Probate Practice Guide by Karl Dowling BL

The Limitation of Actions & Time Limits

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The Limitation of Actions & Time Limits in Probate Practice (& Associated Practical Issues)

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Reading the Will

INTRODUCTION

The need for time limitations on the institution of proceedings is rather self-evident. With the passage of time, it is clear that recollections fade, records are lost and witnesses pass away.

In the words of Best C.J. in A’ Court v Cross,

“long dormant claims often have more cruelty than justice in them”.

The Statute of Limitations 1957 imposes temporal limitations on the bringing of proceedings, with Part XI of the Succession Act 1965 having made changes to the law governing the limitation of actions in respect of the estates of deceased persons. It is noteworthy that the limitation periods applicable to succession actions are considerably shorter than if proceedings are prosecuted or defended by living parties.

See below: Probate Claims Time Limits Table 

As noted by Carroll J. in MPD v MD, the reasoning for the comparatively short time limits is to enable the estate to be distributed without unreasonable delay.

Indeed, the Supreme Court in Moynihan v Greensmyth, stated that:

“Bearing in mind the State’s duty to others – in particular those who represent the estate of the deceased, and beneficiaries – some reasonable limitation of actions against the estate was obviously required.”

Of course, the shorter limitation periods inevitably can cause much concern for the probate practitioner, and indeed the view of Mr. Justice McMahon and Professor Binchy is that ‘the area of wills and probate is a minefield for solicitors’.

Where a solicitor fails to initiate proceedings within the specified time limit, an action in negligence may lie as against them.

However, the court will have regard to the merits of the Plaintiffs case, had it been issued, and, if it transpires that the court concludes that the Plaintiffs case did not have merit, then, whilst there might have been professional negligence, no loss would have occurred, and, the case would be dismissed (see Purcell v Cleland).

In light of the recent decision of the courts in In the Matter of the Estate of F. Deceased and Cavey -v- Cavey & ors, this paper is a timely examination of the most common limitation of actions and time limits that affect the probate practitioner.
 

Up Next >> ACTIONS BY A TESTATOR’S CHILDREN

 

Probate Practice Time Limits Table

This table shows the Statute of Limitations periods for probate actions.
ACTIONTIME PERIODNOTES
Section 117 Succession Act 1965 - Provision for ChildrenWithin six months of Grant of Probate or Grant of Administration with Will Annexed.No extension of time available in case of minority of unsoundness of mind (MPD v MD [1981] ILRM 179
Legal Right ShareSix years:
No election required - from date of death.
Election required - date of election or expiry period in which to elect.
No children - one-half of net estate.
Children - one-third of net estate.
Section 115 Succession Act 1965 - Right to ElectSix months from receipt of spouse of notification or one year from the deceased's date of death, whichever is later.No posthumous election by spouse’s estate - right to election must be made prior to death of survivor.
Section 56 Succession Act 1965 - AppropriationSix months from receipt of spouse of notification or one year from the deceased's date of death, whichever is later.Restrictions where dwelling:
(i) Part of Building
(ii) Part of Farm
(iii) Hotel or Guest House
(iv) Other than Domestic Purpose
Section 18 Family Law (Divorce) Act 1996 - Provision for Divorced or Judicially Separated SpouseWithin six months of Grant of Probate of Grant of Administration with Will Annexed.Not permitted where spouse has remarried. Section 127 Civil Partnership Act 2010 - Civil Partners can apply.
Section 120(2) Succession Act 1965 - Loss of Succession RightsDesertion continues for at least two years up to the date of death.Not if: (i) agreement to live apart; or (ii) reconciliation.
Section 13(2) Statute of Limitations - Actions by Personal Representatives.Twelve years from the date of death.
Section 127 Succession Act 1965 - Actions by BeneficiariesSix years from the date of death.Executors’ year - no action may be brought until expiry of one year after date of death.
Section 52(4) Succession Act 1965 - Court Order for Personal Representative to Execute AssentTwelve months from the date of death must have expired.
Section 9 Civil Liability Act 1961 - Actions by CreditorsTwo years from the date of death.No extension. If no grant, may use section 27(4) Succession Act 1965 seeking Ad Litem Grant.
Section 172 Civil Partnership and Obligations of Cohabitants Act 2010Within six months of Grant of Probate of Grant of Administration with Will Annexed.
Promissory EstoppelTwo years from the date of death.Cavey & Cavey [2010] IESC 16
Proprietary EstoppelTwo years from the date of death.Cavey & Cavey [2010] IESC 16
Construction SuitNo time limit, however, court will look at delay on part of Applicant.High Court: Special Summons.
Circuit Court: Succession Law Civil Bill.
Condemnation of Testamentary DocumentNo time limit, however, court will look at delay on part of Applicant.High Court: Plenary Summons.
Circuit Court: Testamentary Civil Bill. Affidavit of Scripts required to be lodged in both courts.
Section 121 Succession Act 1965 - Voidable DispositionsBy spouse - one year from grant.
By child - six months from grant (as part of section 117 claim).
Seeking dispositions made by deceased made within three years prior to date of death to be brought back into estate.
Section 43 Statute of Limitations 1957 - Actions for Breach of TrustSix years from the date of accrual.Time does not run where: (i) fraudulent breach of trust; (ii) Wrongfully retained or converted trust property; or (iii) property retained by trustee(s).
Section 127 Succession Act 1965 - Extension of TimeThree years from ending of disability or six years from accrual of action - which is longer.Does not apply to claims pursuant to section 117. Can also rely upon fraud, concealment, acknowledgement or part payment.
Section 48(1) Civil Liability Act 1961 - Survival of ActionsTwo years from the date of death.Time only runs from cessation of disability.
Benjamin OrdersNo time limit, however, must act with due expedition.Re Benjamin [1902] 1 Ch. 723.
Section 38(1) Succession Act 1965 - CaveatsWarning must be served within 14 days of issue.
Appearance to Warning must be entered with 14 days of service.
Probate Office - Order 80, rules 48 to 55 RSC.
District Probate Registries - Order 79, rules 41 to 51 RSC.
Order 79, rules 52 to 58 Rules of the Superior Courts - Citation ProcedureAppearance must be entered with 8 days of service.
Side Bar Order - 14 days for person cited to extract grant.
Only Probate Office has jurisdiction, not District Probate Registries.
Order 79, rule 5(3) Rules of the Superior Courts - Rival Applications.Probate Officer must give 14 days’ notice to rival applicants.

Up Next >> ACTIONS BY A TESTATOR’S CHILDREN

 

By | 2017-03-04T20:04:44+00:00 November 9th, 2016|Papers, Probate|0 Comments

About the Author:

Karl Dowling is a Barrister at Bar of Ireland & Bar of England and Wales. He is editor of the Irish Probate Journal and Committee member of the Society of Trust and Estate Practitioners (STEP) Ireland and coordinator of the Law Society’s Certificate & Diploma in Trust and Estate Planning.