Succession on Death

Right of Children Children do not have an automatic right to benefit. A deceased may choose not to give particular children or indeed any of his children, any benefit at all. Even where the spouse has not survived, it does not follow that his children have an entitlement to any share. The Courts will only intervene and make provision for a child in relatively exceptional circumstances. Section 117 of the Succession Act provides that a child may apply to court an order that such provision should be made for him out of the estates as the court thinks just. If the court is of the opinion that the deceased has failed in his moral duty to make proper provision for the child in accordance for this means whether by will or otherwise may make provision, an order may be made. The reference to moral duty is unusual in a statutory context. … Read the rest

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Equitable Principles There have been many cases in which the Irish courts have been willing to find that equitable rights exist in a succession context, which overrides a will or intestacy will. In the context of property, estoppel may be used to positively assert a right.  In contrast, promissory estoppel generally works as a defence only. See our separate chapters on equitable estoppel and constructive trusts in our section on trust.  See also our section in contracts on promissory estoppel. Estoppel Property rights may arise in particular situations where equity grants remedies to do justice between the parties.  This is far from a general jurisdiction allowing a court to transfer property on the basis of doing justice and avoiding injustice.  It is only available in the limited number of situations. There are different views as to the scope for equity to intervene. Some cases have proceeded on the basis that there is a wider jurisdiction.… Read the rest

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Freedom to Leave Assets by Will To a large extent, a person is free to leave his assets to whomsoever he wants. This freedom is subject to the legal right share of a spouse or civil partner and to the right for children to apply to the court, where the deceased has failed in his moral duty to make proper provision in accordance with means for them. The legal right share must be claimed. The child’s right is not to a share and claims based on failure in the parent’s moral duty,  will only succeed in exceptional circumstances. Many other countries, notably France and Spain provide greater rights for children so that it is difficult for a parent to avoid leaving the bulk of his assets to children. The rules on legal right shares etc. of an Irish domiciled person, generally apply to his worldwide assets.  However in some cases, such as with France, its domestic rules apply to French situate land and buildings, irrespective of the residence or home of the deceased.… Read the rest

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Interpretation of Wills There are well established principles of interpretation of Wills.  A Will takes effect at the date of death.  It takes effect with reference to the assets and liabilities of the deceased, at the date of his death. It is interpreted in light of those circumstances.  It does not matter that the will was made many years before.  Certain principles which apply if the persons who is benefited in the Will is no longer alive or if specific assets are mentioned in the Will, which are no longer owned by the deceased at the date of death. Although the formalities for executing and giving effect to a Will are strict, the principles applied in interpreting the testator’s wishes are flexible. The testator’s intention is paramount. Technical language is not required. The Courts look at the Will as a whole and give effect to the intention as appears from the words.… Read the rest

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Background Where a person dies without a will, he or she is said to die intestate.  The Succession Act sets out who inherits the assets of a person who dies intestate. The rules also apply where a will was made, but it is ineffective or partly ineffective. An “intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate, and “intestate” shall be construed accordingly The modern intestacy rules date from the late 1950s. In the case of deaths before 1st June 1959, the rules were radically different and depended on a somewhat artificial legal classification of the type of assets concerned. Children had greater rights and spouses had lesser rights. Prior to the Succession Act, there were different rules for movable property and real property (land and buildings). Freehold unregistered title property vested directly in the heir at law, who was generally the eldest male. … Read the rest

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Overview 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.… Read the rest

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Nature of Will A Will is a document made by a person directing to whom his property and assets shall pass upon death. Any document which deals with the transmission of property, to take effect on death, is a Will, even if it is not labelled as such. A document signed as a Will must be intended as such.  If a person is tricked into signing a document believing, for example, that it is something else, is not a valid Will. The rules regarding the validity of Wills are strict.  Wills need not be formal either in format or language. However, the requirements of the Succession Act must be followed.  If these formalities are not followed, the Will is invalid. A will must be in writing, signed by the person making it or some person instructed by him. The signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time, who must also sign the Will.… Read the rest

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