Succession Law

Front 1

Testator

Back 1

Deceased with a Will
Testatrix = Ancient female equivalent

Front 2

Intestate

Back 2

Deceased without a will

Front 3

Beneficiary

Back 3

Someone benefiting from a will in some way

Front 4

Executor/Executrix

Back 4

Personal representative, the person who follows the instructions of a will, cannot be beneficiary

Front 5

Administrator

Back 5

Same as executor, if there is no will

Front 6

Grant of probate

Back 6

Required from court in order to distribute estate
With will (Executor must apply to court to take out grant of probate, will be given grant of representation/right of probate as per s.26/27. Once grant vested, will get ownership for purpose of disposing estate as per s.10/13)

Without will (Letters of grant of administrator from court)

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Function of administrator/executor

Back 7

- Call in money if owed
- Pay off debt (electricity/rent)

- Gather assets together
- Power of acquisitions/dispositions
- Announcement in local paper, allowing people with claims to come forward
- Must be done correctly, objectively in a timely manner
- HC can have personal representative removed and appoint another as per s.26/27

Front 8

Intestacy

Back 8

Govern the distribution of the deceased assets should there have been no will
- If parts of will valid, partial intestacy
- Governed directly by relationship between deceased and the beneficiary
- Civil partner will usually be on same footing as spouse in most circumstances
- Mother over unmarried cohabitant though

Front 9

Pre-1965 intestate succession

Back 9

Governed by CL

# Real property if no will: Heir-at-law, usually oldest son, not automatically widow
# Feudal CL didn't acknowledge that property could be divided until Statute of Will, 1634

# Personal property: Couldn't have more than life interest so went to bishop, controversial in Ireland as bishop church of Ireland (protestant)
# Made difference between female and male beneficiaries
# Also between children within and outside marriage

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Sucession Act, 1965

Back 10

# Abolished all previous law
# No distinction between real and personal property, male and females
- However difference between children within and outside marriage
# Both wills and intestacies

Front 11

Part VI (Intestacy)

Back 11

# Spouse, no issue = spouse whole estate
# Spouse, issue = spouse 2/3, issue 1/3
# No spouse, issue = issue shares equally

Front 12

Civil partner vs spouse

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In intestacy where deceased has issue and CP
- Children can apply to have further share from Civil partner
- Unless child is also child of surviving partner
Child and Family Relationship Act, 2015 s.67

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Definition of an issue

Back 13

- Marital and non-marital children, as per s.4 of Status of Children Act, 1987

- Unborn children in the womb s.3(2)
- Adoptive children, Status of Children Act, 1987
- Children born through donor-assisted human reproduction, s.5 of CFRA, 2015
- If children deceased. grandchildren gets their parent's share
- If all children deceased, grandchildren inherit equally
- Half-blood inherit as those of full blood, not step children though

Front 14

Rank of priority

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1. Spouse/children
2. Parents
3. Siblings
4. Nieces/nephews
- Next of kin, calculated by counting upwards
- If equal degree of relationship, preference for the younger, cannot go sideways in tree

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No next of kin

Back 15

State is the ultimate successor, s.73 SA

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Making of a will

Back 16

- No effect until death of testator
- Ambulatory (may be amended and revocable up until death)

Front 17

Capacity requirements for a will

Back 17

S.77/78
# Testator over 18 y/o unless marries
# Sound disposing mind

Front 18

Banks v Goodfellow

Back 18

Need to understand nature of act, extent of property, understand and appreciate the claims, not disorder of the mind shall poison his affections

Front 19

O'Donnell v O'Donnell

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Affirmed Banks in IE

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Undue influence

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Exist to protect (especially vulnerable) people
# Presumed undue influence does not apply here

# Actual undue influence
Joy v Bannister (wealthy 80 y/o got friendly with young woman. Close relationship, said she lovedhim, wanted toget rid of husband. Persuaded him to leave basically everything toher. Once he made will, began treated him really badly. Because shehad such influence, was afraid to change will. After death, challengedand undue influence invalidated the will

Front 21

Formal requirement

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# Must be in writing, s.78
# Signed near or around end of will
# Any testamentary writing after signature is void
# Must acknowledge signature before 2 witnesses at same time
- Witness cannot be beneficiaries
# Each of witnesses sing to attest testator's presence in his presence, all three must not be in room for this

Front 22

Requirement of signatures

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# If sign with X, okay if acknowledged
# Nickname, yes if clear
# Initials, yes
# Your lovely mother held sufficient
# Stamp or seal, nope

Front 23

Shires v Glascock

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As long as testator can actually see witness signing, does not have to be in same room, presence is enough e.g. blindness

Front 24

Revocation of a Will

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# Future will, either by inserting clause in new will or by implication
# Destruction, physical and mental element
# Marriage, unless future marriage contemplated at time of creation of will
# Conditional

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Extrinsic evidence

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Ademption

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Failure of gift
# Something outside the will which affects the gift
- Testator is no longer the owner of the property in question

- Cash can never be adeemed, other assets will be sold in favour if general property unless the general group of items is longer in testator's possession at time of death

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Device

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Real property

Front 28

Bequests/legacies

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Personal property
# General - gift of personal property by description when testator has several
# Specific - gift of personal property refers to a specific piece of propert
# Residuary

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Satisfaction

Front 30

Doctrine of lapse

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Beneficiary dies before testator
# Does not take affect for X's estate
- Co-ownership is exception, if A, B, C left property and A, B dies before testator, survivorship will apply and C gets property. On the other hand if all 3 dies, all three shares lapse

Front 31

Unlawful killing

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# If killing someone where as that person were a beneficiary under the will or on intestacy, that person may not inherit as a general rule, not if killed spouse or children either

# Pre-deceased rule: Assets should be governed as if the killer was already dead at time of it's victim's death e.g. children of killer will inherit

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Simultaneous death

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If two persons dying in same accident, held to have died at the same time

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Legal right of spouse or civil partner

Back 33

# Legal right to 1/5 or 1/3 of estate

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Cohabitation Act, 2010

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# Right of cohabitant of deceased to apply to share of deceased's estate
# Kind of like s.117
# Must be living together and be financially dependant

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S.117, SA, 1965

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# Children can challenge parents will if they failed a moral duty to provide for them, no specified right, rather discretionary power of court
Re: A, B, C deceased (court considered everything, 3 children, not equal needs. Takes them into account, who other receives money, dependent parent rather than children might be okay, 'reasonable' parent would they have given more?

Front 36

Roe v Law

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Extrinsic evidence

Unfair result,religious person left money to wrong religion by mistake, Roger’s Quay,court held extrinsic evidence in cases where Will is perfectly clear. Section 90 in SA, 1965 followed

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s.90 of SA, 1965

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1.) Show intention of testator
2.) Only admissible to help with construction e.g. it must be somewhat unclear or itmust be contradictory
Very vague and didn't really change anything