Succession deals with the inheritance of a person’s property on that person’s death
Irish succession law is based primarily on the Succession Act, 1965, although there has been subsequent legislation which has impacted upon the provisions of same most notably the Civil Partnership & Certain Rights & Obligations of Cohabitants Act, 2010. Under the 1965 Succession Act, the surviving spouse under Section 111 of that Act has the benefit of what is called the legal right share.
The extent of the share depends upon whether or not there are children surviving at the date of death of the deceased. If there are no children, the surviving spouse shall have a right to one half of the estate whilst if there are children surviving, the spouse shall have a legal right to one third of the estate.
This legal right share of the surviving spouse has priority over the shares of persons entitled under the Will or in a partial intestacy. Further, in the case that the surviving spouse receives a devise or bequest in the deceased’s Will, the surviving spouse may elect to take either the devise or bequest in that Will or alternatively the legal right share in the estate.
In default of the spouse electing to do either, the spouse shall be deemed to take the devise or bequest granted under the terms of the Will.
In the case of where the deceased dies without making any Will (intestacy), there are also specific rules for the share out of the estate. In the case of a surviving spouse where there are no children at the time of the deceased’s death, the surviving spouse shall take the whole estate whereas if there are also children surviving at the date of death of the deceased, the spouse shall take a two thirds share of the estate with the remaining one third share going to a surviving child or being divided between any surviving children in equal shares.
A spouse may renounce their legal right share in a Separation Agreement and in the event of Judicial Separation proceedings, the legal right share of the spouse can be extinguished if the court is happy that adequate provision has already been made for that spouse. In the case of a Decree of Divorce, the marriage is dissolved and there is no longer any legal right share in existence thereafter.
The 1965 Succession Act also sets out a specific and defined line of succession or entitlement in the event of there being no surviving spouse or children to benefit from the deceased’s estate. This is based on nearest blood relation thereby meaning that where there is no spouse or children, the next person or persons entitled is the parent(s) of the deceased and where there are no parents, the next entitled category are the deceased’s brothers and sisters and so on. In the event that no relative of the deceased can be established, the ultimate intestate successor is the State and the State in that case shall take the entire estate.
The 1965 Succession Act was obviously reflective in its time in so far as in the case of couples, it only dealt with the succession aspects of married heterosexual couples and no provision was made for either cohabitants or same sex couples. In the case of same sex couples, this position was altered by the Civil Partnership & Certain Rights & Obligations of Cohabitants Act, 2010 whereby on the registration of a civil partnership between a same sex couple, the surviving party in the same sex couple is treated in the same way as the surviving spouse under succession law.
As set out above, the only party that is entitled as of right to a share in the estate is the surviving spouse (and now civil partner). No other party has the same legal right share. However, in the case where a child of the deceased is unhappy with the share (if any) that he or she has received in respect of their parent’s estate, there is provision for a child or children to make an application to the court on the basis that the deceased has failed in his or her moral duty to make proper provision for the child in accordance with his or her means. It is however important to realise that there is a high onus of proof on the applicant child to prove a positive failure of moral duty on the part of the deceased parent. Courts have proven in respect of this part of the Succession Act legislation to be reluctant to alter the terms of the Will and it has been decided in case law that it is not merely enough to prove that the provisions of the Will may have been unfair to a particular child but that rather, the terms in the Will adopted by the deceased parent amounted to a breach of mortal duty towards their child on their part. Further, it is important to note that under Section 117(6) it is essential for a potential disgruntled child to commence their legal action under this Section 117 provision within a six month period of the issue of the Grant of Representation in the estate. It is however possible to issue proceedings in advance of the Grant being taken out provided that there are surviving executors named in the Will. However, in the main, the safest course of action for someone threatening to instigate proceedings under this Section is to lodge what is called a Caveat with the Probate Office which prevents the issue of the Grant of Representation until the Caveat has been removed.
It is clear from the above that in the event where one is the nominated executor in an estate or may be the son or daughter of a deceased person, legal advice is often critical to ensure that wishes of the testator are properly upheld or alternatively, that the rights of a child to a share in their parents estate are fully vindicated. In the case of the latter especially, given the short time frame allowed to bring legal action, it is important for the child of the deceased to obtain legal advice as to their position as soon as they become aware of the provisions of the Will.