SUCCESSION
• Determines what happens to someone’s property when they die
• The succession act is the main legislation in this area
1. Testate: when you die with a valid will
2. Intestate: death without a valid will
3. Partial testacy: where there isn’t a wholly valid will, and the property that is invalid may
have to be distributed accordingly.
The relevant parties
➢ Testator: the person who devises the will (a testatrix is a female historically)
➢ Intestate as a noun: the deceased
➢ Beneficiary: speaks for itself
➢ Personal representatives: executor/ administrator
- Executor – executing a testator’s will
- Administrator – executing an intestate’s will.
Personal representatives.
Appointment:
Grant of probate:
- Testacy.
• Proving the contents of a will in court, and then accepted as a valid, public document.
• Once it has been through probate it is public.
• Apply to probate office
• Take out a grant of probate
• The probate office is part of the High Court
• Its there to give authority to the named executor or proper person to deal with the estate.
• The High Court is granting it.
Letters of administration:
- Intestacy
• Much the same as probate but it is an administrator not an executor as this deal with
intestacy.
Their job:
• Calls in monies owed – invite anyone who is owed to apply to the rep. and they will deal
accordingly – often advertised in local newspapers etc. there are time limits involved
• May be trustees
• Powers of acquisition and disposition
• Administers the estate
• Invites creditors to make claims
, • Pays debts
Removal of the personal representative
- Withdraw the letters of administration or the grant of probate
• Decision of the HC. This will take away the power.
• HC is entitled, but is generally reluctant to do this and requires quite a high standard of
proof as feuds etc. and money is a tense subject.
The common law system
• Real property v personal
• Real > heir-at-law
• Personal > Bishop.
• Realty couldn’t be disposed of by wills in the feudal system. Inalienable.
• Personal – you can do what you wish
• As the feudal system developed, the realty would pass to the heir-at-law and personal would
pass to the bishop in a situation of intestacy.
• Regardless of what denomination you were, it went to the church of Ireland bishop, which
obviously created controversy
• Any will that appeared to deprive the Bishop of claim to personal property was subject to
challenge – church court
• This developed into the need for a probate court, which was secular, which eventually
became the HC.
Intestates act 1954
- If a man died, widow entitled to 1/3 of his estate and the rest went to his children.
Before this, she was entitled to a fixed amount regardless of what the estate was
Succession act 1965
- ‘all existing rules, modes and canons of descent’ abolished
- No distinction between personal and realty. Everything is considered as part of the
estate and there aren’t differences in the distribution of chattels and real property.
- All children equally entitled regardless of sex
- No distinction between children inside marriage and outside marriage.
Terms in the act
➢ ISSUE: children:
- Marital and non-marital (since status of children act 87)
- Unborn
- Adopted
- Born through donor-assisted reproduction? Children and family relationships act
2015 – child who is born under this can inherit from the mother and mother’
spouse partner but not from father?
, • Intestate succession:
o S.67 (has been amended by civil partnership act which introduced this status. Since the
marriage act 2015, it’s no longer possible to enter into a NEW civil partnership, but existing
ones are still valid.)
o spouses now read as spouse or civil partner.
➢ If an intestate dies with no issue Spouse/ civil partnership – it will go to spouse/ cp
➢ If an intestate dies with children – spouse gets 2/3 and issues get remainder equally
➢ If an intestate dies with no spouse/ cp – the distribution shall be in equal shares to the
issues.
- Only in an equal degree of relationship
- So, for example if one of the children were dead and they had grandchildren…
o If not:
- Any issue more remote than a child…will get the equal share of their parents
distribution.
- Issue includes grandchildren.
- For example: if there are three children, they all get 1/3. If one is dead and they have
two grandchildren, each of those grandchildren will get 1/6 (e.g the 1/3 of their parents
estate divided equally between them).
- If there were other more remote relatives in equal status as those grandchildren, they
get the same share. This is the principle of equal degree of relationship (whatever the
word is)
Non-Marital Children
- 41 of the const.
- ECHR obligations.
- S.4 succession act & children and fam. Relationships act.
• Historically excluded.
• The 60s in Ireland were backwards and we hold marriage very high.
- Issue excludes non-marital children
O’B v S 80s
Act said illegitimate children not ‘issue’ in intestate succession (inheritance without will being
distributed). P was illegitimate and said that restricting intestate succession to marital kids was
discrimination. SC refused application as 41.3 is a strong provision for protection of the family based
on marriage. Illegitimates could benefit under a will though. It was found by the SC that this was not
a violation. In essence, they decided
- The constitutional preference for marriage trumps the child’s right to equality.
- Court may look outside art 40.1 for justification
• Determines what happens to someone’s property when they die
• The succession act is the main legislation in this area
1. Testate: when you die with a valid will
2. Intestate: death without a valid will
3. Partial testacy: where there isn’t a wholly valid will, and the property that is invalid may
have to be distributed accordingly.
The relevant parties
➢ Testator: the person who devises the will (a testatrix is a female historically)
➢ Intestate as a noun: the deceased
➢ Beneficiary: speaks for itself
➢ Personal representatives: executor/ administrator
- Executor – executing a testator’s will
- Administrator – executing an intestate’s will.
Personal representatives.
Appointment:
Grant of probate:
- Testacy.
• Proving the contents of a will in court, and then accepted as a valid, public document.
• Once it has been through probate it is public.
• Apply to probate office
• Take out a grant of probate
• The probate office is part of the High Court
• Its there to give authority to the named executor or proper person to deal with the estate.
• The High Court is granting it.
Letters of administration:
- Intestacy
• Much the same as probate but it is an administrator not an executor as this deal with
intestacy.
Their job:
• Calls in monies owed – invite anyone who is owed to apply to the rep. and they will deal
accordingly – often advertised in local newspapers etc. there are time limits involved
• May be trustees
• Powers of acquisition and disposition
• Administers the estate
• Invites creditors to make claims
, • Pays debts
Removal of the personal representative
- Withdraw the letters of administration or the grant of probate
• Decision of the HC. This will take away the power.
• HC is entitled, but is generally reluctant to do this and requires quite a high standard of
proof as feuds etc. and money is a tense subject.
The common law system
• Real property v personal
• Real > heir-at-law
• Personal > Bishop.
• Realty couldn’t be disposed of by wills in the feudal system. Inalienable.
• Personal – you can do what you wish
• As the feudal system developed, the realty would pass to the heir-at-law and personal would
pass to the bishop in a situation of intestacy.
• Regardless of what denomination you were, it went to the church of Ireland bishop, which
obviously created controversy
• Any will that appeared to deprive the Bishop of claim to personal property was subject to
challenge – church court
• This developed into the need for a probate court, which was secular, which eventually
became the HC.
Intestates act 1954
- If a man died, widow entitled to 1/3 of his estate and the rest went to his children.
Before this, she was entitled to a fixed amount regardless of what the estate was
Succession act 1965
- ‘all existing rules, modes and canons of descent’ abolished
- No distinction between personal and realty. Everything is considered as part of the
estate and there aren’t differences in the distribution of chattels and real property.
- All children equally entitled regardless of sex
- No distinction between children inside marriage and outside marriage.
Terms in the act
➢ ISSUE: children:
- Marital and non-marital (since status of children act 87)
- Unborn
- Adopted
- Born through donor-assisted reproduction? Children and family relationships act
2015 – child who is born under this can inherit from the mother and mother’
spouse partner but not from father?
, • Intestate succession:
o S.67 (has been amended by civil partnership act which introduced this status. Since the
marriage act 2015, it’s no longer possible to enter into a NEW civil partnership, but existing
ones are still valid.)
o spouses now read as spouse or civil partner.
➢ If an intestate dies with no issue Spouse/ civil partnership – it will go to spouse/ cp
➢ If an intestate dies with children – spouse gets 2/3 and issues get remainder equally
➢ If an intestate dies with no spouse/ cp – the distribution shall be in equal shares to the
issues.
- Only in an equal degree of relationship
- So, for example if one of the children were dead and they had grandchildren…
o If not:
- Any issue more remote than a child…will get the equal share of their parents
distribution.
- Issue includes grandchildren.
- For example: if there are three children, they all get 1/3. If one is dead and they have
two grandchildren, each of those grandchildren will get 1/6 (e.g the 1/3 of their parents
estate divided equally between them).
- If there were other more remote relatives in equal status as those grandchildren, they
get the same share. This is the principle of equal degree of relationship (whatever the
word is)
Non-Marital Children
- 41 of the const.
- ECHR obligations.
- S.4 succession act & children and fam. Relationships act.
• Historically excluded.
• The 60s in Ireland were backwards and we hold marriage very high.
- Issue excludes non-marital children
O’B v S 80s
Act said illegitimate children not ‘issue’ in intestate succession (inheritance without will being
distributed). P was illegitimate and said that restricting intestate succession to marital kids was
discrimination. SC refused application as 41.3 is a strong provision for protection of the family based
on marriage. Illegitimates could benefit under a will though. It was found by the SC that this was not
a violation. In essence, they decided
- The constitutional preference for marriage trumps the child’s right to equality.
- Court may look outside art 40.1 for justification
