H v H:

(1) the appropriation will not make the property more difficult to dispose of and that
(2) the appropriation will not produce a fall in the value of the estate that has not been appropriated. If it shows both of these to the satisfaction of the court, consent to appropriation will follow.

Question 23

Appropriation

Personal representatives are under an obligation to inform the surviving spouse or civil partner of the right to appropriate under s.55 of the 1965 Act.

What happens if there are not informed within a timely manner?

Answer 23

The time will run from the date of being informed of the right.

Question 24

Appropriation

Personal representatives are under an obligation to inform the surviving spouse or civil partner of the right to appropriate under s.55 of the 1965 Act.

How long does the spouse or civil partner have to exercise their right?

Answer 24

Within one year of the date of taking out representation on the estate (or the time will run from the date of being informed of the right if spouse or civil partner is not informed within a timely manner).

Question 25

Appropriation

Can an application for appropriation under section 56 of the 1965 act be made in intestate succession?

Answer 25

Yes, application be made under s.56 in either testate or intestate succession.

Question 26

Loss of Legal Right Share and Spousal Rights

The valuable rights of spouses and civil partners under the Succession Act 1965 can be lost through the actions of the spouse or civil partner.

Name and elaborate on three ways.

Answer 26

1. Dissolution of a civil partnership or divorce
2. The spouse or civil partner can renounce section 111 rights under section 113 of the 1965 Act (as amended by the 2010 Act in relation to civil partners).
3. It is possible to lose the right for unworthiness under section 120 of the Succession Act 1965. This includes desertion, causing the death of the spouse/partner, or committing a criminal act against the spouse/civil partner or children of the spouse/civil partner which is punishable by more than two years imprisonment.