Succession - Succession Rights Flashcards
What is a spouse entitled to if their partner dies wholly or partially testate?
Legal Right Share
s.111 Succession Act
- 1/2 of the estate if there are no children
- 1/3 of the estate if there are children
as amended by s.80 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
How does a spouse claim their legal right share?
Right to Elect - s.115 SA
If a spouse has left a gift to their spouse in their will and has not explicitly expressed that this is in addition to their legal right share it will be assumed that this goes towards the satisfaction of their legal right share.
Re Urquhart
- the deceased died a day after his wife, without becoming aware of her death
- her gift to him lapsed as he did not survive her by a month (condition)
-Revenue calculated his estate duty inclusive of his wifes estate
- Court held that this was incorrect as so long as the right of election has not been exercised (in this case in lieue of her gift) the surviving spouse has no powers to dispose of the estate corresponding with the LRS
O’Dwyer v Keegan
- similar facts except the spouses had made no provision for each other in their wills
- court held the wife had become automatically entitled to her husbands estate by virtue of 111(1)
What is a right to appropriation?
s. 55 and 56 of the Succession Act
as amended by s 70 of the Civil Partners and Certain Rights and Obligations of Cohabitants Act 2010
- the surviving spouse or civil partner has a right to seek to have the dwelling in which they were ordinarily resident at the time of the deceased’s death secured for them
How is a spouse informed of the right to appropriation?
Personal representatives are obliged to inform the surviving spouse in a timely manner
If they fail to do so the time runs from the date they are informed (Gunning v Gunning Hameed)
When is consent of the court required for appropriation?
When the dwelling to be appropriated falls under one of the categories in s56(6)
H v H
- it should be shown that appropriation will not make the property more difficult to dispose of and that it will not produce a fall in the value of the estate that has not been appropriated
How can a legal right share be lost?
Through the dissolution of a civil partnership or through divorce
by renouncing s. 111 rights under s113 SA or s83 CPCROCH
by unworthiness - s120 SA
What are the rights of children to their parent’s estate?
Children do not have an absolute right to any share in their parents estate.
They do have a right to make an application under s 117 to the court to have their expectations of reasonable and prudent distribution for those in a position of dependency examined and evaluated.
Key term is that the parent must have failed in his moral duty to make proper provision for the child.
How have the courts treated s. 117 applications? (Early case law)
The cases are notoriously hard and draining, both to the grieving family of the deceased and the resources of the estate which may be negligible after legal costs are paid.
MacNaughton v Walker
- existence of a moral duty to make provision for a child will be judged on the facts on the date of death including
- amount left to the surviving spouse, number, age , and position in life of the testator’s children and of the child whose application is being considered, means of the testator, whether the testator has already made in his lifetime proper provision for the child
Re IAC Deceased
- the child must prove that there is a positive failure of moral duty on the part of the parent, not that they are disappointed by the parent’s failure to provide for them
How has the court treated applications under s.117 in modern times?
Far more active and expansive view of the interest to be examined/ the concept of dependency and the standard that must be met to discharge proper provision for a child such that no order will be made altering distribution or lack thereof in a will
Re ABC Deceased
- parent child relationship does not automatically entitle the child to a gift in the parents will, duty is not absolute
- high onus of proof on applicant
- provision of finance for education is sufficient to discharge the moral obligation and requirement of proper provision
- special needs or illness of the testators children should be taken into account
- same for special talents or ability
- estoppel type situations
- parents must be presumed to know their child better than anyone else
- courts power should not be construed as empowering them to make a new will for the testator
MPD v MD
- proper provision for a child does not only include food, shelter and education, but some type of advancement for them for life
EB v SS
no entitlement for grandchildren under s117
McDonald v Norris
total breakdown of the relationship may result in a loss of the childs s117 right, but the behaviour of both the parent and the child will be examined
What is the Doctrine of Hotchpot?
Translates the idea of advancement into the area of intestacy.
Advancements and portions made in the deceased’s lifetime are to be seen as advancements on inheritance and taken into account in the distribution of assets
Note that is the advancement is greater than their share in the estate would be the child does not have to return monies to the estate
