Author: Terry Gorry

10 Tasks That Newly Appointed Executors Ought to Take Care Of

Post author By Terry Gorry
Post date May 4, 2014

Acting as executor of a loved one’s estate carries with it a huge responsibility.

It shouldn’t scare you off from agreeing to be the executor for a friend or loved one-after all, it is a great honour to be trusted sufficiently by a friend or relation. But you do need to know what an executor is expected and obliged to do.

Your function as executor is to extract a grant of probate to the estate of the deceased and to administer their estate. As executor, your powers and duties date from the date of death of the deceased.

From the date of death the whole estate devolves or passes to you as executors. You have very wide powers under general law, apart from any powers given to you under the will.

An executor may renounce the executorship but once you decide to take on the role of executor you cannot then renounce it at a later stage.

The duties of a personal representative last for life; therefore your obligations as executor are ongoing.

Below is a simple set of guidelines on the powers and duties of executors.

It is set out in very brief and summary form but will give you a good idea of what is involved in being and executor:

First duty of executor: disposal of the body of testator
Ensure the valuation and protection of the assets of the estate

Ascertain all liabilities/debts/taxes and the beneficiaries of the estate
Swear an Inland Revenue affidavit for filing with the Revenue Commissioners
Extract the Grant of Probate and gather in all the assets
Pay the expenses and debts of the estate
Prepare administration accounts.

The above is a basic summary of what you will need to do. A good, helpful solicitor will help you with all of the jobs set out above-in fact (s)he will do many of them for you and will guide and advise you on all matters in relation to the administration of the estate.

Your solicitor will also instruct you fully on all those duties or tasks which you alone can perform; (s)he will explain fully all documents and declarations which you are required to sign.

To help your solicitor and to make the administration of the estate as smooth as possible the following 10 tasks will need to be taken care of by you as executor:

Collect financial information and assets from deceased’s home, details of accounts, share certificates
Get death certificate (register death first!)
Gather addresses of beneficiaries and family members
Arrange insurance on property, contents and other insurable items
Sort out or obtain at least funeral/headstone accounts
Remove valuables from property and organise safekeeping
Clear house and arrange for the sale of contents where necessary
Sell car and cancel insurance
Cancel health insurance and obtain any refund, if applicable.
Apply for bereavement grant if appropriate.

Tags duties of an executor, powers of an executor

Administration of Estates-Probate

Second Grants of Representation/De Bonis Non Grants

Post author By Terry Gorry
Post date January 26, 2014

A de bonis non grant arises where a personal representative has extracted a primary grant of representation but does no fully administer the estate, for example where he/she dies.

A de bonis non grant is appropriate where the personal representative is alive when the primary grant issues but subsequently dies; a revocation of a grant will arise where the personal representative dies between the time he applies and the grant issues.

A DBN grant will also be required where a property is to be sold and it is then discovered that the property is still registered in the name of the deceased former owner-for one reason or another the personal representative failed to execute a deed of assent to vest the property in the name of the beneficiary. This failure by the personal representative makes it necessary to raise representation once again to the estate of the deceased registered owner by way of a de bonis non grant.

There are 2 types of DBN grants:

if the deceased died testate the appropriate DBN grant will be a “grant of letters of administration with will annexed DBN”
if the deceased died intestate the correct grant will be a “grant of letters of administration intestate DBN”.

The persons entitled to take out a DBN grant will be, on intestacy, as set out in the Succession Act, 1965 and the Rules of the Superior Court, 1986, order 79.

In a testate situation the grant will be given to the next person entitled under the rules referred to above, assuming that the executor has died or renounced, and all other executors have died or renounced.

Documents Required to extract a DBN

To extract a DBN you will need the documents required to extract a primary grant and in addition you will need:

the original/primary grant
inland revenue form A3 (E) or A3 (C)
form D1 where there is immovable property

Other second or subsequent grants can arise where there is unadministered probate and the rights of another executor were reserved prior to the death of an executor; if a will has been proved by an executor and subsequently a codicil to that will is found, a supplemental grant of probate can be issued to the acting executor.

If you find yourself in any of the situations outlined above you should really seek professional legal advice.
By Terry Gorry Google+

Tags dbn grant, de bonis non grant, second grant

Making a Will

How to Make a Valid Will in Ireland-10 Key Components

Post author By Terry Gorry
Post date January 11, 2014

This piece will look at why you need to make a will, what are the requirements for a valid will, what a will should contain, some common mistakes made in drafting wills, what legal recourse has an unhappy child if (s)he feels that (s)he has not been provided for, and more.

Why Make a Will?

There are a number of important reasons why you should make a will in Ireland.

Making a will allows you to provide for the passing of your property with a clear legal document.

If you make a will you ensure that the minimum of Capital Acquisitions tax is paid by beneficiaries
You can provide for the special needs of a loved one by making a will
Administration of the estate is quicker and less expensive than if you do not make a will
You choose who handles your affairs on death rather than having the state do it for you.

So in summary you keep control of your affairs and property on your death when you make a will.

What is a will?

A will is a formal document which sets out how a person (the ‘testator’/ ‘testatrix’) wishes to dispose of his or her property on death.

A person may make as many wills as he wishes, but the only relevant one is the last valid will made before his death.

For a will to be valid in Ireland, the testator must

Have attained the age of 18 or is or has been married
Be of sound disposing mind

Requirements for a valid will

1.the will must be in writing,
2.testator must sign in the presence of each of 2 or more witnesses
3.witnesses must attest by their signatures the signature of the testator in the presence of the testator, but not necessarily in the presence of each other
4. The signature must be found at the foot (end) of the will

In Writing

The idea of a will having to be in writing has been generously interpreted by the courts and basically means some permanent evidence of the testator’s intention.

Contents of the will

A will should contain at least 10 basic elements:

the testator’s name and address,
a revocation clause (re previous wills),
appointment of executors
a list of legacies (gifts of money or goods)
a list of devises (gifts of real property),
a residuary clause, disposing of the remainder of the estate and dealing with all eventualities
the date,
the testator’s signature
an attestation clause
signature of the two witnesses with their addresses and descriptions.

Legacies and Devises in Wills

A legacy is a gift of personal property under a will. A devise is a gift of real property.

There is a number of different types of legacy:

A general legacy-this is a gift out of the rest of the estate after the payment of debts, outstanding taxes owed by the testator, and specific legacies;
A specific legacy-an example would be a motor car, however this can be given away by the testator during his lifetime in which case the gift will be adeemed (disappeared);
A demonstrative legacy-this is a mixture of a general and specific legacy;
A conditional legacy-this legacy has a condition attached which will see the bequest forfeited if the condition is not fulfilled;
An abated legacy-this is where the residue of the estate is insufficient to meet the testator’s debts and liabilities then a general legacy is first to abate pro rata;
An adeemed legacy-this is where the testator gives away during his lifetime the item referred to in the will
A charitable legacy-it is vital that the charity is clearly identified. The Cy Pres doctrine gives us a general principle that a charitable bequest will not fail for uncertainty.

Common mistakes in making a will

A will is revoked by marriage but not by divorce
Wills made in other jurisdictions-if a revocation clause revokes ALL previous wills then it will revoke foreign wills, which may not have been intended
Problems arise if a will is destroyed but not by the testator as an act of destruction must be done with the intention of revocation by the testator

Good ideas when making a will

Appoint more than 1 executor
Do not appoint an alternative executor as this will fail for uncertainty (eg I appoint Tom or Sean)
Get a solicitor to draft it.

It may be necessary to insert, depending on whether there are young children,

appointment of trustees
appointment of guardians
establishment of a trust
additional powers for executors and trustees
various enabling clauses

A witness or his spouse cannot benefit under a will.

Doctrine of lapse

If a beneficiary predeceases a testator, whatever was left to that beneficiary fails and that gift will be distributed as if the testator died intestate, unless he has an effective residuary clause in the will.

This shows again the need to have a properly drafted will and why it is not a job for a DIY enthusiast.

There are exceptions to the doctrine of lapse:

bequests to children and “issue” (section 98 children)
where the bequest is in discharge of a legal or moral duty
where there is a bequest to someone on trust for another
where a will provides for what will happen in the event of a beneficiary predeceasing.

Residue

Section 91 of the Succession Act, 1965 states:

Residuary devise or bequest to include estate comprised in lapsed and void gifts.[1837 (c. 26) s. 25]

91.—Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.

For this reason it is absolutely essential that your will contains a residuary clause.

Enabling clauses in a will

It can be very important to insert appropriate enabling clauses in the will because if they are not present the Succession Act makes various provisions such as section 63 which deals with advancement and provides that any payments to a child during the life of the testator will be deducted in calculating the share of that child on the death of the testator.

If the testator leaves a business then if trustees are appointed they will need to have the power to borrow, lend and run a business.

Without these extra powers the trustees can not do so.

If a child predeceases the testator then the benefit that such child would have received goes to that child’s estate, not necessarily to the deceased child’s children.

This is contained in S98 of the Succession Act, 1965 and is very important if you want to ensure that whatever you leave to your child goes to your grandchildren then you have to insert an enabling clause (a gift over clause) to ensure the benefit goes to your grandchildren and not your errant son/daughter in law.

Section 55 of the Succession Act, 1965 provides for a personal representative having the power to appropriate any part of an estate in or towards satisfaction of any share in the estate. However this can attract stamp duty if the specific power to appropriate without notices is not contained in the will.

Apportionment: it is a good idea to exclude the common law and statutory rules re apportionment as the failure to do so may lead to time consuming exercises in calculating income post death and apportioning it.

Powers of Trustees

If you have to insert a trust in the will it is a good idea to give extra powers to the trustees because their statutory powers are limited enough.

An example of such a clause would be:

In addition to all statutory powers which my trustees may have they shall have all the powers specified in the schedule hereto

These extra powers might include:

the power of investment
the power to lend
the power to borrow/mortgage
the power of maintenance
the power to trade/run a business
the power to insure property
the power of trustees to purchase assets from the estate

What actions can a child take against an estate?

Section 117 of the Succession Act, 1965 allows him to take an action where the testator has failed in his moral duty towards that child.

This is a matter for the court to decide and many cases have been thrashed out in the courts in order to make sense of this moral duty.

Testamentary capacity for making a will

A testator must:

understand that he is making a will,
a document that will dispose of his assets on death
must know the nature and extent of his estate
Must be able to have regard for those who might expect to benefit from his estate and decide whether he wants to benefit them

Capacity to make a will may be proved by a sworn statement from a doctor or solicitor who attended the deceased at the time the will was made.

In the event of a challenge to the testamentary capacity of the testator, the Courts will decide and have been called upon to do so on many occasions.

An undated will is not necessarily invalid, but a witness will have to swear that the will was executed before the testator died to satisfy the Probate office.

Wills in Special Cases-Imminent Death, the Elderly and Mental Capacity

Wills drafted in cases of imminent death, for the elderly, or for someone about whom there is a doubt as to their mental capacity can be problematic.

Imminent Death

In cases where the testator is in a nursing home or hospital and is in danger of imminent death the following considerations need to be considered:

The testator is capable of giving instructions and (s)he is able to read it, or at least understand it when it is read back to him
The attestation clause should cover the circumstances and a medical report on the condition of the patient may need to be obtained. (The attestation clause is the final element of a will and appears after the testator’s signature. It will state: ‘Signed and acknowledged by the above named Testator as and for his last Will and Testament in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereunto subscribed our names as Witnesses)
At least two independent witnesses are obtained.

Elderly Testators

The elderly can be vulnerable because of ill health, advanced age, lack of education, mental incapacity. Special care needs to be taken therefore when they are making their will.

There is a presumption in law of soundness of mind, testamentary capacity, and due execution where a will is formally valid. If the will is later to be challenged on the basis that the testator was of unsound mind it is up to the challenger to prove it.

Testamentary Capacity

The test for testamentary capacity was laid down in 1870 in the case of Banks v Goodfellow.

There are 3 elements to testamentary capacity:

The testator must understand he is making a will which will dispose of his assets when he dies
The testator must be capable of knowing the extent of his estate
The testator must be able to give consideration to those people who might expect to benefit and decide whether or not to benefit them.

Undue Influence

Elderly people are susceptible to outside or undue influences when it comes to making a will.

There are certain relationships where a question of presumed undue influence arises. These are situations where the relationship is one where a relationship of trust and confidence existed between the parties, eg solicitor/client, doctor/patient.

Other relationships can also arise where, even though no presumption of undue influence arises, one party placed trust and confidence in the other party and there may have been actual undue influence.

Independent legal advice for the testator is the recognised way of rebutting any presumption of undue influence.

Conclusion
Whilst making your own will is very doable it is not advisable for the reasons outlined above and the Succession Act 1965 has various provisions in it which will kick in if you have not made provision for them.

If legal challenges arise to the will the courts may award costs out of the estate, even to the losing challenger so it is crucial that you have properly drafted, legally sound will.

It is a supreme folly for anyone not to make a will and ensure the smooth passing of his/her property to those he loves.

To ensure that your will is sound and valid or to have a will made you can contact Terry through the Contact form on this site and he will be in touch with you within 24 hours to make an appointment.
By Terry Gorry Google+

Tags doctrine of lapse, elderly testators, enabling clauses, how to make a will, section 117 succession act 1965, section 98 children, testamentary capacity, undue influence, what is a will

Administration of Estates-Probate

The Role, Duties and Powers of an Executor in the Administration of Estates and Probate

Post author By Terry Gorry
Post date January 11, 2014

An executor is the person appointed in a will to administer the estate of a deceased person. He/she is entitled to take out a grant of probate to the estate of the deceased.

An administrator (administratix if female) extracts a grant in an intestate situation or in a testate situation where the executor has died.

Both executors and administrators are known as ‘legal personal representatives’.

Once a person undertakes the role of personal representative of an estate his/her role as a personal representative never ceases.

Who Can Be an Executor?

Pretty much anyone, provided they are not under a disability, and this includes a beneficiary can be an executor.

A professional such as an accountant or solicitor can also act as an executor. However an executor is not entitled to be paid for his services as of right so there should have been a charging clause inserted in the will.

An executor can be appointed expressly in the will or “according to tenor”-this derives from the tenor of the will and the functions assigned to them in the will.

There is no limit on the number of executors that can be appointed but no grant of administration shall be granted to more than 3 persons unless the Probate Officer otherwise directs.

An executor does not have to act; he can accept, reserve or renounce the executorship.

The Courts have decided that only in very serious cases will it order the removal of an executor.

The Role of an Executor

An executor’s job is to extract a grant of probate to the estate of the deceased and to administer the deceased’s estate.

The powers and duties of the executor date from the date of death of the deceased with the whole estate devolving to the executor.

An executor does not have to act and may renounce but once he/she takes on the role, he/she cannot renounce at a later date.

The Duties of an Executor

The first duty of an executor is to dispose of the body of the deceased. In practice, this will probably have been done by the deceased’s family.

The executor then needs to ascertain the precise value of the assets of the estate and protect them. This will involve ensuring that insurance is in place, where appropriate.

The executor must also ascertain all the liabilities of the estate such as taxes, outstanding claims, and outstanding debts. He/she must also ascertain all of the beneficiaries of the estate and check into prior gifts/inheritances that they may have received.

Then, the executor must prepare and swear an Inland Revenue affidavit which will list all assets and liabilities of the estate.

The executor then must lodge all the relevant documents in the Probate Office and extract a Grant of Probate. Once the Grant issues, he will gather in all the assets and dispose of those not being given to beneficiaries.

The executor must also pay all of the debts and expenses of the estate and distribute the assets, making sure that all taxes are paid. These taxes will include taxes due by the deceased prior to his death, all taxes arising out of the administration of the estate itself, and any inheritance taxes and capital gains taxes arising from distribution of assets.

Lastly, the executor must prepare an administration account where he accounts for all monies received and disbursed during the administration period.

Note:

an executor cannot delegate his authority but may engage the services of other people to help him, eg experts such as a solicitor, accountant, taxation specialist, auctioneer to value property etc.
an executor is not entitled to be paid for carrying out his duty but he is entitled to recover expenses incurred by him in the carrying out of his duty
there is no obligation on the executor to give a copy of the will to anyone before it is admitted to probate, nor to inform a beneficiary of his interest
the duties of a personal representative are for life
there is no limit on the number of executors that can be appointed
an executor can be appointed in a will or by implication, ie according to tenor (eg no executor is appointed in the will but someone is given the function of discharging the debts of the deceased).

The Powers of an Executor

An executor is given wide ranging powers by statute (the Succession Act, 1965) and by the will itself.

The statutory powers include:

the power to sell all or any part of the estate to pay debts and to distribute the estate among the persons entitled
the power to act as a trustee for the purposes of the Settled Land Acts
the power to appropriate any part of the estate towards satisfaction of any share in the estate (subject to the provisions of section 55 of the Succession Act, 1965)
the power to appoint trustees for an infant beneficiary
the power to lease property for the administration of the estate
the power to mortgage
the power to settle claims and disputes.

Powers typically granted in a will include

the power to appropriate without serving any notices or consents
the power to invest or purchase authorised securities
the power to employ agents/managers.

Executor, Guardian, and Trustee-What’s the Difference?

The role and duties of the executor have been set out above.

A trustee’s job is to carry out the wishes of the settlor as indicated in the trust.

The guardian’s role is to act in loco parentis to the child for whom he is appointed guardian.

If you are a personal representative, you would be well advised to seek the advice of a solicitor who can help advise you on all matters relating to the administration of the estate and who will explain fully all the declarations and documents that you will be required to sign.
By Terry Gorry

Tags administration of estates, administrator, duties of an executor, executor, powers of an executor

Spouses and Childrens Rights

Spouses’ and Children’s Rights under the Succession Act, 1965

Post author By Terry Gorry
Post date January 11, 2014

The Succession Act, 1965 protects surviving spouses of deceased persons by affording considerable protection as the Act restricts the right of the testator to leave his/her property to whoever he/she wishes.

Spouses’ Rights under the Succession Act, 1965

Section 111 of the Succession Act, 1965 states:

111.—(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.

The estate to which the surviving spouse is entitled to a share in is ‘net estate’ which is ‘all estate…not ceasing on his death’. So this excludes trust property, joint property passing by survivorship, property in which the deceased had a limited interest, and validly nominated property (credit union accounts, post office saving certificates, nominated pension schemes).

Costs, liabilities and expenses also need to be taken into account to leave a net estate figure. It is this figure that the spouse is entitled to either one half of (no children) or one third of (children).

In summary, the legal right share is calculated on the net estate of the testator ie all property less expenses, debts, and liabilities.

Legal Right Share

This entitlement is called the ‘legal right share’ which only applies in a testate situation, that is where there is a will.

In an intestate situation, that is, there is no will, the surviving spouse is entitled to two thirds of the estate if the deceased has children; if the deceased has no children, the surviving spouse is entitled to the entire estate.

‘Children’ included for the purposes of section 111 above include

Children of his blood, both marital and non-marital
Children validly adopted by him.

It does not include

Step children
Foster children
Children for whom he acted in loco parentis

The right of the surviving spouse to the legal right share ranks after the rights of creditors of the deceased but before all other beneficiaries.

Section 112 of the Succession Act, 1965 states:

112.—The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

Legal Right Share Versus Bequest?

Section 114 (2) of the Succession Act, 1965 states that

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

If this situation occurs and the testator dies fully testate, then the surviving spouse will have a choice to make as set out in section 115 of the Act which provides for the surviving spouse to elect to between the legal right share entitlement and the rights under the will.

115.—(1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse 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 shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

If the surviving spouse does not elect to take either the bequest or the legal right share, he/she will be deemed to have taken the bequest and will lose the legal right share.

Where a testator dies partly testate and partly intestate the calculation is more complex and the following will need to be calculated-the value of the net estate, the value of all bequests under the will, and the value of the intestate part of the estate.

Section 115, Succession Act, 1965

(2) (a) Where a person dies partly testate and partly intestate, a spouse 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 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.

Appropriation of the Family Home in favour of a Surviving Spouse

Section 56 provides for the right of surviving spouse to require dwelling and household chattels to be appropriated.

This section provides for the surviving spouse to request the personal representative to appropriate the dwelling in which the surviving spouse ordinarily resides if this property is part of the estate of the deceased person. This appropriation will be towards the satisfaction of his/her legal right share. (There are certain restrictions on this right to appropriate which are set out in subsection 5)

Spouse no longer a spouse?

There are 4 ways by which a spouse ceases to be a spouse for Succession Act, 1965 purposes.

a) Renunciation

Section 113 provides for renunciation before or after marriage by way of a written contract.

b) Separation

The Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995 can provide for property adjustment orders and the extinguishment of succession rights.

c) Divorce

The Family Law (Divorce) Act, 1996 and the subsequent marriage of a testator will have important implications here. For example, a will is revoked by the subsequent marriage of a testator.

d) Unworthiness to succeed

Section 120 of the Succession Act, 1965 provides for the unworthiness of the surviving spouse to succeed. An example of this situation is the ‘Catherine Nevin/Jack Whites Pub’ case: In Re Nevin, High Court, 1997.

What happens when a surviving spouse takes his/her legal right share?

It blows the will out of the water. And there is no compensation for aggrieved beneficiaries who lose out as a result.

Children’s Rights

Unlike spouses, children are not entitled to any specific share in a deceased person’s estate.

Testate

Accordingly, in a testate situation, a child is only entitled to whatever the will of the deceased says.

Intestate

In an intestate situation a spouse is entitled to two thirds of the estate with the one third going to the ‘issue’. ‘Issue’, for the purposes of the Succession Act, 1965, includes marital and non-marital children, adopted children and their lineal descendants. Step children and foster children are not included.

Types of Children

A testator may have a number of different types of children eg

marital children
unborn children
section 98 children (see below)
non-marital children
adopted children
step children
foster children.

Section 98 Children

It is worth noting the provisions of section 98 of the Succession Act, 1965. It provides that where a child predeceases a testator leaving issue at the time of death, the gift from the testator will not lapse but will take effect as if the death of that child occurred after the death of the testator, unless a contrary intention appears from the will.

This means that if a testator’s child predeceases him leaving grandchildren, any benefit that would have been received by the child will pass to his estate.

Actions that a Child Can Take Against an Estate

The first action to look at is a ‘section 117′ action. Section 117 of Succession Act, 1965 provides:

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
		(2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
		(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.
		(4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
		(5) The costs in the proceedings shall be at the discretion of the court.
		(6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.

The Court will consider the situation from the perspective of a prudent and fair parent and must consider the position of the other children of the testator also.

The time limit for bringing an action under section 117 is 6 months and this is a strict limit.

The critical test for success of a section 117 challenge is

whether the parent positively failed in his moral duty to make proper provision for the child and
the child must establish that he/she had a need which the testator could have satisfied in making his will.

A court cannot make an order which will interfere with the legal right share of the surviving spouse.

The second type of action is a ‘section 63′ action. Section 63 of the Succession Act, 1965 deals with advancements to children and allows a child to bring a case against a child who has previously received an advancement during the testator’s lifetime. This action will seek to have the previous advancement to a sibling taken into account in the distribution of the estate on death.

If this action is successful, it will clearly impact on the distribution of the estate.

Proprietary Estoppel

The third type of action that can be taken by a disappointed child is a proprietary estoppel action. A proprietary estoppel action will aim to prove that the child acted to his detriment in the belief that he would be given a right to the deceased’s property and the deceased knew and encouraged this belief.

This is a very difficult action to succeed with.

However, if it is successful and an equitable interest has been established, it will prevail over the legal right share of the spouse and the claims of other children sharing the estate, unlike a successful section 117 action.

Underage Children and Wills

If there is a bequest to a child (an underage child) and there are no trustees appointed in the will, or where an underage child inherits on intestacy, the legal personal representative has a problem: there is nobody to whom the legal personal representative can vest the asset and there is nobody from whom he can obtain a receipt.

This is why it is advisable to insert a trust in a will where the beneficiaries may include under age children.

However if this does not occur, section 57 of the Succession Act, 1965 allows the personal representative to appoint trustees. Also, if the personal representatives do not appoint trustees then they will be trustees for the purposes of this section.

Section 57:

57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.

Section 58 is of assistance where a child becomes entitled to land on intestacy:

(2) Where an infant becomes entitled to any estate or interest in land on intestacy and consequently there is no instrument under which the estate or interest of the infant arises or is acquired, that estate or interest shall be deemed to be the subject of a settlement for the purposes of the Settled Land Acts, 1882 to 1890, and the persons who are trustees under section 57 shall be deemed to be the trustees of that settlement.

One other piece of legislation should be considered when dealing with children and wills:

The Guardianship of Infants Act, 1964 which allows a parent by deed or will to appoint another person to be a guardian after death. This is a testamentary guardian and only comes into effect after the death of the testator.

Tax Status of a Child

Step children and foster children are not considered “children” for the purposes of the Succession Act, 1965; however they are under capital acquisitions tax legislation.
By Terry Gorry Google+

Tags children's rights, legal right share, proprietary estoppel, section 98 children, spouses rights, succession act 1965