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20 Cards in this Set
- Front
- Back
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1. Personal Representatives 1 case |
Given a grant of representation. Once granted, ownership of the estate vests in them. Whether an executor or administrator, have a lot to do. Sorting out debts and assets. Once grant awarded, spend time on assets, discharge debts and liabilites. Notices in local paper that they're administrator and anyone with claims against estate to come forward. HC can have them removed and appoint someone else instead. Very reluctant, needs serious misconduct or conflict of interest. Dunne v Heffernan |
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2. Pre 1965 Intestate Succession |
Real Property dealt with differently to personal property Distinction drawn between male and female heirs Children born outside marriage dealt with differently to children born inside marriage |
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3. The Recovery of Estates of Deceased Persons by a State Authority one section, one section of an act, list of state authorities |
1. s 73(1) In default of any person taking the estate of an intestate, the State shall take the estate as ultimate intestate successor. 2. 13(1) of Statute of Limitations 1957 negates action by the state to recover land 30 years after it accrues to them. 3. A Minister of State; the Commissioners of Public Works in Ireland; the Irish Land Commission; the Revenue Commissioners; and the Attorney General can bring action. |
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4. 1965 Succession Act |
Abolished all existing rules No distinction between real and personal property, marital and non marital children (after 1987) or male and female heirs. Part 6 deals with intestacy: 1. Spouse/civil partner gets the whole estate if no issue 2. Spouse gets 2/3 and remainder distributed among the issue 3. Distributed among issue if no spouse 4. In equal shares among issue if equally related. |
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4. (A): Issue |
Includes: -Children born inside/outside marriage - Unborn children in the womb - Adopted children - Parents of a donor-conceived child are the mother and her spouse/partner/co-habitant |
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4. (B): Spouse v Civil Partner One act, two sections. |
Distinction is drawn when there's a CP and children. s 67 of Succession act (amended by the child and family relationships act 2015). Any of the children can apply to have additional of the estate to be paid to them if they feel their amount is not sufficient, it's taken from the CP. 3A was inserted in 2015. Application cannot be made where the child is also the child of the CP. |
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4. (C): Per stirpes |
Marge predeceases homer, but so does bart. Maggie gets 1/3, Lisa gets 1/3, Bart's children each get a share of his 1/3. The share isn't subsumed back into the estate. |
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4. (D): Non-Marital Children |
1965 Act initially discriminated against them the same way Common Law used to. O'B v S. Because of Art 41 protection, the discrimination ruled to be ok. Led to the s 3 Status of Children 1987 Act. Marital status of parents made irrelevant. Donor conceived children also grand as of Children and Family Act 2010. |
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4. (E): Next of Kin |
s 71. Person who stands nearest in blood relationship. Direct lineal: Computed by counting upwards from intestate to that ancestor Any other: Counting upwards from intestate to nearest ancestor common to the intestate and that relative Where direct lineal ancestor and other relative are so ascertained to be within same degree of blood, other relative is preferred |
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5. Final order |
Spouse/CP• Daughter/Son (step, adoptive, unborn)•Grandchild•Mother/Father•Niece/Nephew•Grandparents•Aunt/Uncle•Cousin•Distantrelatives•TheState |
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6. Capacity |
1. Must be of sound mind at the time of the drafting. s 77 Banks v Goodfellow, adopted in Ireland in O'Donnell v O'Donnell. Must understand the nature of the act and its effect... extent of the property... appreciate the claims... no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural facilities. 2. Must be over 18, unless they are married. s 77 |
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7. Formal Requirements 5 requirements, 1 case, 1 section |
s 78. -Somewhere near the foot of the will must be signed by the testator -She must acknowledge that signature before 2 witnesses at the same time - Each of them signs the will in the testator's presence -Signature can be initialled. It can be a nickname, as long as the testator is clearly identified. -If on the face of it a will appears to be duly executed, a court will not inquire further into the circumstances of its execution, but will presume that all formalities were properly observed, unless there is positive and reliable evidence to the contrary. Clery v Berry |
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8. Amending a will |
s 86 Similar formality requirements as for the original will. Testator and witnesses must sign somewhere to attest the alteration. Opposite or near to it. |
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9. Revoking a will 5 ways, 3 cases, 1 section |
s 85 Can be revoked by subsequent will or codicil. Burning, tearing, or destruction with intention to revoke. Needs actual destruction, Cheese v Lovejoy. Subsequent marriage of testator, except a will made in contemplation of that marriage, expressed or not. Upgrade from CP to marriage does not count. ii) Conditional Revocation of earlier will by later in mistaken belief that later is valid. Re McMullen. Revocation is cancelled, original becomes valid again. Make a will, make a second. Second revokes first. Has another change of heart and revokes second in mistaken belief that first will automatically revive. Court will allow it In Bonis Hogan |
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10. Courts interpreting(constructing) wills
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Fitzpatrick v Collins. Give effect to testator's intention, however eccentric. Re Hogg. May not rewrite, but may omit words which run contrary to testator's intention. Pre 1967, general rule that extrinsic evidence was inadmissible if its effect would contradict the terms of the will. Boyes v Cook armchair principle. Re Jordan, protestant v Catholic charities. No extrinsic evidence allowed. s 90 of 1965 act, extrinsic evidence now permissible to show intention of testator and assist in construction of or explain contradiction in the will. Rowe v Law. SC and HC continued not to allow it. |
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11. Lost Wills |
Presumption of destruction which can be rebutted If you prove it was accidentally lost or stolen by a disappointed relative Sugden. In order to rebutt the presumption, she managed to recite the entire contents of the will. |
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12. Failure of Gifts 9 ways. 2 cases. 2 sections of the act, another act. |
1. Ademption. Failure as a result of external cause which affects gift itself(you don't own it anymore). Fitzpatrick v Sterling 2. Lapse Non-existence of intended recipient. Co-ownership cases, if only one of intended co-owning recipients survives, they take it all. If all three are deceased then lapse. Gifts to charity, it's clear that a general charitable purpose was shown then the gift passes to another similar chairty. 3. Uncertainty s 82 Expressed with such uncertainty that not possible to tell who got it or what is to be given 4. Unlawful Killing s 120 Succession Act. Sane person guilty of murder, attempted murder or manslaughter shall be precluded from taking any share in the estate. When one of two joint tenants die, entire interest passes to surviving joint owner. This forefeiture 120 rule doesn't apply to deceased's interest in the property as this ceases upon death. So the killer becomes the full owner. Cawley v Lillis. Laffoy J considered 3 options: 1: Treat killer as having pre-deceased spouse 2: Sever joint tenancy so entire property is in deceased spouse's estate 3: Treat killer as holding deceased spouse's share on a constructive trust for deceased spouse's estate Law Reform Commission proposed an amendment to s 120. Trying to give effect to no. 2. Succession Amendment Bill 2015, not amended yet. 5. Gifts to Witnesses 6. Disclaimer 7. Simultaneous Death 8. Satisfaction Alread been satisfied in another way 9. Election Intends to dispose of property that doesn't belong to her and to make a gift to the owner. |
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13. Rights of Surviving Spouses and Partners 3 sections of the act 2 sections of 2 other acts |
s 111 of 1965 Act. Legal Right Share. If no children, spouse entitled to 50% of estate if she chooses to do so. If she has children, she is entitled to 1/3. Not automatic. If husband dies and leaves stuff to everyone except his wife, she can elect her LRS to gain her bit of the estate. 6 months from the day the personal rerpesentatives tell her of this right. If they do not, it is 12 months from date of the grant probate. Elect between legacy and legal right 115: Don't get gift and LRS unless there is a term allowing both. Can have a clause extinguishing this right. With judicial separation, during the 5 year period of being separate but still married, still entitled to LRS. 120. Right renounced for murder, desertion for 2 years, conduct which justified separation, offence against deceased spouse or child. Qualified Cohabitant has lived with another in intimate and committed relationship for >5 years, or 2 where there are dependant children. s 172 Civil Partnership Act 2010. May apply for provision to be made out of deceased's estate. s 194 CPA 2010. |
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14. Rights of Surviving Children one section, 2 cases, lots of writing on the case |
s 117. No LRS. Right to make application if they were not made proper provision for underneath the will, ie parent has breached their moral duty towards them. Discretionary application. Doesn't end once you reach age of majority. Providing for education, age of child, mental capacioty. Reliance on parent when they were alive. Socioeconomic status if they are an older child. EB v SS. Court found that proper provision had been made, they had paid for him during his life. Re ABC Deceased. Kearns J. Does testator have a moral duty, and has she failed in it? High onus of proof on applicant. Clear circumstances and failure in moral duty must be established. s 117 duty not absolute. parent-child relationship does not of itself create a moral duty. No obligation to leave something to each child. Provision of expensive education may be enough. Education and money are proper provision. Adequate v 'proper' provision. Consider all of testator's moral obligatioons. |
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14.(B): 117 continued 4 cases |
What is proper provision? MPD v MD: Not merely to house, clothe, maintain, feed and educate, pay medical, dental bills. Also need some advancement for life. XV v RT. Good education and providing money. Re Looney, deceased. Child provided for by others. Other moral obligations. Re ABC Deceased |
