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)

ACTIONS BY A TESTATOR’S SPOUSE OR CIVIL PARTNER

The rights conferred under Pt IX only arise where a person dies wholly or partially testate. This part of the 1965 Act curtails the testamentary freedom of married persons or persons who enter into civil partnerships. It is important to consider the rights of a spouse or civil partner in conjunction with s.56 of the 1965 Act, which provides for the appropriation of the dwelling in which the spouse or civil partner was ordinarily resident at the date of death.

Application of Part IX

Section 109 provides that:

(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse [or civil partner] or children or both spouse [or civil partner] and children, the provisions of this Part shall have effect.

(2)  In this Part, references to the estate of the testator are to all estate to which he was beneficially entitled for an estate or interest not ceasing on his death and remaining after payment of all expenses, debts, and liabilities (other than estate duty) properly payable thereout.

Right of surviving spouse and civil partner

Sections 111 and 111A state that:

(1)  If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

(2)  If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

Section 111A:

(1)  If the testator leaves a civil partner and no children, the civil partner shall have a right to one-half of the estate.

(2)  Subject to section 117(3A), if the testator leaves a civil partner and children, the civil partner shall have a right to one-third of the estate.

Priority of legal right share

Section 112 provides:

The right of a spouse under section 111 [or of a civil partner under section 111A] (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

Renunciation of legal right share

Sections 113 and 113A state:

The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.

The legal right of a civil partner may be renounced in an ante-civil-partnership-registration contract made in writing between the parties to an intended civil partnership or may be renounced in writing by the civil partners after registration and during the lifetime of the testator.

Effect of devise or bequest

Section 114 provides:

(1) Where property is devised or bequeathed in a will to a spouse [or civil partner] and the devise or bequest is expressed in the will to be in addition to the share as a legal right of the spouse [or civil partner], the testator shall be deemed to have made by the will a gift to the spouse [or civil partner] consisting of—

(a)  a sum equal to the value of the share as a legal right of the spouse [or civil partner], and

(b)  the property so devised or bequeathed.

(2) In any other case, a devise or bequest in a will to a spouse [or civil partner] shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse [or civil partner].

Right of election

Section 115 of the 1965 Act provides that:

(1)

(a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse [or civil partner], the spouse [or civil partner] may elect to take either that devise or bequest or the share to which he is entitled as a legal right.

(b)  In default of election, the spouse [or civil partner] shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

 

(2)

(a) Where a person dies partly testate and partly intestate, a spouse [or civil partner] may elect to take either:

(i)    his share as a legal right, or

(ii)   his share under the intestacy, together with any devise or bequest to him under the will of the deceased.

(b)  In default of election, the spouse [or civil partner] shall be entitled to take his share under the intestacy, together with any devise or bequest to him under the will, and he shall not be entitled to take any share as a legal right.

 

(3) A spouse [or civil partner], in electing to take his share as a legal right, may further elect to take any devise or bequest to him less in value than the share in partial satisfaction thereof.

(4) It shall be the duty of the personal representatives to notify the spouse [or civil partner] in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse [or civil partner] of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the later.

(5) Where the surviving spouse [or civil partner] is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse’s [or civil partner’s] estate, be exercised on behalf of the spouse [or civil partner] by the committee by leave of the court which has appointed the committee or, if there is no committee, be exercised by the High Court or, in a case within the jurisdiction of the Circuit Court, by that court.

(6)  In this section, but only in its application to a case to which subsection (1) of section 114 applies, “devise or bequest” means a gift deemed under that subsection to have been made by the will of the testator.

 

Duty to notify surviving spouse

Section 115(4) provides that it shall be the duty of the personal representatives to notify the spouse in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the later.

A failure to serve notice promptly, therefore, defers the date on which the administration may be completed. Time does not begin to run for the purposes of the Statute of Limitations 1957, as amended by section 126 of the 1965 Act, until the election has been made or the time for doing so has elapsed. Only then does the spouse’s right to receive his share as legal right, or interest under the will, accrue.

Therefore, the right to claim the legal right share becomes statute-barred after six years after which the right to receive same accrues. Where no election is required (where there is no legacy or devise in favour of the spouse) time begins to run from the date of death. Where election is required, the right to claim the legal right share will become statute-barred six years from the date of election.

Effect of election

An election to take the legal right rather than the gift under the will presumably has the same effect as a disclaimer of a gift made by will.

Appropriation

Section 115(3) of the 1965 Act provides that a spouse, in electing to take his share as a legal right, may further elect to take any devise or bequest to him less in value than the share in partial satisfaction thereof. Problems may arise in the valuation of such a devise or bequest, particularly in circumstances when it is given in the form of a life interest. Actuarial valuation will then be required. In particular, difficulties may arise if the devise or bequest is of a life interest in the residuary estate

Surviving spouse of unsound mind

Where the surviving spouse is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse’s estate, be exercised on behalf of the spouse by the committee by leave of the court which has appointed the committee or, if there is no committee, be exercised by the Circuit Court, if a case is within its jurisdiction.

Posthumous election

In Re Urquhart, Fitzgerald C.J. observed:

“In my opinion, the husband’s right to establish and receive a half-share of his wife’s estate depended upon a number of factors under the Act of 1965. First, it depended upon him surviving his wife. Secondly, it depended upon him becoming aware of the fact that he had survived her. Thirdly, it depended upon the husband then deciding to claim the half-share within the time prescribed. In point of fact, he did survive his wife but he never knew it. Consequently, he was never in a position to decide whether he would elect to claim his right to half his wife’s estate or not. In those circumstances, it appears to me that he could not be deemed competent to dispose of the half-share.”

Similarly, Walsh J. expressed his opinion that:

“… the right to take the legal share is not exercisable at all until something is done, within the period specified in sub-s.4 of s.115, which amounts to an election not to take the legacy. If the death of the spouse takes place before such election is made, then the legal share does not form part of the spouse’s estate.

 

Mode of election

No particular form is required for the election of a surviving spouse. The election may be express, or even implied. However, it was held in Re Urquhart that a person’s conduct cannot amount to an election to take the legal right share where the surviving spouse has no knowledge of his right to elect.

 

Provision in satisfaction of legal right

Section 116 provides:

(1)  Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other than periodical payments made for her maintenance during his lifetime) shall be taken as being given in or towards satisfaction of the share as a legal right of the surviving spouse.

(2)  The value of the property shall be reckoned as at the date of the making of the provision.

(3)  If the value of the property is equal to or greater than the share of the spouse as a legal right, the spouse shall not be entitled to take any share as a legal right.

(4) If the value of the property is less than the share of the spouse as a legal right, the spouse shall be entitled to receive in satisfaction of such share so much only of the estate as, when added to the value of the property, is sufficient, as nearly as can be estimated, to make up the full amount of that share.

(5)  This section shall apply only to a provision made before the commencement of this Act.

 

Appropriation

Section 56 of the 1965 Act is amended by the 2010 Act:

(a) by inserting “or civil partner” after “spouse” wherever it appears, and

(b) in subsections (9), (10) and (12) by replacing “the spouse’s” with “his or her” wherever it appears.

Section 56 of the 1965 Act contains provisions intended to protect the interests of a surviving spouse. The principal purpose of this section is to permit the spouse to retain the family home and chattels.

However, where the value of the dwelling house and household chattels is worth more than the value of the legal right share of the spouse then ordinarily the spouse must pay into the estate the difference between the value of the legal right share and the value of the dwelling house and household chattels appropriated, subject to exceptions set out at section 56(10). Section 56 provides three statutory rights of appropriation as follows:

(i) the right of the surviving spouse to have the dwelling appropriated;

(ii)  the right of the surviving spouse also to have any household chattels appropriated; and

(iii) where the share of the surviving spouse is insufficient to enable an appropriation to be made in (i) or (ii), the right conferred by either (i) or (ii) may be exercised in relation to the share of any infant for whom the surviving spouse is trustee under s.57 or otherwise.

The right to require appropriation

Section 56 confers on the surviving spouse a right to require an appropriation to be made under section 55, which provides that the personal representatives may, subject to the provisions of this section, appropriate any part of the estate of a deceased person in its actual condition or state of investment at the time of appropriation in or towards satisfaction of any share in the estate, whether settled or not, according to the respective rights of the persons interested in the estate.

Once a surviving spouse has applied for the appropriation of the dwelling in satisfaction of her claim against the estate, an equity arises immediately in the spouse’s favour that can be enforced by their personal representative in circumstances where the surviving spouse dies prior to the appropriation being completed.

Appropriation pursuant to court order and cases of hardship

In addition to the rights to require appropriation conferred by section 56, the surviving spouse may, so long as a right conferred by this section continues to be exercisable, apply to the Circuit Court for appropriation on the spouse’s own behalf and also on behalf of any infant for whom the spouse is a trustee or otherwise.

On any such application, the court may, if of the opinion that, in the special circumstances of the case, hardship would otherwise be caused to the surviving spouse or to the surviving spouse and any such infant, order that appropriation to the spouse shall be made without the payment of money or subject to the payment of such amount as the court considers reasonable.

Restrictions on appropriation

It is important to note that rights provided for by section 56 are restricted:

  • where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate;
  • where the dwelling is held with agricultural land, an estate or interest in which forms part of the estate;
  • where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house;
  • where a part of the dwelling was, at the time of death, used for purposes other than domestic purposes.

In such instances, the personal representative may not appropriate the dwelling for the surviving spouse unless, as per section 56(6)(c) ‘the court, on application made by the personal representatives or the surviving spouse, is satisfied that the exercise of that right is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of the administration and authorises its exercise.’

In light of subsection 5(b) and indeed the decision of the Supreme Court in H v H [1978] valuation evidence must be put before the court which shows that the appropriation as sought will not (i) diminish the value of the assets (other than the dwelling); and (ii) it will not make the disposal of the balance of the asserts more difficult.

It is not open to the beneficiaries or personal representatives to allow the appropriation proceed by consent or agreement, without the approval of the court (S v H and others [2010] IEHC 70). Although, of course, a court would be more likely to accede to the appropriation if there is no objection from the beneficiaries.

Whilst there appears to be no time limit for the issuing of a Special Summons (in the High Court) or a Succession Law Civil Bill (in the Circuit Court), it goes without saying that the parties must act with due expedition, so as not to delay the administration of the estate.

Notice to surviving spouse

It shall be the duty of the personal representatives to notify the surviving spouse in writing of the rights conferred by this section. The time does not begin to run against the surviving spouse until the notice is served.

Time limits

A surviving spouse may exercise the right of appropriation within six months of receipt of the notice or one year from the date of the grant, whichever is the later.

Restrictions on disposing of dwelling or household chattels

Section 56(8) of the 1965 Act provides that so long as a right conferred by s.56 continues to be exercisable, the personal representatives shall not, without the written consent of the surviving spouse or civil partner or the leave of the court given on the refusal of an application under para.(b) of subs.(5), sell or otherwise dispose of the dwelling or household chattels except in the course of administration owing to want of other assets.

Persons of unsound mind

Where the surviving spouse or civil partner is a person of unsound mind, a requirement or consent under this section may, if there is a committee of his or her estate, be made or given on behalf of the spouse by the committee by leave of the court which has appointed the committee or, if there is no committee, be given or made by the High Court or, in a case within the jurisdiction of the Circuit Court, by that court.

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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.