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 BENEFICARIES

Section 127 of the Succession Act 1965 provides that:

The Statute of Limitations, 1957 , is hereby amended by the substitution of the following section for section 45:

“45. (1) Subject to section 71, no action in respect of any claim to the estate of a deceased person or to any share or interest in such estate, whether under a will, on intestacy or under section 111 of the Succession Act, 1965, shall be brought after the expiration of six years from the date when the right to receive the share or interest accrued.”

Beneficiaries who seek to establish an interest or share in an estate must do so within six years of the deceased date of death and this time period applies irrespective of whether the deceased died testate or intestate. Furthermore, the limitation period applies to actions in respect of real property and personal property.

As noted above, a personal representative has a period twelve years in which to initiate proceedings seeking the recovery of estate property and therefore, a situation could arise wherein the personal representative could recover property in excess of six years post death and would not be compellable to account for it to the beneficiaries. Notwithstanding the recommendations of the Law Reform Commission on this issue, there is no sign of the Oireachtas acting to remedy this limitation lacuna.

Executors Year

Section 62(1) of the Succession Act 1965 provides that the personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.

It is important to note that the time period in which to bring any action continues to run from the date of death, notwithstanding the executors’ year.

In Waddel v Harshaw the court held that the prohibition on beneficiaries bringing proceedings during the year does not prevent the limitation period from running in respect of such actions, as the right to receive a legacy arises on the date of death and not one year later. However, some doubt remains on this point, with some believing that the six-year time period does not begin to run from the ending of the executors’ year. My view is to err on the side of caution and issue with six years from the date of death.

Court Order for Personal Representatives to Execute Assent

Section 52(4) of the Succession Act 1965 provides:

At any time after the expiration of one year from the death of an owner of land, if the personal representatives have failed on the request of the person entitled to transfer, by assent or otherwise, the land to the person entitled, the court may, if it thinks fit, on the application of the person entitled and after notice to the personal representatives, order that the transfer be made, and, in default of compliance with that order within the time specified therein by the court, may make an order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.

Therefore, the court may make such an order if the personal representatives have failed to make such a transfer, more than 12 months after the date of death of the deceased.

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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.