succession part 2 Flashcards
(22 cards)
1
Q
the spouse
A
- The legal right share (LRS) of surviving spouse or civil partners.
- Section 111 – If a person dies leaving a spouse and no children, the spouse is entitled to 50% of the estate; if there are children, the spouse is entitled to one-third. This legal right share takes priority over any gifts made by will or on intestacy.
o The legal right share (LRS) can be renounced by either spouse in a pre-marriage or ante-nuptial agreement, but the court may set it aside if it was made under duress or without full understanding. - A spouse may leave a gift to their partner in a will, but if it is not clearly stated to be in addition to the legal right share (LRS), it will be presumed to be in satisfaction of the LRS under s 114(2).
o In that case, under s 115(1)(a), the surviving spouse must elect to take either the gift or the LRS. The personal representative must notify the spouse in writing of this right under s 115(4). The spouse then has 12 months from the grant of probate (or six months from notification, whichever is later) to decide. The value of the LRS is assessed at the date of distribution, not the date of death (Strong v Holmes [2010] IEHC 70). - Re Urquhart 1974 – the deceased died one day after his wife, unaware of her death. Her will left him a gift conditional on surviving her by one month, which he did not, so the gift lapsed. Despite this, the Revenue included half of her estate (the legal right share) in calculating estate duty.
o The Court held this was incorrect, as the deceased had not elected to take his legal right share instead of the will gift. Until that election is made, the spouse cannot be said to have a right to dispose of the legal right share. - O’Dwyer v Keegan 1997 – the husband died on 2 February 1995 while his wife was in a coma and died later that day without regaining consciousness. The couple had no children and both had valid wills. The husband’s estate was much larger, and he made no provision for his wife. The question was whether she had a legal right to a share of his estate.
o The HC ruled that the wife’s legal right was not exercised because she did not regain consciousness.
o However, the SC held that she automatically became entitled to half of his estate under s 111(1), which enhanced her own estate upon her death. The legal right of a spouse vests immediately upon the spouse’s death, similar to a will or intestate share.
2
Q
appropriation
A
- 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.
3
Q
the loss of spousal entitlements
A
- There are instances where a spouse is not entitled to exercise the spousal right under the Act:
i. Desertion - Section 120 – a spouse who has deserted their partner for two years or more before their death is barred from claiming any share of the estate, whether under a will or intestacy.
ii. Crime - A spouse convicted of indictable offence against the other spouse or imprisoned for 2+ years.
iii. Divorce - Family Law (Divorce) Act 1995 – divorced parties lose the succession right.
iv. Judicial separation / Dissolution of civil partnership - Section 14 of the Family Law Act 1995 – because the marriage of the parties subsists, the spouses will retain their succession rights unless the court makes an order extinguishing the succession rights of either or both parties.
- Moorehead v Tilikainen – Patricia Moorehead died on 10 October 1997, leaving her estate equally to her three children. One child, Maria Tiilikainen, had died earlier, survived by her three children. Maria and her husband had signed a 1991 separation agreement renouncing their succession rights. However, the agreement stated that if they cohabited as husband and wife for 12 continuous months, its terms would no longer apply.
o Justice O’Sullivan found they had resumed cohabitation for the required period and ruled that, based on the agreement’s terms, their renunciation of succession rights was nullified. - Divorced or separated spouses and civil partners with dissolved succession rights may still apply for provision from the deceased’s estate under s.15A (1995), s.18 (1996), or s.127 (2010). Applications must be made within 6 months of the grant of representation. The court can order provision if it finds that proper provision wasn’t made during the deceased’s lifetime, similar to s.117 applications.
4
Q
children
A
- Unlike spouses, children don’t have an automatic right to part of a testator’s estate. Under s.117 of the Succession Act, children (regardless of age) can apply to the court if they believe their deceased parent failed to make proper provision for them, based on the parent’s means and moral duty. If the court agrees, it has discretion to make provision for the child, as it deems just and equitable. However, the court cannot reduce the surviving spouse’s legal right share or affect any gifts made by will or on intestacy (s.117(3)).
- Section 117(3A), added by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, prevents affecting a surviving civil partner’s legal rights unless the court believes it would be unjust not to.
- Any application under s.117 for provision by a child must be made within six months of the grant of representation (probate) — a strict time limit. The court will assess whether the testator failed in their moral duty to make proper provision for the child.
o “Proper provision” includes both testamentary gifts and any provision made during the parent’s lifetime. The court will consider the case from the perspective of a just and prudent parent, who is generally presumed to have a moral duty to support their children. - The Court’s decision must be as fair as possible to the child to whom the application relates and the other children and it consists of two stages:
1) The first is that the court must decide whether the testator has failed in his moral duty to make proper provision for a child.
2) Only if he has failed to do so does the court decide what provision it will order to be made. - FM v TAM – endorsed by the SC in Re IAC – The court follows specific guidelines when determining whether a testator has failed in their moral duty to provide for a child under s.117:
1. The number of the testator’s children, their ages, and their life circumstances at the time of death.
2. The testator’s means (financial situation).
3. The age, financial position, and prospects of the applicant child.
4. Whether the testator made proper provision for the child during their lifetime.
5. The existence of the duty must be judged by objective criteria.
These factors help the court decide whether the testator’s provision (or lack thereof) is morally adequate. - Re IAC, 1989 – Finlay C.J. emphasized that applicants have a high burden of proof. To succeed, they must show a “positive failure in moral duty” by the testator. It is not enough to argue that the provision was smaller than expected, less generous than other bequests, or disappointing in some way. The applicant must prove that the parent failed in their moral duty to provide properly.
5
Q
summary of s 117 case
A
- Re ABC 2003 – Kearns J set out a summary of the points of law in relation to section 117 applications:
a) Social Policy: Section 117 protects children still in a position to expect parental support, addressing the failure of parents to meet their moral duties.
b) Moral Obligation: The court must determine whether the testator owes a moral obligation to the child and whether it was fulfilled.
c) Onus of Proof: Applicants must prove a positive failure in moral duty by the testator.
d) Clear Circumstances: There must be clear evidence of a positive failure in moral duty before the court can intervene.
e) No Absolute Duty: The duty under s. 117 is not absolute.
f) Parental Duty: The parent-child relationship alone doesn’t create a moral obligation to leave a will provision.
g) No Obligation to Each Child: Section 117 doesn’t require the testator to leave something to each child.
h) Lifetime Provision: Gifts like providing an expensive education may fulfill the moral duty.
i) Proper Provision: Financing education and securing financial stability counts as proper provision.
j) Moral Duty, Not Adequacy: The test is not to make adequate provision, but proper provision according to the testator’s means.
k) Consider All Moral Obligations: A just parent must consider all moral obligations, including to spouses and others (e.g. elderly parents).
l) Overall Context: The court must consider the whole context of the testator’s affairs, not just the applicant’s situation.
m) Special Circumstances: Special circumstances, like promises or sacrifices (e.g. working on a farm with the expectation of inheriting), may create a moral duty.
n) Exceptional Circumstances: Long illness or exceptional talent may also create moral obligations.
o) Special Needs: Physical or mental disabilities can create moral duties.
p) Wide Court Powers: While the court has wide discretion, it cannot make a new will for the testator.
q) Test of Moral Duty: The court considers whether the testator’s decision itself breached moral duty, not whether the court would have made a different decision.
r) Parental Knowledge: Parents are presumed to know their children better than anyone else, and this is considered in decisions. - Students should note that this case was decided before the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Therefore, Section 194 of the Act, allowing qualified cohabitants to apply for provision from their partner’s estate, should be considered as part of the criteria in point (l).
6
Q
moral duty - relevance of the conduct of children and parents
A
- A child’s conduct is relevant in determining whether the provision made is “proper.” A dutiful child is more likely to succeed in an application than one who has behaved poorly or squandered assets given during the testator’s lifetime. However, a parent feeling neglected by their child does not eliminate their duty to provide.
- C.C. v W.C. – the court should be reluctant to intervene where there had been a caring relationship and, conversely, should be more willing to uphold s 117 where the relationship had been hostile.
- McDonald v Norris – The case involved a child whose relationship with the parent had deteriorated to hostility. After the testator’s death, the plaintiff filed a claim under s. 117, but the court dismissed it, stating that the plaintiff’s behavior affected the moral duty owed by the testator.
SC – Barron J. held that s. 117 recognized a continuing duty from parent to child unless extinguished by circumstances.
The test should focus on what would satisfy the parent’s moral obligation in the specific family context. In this case, the plaintiff stayed on the land and had no other means of income, so Barron J. found it reasonable to expect the plaintiff would inherit over half of the land.
Barron J. acknowledged that the plaintiff’s behavior was relevant but emphasized it did not extinguish the moral obligation. He also disagreed with McCracken J.’s view that the benefits given to the plaintiff (like not paying rent and the £11,000 owed) were sufficient, calling them temporary. The plaintiff’s poor behavior was linked to a desire to protect his inheritance, and Barron J. noted the testator’s unreasonable attitude toward the plaintiff’s family, which worsened the relationship.
Held – the testator’s moral obligation to the plaintiff was not extinguished by the plaintiff’s conduct, as the testator had acted unfairly toward him despite his efforts to maintain the farm.
7
Q
Should a parent take the child’s responsibilities to his own children into account when deciding on testamentary provision?
A
- B(E) v. S(S) & Anor. 1998 – The plaintiff, one of four children, struggled with addiction in the 1980s but recovered in 1993. He was unemployed and living on benefits, residing in a house partly gifted by his wealthy father, from whom he had also received a £275,000 share of business assets—money he squandered by 1992.
His mother, aware of his circumstances, made no significant provision for him in her 1988 and revised 1992 wills, leaving most of her estate to charities and small legacies to grandchildren. The plaintiff made a s 117 claim, arguing his mother failed in her moral duty to provide for him, given his responsibilities as a husband and father.
Held – Section 117 aims to prevent testators from ignoring the needs of children or spouses. Equal division among children is not always proper provision if it ignores a child’s special needs. However, a parent’s desire to maintain equality is also relevant.
Although s.117 applies regardless of a child’s age, it does not extend to cover the needs of grandchildren. In this case, the plaintiff’s past financial support and his own mismanagement justified the High Court’s decision to dismiss the claim.
8
Q
moral duty at time of death
A
- W(C) v. W(L) 2005 – a father offered money to each of his daughters before his death, intending it as satisfaction of any inheritance. Two daughters refused, suspecting a trick. Upon his death, he left his farm in trust for his wife for life, then to his son, and gave small sums to the daughters. After the mother’s death, her estate went equally to the daughters, with nothing left to the son.
The objective test under s.117 requires viewing the testator as if they knew what would happen at their death. Thus, the father was considered to have knowledge of the mother’s will when determining whether he fulfilled his moral duty.
9
Q
Who else do you owe a moral duty to
A
- C v. CF 2003 – two daughters of the deceased, both without means, applied under s.117. One had cared for the mother for years but received nothing during her lifetime. The court found the mother had not made proper provision and had failed in her moral obligation.
The court must act as a fair and prudent parent, considering the position of each child, including those who didn’t apply under s.117.
Even if only some children apply, the impact on all children must be considered.
The mother failed in her duty, especially given the financial vulnerability of the applicant daughters.
10
Q
intestate succession since 1967
A
- A person dies intestate when they leave no will or only partially dispose of their estate. In such cases, the estate is distributed according to the rules in Part VI of the Succession Act 1965.
- Section 74 – any gifts made by will take effect first, and the remaining, undisposed portion is distributed under the intestacy rules.
- These rules apply to all property, real and personal, for anyone who died on or after 1 January 1967.
- Once debts, expenses, and liabilities are paid, the remainder of the estate is distributed in order of entitlement: first to any surviving spouse and children, then to the nearest blood relatives, and finally to the State if no relatives remain.
11
Q
shares of survivng spouses and issue
A
- The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 amended intestacy rules to include civil partners. If a person dies intestate with a civil partner but no children, the civil partner inherits the entire estate. If there are children, the civil partner receives two-thirds and the children one-third.
- Section 67A(3) of the 2010 Act – the deceased’s children may apply to court for further provision from the civil partner’s share within six months of the grant of representation.
- Where there is no surviving spouse or civil partner, the deceased’s issue take the entire estate under s.67 of the Succession Act. Non-marital children are treated the same as marital children under s.4A, inserted by s.29 of the Status of Children Act 1987.
- S 3(2) – A child conceived before the death of the deceased, but born after, will inherit as if s/he had been born during the deceased’s lifetime and had survived the deceased
- S 72 – Descendants and relatives of the half-blood are to be treated as, and inherit equally with, relatives of the whole blood in the same degree
- S.26 of the Adoption Act 1952 – adopted children have the same succession rights after the making of an adoption order as a child of the adopter born in lawful wedlock.
12
Q
method of distribution among issue
A
- Section 67(4)
- When the issue are of equal degree to the deceased, the distribution is per capita, with each taking an equal share. For example, if all four children survive, they each receive a quarter. If the children are deceased, their children (grandchildren of the intestate) will inherit equally, as they are in equal degree.
- When the issue are of unequal degree, the distribution is per stirpes, with shares divided according to each branch of descent. Additionally, advancements made to children during the intestate’s life are accounted for through hotchpot.
13
Q
Shares of parents, brothers and sisters
A
- Section 68 – If neither the spouse/civil partner nor issue survive the intestate, the estate goes to the parents. If both parents are alive, they share equally. If only one survives, that parent receives the entire estate.
If neither parent survives, the estate is divided equally among the intestate’s siblings. The children of a deceased sibling inherit their parent’s share, per stirpes, if another sibling survives the intestate. - Section 69 – If the intestate has no surviving siblings, the children of the intestate’s siblings inherit equally, per capita
14
Q
Shares of the next-of-kin
A
- Ss 70, 71 – If the spouse, issue, siblings, and their children do not survive the intestate, the estate is divided equally among the next-of-kin, the closest blood relatives.
- The degree of relationship is determined by counting the generations between the intestate and the relative. For example, a grandfather is two degrees removed. For relatives not in a direct line, you count upwards to the nearest common ancestor and then down to the relative. An uncle, for example, is three degrees removed (two to the grandfather, the common ancestor, and one down).
- Even though uncles are in the same degree of relationship as direct lineal ancestors, the Act gives preference to uncles and similar relatives over direct lineal ancestors.
15
Q
Right of the estate
A
- Section 73 – If there is no other person under the rules above, the State takes as ultimate intestate successor.
16
Q
Hotchpot
A
- Section 63 – Advancements given during an intestate’s lifetime (e.g., money or property intended for a child’s permanent provision) are accounted for when dividing the estate. This applies unless the deceased stated otherwise.
- Section 121 – If the advancement equals or exceeds the child’s share, they get nothing. If less, the child receives the balance. If the advancement is greater than the share, the child owes nothing unless it was meant to disinherit someone. This rule applies to both intestacy and gifts by will, unless stated otherwise by the deceased.
17
Q
Donatio mortis causa
A
- A donatio mortis causa is a gift made in contemplation of death, typically when there is no time or capacity to create a will. The gift is made by transferring dominion or title indicators to the recipient.
- The gift takes effect only upon the donor’s death, not immediately. To be valid, there must be a clear intention to make the gift, and control of the property must be transferred. This can result in legal ownership (if exclusive control is transferred) or equitable ownership (if the donor loses access or control but doesn’t transfer full control).
- Re Craven’s Estate – what is required is that the donor contemplates death “within the near future” and makes the gift in that contemplation
- If the donor contemplates death from one illness and dies from another, that does not revoke the gift.
- Mills v Shield and Kelly – the deceased, fearing for his health before a potentially dangerous medical treatment in Dublin, deposited money with a priest to be given to his brother in South Africa if anything happened to him.
The court ruled the donatio mortis causa valid, emphasizing that the intention at the time of the gift, rather than the cause of death, determines its validity. - Sen v Hedley – the EN CoA ruled that the doctrine of donatio mortis causa could apply to land. The deceased, suffering from cancer, told his estranged wife that the house was hers and that the keys were in her bag. One key opened a steel box containing the title deeds, and this was the only key to the box. The court held that the doctrine applied to land if:
1. The gift was made in contemplation of death.
2. The gift was conditional upon the donor’s death.
3. There was delivery of essential indicia of title, such as the title deeds.
4. There was a parting with dominion over the land, meaning the ability to deal with it physically.
The Court of Appeal was influenced by two factors:
1) It would be an anomaly to differentiate between real and personal property for the doctrine without a clear principle.
2) The law had evolved to allow the parting of dominion over intangible property (like a chose in action) through the transfer of indicia of title.
18
Q
Dominion
A
- In Sen it was ruled that a donatio mortis causa requires the donor to relinquish dominion over the property, but it is not necessary for the donee to immediately gain control. The court found that the donor’s loss of control, not the donee’s acquisition, was key.
- The court upheld the gift of the house, despite multiple keys, because the donor was in the hospital and couldn’t use the keys. However, the gift of the house’s contents was not valid, as other keys existed that could have been given to someone else.
- The court also confirmed that a donatio is not invalid if control is relinquished before the intention to gift is expressed. In this case, the keys were placed in the bag before the gift was declared.
19
Q
Possession
Where the donee is in possession
A
- Woodard v Woodard – the son was already in possession of a car when the deceased, believing he was dying, declared he was giving the car to the son. This case reinforces the principle from Sen v Hedley that the relinquishment of control does not need to coincide with the words of the gift or the intention to make the gift. The donee’s possession of the property does not prevent the donor from making a valid donatio.
20
Q
Where the donor is in possession
A
- The donor may be in possession but lose physical control of the land if he relinquishes the title to it. This could happen where the donor makes the donatio, transfers the land, and remains living in the house until he dies.
21
Q
Where neither is in possession
A
- There appears to be no reason why an owner who is not in possession could not make a donatio.
22
Q
Revocation of donatio mortis causa
A
- A donatio mortis causa is conditional upon the donor’s death; if the donor survives, they retain the property. The donor can revoke the gift at any time during their lifetime, either explicitly or implicitly, but not through a will.
- The gift is automatically revoked if the donor recovers from the condition that led them to contemplate death or if the donee predeceases the donor.
