Countries take different approaches to the extent to which a person is free to dispose of his assets on death. In France and some other continental countries, children have a very strong right to the bulk of a deceased’s assets. Very high mandatory shares of the deceased’s assets must go to his children. It is difficult to defeat this right, even by lifetime gift. It is only in recent times that spouses’ mandatory share has increased.
In England and Wales, there is a right for spouses, children, civil partners and dependents to apply to Court for proper provision, if this has not been made for them under the deceased’s will.
Irish law takes a mixed approach. A spouse has a so-called “legal right share” to either one half or one-third of the deceased’s net assets. Children do not have a right to a fixed share at all. A child, however, may apply to Court on the basis that the deceased has failed in his moral duty to make proper provision for him or her in accordance with his means, whether by will or during his lifetime.
The following rights of surviving spouses and children apply in scenarios where a will has been made but no provision or inadequate provisions have been made for them by Will. If no Will or no fully effective will has been made, the spouse and children receive the fixed shares mentioned in the chapter on intestacy.
Spouse’s and Former Spouses
The legal right share applies to a spouse. The legal right share of a spouse, where the deceased dies without children is to on half of his net assets. Where there are surviving children, the right is to one-third of the deceased’s net assets.
A spouse refers to somebody to whom the deceased was married at the date of death. The marriage must have been valid. Prior to the introduction of divorce in Ireland, Ireland only recognised foreign divorces in limited circumstances. The grounds of recognition of foreign divorces have broadened considerably in the last 25 years.
The deceased and his spouse (or either unilaterally) may have obtained a divorce abroad based on residence, in another jurisdiction. Because Ireland formerly recognised foreign divorces in very limited circumstances only, it often happened that the divorce was not recognised in Ireland, despite being valid under the other State’s law. In this case, the first spouse retained the legal right share. This could even happen where both spouses had consented to the divorce.
There is now provision in family legislation for parties to apply to Court for a declaration as to the recognition of the validity of foreign divorce. The grounds of recognition of foreign divorces had been widened considerably in recent years.
Separated and Divorced Spouses
Where spouses are permanently separated, either may seek an Order of Judicial Separation. This will only be granted in the context of adequate provision being made for a spouse and children. It is effectively a division of assets and may be permanent subject only to being opened up in later divorce proceedings.
There is a right under divorce legislation for a former spouse to apply for provision out of the estate of a former spouse. This applies in relation to a divorce granted in Ireland or abroad. An application may be made at the time of divorce or afterwards, for an order dispensing with this right for the other spouse to make an application. It must be specifically applied for in Court proceedings and granted.
The Court may make provision as it deems appropriate, having regard to the rights of other persons such as a second spouse. The Court will grant relief only if it was not possible to make adequate and reasonable financial provision for the spouse during the lifetime of the deceased (for example, on judicial separation or divorce). The Court will take account of any gifts left to the former spouse in the Will.
The maximum which a Court may grant in such cases, is that which a spouse would have entitled to if the marriage had not been dissolved. Account will be taken of previous lump-sum payments and assets transferred in the divorce. There is a strict time limit for the application to the Court of six months in the case of domestic divorces and 12 months in the case of foreign divorces. This runs from [ ].
Nature of the Right
The spouse’s legal rights share takes priority over the Will and the Will may accordingly be varied by it. It cannot take priority over creditors. The share itself is treated like a debt so that it comes off the top of all assets. The assets which the deceased is entitled to leave, are deemed reduced by the amount of the legal right share.
If the deceased provides a benefit for his spouse under his Will, this is presumed to be in satisfaction of the legal right share. The spouse may choose to elect between the share under the Will and the legal right share. If the spouse elects to claim the legal right share, the benefit under the Will may be taken in part satisfaction.
The legal right share must be specifically claimed. If it is not claimed, it will be lost. The personal representatives must give notice in writing to the spouse, of the right to claim the legal right share. The spouse has a period of six months after the notice, or one year after the grant of probate, whichever is later, in which to exercise the option to make the claim.
The legal right share is to half of the spouse’s net estate, if there are no children. If there are children, the legal right share is to one-third of the spouse’s net estate. The legal right share (as with the rules on intestacy) only applies to assets, to which the deceased died entitled to. Many assets such as a family home, accounts and investments will commonly be jointly owned and they pass to the survivor on death. They are not part of the deceased’s estate and do not count for the legal right share or towards the share on intestacy.
Right of Appropriation
The surviving spouse has a right to appropriate the dwelling house in which she ordinarily resided at the deceased’s death. The right also applies to household movable items. This right of appropriation applies to shares or benefits left in the Will e.g. a monetary amount and also the legal right share and share on intestacy.
If the house and items are worth more than the spouse’s share she or he may have to make a contribution. In case of hardship, the Court may dispense with the requirement for a contribution.
Where the spouse holds right of an infant on trust i.e. child beneficiary, the dwelling house may be appropriate toward that share or right if the value of the dwelling-house exceeds the spouse’s own share.
As with the right to take the legal right share, the personal representatives must notify the surviving spouse of the right to appropriate the dwelling house and moveables. The time limits are the same i.e. six months from notice or one year after the grant of representation, whichever is latest.
Renunciation of Rights
It is possible for spouses to renounce their Succession Act rights. This is often done in a separation agreement. It may be done in a pre-marriage contract or in writing, at any time after the marriage.
As the spouse concerned may be giving up a valuable legal right, the renunciation may be vulnerable to being set aside on the basis of undue influence, duress, etc.. The person renouncing his or her rights, should take independent legal advice in relation to its implications.
The principle of advancement applies in the contest of a child’s application for proper provision, in that the court will take account of lifetime benefits. However, the principle applies more generally to benefits under a will and shares on intestacy.
The Succession Act creates a presumption that lifetime advances should be considered. It is very common to provide in a Will, that no lifetime advancement should be taken into account, thereby reversing the Succession Act presumption.
Where the deceased has made lifetime gifts which were intended to make permanent provision for the child, they are presumed to be taken into account, in deciding the child’s entitlement under either a Will or on intestacy. Permanent provision requires more than occasional gifts of income type purposes. It implies a capital payment, such as one made in establishing a child in business.
The onus is on the person alleging that there has been an advancement. The deceased may have specifically described the payment as an advancement, in which event the position will be clear. An advancement is treated as part satisfaction of the share under the Will or intestacy unless the other intention is indicated.
The child would not be required to repay the sums concerned. The deceased assets are notionally increased by the amount of the benefit to the child as of the date it was paid to the child. This would then tend to increase other benefits to other children. The principle of advancement only applies to children or grandchildren where the deceased’s child has predeceased the deceased.
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