Section 121 of the 1965 Act concerns voidable dispositions that have the purpose of disinheriting a spouse or children. It applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later.
If the court is satisfied that a disposition to which this section applies was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse or civil partner, whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for, then, whether the disponer died testate or intestate, the court may order that the disposition shall, in whole or in part, be deemed, for the purposes of Pts VI and IX, to be a devise or bequest made by him by will and to form part of his estate, and to have had no other effect.
Dispositions made to disinherit spouse or children
In order for a disposition to be set aside, the court must be satisfied that it was made “for the purpose of defeating or substantially diminishing the share of the disponer’s spouse, whether on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for.”
Carroll J. in MPD v MD was of the opinion that the purpose of the disposition is to be judged by the subjective intention of the deceased. In light of the fact that the onus of proof in relation to intention will rest with the person asserting that the disposition comes within the section’s ambit, there is an obvious difficulty in that the person whose intention is being enquired into is deceased.
A disposition to which section 121 applies is not automatically void, but it is to be declared to be within the scope of the section only by order of the court. Provided that the court is satisfied that the disposition has been made for the purpose of disinheriting the spouse or children, it may order that the disposition shall be deemed to be a devise or bequest made by the deceased by his will, and to have had no other effect.
Furthermore, the court may make such further order in relation to the matter as may appear to the court to be just and equitable having regard to the provisions and the spirit of the 1965 Act and to all other circumstances.
To the extent to which the court so orders, the disposition shall be deemed never to have had effect as such and the donee of the property, or any person representing or deriving title under him, shall be a debtor of the estate for such amount as the court may direct accordingly.
Dispositions which are exceptions to the general rule
Certain dispositions may not be set aside by the court. Section 121(6) provides that in the case of a disposition made in favour of the spouse or civil partner of the disponer, an order shall not be made under this section on an application by or on behalf of a child of the disponer who is also a child of the spouse.
An order shall not be made under this section affecting a disposition made in favour of any child of the disponer, if:
(i) the spouse [or civil partner] of the disponer was dead when the disposition was made; or
(ii) the spouse [or civil partner] was alive when the disposition was made but was a person who, if the disponer had then died, would have been precluded under any of the provisions of s.111 from taking a share in his estate; or
(iii) the spouse [or civil partner] was alive when the disposition was made and consented in writing to it.
Parties who may apply
Section 121(5) of the 1965 Act provides that an order may be made under this section:
(i) In the interest of the spouse [or civil partner], on the application of the spouse [or civil partner] or the personal representative of the deceased, made within one year from the first taking out of representation.
(ii) In the interest of a child, on an application under section 117.
The time for making an application under section 121 of the 1965 Act, in the case of a spouse, is one year from the first taking out of representation.
Unlike the time limit in relation to section 117 proceedings, this time limit was not reduced to six months by the Family Law (Divorce) Act 1996. In relation to an application made by a child, no time limit is expressly provided for by s.121, but in light of the fact that an application by or on behalf of the child must be coupled with an application under s.117, the time limit of six months from the date of the extraction of the first grant applies.
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