Succession: Spouse Property Rights Essay Flashcards
(19 cards)
What is the overall aim of the statutory protections for spouses and civil partners?
To limit testamentary freedom and ensure spouses and civil partners are not deprived of property after death.
What is the Legal Right Share (LRS) and how is it determined?
LRS gives surviving spouses an automatic share: 50% if no children, 33% if children survive.
(Succession Act 1965, s.111)
When does the Legal Right Share vest?
It vests immediately upon death, as confirmed in O’Dwyer v Keegan.
Can a surviving spouse renounce their Legal Right Share?
Yes, through agreements before or during marriage, subject to court review if obtained by fear or misunderstanding.
What happens if a gift in a will does not specify its relation to the LRS?
It is presumed to be in satisfaction of the LRS unless explicitly stated otherwise.
(Succession Act 1965, s.114(2))
What must personal representatives do regarding a spouse’s election rights?
They must inform the spouse about the right to elect between a gift and the LRS within a statutory timeframe.
(s.115)
What is the right of appropriation under s.56?
The right of the surviving spouse to claim the family home and personal chattels in satisfaction of their LRS.
What case demonstrated failure to inform the spouse of appropriation rights?
Gunning v Gunning-Hameed [2003] IEHC 123.
Under what conditions can a spouse lose their succession rights?
Desertion for two years (S120), conviction of a serious offence, divorce(Divorce Act 96), or court order following judicial separation (Family Law Act 1995).
How do intestacy rules apply to spouses and civil partners?
Entire estate if no children; two-thirds if children survive.
(Succession Act 1965; Civil Partnership Act 2010)
Are civil partners entitled to an LRS if the deceased left a will?
No, they are protected mainly under intestacy but have no automatic LRS.
What are academic criticisms of the LRS system?
It is rigid, fails to account for relationship quality, and lacks flexibility.
(Wylie, Keating)
What reforms did the Law Reform Commission suggest?
Shift from ‘moral duty’ to ‘proper provision,’ impose presumptions against claims by adult children, enhance judicial discretion.
Why is the reliance on personal representatives problematic?
It risks uninformed spouses missing out on rights due to procedural failures.
(Keating)
What is the overall academic conclusion about current protections?
They are broadly fair but inflexible, needing reforms for greater fairness, equality for civil partners, and procedural safeguards.
Mnemonic for Protections - “LAP IT”
Legal Right Share (LRS) (S111, S114(2), S115)
Appropriation right (s.56)
Protections under Intestacy rules
Information duty (by personal representatives) (Gunning)
Termination conditions (divorce, desertion, crime) (S120)
Mnemonic for Conditions for Losing Rights - “Dead Crime Divorce”
Desertion (2 years)
Crime (serious offence)
Divorce or Judicial Separation (court order)
Mnemonic for Criticisms - “RIGID”
Rigid application (W)
Inflexible to circumstances (W)
Gap for civil partners (no LRS if testate) (LRC)
Informational failures (K)
Demand for greater judicial discretion
Mnemonic for Law Reform Commission Suggestions - “MAP”
Move from “moral duty” to “proper provision”
Adult children claims only in exceptional circumstances
Promote judicial discretion
