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Property Law Succession Notes

BCL Law Notes > Property Law/ Land Law Notes

This is an extract of our Property Law Succession document, which we sell as part of our Property Law/ Land Law Notes collection written by the top tier of University College Dublin students.

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SUCCESSION

Determines what happens to someone's property when they die
The succession act is the main legislation in this area

1. Testate: when you die with a valid will

2. Intestate: death without a valid will

3. Partial testacy: where there isn't a wholly valid will, and the property that is invalid may have to be distributed accordingly.

The relevant parties



Testator: the person who devises the will (a testatrix is a female historically)
Intestate as a noun: the deceased
Beneficiary: speaks for itself
Personal representatives: executor/ administratorExecutor - executing a testator's will
Administrator - executing an intestate's will.

Personal representatives.
Appointment:

Grant of probate:
- Testacy.
Proving the contents of a will in court, and then accepted as a valid, public document.
Once it has been through probate it is public.
Apply to probate office
Take out a grant of probate
The probate office is part of the High Court
Its there to give authority to the named executor or proper person to deal with the estate.
The High Court is granting it.

Letters of administration:
- Intestacy
Much the same as probate but it is an administrator not an executor as this deal with intestacy.

Their job:

Calls in monies owed - invite anyone who is owed to apply to the rep. and they will deal accordingly - often advertised in local newspapers etc. there are time limits involved
May be trustees
Powers of acquisition and disposition
Administers the estate
Invites creditors to make claims •

Pays debts

Removal of the personal representative

Withdraw the letters of administration or the grant of probate
Decision of the HC. This will take away the power.
HC is entitled, but is generally reluctant to do this and requires quite a high standard of proof as feuds etc. and money is a tense subject.The common law system

Real property v personal
Real > heir-at-law
Personal > Bishop.
Realty couldn't be disposed of by wills in the feudal system. Inalienable.
Personal - you can do what you wish
As the feudal system developed, the realty would pass to the heir-at-law and personal would pass to the bishop in a situation of intestacy.
Regardless of what denomination you were, it went to the church of Ireland bishop, which obviously created controversy
Any will that appeared to deprive the Bishop of claim to personal property was subject to challenge - church court
This developed into the need for a probate court, which was secular, which eventually became the HC.

Intestates act 1954If a man died, widow entitled to 1/3 of his estate and the rest went to his children.

Before this, she was entitled to a fixed amount regardless of what the estate was
Succession act 1965'all existing rules, modes and canons of descent' abolished
No distinction between personal and realty. Everything is considered as part of the estate and there aren't differences in the distribution of chattels and real property.
All children equally entitled regardless of sex
No distinction between children inside marriage and outside marriage.

Terms in the act
➢ ISSUE: children:
- Marital and non-marital (since status of children act 87)
- Unborn
- Adopted
- Born through donor-assisted reproduction? Children and family relationships act 2015 - child who is born under this can inherit from the mother and mother'
spouse partner but not from father? •

Intestate succession:
o S.67 (has been amended by civil partnership act which introduced this status. Since the

o

marriage act 2015, it's no longer possible to enter into a NEW civil partnership, but existing ones are still valid.)
spouses now read as spouse or civil partner.

➢ If an intestate dies with no issue Spouse/ civil partnership - it will go to spouse/ cp
➢ If an intestate dies with children - spouse gets 2/3 and issues get remainder equally
➢ If an intestate dies with no spouse/ cp - the distribution shall be in equal shares to the issues.Only in an equal degree of relationship
So, for example if one of the children were dead and they had grandchildren…

o If not:Any issue more remote than a child…will get the equal share of their parents distribution.Issue includes grandchildren.
For example: if there are three children, they all get 1/3. If one is dead and they have two grandchildren, each of those grandchildren will get 1/6 (e.g the 1/3 of their parents estate divided equally between them).
If there were other more remote relatives in equal status as those grandchildren, they get the same share. This is the principle of equal degree of relationship (whatever the word is)Non-Marital Children41 of the const.
ECHR obligations.
S.4 succession act & children and fam. Relationships act.

Historically excluded.

The 60s in Ireland were backwards and we hold marriage very high.Issue excludes non-marital children

O'B v S 80s
Act said illegitimate children not 'issue' in intestate succession (inheritance without will being distributed). P was illegitimate and said that restricting intestate succession to marital kids was discrimination. SC refused application as 41.3 is a strong provision for protection of the family based on marriage. Illegitimates could benefit under a will though. It was found by the SC that this was not a violation. In essence, they decidedThe constitutional preference for marriage trumps the child's right to equality.
Court may look outside art 40.1 for justification

This is what the legislature intended

Status of Children Acts 1987

Inserted a new provision into the 1965 act to reflect the true opinion of the public.Now irrelevant for the purposes of the succession act, whether parents are married or not.

Children in the womb s.3s.2a descendant conceived before the parents died, but born after death, can inherit as though they were born in that parent's lifetime.

Children of half-bloodinherit the same as full blood.

Parents of the deceasedwill only inherit where there is no spouse/ cp/ issue.no parents, issue, spouse/cp

Siblings

Niece/ Nephew next priority

Next-Of-Kin

the closest blood relationship.How to determine
Count upwards to the nearest common ancestor, and see how many jumps you need to take to reach the intestate.
You need to go through the nearest relatives IN COMMON and whoever takes the least amount of jumps will be the next of kin

Cohabitants

s.172 of Civil partnership Act:One of 2 adults who live together, regardless of gender, and are in an INTIMATE
AND COMMITTED relationship and are NOT RELATED -
The court may make appropriate provision for the cohabitant 'having regard to the rights of any other person having an interest in the matter' DC v DR 2015
Man and women in long term relationship ad woman died intestate. Under the prior strict provisions, the estate would have been distributed among surviving relatives.
Man brought it to the court and court:Document outlined wishes in relation to property which showed an intention for the cohabitant to be given the estate.

On the facts of the particular case,Concluded that 45% went to the cohabitant

This seemed to be in line with the deceased's wishes

THE STATE AS ULTIMATE INTESTATE SUCCESSOR
a. Explain how the State might come to inherit an individual's property s.73(1) of the Succession Act 1965

In the absence of a next of kin, the estate of a deceased person who dies intestate
(without a will) > (intestacy law kicks in > laws of the state will determine how the property will be distributed or allocated as it is at the top of the chain. (feudal system and king) traditional reasons). It will pass to the state as ultimate intestate successor.
The rules of the superior courts:

A NOMINEE of the state may apply for a grant of letters of administration intestate by lodging usual proofs - (the chief state solicitor or the solicitor for the AG)
Letters of administration are what vests a deceased's property In the new possessor if they die intestate. This gives them power to execute the will.
b. What is the relevance of section 13(1)(a) of the Statute of Limitations 1957 in this regard?

Once a grant is issue to the nominee of the state who inherits the property, the nominee may institute proceedings for recovery. While the chief state solicitor may institute proceedings, he is not a state authority…

s.13.1 provides that the limitation period for an action to recover land brought by a state authority is 30 years as opposed to 12 years which is the requisite limitation period for ordinary people.
s.13.2 - 12 years for anyone other than a state authority. If the right of action FIRST
accrued to a state authority, before it began for an ordinary person, it can be brought

• within thirty years by a state authority, or by an ordinary person 'whichever period first expires'.
The chief state solicitor is not a state authority within the meaning of the act meaning he is only allowed a 12 year period, as he is not listed in s.2(1) of the statute, which lists off the five state authorities entitled to the benefits of the longer limitation period.

c. Which State Authorities are entitled to bring an action to recover the estate of a deceased person?Minister of state
Commissioners of public works in Ireland
Irish Land Commission
The Revenue Commissioners
AG

s.23 of the statute:
* an administrator of the estate of a deceased (granted with a probate grant/ letters of administration), once the grant is issued, will be entitled to a claim as if no time had passed between the date of death and the grant of the letters of administration.
* in other words, the action accrues at the date of death irrespective of when the grant of letters is made. Why?
> if it accrued when the letters were granted, the state could basically have total control and discretion as to when the limitation period would start e.g they could wait until it suited them to have the letters granted.
* If someone is in adverse possession and came into it during the time of death and the grant of letters, the state authority is entitled to SEEK recovery, but may be barred by a lawful interest of the adverse possessor - this is subject to the relevant limitation period. Thus, if during the interval of the date of death and the grant of letters, the limitation period has expired, the TITLE to the land will pass to the person in adverse possession and the title of the state will be extinguished.
WILLS AND SUCCESSION

THE FORMAL REQUIREMENTS
s. 78(3).
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.
(4.) It doesn't matter if:


the signature is not immediately after the foot or end of the will;

• If there is a blank space before it

• If the signature is placed among the text of the will

• If the signature is on another piece of paper

• If there was enough space at the bottom of the page / preceding page for the signature. • It can be an X, a nickname, initials, your loving mother etc…as long as it's not too outlandish courts will generally be in favour of enforcing it

➢ Attest: to provide serve as clear evidence of.
a. How many witnesses must be present to attest the signature of a will?
o 2

They must:
o

o o

Be physically and visually present
Have an unimpeded view of the testator signing the will.
Witness the act of signing.
be present at the same time when the testator is singing the will

They need not

See the signature

Know that the testator is signing a will.

Must the witnesses sign in the presence of the testator?

Yes o

they must approve of the signature of the testator, by their own signature in the presence of the testator.

Must they sign in each other's presence?

o The witnesses need not sign in the presence of each other.

Choosing witnesses:
o Ordinary care and exercise as to their capacity to give evidence at a later date.

Can a beneficiary witness a will?
o No

s.82 of the 1965 act:gifts to people attesting to a will are null and void

in other words, you cannot be a witness to a will if you are a beneficiary, or if you attested to a will,
you will not receive what the testator intended you to receive.

➢ The superfluous witness:

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