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)

LOSS OF DISTRIBUTION RIGHTS

Section 120 of the 1965 Act governs the circumstances upon which a spouse, civil partner or child may be excluded from inheriting on intestacy.

It provides that:

(1) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.

(2) A spouse against whom the deceased obtained a decree of divorce a mensa et thoro, a spouse who failed to comply with a decree of restitution of conjugal rights obtained by the deceased and a spouse guilty of desertion which has continued up to the death for two years or more shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.

(2A) A deceased’s civil partner who has deserted the deceased is precluded from taking any share in the deceased’s estate as a legal right or on intestacy if the desertion continued up to the death for two years or more.

(3) A spouse who was guilty of conduct which justified the deceased in separating and living apart from him shall be deemed to be guilty of desertion within the meaning of subsection 2.

(3A) A civil partner who was guilty of conduct which justified the deceased in separating and living apart from him or her is deemed to be guilty of desertion within the meaning of subsection 2A.

(4) A person who has been found guilty of an offence against the deceased, or against the spouse (or civil partner) or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.

(5) Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased.

Practitioners will most commonly have to deal with this section when a claim is made by the deceased’s spouse or civil partner. If the estate can prove that the spouse or civil partner has deserted the deceased for a period of at least two years immediately preceding the date of death, they may be precluded from taking by legal right or on intestacy.

In addition to ‘actual desertion’, which speaks for itself, ‘constructive desertion’ may arise in circumstances where as a result of substantial misconduct on the part of the deceased, the surviving spouse was left with no choice but to part company with them. Of course, any agreement to live apart or reconciliation may cease any desertion.

Up Next >> ACTIONS BY PERSONAL REPRESENTATIVES

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.