#5855 - Succession - Irish Land Law

Succession

Ambulatory Effect

• Wild's Case – If a will passes property to the offspring of someone, and at the time of death they have no children it passes in fee tail, if they have children it passes to them

• s. 89 Succession Act 1965 – Wills are to be construed as if they were executed immediately before the death of the testator.

• s.95 An estate tail can only be created in a will by the same words of limitation as would be create such an estate by deed.

Predeceasing Beneficiaries

• s. 91 Unless an intention to the contrary appears, the death of a beneficiary of a will before the testator, will have his interest included in any residuary devise or bequest, as the case may be, contained in the will.

• s. 97 Where the devise is an estate tail, it shall not lapse as per s. 91 but shall take effect as if the testator had died immediately after the will took effect.

• s. 98 Where the devise is to a child of the testator, and the child dies leaving issue, the interest shall not lapse but shall take effect as if the testator had died immediately after the will took effect.

Capacity to make a will

• s. 77 One must be of 18 years of age or married and of sound mind to have the capacity to make a will.

• Re Glynn (SC) – there is a rebuttable presumption that a will that has been duly attested was made by someone of sound mind. In that case, the presumption did not arise as the person had had a stroke and was suffering from its effects at the time he signed it. In the end the evidence established that he had appreciated what he was doing and the will was valid.

• Blackhall v Blackhall – Where there is a challenge to the will on the state of knowledge or health of the testator the onus is on the challenger to establish this.

• Elliot v Stamp (HC) - There is a presumption that a will has not been executed subject to undue influence.

Formalities for the making of a will (s.78)

• Must be in writing

• Signed at the foot/end by the testator or some other person in his presence and by his direction

• The signature must be made or acknowledged in the presence of two or more witnesses, present at the same time

• Each witness shall attest by his signature the signature of the testator in the presence of the testator

• So far as concerns the position of the signature of the testator or person signing for him, it is sufficient if the signature is so placed at or after, or following or under, or beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.

• No such will shall be affected by the circumstances:

• that the signature does not follow or is not immediately after the foot or end of the will

• that a blank space intervenes between the concluding word of the will and the signature

• that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the name or one of the names of the attesting witnesses.

• that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature

• that there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature

• and the enumeration of the above circumstances shall not restrict the generality of rule 1

• A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

Writing

• Re Beadle - The testatrix signed a sheet containing her testamentary dispositions on the top right corner and also on the envelope in which it was contained. The sheet could not be a will as the text followed the signature. As the testatrix had thought the signature on the sheet was sufficient, the signature on the envelope could not validate the will.

Signature of Testator

• In b McLoughlin – a notary signed a will on the direction of an illiterate testator. The notary signed his own name and the testator made no mark on the will. The will was still valid.

• In b Cook – The signature 'your loving mother' was permissible

• Fulton v Kee – the testator was seriously ill and had assistance in signing his name. The signature was held valid.

Witnesses

• s. 81 Succession Act 1965 – Even if a witness is incompetent to be admitted as a witness to prove the execution of the will at the time of attestation or any time afterwards, this will not affect the validity of the will.

• Brown v Skirrow – The witness must have witnessed the signing visually. In that case, a person in another part of the shop where the will was made could not be a witness as his view had been obscured by customers at the time.

• In b Gibson – A blind person cannot witness a will

Gifts to Witnesses

• s. 82 Succession Act 1965 – a gift to a person who witnesses a will, or to his spouse shall be utterly null and void. This does not affect the competency of that witness to attest the will.

• Re Young – The beneficiary of a secret trust (a trust whose beneficiary is not mentioned in the will) may witness the will without affecting his legacy, as the law views such equitable interests as arising independently of the will.

• Kelly v Walsh – the rule does not apply to people who own the legal interest in a trust.

• Re Bravda - Even where there were two further witnesses, the signature of the will by the only two beneficiaries of the will rendered it void.

Alteration

• s.86 Any alteration made in a will after execution will be invalid unless it is executed as is required for the execution of a will; if the signature of the testator and of each witness is made in the margin or on some part of the will opposite or near such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end of some other part of the will.

• Re Myles – There is a rebuttable presumption that any obliteration, interlineation or alteration to a will was made after execution. In that case, although one of the witnesses testified that there had been obliterations before execution she was unable to recall exactly what they were. The onus was not discharged.

Revocation

• s. 85 When a person is married any will made beforehand is automatically revoked.

• In b Brennan – The revocation of earlier wills can be implied if a latter will is inconsistent with them. In that case, the testatrix recorded her wishes regarding the distribution of her property which differed from the provisions of a will which she had executed three years earlier and the document was signed and witnessed. The heading 'Instructions for a new will' was held to have revoked her earlier will.

• In b Martin - If the later will effectively disposed of all the testator's assets and was held to be an implied revocation.

Dependent Relative Revocation

• In b Irvine – An act of revocation can take place immediately or conditional on the efficacy of some other disposition of the testator's property. In this case it operated on the basis that the later will would be effective

• In b Coster – The deceased obtained custody of her will from her solicitor's without explanation and a blank form for the making of a will was found among her papers after she died. The High Court found that the discovery of a form for the making of another will among her possessions indicated that she intended to execute a new one. The Supreme Court found that a presumption existed that she had destroyed the will, which arose as she had had possession of it and no issue of dependent relative revocation arose.

• In b Hogan – Where a revocation is made on the assumption that an earlier will will be revived, and the earlier will is actually invalid because it has not been re-executed, then the later will will not have been validly revoked.

Revival

• s. 87 A revoked will can only be revived by re-execution or by a codicil duly executed and showing an intention to revive it; when any will or codicil which is partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to the whole, but only the extra part that was revoked unless a contrary intention is shown.

Outline – Interference with Freedom of Testation

Legal Right of Spouse

• s. 111 If a testator leaves a spouse and no children, the spouse is entitled to half the estate – if there are children this is 1/3.

• s. 112 The above right shall take priority over devises, bequests and shares on intestacy.

• s.113 The spouse's right may be renounced in a pre-nuptial contract made in writing between the parties or in writing by the spouse after marriage and before the testator's death.

• s. 115 The spouse may elect to take either that devised to him or her, or his or her legal share.

• s. 116 Where the testator during his or her lifetime makes permanent provision for the spouse, by contract or otherwise, all property which is the subject of such provision shall be taken as being in satisfaction of the legal share – only applies to provisions made before the commencement of the Act.

• Re Urquhart (SC) – The deceased died one day after his wife and her will contained a provision granting him part of her estate if he survived for one month. The Revenue Commissioners were unable to claim estate duties on his legal share as it was in the...