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)

SURVIVAL OF ACTIONS

Upon death, all causes of action that were vested in that person survive for the benefit of their estate, with the exception of seduction. Since the enactment of the Defamation Act 2009, any action in libel or slander can be maintained by the estate, provided that the act complained of occurred prior to its commencement.

Section 48(1) of the Civil Liability Act 1961 provides as follows:

Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.

Both sections 7 and 8 of the 1961 Act are clear that the Act only applies to actions which were subsisting in favour of the deceased at the date of death and does not apply to causes of action which accrue post death.

Section 6(1) of the Statute of Limitations (Amendment) Act 1991 (as amended by section 7(e) of the Civil Liability and Courts Act 2004) provides for a two-year limitation period for the bringing of an action for wrongful death. The period runs for the later of:

(i) The date of death; or

(ii) The date of the personal representative’s knowledge.

In the case of disability of any of the dependents, the two-year time period only begins to run from the cessation of the disability.

Only one action for fatal injuries may be commenced against the defendant and such an action may be brought by the personal representative. However, in circumstances where the personal representative has failed to bring an action within six months from the date of death (or none has been appointed during that time) the dependants can maintain an action on their own behalf.

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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.