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)

APPLICATIONS BY COHABITEES

Pursuant to the 2010 Act, cohabitees may have certain succession rights to the estate of their deceased cohabitee and section 172 provides for the definition of a “cohabitant” and a “qualified cohabitant”:

(1) For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

(2) In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following

(a)  the duration of the relationship;

(b)  the basis on which the couple live together;

(c)  the degree of financial dependence of either adult on the other and any agreements in respect of their finances;

(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(e)  whether there are one or more dependent children;

(f)  whether one of the adults cares for and supports the children of the other; and

(g)  the degree to which the adults present themselves to others as a couple.

(3) For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature.

(4) For the purposes of this section, 2 adults are within a prohibited degree of relationship if—

(a)  they would be prohibited from marrying each other in the State, or

(b)  they are in a relationship referred to in the Third Schedule to the Civil Registration Act 2004 inserted by section 26 of this Act.

(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—

(a)  of 2 years or more, in the case where they are the parents of one or more dependent children, and

(b)  of 5 years or more, in any other case.

(6) Notwithstanding subsection (5), an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if—

(a)  one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

(b)  at the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years.

 

Section 194 provides for the application for provision from estate of deceased cohabitant:

(1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.

(2) Notwithstanding subsection (1), a qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant—

(a)  was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,

(b)  had, not later than 2 years after that relationship ended, made an application for an order under section 174, 175 or 187 and either—

(i)    the proceedings were pending at the time of the death, or

(ii)   any such order made by the court had not yet been executed,

OR

(c)  had, not later than 2 years after the relationship ended, made an application for an order under section 174 , 175 or 187, the order was made, an application under section 173 (6) was subsequently made in respect of that order and either—

(i)  the proceedings in respect of that application were pending at the time of the death, or

(ii)   any such order made by the court under section 173 (6) in favour of the qualified cohabitant who is the applicant under this section had not yet been executed.

(3) The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.

(4) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including—

(a)  an order made under section 173 (6), 174, 175 or 187 in favour of the applicant,

(b)  a devise or bequest made by the deceased in favour of the applicant,

(c)  the interests of the beneficiaries of the estate, and

(d) the factors set out in section 173 (3).

(5) The court shall not make an order under this section where the relationship concerned ended before the death of the deceased and—

(a)  the court is not satisfied that the applicant is financially dependent on the deceased within the meaning of section 173 (2), or

(b)  the applicant has married or registered in a civil partnership, or in a legal relationship of a class that is the subject of an order under section 5.

(6) The applicant shall give notice of an application under this section to the personal representative of the deceased, any spouse or civil partner of the deceased and to any other persons that the court may direct and, in deciding whether to make the order and in determining the provisions of the order, the court shall have regard to any representations made by any of those persons.

(7) The total value for the applicant of the provision made by an order referred to in subsection (4) (a) on the date on which that order was made and an order made under this section shall not exceed any share of the applicant in the estate of the deceased qualified cohabitant to which the applicant would have been entitled if the qualified cohabitants had been spouses or civil partners of each other.

(8) If the qualified cohabitant does not notify the personal representative as required by subsection (6), the personal representative may distribute the assets of the deceased qualified cohabitant or any part of them amongst the persons entitled to them and is not liable to the qualified cohabitant for that distribution.

(9) Nothing in this section prejudices the rights of the qualified cohabitant to follow assets into the hands of a person who has received them.

(10) An order under this section shall not affect the legal right of a surviving spouse.

(11) For the purposes of this section, “net estate”, with respect to the estate of a person, means the estate that remains after provision for the satisfaction of—

(a)  other liabilities of the estate having priority over the rights referred to in paragraphs (b) and (c),

(b)  any rights, under the Succession Act 1965, of any surviving spouse of the person, and

(c)  any rights, under the Succession Act 1965, of any surviving civil partner of the person.

 

From a time limits perspective the application must be made before 6 months have lapsed since the grant of representation has issued in respect of the deceased’s estate.

There is no onus on a personal representative to inform a qualified cohabitant of the death as there is for them to inform a Civil Partner for whom a decree of dissolution has been granted. This will obviously only be relevant where the relationship came to an end before the death, in which case it may be that the personal representative is unaware of such a relationship because there will be no relevant register of it. It is worth noting this lack of obligation on the part of the personal representative though, particularly when compounded with the relatively short time limit after the grant of representation within which the application can be brought.

There is nothing stopping one issuing the application prior to the issue of the grant once entirely satisfied as to who the personal representative will be. Arguably, implicit in section 194(8) is a duty on the personal representative not to distribute the assets of the estate while on notice of such an application and it would be worthwhile pointing this out in correspondence to the personal representative when or before serving papers.

Furthermore the applicant must put the personal representative and any spouses or civil partners on notice of the application; the court may direct further parties to be put on notice but with a view to expediting the proceedings it would be beneficial to inform any children and/or dependants of the application.

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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.