intestacy – Making a Will in Ireland

When a person dies having failed to make a will, he/she is said to have died intestate.

This means that his estate will be distributed in accordance with the Succession Act, 1965, part VI (sections 67-75).

This sets out the rules for distribution on intestacy, the shares of surviving spouses and issue, the shares of parents, brothers, sisters, and other matters.

The rules concerning who can take out the grant of administration intestate are set out in the Rules of the Superior Courts 1986, Order 79, rule 5:

Rule 5(1) deals with the order of priority as to who can apply in an intestate situation:

5. (1) In determining to whom letters of administration of the estate of a person who died on or after the 1st of January, 1967, wholly intestate and domiciled in Ireland shall be granted, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:

(a) the surviving spouse;

(b) the surviving spouse jointly with a child of the deceased nominated by the said spouse;

(c) the child or children of the deceased (including any person entitled by virtue of the Legitimacy Act, 1931, to succeed to the estate of the deceased);

(d) the issue of any child who has died during the lifetime of the deceased;

(e) the father or mother of the deceased or, in the case of an illegitimate person who died without having been legitimated, the mother;

(f) brothers and sisters of the deceased (whether of the whole or half-blood);

(g) where any brother or sister survived the deceased, the children of a predeceased brother or sister;

(h) nephews and nieces of the deceased (whether of the whole or half-blood);

(i) grandparents;

(j) uncles and aunts (whether of the whole or half-blood);

(k) great grandparents;

(l) other next-of-kin of nearest degree (whether of the whole or half-blood) preferring collateral’s to direct lineal ancestors;

(m) the nominee of the State;

The entitlement to extract the grant of administration intestate is determined at the date of death of the deceased as section 71 of the Succession Act, 1965 provides:

71.—(1) Subject to the rights of representation mentioned in subsection (2) of section 70, the person or persons who, at the date of the death of the intestate, stand nearest in blood relationship to him shall be taken to be his next-of-kin.

It is worth noting therefore that if a person is not a next of kin at the date of death of the deceased, he cannot become one-even if all the deceased’s other relatives are dead. (‘Next of kin’ are blood relations)

Section 70 of Succession Act, 1965 states:

70.—(1) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.

“Next of kin” means a blood relation so step brothers/sisters, and step-relations generally have no right to extract the grant or to succeed.

No grant will be made to more than 3 persons jointly unless the Probate Officer directs it.

Shares of Surviving Spouse and Issue

Section 67 of the Succession Act states:

67.—(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.

(2) If an intestate dies leaving a spouse and issue—

(a) the spouse shall take two-thirds of the estate, and

(b) the remainder shall be distributed among the issue in accordance with subsection (4).

(3) If an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue in accordance with subsection (4).

(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes.

Documents Required to Extract a Grant of Administration Intestate

Death certificate
Oath for administrator intestate
Typed notice of application or copy of oath
Affidavit of current market value of land
Inland revenue affidavit (CA 24)
Administration bond.

The Oath of Administrator Intestate

This sworn document sets out the history of entitlement of the applicant to extract the grant of administration. It will also “clear off” all persons having a prior right to the grant and establishes the right of the applicant to extract the grant.

The Administration Bond

An administration bond is always required when a grant of letters of administration is sought.

The administration bond binds the “principal” to compensate the President of the High Court if he fails to administer the estate in accordance with the law. This cover must cover double the gross assets of the estate.

The administration bond is a guarantee for the beneficiaries and creditors of the estate in respect of the administration not being carried out properly. It is never required when seeking a grant of probate as an executor is never required to execute a bond.

The Per Stirpes Rule

The Per Stirpes rule only applies on intestacy. It is an exception to the general intestate rule that to inherit on intestacy you must be next of kin entitled at the date of death.

It allows kin to inherit the share of their parent, which would otherwise have lapsed due to the death of the parent prior to the death of the deceased, while others of their parent’s next of kin entitled (eg children/brothers of the deceased) survived the deceased.

Relatives of Half -blood and step relatives

Section 72 of the Succession Act, 1965 states:

72.—Relatives of the half-blood shall be treated as, and shall succeed equally with, relatives of the whole blood in the same degree

Kinship is based on blood so if there is no common blood with another person there are no succession rights to that person’s estate.

Disclaiming on Intestacy

Any proposed beneficiary can disclaim his inheritance. However you cannot disclaim in favour of someone else.

Where a person disclaims the property will automatically pass to the person next entitled under the rules of intestacy.

If a spouse disclaims her entitlement to 2/3rds of the estate his issue would inherit the whole estate.
By Terry Gorry

The late poet and author, Dr. John O’Donohue, made his own will without the benefit of legal advice.

He was a very intelligent man. But he really needed to see a solicitor to have his will drafted.

Because in December, 2011 Justice Gilligan in the High Court declared the will he had drafted void for uncertainty and the entire estate passed to the testator’s mother.

Justice Gilligan, in his judgment, stated that

The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.

As an introduction to his Judgment Judge Gilligan stated:

The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.

Courts can decide what the intentions of the testator were where there is doubt as to interpreting from the will the intentions of the testator and the Court’s duty is weighted by the presumption against intestacy.

However in this case the Court was unable to decipher the intentions of Dr. O’Donohoe, even though it held that the will was valid insofar as the requirements of section 78 of the Succession Act, 1965 were met.

Once the will was held to be void the entire estate passes to the mother of the deceased in accordance with section 68 of theSuccession Act, 1965.

You can read the entire High Court judgment in O’Donohoe v O’Donohoe here.

Any money that may have been saved in not obtaining the assistance of a solicitor to draft the will in the first place was swamped into insignificance by the legal costs spent going to the High Court to have this dispute resolved.
By Terry Gorry