succession part 1 Flashcards
(33 cards)
1
Q
preliminary matters - procedural aspects
A
- On death, property vests in the personal representative—an executor (with a will) or administrator (without a will). They must first obtain a grant of representation: probate or letters of administration.
- Ownership does not lapse on death; the estate is held by the representative for distribution. In intestacy, it temporarily vests in the President of the High Court (s.13, Succession Act 1965).
- For registered land, only the personal representative can dispose of it (unless a joint tenant survives), but they are not registered as owner – s.61 Registration of Title Act 1964
2
Q
duties of personal representatives
A
- Personal representatives must administer the estate per the will or, in intestacy, per the statutory rules. They must:
1. Pay funeral and administration expenses,
2. Settle debts (s.46),
3. Distribute the remainder to beneficiaries. - They must act responsibly and promptly. They have one year (the “executor’s year”) to administer the estate before distribution can be compelled, though creditors may act sooner (s.62).
- Property is transferred by assent—written for land (ss.52–54), but no formalities are needed for personal property.
3
Q
removal of executors
A
- Section 26(2) – The High Court may revoke or cancel a grant of probate, but only on substantive grounds and in rare cases. This power is used sparingly, typically where there is serious misconduct or a major conflict of interest
- Re Flood; Flood v Flood – the defendant, son and sole executor of the deceased, was accused by other beneficiaries of owing the estate over £40,000, allegedly loaned by the testator. He claimed it was a gift, not a loan, and argued that even if it was a loan, it was statute-barred under the Statute of Limitations 1957.
o Macken J. found the evidence inconclusive on whether the money was a gift or a loan, but held that the issue raised a serious question. She noted that removal of an executor is a grave step, only warranted by serious misconduct or a clear conflict of interest, as emphasized in Dunne v Heffernan.
o As the defendant refused to repay the sum and may have acknowledged the debt within the limitation period, the judge found a clear conflict between his role as executor and as a potential debtor. Though removal can diminish the estate’s value, Macken J. concluded it was necessary in this case and adjourned proceedings to appoint a new administrator. - K. (M.) v B. (J.) – the plaintiff, born in 1987, was the son of the testatrix, who appointed her sister (the defendant) as sole executrix, trustee, and guardian of the plaintiff. Under the will, the defendant was to manage the estate for the plaintiff’s benefit until he turned 21, at which point it would pass to him absolutely. The defendant decided to sell the testatrix’s house, prompting the plaintiff (via his father) to apply for her removal as trustee.
o Carroll J. found the defendant’s decision to sell was genuine and financially motivated, not driven by personal conflict. Though the plaintiff opposed the sale, Carroll J. held that his views were likely influenced by his father and that he might not fully understand the practical implications.
o The court concluded that the defendant was acting within her discretionary powers under the will and in the plaintiff’s best interest. Therefore, the application for her removal was refused.
4
Q
testacy
A
- A person dies testate if they leave a valid will, which sets out their wishes for the distribution of their property after death. A codicil can amend or add to a will and is considered part of it.
- Section 89 of the Act – the will is to interpreted as to its meaning at the time of death. One of the exceptions to this is the ‘armchair principle.
- A will is leaving and breathing document, meaning it can be changed at any time before death. Under the Wills Act 1837, it can include property acquired after the will is made.
- Although revocation is generally allowed, there are exceptions:
1) Contractual wills: If a contract was made to create or not revoke a will, it may be enforceable through damages or specific performance.
2) Estoppel: If someone reasonably relied on a promised benefit under a will to their detriment, changes may be barred.
3) Mutual wills: Where spouses make wills with an agreement not to revoke without consent, a constructive trust may arise if one dies and the survivor tries to revoke their will.
5
Q
requirements for a valid will
A
- Minimum age – 18 (s 77), or if made by a person under18 who is or has been married.
- Sound disposing mind – s 77 – the testator must understand what he was doing and who would benefit from it.
6
Q
capacity to make a will
A
banks v goodfellow – the testator believed he was pursued by evil spirits, particularly the spirit of a deceased man with whom he had no prior connection. Despite this, he managed his finances and gave clear instructions to his solicitor. He left most of his estate to his niece, who had cared for him.
o The issue was whether this mental state affected his sound disposing mind (animus testandi) Cockburn C.J held it did not, and affirmed the test for a valid animus testandi:
“He ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.”
- O’Donnell v O’Donnell – adopted into Irish law. The deceased left most of his estate to the plaintiff, his brother, and appointed him sole executor. The defendant, another brother, claimed the deceased lacked testamentary capacity due to paranoid schizophrenia. However, evidence showed the deceased was medicated and lucid when making the will. The solicitor confirmed no signs of delusion were present at the time.
o Kelly J. held that the condition was medically controlled, and there were no signs of schizophrenia during the will’s execution. Applying the Banks v Goodfellow test, he found the deceased understood his actions, and his mental state did not impair his testamentary decisions.
- Glynn v Glynn – adopted Parker v Felgate – The deceased gave instructions for his will after meeting with advisors. Before execution, he suffered a stroke and could not communicate. Two independent persons visited him in hospital, read the will aloud, and he nodded his assent, placing an “X” as a signature. The plaintiff claimed the will was invalid due to the deceased’s lack of sound disposing mind.
o The Supreme Court ruled that at the time of execution, the deceased was confirming prior instructions and understood the will. Only “firm medical proof of incapacity” could challenge his sound mind.
- The courts have an equitable jurisdiction to refuse to grant probate where the will was not the free act of the testator – undue influence.
- Kelly v Thewles – stated that it was the “ascendancy and the dominion of a controlling power, and its actual exercise, by the constraint and coercion of an enfeebled, exhausted or subjugated intellect.”
- In inter vivos dispositions, certain relationships raise a presumption of undue influence, but no such presumption exists in wills, regardless of the relationship between the testator and beneficiary.
- The burden of proof for undue influence is on the person alleging it, who must show that the influence overpowered the testator and led to the will. While the person propounding the will typically bears the burden, in disputes over mental capacity, the onus shifts to the challenger (re McCracken J. in Blackhall v Blackhall)
- Re Glynn – It was held that there is a presumption that every properly attested will was executed by a testator of sound disposing mind. However, if the will is made under highly unusual circumstances, this presumption can be rebutted, and its validity must be established through witness evidence.
7
Q
formal requirement for a will - will to be in writing
A
- As there was no specification in the Act as to what would suffice, it has been said that the need for writing is satisfied by any form of writing, even crayon. A valid will could, in principle, be written on an egg-shell - Hodson v Barnes.
- The content of the will can take any form - there is no special wording which necessarily must be used. A will can be extremely short: see Thorn v Dickens where “All is for mother” was enough.
8
Q
will to be signed by testator
A
- S 78(1) – a will must either be signed by the testator, or be signed by some other person in his presence and by his direction. It doesn’t, however, necessarily mean a “signature” as we understand it.
- B. Cook – ‘your loving mother’ was enough
- Fulton v Kee – one of the witnesses had to assist the testator in signing the will as he was unable to hold the pen – it is sufficient as long as there was physical contribution on behalf of the testator.
2.1 The test whether the testator intended the signature to execute his will - The signature must appear “at the foot or end” of the will – a rule once strictly applied but later relaxed by the Wills Act (Amendment) Act 1852, now in s.78 of the 1965 Act. Rule 4 states the signature can’t be just anywhere, but rule 3 allows it to be “at or after or following, or under, or besides, or opposite to the end” of the will. The key is that the will must be written before signing, and the signature must appear intended to give effect to the will.
- Generally, if anything is written after the signature in space or in time will not be treated as part of the will
o Re Beadle – the testatrix signed the front of an envelope intended to contain her will, and the witness signed the back. Her signature was held to merely identify the contents, not to execute the will, making the attestation defective. Although she had also signed the will itself, that signature was valid, but the attestation still failed as only one witness had signed the will. - If a will can reasonably be read to place the signature at the end of the dispositive part, the courts will interpret it that way to uphold its validity. In Goods v Hornby a liberal view was taken where the signature wasn’t at the end but was intended to be.
o In Estate of Roberts, when there was no room at the end of the page, the testator signed in the margin near the top. The court held this was acceptable.
9
Q
the witnesses: attestation of wills
A
- Section 78, rule 2 – The testator’s signature, or that made on their behalf, must be made or acknowledged in the presence of two or more witnesses present at the same time. These witnesses must then sign the will in the presence of the testator.
- Both witnesses must be present together when the testator signs or acknowledges the signature, and they must be capable of seeing the act, visually impaired persons are excluded. While the witnesses must sign in the testator’s presence, they need not sign in each other’s presence. If a witness is not present, they cannot attest the signature.
- Kavanagh v Fegan – witnesses do not need to see the testator’s signature or know it’s a will, as long as they witness the act of signing. If the signature is acknowledged, they must have had the opportunity to see it, even if they didn’t.
- Unlike the testator’s signature, witness signatures can appear anywhere on the will, so long as they are intended to attest the testator’s signature. Witnesses, like the testator, may sign with initials, a mark, or a stamp. It is usual practice for their signatures to follow the testator’s.
- An attestation clause is not required but helps in obtaining probate.
10
Q
presumption of due execution
A
- The courts will presume due execution when compliance with the Act is questioned, shifting the burden of proof to the person alleging non-compliance.
o Clery v Barry – the court limited this presumption, in cases of witness attestation, to situations where witnesses are dead, incapacitated, or give unreliable evidence.
o Followed in Rolleston v Sinclair, where there was no attestation clause and the witnesses stated they were not present when the testator signed. The court held the presumption did not apply.
11
Q
incorporation of evidence
A
- A document that is not attested like a will may be incorporated into the will if it is referred to in the will and it existed in complete form at the time of execution of the will.
12
Q
alteration of wills
A
- Wills can be amended up to the time of death, but verifying the authenticity of alterations can be difficult. Section 86 requires that any alteration be signed and attested as a will.
- Effects of altering a will:
o An alteration made before execution is valid if proven to have occurred before signing (Re Myles).
o An alteration made with the same formalities as a will i.e. signed by the testator and attested by two witnesses is valid under s.86. Initials of the testator and witnesses near the change will suffice (Re Myles, deceased).
13
Q
revocation of wills
A
- Can be revoked at any time up to death.
- Section 85 – three methods for revocation: 1) by subsequent marriage; 2) by formal writing; 3) by destruction
- In general, a testator’s marriage after making a will automatically revokes the will. However, under s.85 of the Act, a will made in contemplation of a particular marriage is not revoked by that marriage.
o Estate of O’Brien – O’Neill J held that it is enough if, when making the will, the testator actually had or must have had the specific marriage in mind, no express intention for the will to remain valid after marriage is required. In that case, Noel’s will, made before marrying his fiancée Marie, was not revoked by the marriage. Judicial separation, divorce, or nullity does not affect a will. - Revocation by formal writing must take the form of a new will, codicil, or written declaration, executed like a will (s.85 of the Act). A later “will” doesn’t automatically revoke an earlier one, as wills can consist of multiple documents.
o Without a revocation clause or inconsistency, the new document may simply add to the original. Implied revocation occurs when later provisions contradict or repeat earlier ones. It’s a matter of interpretation e.g. O’Donohue v O’Donohue, where “all my worldly possessions” impliedly revoked the previous will. - Revocation can also occur by destruction, by the testator or someone acting in his presence and at his direction through burning, tearing, or otherwise destroying the will with intent to revoke it (s.85 of the Act). Both the act and the intention are required.
- Cheese v Lovejoy – the testator crossed out the will, wrote “all these are revoked,” and threw it away. It was held valid as it wasn’t destroyed and the writing didn’t meet formal requirements.
- Doe d Perkes v Perkes – the testator tore the will into four pieces before being stopped—demonstrating partial destruction with intent.
- Where someone attempts to revoke a will but doesn’t comply with the necessary requirements under s.85, the will continues to be operative.
14
Q
conditional revocation
A
- Revocation can be conditional, taking effect only if a specific condition is met. This applies to revocation by a later will or codicil, or by destruction if secondary evidence of the original will exists. If revocation depends on the validity of a new will and that will is invalid, the revocation fails (Wylie, p. 895).
- A key example is “dependent relative revocation,” where a will is destroyed under a mistaken belief that another arrangement will take effect – Re McClintock.
15
Q
revival of revoked will
A
- A will destroyed with intent to revoke it cannot be revived. A will, or part of it, that has not been destroyed can only be revived by re-execution or by a codicil showing intent to revive it – s. 87. The revived will takes effect as if newly made on the date of revival.
16
Q
lost wills
A
- If the presumption of intentional destruction is rebutted, the will’s contents may be proved by secondary evidence. This can include a copy of the will or statements about its contents, whether or not the person who made the statements is available.
- Sugden v Lord St Leonards – the deceased’s daughter had memorised his will because the testator had asked her to read it to him. When the original couldn’t be found, she reproduced it from memory at trial. The court accepted this, creating a new exception to the hearsay rule. This was approved in Ireland in In bonis Ball.
17
Q
the failure of a gift under the will - invalidation of gifts to witnesses
A
- Section 82 – Executors and beneficiaries may witness a will, but any gift to a witness—or to their spouse at the time of execution is void. This doesn’t apply if the spouse married the witness after the will was made, or if the beneficiary is only acting as a trustee.
- In the Estate of Bravda – the rule was applied strictly, even where two other witnesses signed. Though later reversed in England, it’s unclear if Irish courts would follow Bravda. They may take a more flexible approach, as in In the Goods of Shaw, where a beneficiary’s signature was seen as mere approval, not formal witnessing.
18
Q
lapse
A
The general rule is that if a beneficiary dies before the testator, their gift lapses (fails). There are two exceptions:
1. Section 97 – a gift in fee tail to a deceased donee passes to the issue capable of inheriting under the entail.
2. Section 98 – unless stated otherwise in the will, if a child of the testator dies before the testator, leaving issue who are alive at the testator’s death, the gift does not lapse but takes effect as if the child died immediately after the testator. A child in the womb qualifies under s.3(2), and non-marital children qualify in wills made after 14 December 1987 (Status of Children Act 1986).
- Moorehead v Tiilikainen – Patricia Moorehead left her estate to her three children. One child died before her, but was survived by three children. O’Sullivan J. ruled that, under s.98, the gift to the deceased child did not lapse, and passed to their children.
- If a legacy lapses, the destination of the property depends on the residuary clause.
19
Q
disclamer
A
- A beneficiary either expressly or impliedly can reject a gift under the will but it must be certain that this rejection is not due to undue influence.
20
Q
uncertainty
A
A gift may fail for uncertainty if the property or beneficiaries cannot be clearly identified, making it impossible for the Court to enforce the terms. While extrinsic evidence may be used to clarify the uncertainty, if it cannot be resolved, the gift will fail.
21
Q
unworthiness to succeed
A
- Section 120 – prevents anyone who has killed the testator from inheriting under the will. It states that a “sane person guilty of manslaughter” cannot take any share in the estate, except for a share under a will made after the act. Additionally, they are not entitled to apply under section 117.
- Nevin v Nevin – Mrs. Nevin argued that her conviction for her husband’s murder did not prove she was “guilty” of his murder for the purposes of s 120(1), as the section refers to being “guilty” rather than “found guilty.”
o Kearns P ruled that, under the wording of s 120(1), a conviction is admissible as evidence, but it is only prima facie evidence of guilt. - Section 120 (4) – A person found guilty of an offence is disqualified from claiming increased provision or a fixed fraction of the estate. However, they can still take what they’re entitled to under the will or intestacy, which seems an arbitrary omission.
- This section has been reviewed, and the Law Reform Commission has been tasked with a Report on the Prevention of Benefit from Homicide (2015).
22
Q
simultaneous death
A
- Section 5 – if two or more persons die in circumstances rendering it uncertain which of them survived each other, they shall be deemed to have died simultaneously. A gift may fail if it is conditional on the beneficiary surviving the deceased for a certain period.
- Re Kennedy – the presumption of simultaneous death carries a high burden of proof to dislodge—requiring “certainty”.
23
Q
ademption
A
- A gift may fail (be adeemed) if the testator no longer owns the specific item at death. It won’t be adeemed if replaced with a similar item (e.g. one diamond watch for another). But if replaced with a different item (e.g. a bracelet), the gift fails.
- A general legacy (e.g. “my chairs”) won’t fail as long as some of that type remain in the estate.
24
Q
satisfaction
A
- Equity presumes a legacy satisfies a pre existing obligation:
o Debts by legacies: A legacy to a creditor is presumed to discharge the debt owed.
o Portions by legacies: A legacy to a child is presumed to fulfill any prior promise of a portion (e.g., for marriage, trade, or education).
o Legacies by legacies: If two equal legacies to the same person appear in one will, only one is deemed effective; if they differ in value or appear in separate instruments (e.g. will and codicil), both are deemed effective.
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election
Election
- The doctrine of election applies where a testator bequests property they don’t own. If they grant A property belonging to X, and X also receives a legacy, X must either compensate A or transfer the property to A before claiming the legacy—i.e. if X accepts the benefit, he must also accept the burden. Accordingly, X has three options:
1. Retain his property and forgo the legacy.
2. Take under the will and transfer his property as the will directs.
3. Retain his property and take the legacy, but compensate A for the loss.
26
construction or interpretation of the will - general policy
- When a will is unclear, the court must undertake interpretation or construction of it, guided by established rules to resolve any ambiguity.
General policy
- The court must ascertain the testator’s intention as expressed in the will, reading it as a whole and giving words their natural or, if technical, their technical meaning.
- Under s.99, any ambiguity is resolved so the clause remains effective rather than invalid. A general intention overrides a specific one (Fitzpatrick v Collins), courts may imply omitted words (In the Goods of Duffy) or exclude superfluous ones (Re Isaac), but will not rewrite the will.
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the principles of construction of wills
- Heron v Ulster Bank Ltd (adopted in Re Howell and Bank of Ireland v Gaynor) sets out these steps for construing contested will provisions:
1. Read the provision on its own, giving each word its natural meaning.
2. Compare it with the rest of the will – does the wider context confirm or modify that meaning?
3. If still ambiguous, consider the will’s overall scheme or policy.
4. Apply any relevant construction rules or aids (e.g. presumption of early vesting, against intestacy, in favour of equality).
5. Exclude any interpretation barred by law (statutes, public policy).
6. Where helpful, consult other courts’ interpretations of similar wording (cautiously, not as binding precedent).
o Macken J. concluded that while the provision wasn’t clear in isolation, its meaning became plain when viewed in the context of the entire will.
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extrinsic evidence
- When the general rules don’t suffice, extrinsic evidence i.e. evidence from outside the will may be admitted. However, it is controversial how far a testator’s intention can be established this way. At common law, courts could not look beyond the “four corners of the will”; the testator’s intention had to be found within the will itself.
- Where there is ambiguity, limited extrinsic evidence may be admitted:
- Armchair principle: the court “sits in the testator’s armchair,” interpreting words in light of the testator’s knowledge, habits and circumstances.
o Thorn v Dickens – “all to mother” admitted evidence that “mother” was the testator’s term for his wife.
o Goods of Twohill – “Brother‑in‑Law Edmund Kelly” shown to mean his only brother‑in‑law, Edward Kelly.
- Ambiguity resolution: extrinsic evidence may clarify latent or patent ambiguities, inaccuracies, or where the will’s wording conflicts with the testator’s known intention.
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latent ambiguity
- A latent ambiguity arises when a will’s wording fits more than one person or thing, but doesn't clarify which. The court first applies the armchair principle, using the testator’s knowledge and context to resolve it.
- Healy v Healy – the testator left a gift to “my nephew Joseph Healy,” but had two nephews with that name. The court used the armchair approach to identify the intended nephew. If that failed, extrinsic evidence could be admitted.
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patent ambiguity
- A patent ambiguity arises when the will’s wording clearly applies to multiple people or things, but later references in the will clarify who or what was meant. In such cases, extrinsic evidence is not allowed – would go beyond the will’s text and effectively alter it.
31
inaccuracy
- In cases of inaccuracy, where a description doesn’t precisely fit anyone, the Court may disregard the inaccurate part to identify the intended person.
- Re Plunkett’s Estate (1861), the named person (MF) didn't match the description, but the Court favored her, as the name was seen as more important than the description.
- Re Callaghan – the testator named “my god-daughter JW,” but JW wasn’t his goddaughter—AW was. The Court ruled in favor of AW, prioritizing the intended relationship over the mistaken name.
- Extrinsic evidence may be used, but if inconclusive, the Courts will lean on whichever element (name or description) most clearly expresses the testator’s intent.
32
appropriation
- Section 56 – allows a surviving spouse to request that the family home and personal belongings be used to satisfy their Legal Right Share (LRS), whether the deceased died with or without a will. The home must be where the spouse was living at the time of death.
o If the home's value equals the LRS, the process is simple. If it exceeds the LRS, the spouse can pay the difference or use an infant's share (if the spouse is a trustee), giving the child part ownership.
o Personal representatives must inform the spouse of this right. It must be exercised within six months of notice or one year from the grant of representation, whichever is later.
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