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 FORMER SPOUSE OR CIVIL PARTNER

Upon the granting of a decree of divorce a mensa et thoro, the marriage is dissolved and the spouse (former) is precluded from inheriting by way of legal right or on intestacy.

However, it is important to note that as a resultof section 18 of the Family Law (Divorce) Act 1996, a court may order that provision be made for the divorced spouse out of the estate of their former spouse. Section 18(1) provides as follows:

Where one of the spouses in respect of whom a decree of divorce has been granted dies, the court, on application to it in that behalf by the other spouse (“the applicant”) not more than 6 months after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased spouse.

 So, any application must be made within six months for the grant of representation. In applying similar logic as Ms. Justice Laffoy did in In the Matter of the Estate of F. Deceased it is likely that the six-month limitation period in which to make such an application, may only begin to run from the date of the extraction of a grant of probate or a grant of administration with the will annexed, rather than the date of a limited grant

This right also extends to former spouse whose succession rights would ordinarily have been extinguished as a result of a judicial separation.

No application can be made in either case in circumstances where the former spouse had remarried.

Pursuant to section 18(6):

The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section

Upon notification, the former spouse the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.

In relation to civil partner, section 127 of the Civil Partnership and Obligations of Cohabitants Act 2010 contains similar provision, as set out in relation to former spouses, for former civil partners, who have not married or entered into a new civil partnership.

Up Next >> LOSS OF DISTRIBUTION RIGHTS

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.