Wills and succession in Ireland

The principle

The Succession Act 1965 replaced the older, split treatment of real and personal property with one statutory scheme. Section 11 of the Succession Act 1965 abolished the old rules of descent, dower and curtesy; s.10(1) vests the whole estate in the personal representatives on death, who hold it as trustees for those entitled (s.10(3)). Testamentary freedom is real but bounded, by the spouse's legal right share and by a child's right to apply to court, and the formalities are not optional: there is no oral will in Irish law.

Capacity

Section 77(1) requires a testator who has attained 18 years or is or has been married, and who is of sound disposing mind. That is measured by the three-limb test in Banks v Goodfellow (1870) LR 5 QB 549 (1870) LR 5 QB 549 Persuasive · England: the testator must understand the nature of the document and its effect, understand the extent of his property, and be capable of understanding the claims to which he ought to give effect. Cockburn CJ required the testator to understand the nature of the act and its effects.

A will duly executed and rational on its face carries a presumption of capacity; the evidential burden shifts to the objector to raise a real doubt, then back to the propounder to prove capacity on the balance of probabilities.

Formalities, and the witness who is also a beneficiary

Section 78 requires writing and execution under five rules. The will must be signed at the foot or end by the testator, or by another in his presence and at his direction (Rule 1); that signature must be made or acknowledged before two or more witnesses present at the same time, each attesting in the testator's presence, though not in each other's (Rule 2). Rules 3 to 5 allow some latitude on where the signature sits but deny effect to anything inserted after it. No special wording is needed if the document is intelligible and shows an intention to make a will: Clarke v Early [1980] IR 223 IE.

The witness rules carry the sting. Section 81 preserves a will where a witness is or becomes incompetent to prove its execution, but s.82 makes any gift to an attesting witness, or to that witness's spouse or civil partner, utterly null and void so far as concerns that person.

Revocation and alteration

Section 85(1) revokes a will on the testator's subsequent marriage or entry into a civil partnership, unless made in contemplation of that event, whether or not so expressed; it is enough that the testator intended to marry a particular person when making it: Re O'Brien's Estate [2011] IEHC 327 IE · High Court. Otherwise s.85(2) allows revocation only by a later will or codicil, by writing executed as a will and declaring an intention to revoke, or by burning, tearing or destruction with that intent. Destruction without animus revocandi revokes nothing, and an express revocation clause raises only a rebuttable presumption of that intention. An alteration after execution is ineffective unless executed as the will was (s.86).

Construction and extrinsic evidence

A will speaks from death (s.89), and where a bequest admits of more than one reading the operative one is preferred (s.99). The sequence for construing a clause comes from Heron v Ulster Bank Limited [1974] NI 44 Persuasive · NI, adopted here in Gregory v McCarthy [2015] IEHC 311 IE · High Court: read the words as ordinary English, test that meaning against the rest of the will and its scheme, then turn to rules of construction and only last to other courts' decisions.

Section 90 admits extrinsic evidence to show the testator's intention and to assist construction or explain a contradiction. Both conditions must be met, and the section cannot rewrite the will: Rowe v Law [1978] IR 55 IE · Supreme Court, where the court held that it must take the will as admitted to probate. A clear, unambiguous will leaves s.90 with no application, as the Supreme Court confirmed in O'Connell v The Governor and Company of the Bank of Ireland [1998] 2 IR 596 IE · Supreme Court.

Intestacy shares

Intestacy arises where there is no valid will, and partial intestacy where a will disposes of part only, the remainder going as on intestacy (s.74). A spouse with no issue takes the whole estate; a spouse with issue takes two-thirds and the issue one-third (s.67), with matching provision for a civil partner (s.67A). Issue alone take in equal shares if all in equal degree, otherwise per stirpes (s.67B). Then parents (s.68); then siblings equally, the children of a predeceased sibling taking that share where another sibling survives (s.69); then next of kin (s.70); then the State (s.73).

Two counting rules decide most tree problems. Degrees of blood relationship are computed under s.71(2) by counting up to the nearest common ancestor and then down, and where a direct lineal ancestor and another relative fall in the same degree the other relative is preferred. Relatives of the half-blood succeed equally with the whole blood in the same degree (s.72).

The legal right share and section 117

Under s.111 a surviving spouse has a right to one half of the estate where the testator leaves no children and one third where he does, and s.111A the same for a civil partner. That right has priority over devises, bequests and shares on intestacy (s.112) and may be renounced in writing (s.113). A gift to the spouse is deemed to satisfy the legal right unless the will says it is in addition (s.114). The spouse elects between gift and share, taking the gift in default; the personal representatives must give written notice, and the right lapses six months after that notice or one year from the first taking out of representation, whichever is later (s.115).

Children get no fixed share. Section 117(1) lets a child apply where the testator failed in his moral duty to make proper provision in accordance with his means, whether by will or otherwise; the court may order such provision as it thinks just, judged from the standpoint of a prudent and just parent and fairly as between all the children (s.117(2)). An order cannot cut into the spouse's legal right share (s.117(3)), and must be sought within six months of the first taking out of representation (s.117(6)).

Statutory basis

• ss.67–73 — the intestacy order, with s.71 on next of kin, s.72 on the half-blood and s.74 on partial intestacy.
• s.77, s.78 and ss.81–84 — capacity, the writing, signature and attestation rules, and the void gift under s.82.
• s.85, s.86, s.87 — revocation, alteration, revival.
• s.89, s.90, s.99 — the will speaks from death; extrinsic evidence; the operative interpretation preferred.
• ss.111–115 and s.56 — the legal right share, priority, renunciation, election and appropriation of the dwelling.
• s.117, s.120, s.121 — provision for children; exclusion for serious offences; dispositions aimed at disinheritance.

Key authorities

• Banks v Goodfellow (1870) LR 5 QB 549 Persuasive · England — the three-limb test for sound disposing mind, persuasive only but adopted here under s.77.
• Laaser v Earls [2016] IECA 63 IE · Court of Appeal — a will changed hours before death could not stand without medical evidence of capacity.
• Re Courtney's Estate [2016] IEHC 318 IE · High Court — an express revocation clause raises a presumption of intention to revoke only, rebuttable on the evidence; the earlier Irish will survived a later English one.
• McDermott v Kennedy [2015] IEHC 622 IE · High Court — the presumption that a missing will held by the testator was destroyed animo revocandi is evidence of fact, not a rule of law.
• Rowe v Law [1978] IR 55 IE · Supreme Court — s.90 operates only where there is a legitimate dispute about the meaning or effect of the language used. Confirmed in O'Connell v The Governor and Company of the Bank of Ireland [1998] 2 IR 596 IE · Supreme Court.
• Re GM: FM v TAM (1972) 106 ILTR 82 IE — the factors for moral duty at the date of death: the spouse's share, the children's ages and positions, the testator's means, and lifetime provision made.
• Re IAC deceased: CC v WC [1990] 2 IR 143 IE · Supreme Court — moral duty is judged objectively at the date of death and a relatively high onus lies on the applicant to prove a positive failure. In PMcD v MN [1998] IEHC 183; [1999] 4 IR 301 IE · Supreme Court a son's behaviour diminished but did not extinguish the obligation.

How it is examined

Succession appears on Irish land law papers as a short note and as a problem question, usually in one of three shapes: a death with no will and a predeceased child or half-sibling in the tree; a homemade will with a signature or attestation defect, often with a beneficiary as witness; or a will leaving a spouse or adult child dissatisfied.

Order of attack. Establish first whether there is a valid will: capacity under s.77, then each rule of s.78, then revocation under s.85. If there is none, or only a partial disposition, run the intestacy order from s.67 without skipping a class. If the will is valid, take the spouse's legal right share under s.111 and the election under s.115 before any s.117 claim, because the legal right comes out first and a s.117 order cannot touch it. Only then assess moral duty, on the Re GM factors and the high onus in Re IAC. Where wording is disputed, take the Heron steps in order and reach s.90 only if real ambiguity survives them.

Related Land Law notes: Rowe v Law · joint tenancy and tenancy in common · trusts of land and settlements · all free Land Law notes.