Succession Act , 1965

PART I Preliminary and General

1. Short title.

1.—This Act may be cited as the Succession Act, 1965.

2. Commencement.

2.—This Act shall come into operation on such day, not earlier than the 1st day of July, 1966, as the Minister by order appoints.

3. Interpretation.

3.—(1)In this Act, except where the context otherwise requires—

F1["Act of 2015" means the Children and Family Relationships Act 2015;]

“administration”, in relation to the estate of a deceased person, means letters of administration, whether with or without a will annexed, and whether granted for special or limited purposes;

“administrator” means a person to whom administration is granted;

F2["civil partner" has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

“conveyance” includes a mortgage, charge, lease, assent, transfer, disclaimer, release and every other assurance of property by any instrument except a will;

“the court” shall be construed in accordance with section 6;

“estate” shall be construed in accordance with section 14;

“grant” means grant of representation;

“infant” means a person under the age of twenty-one years;

“an intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate, and “intestate” shall be construed accordingly;

F3["issue" shall be construed in accordance with section 4A (inserted by the Status of Children Act, 1987);]

F4["legal right" means—

(a) the right of a spouse under section 111 to a share in the estate of a deceased person, and

(b) the right of a civil partner under section 111A to a share in the estate of a deceased person;]

“the Minister” means the Minister for Justice;

"pecuniary legacy" includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest, or payment is made to take effect;

“per stirpes” shall be construed in accordance with subsection (3);

“personal representative” means the executor or the administrator for the time being of a deceased person;

“possession” includes the receipt of, or the right to receive, rents and profits, if any;

“probate” means probate of a will;

“property” includes all property both real and personal;

“purchaser” means a grantee, lessee, assignee, mortgagee, chargeant or other person who F5[…] acquires an estate or interest in property for valuable consideration;

“real estate” has the meaning assigned to it by section 4;

“representation” means probate or administration;

“share”, in relation to the estate of a deceased person, includes any share or interest, whether arising under a will, on intestacy or as a legal right, and includes also the right to the whole estate;

“trust corporation” has the meaning assigned to it by subsection (4) of section 30;

“valuable consideration” means consideration in money or money's worth;

“will” includes codicil.

F3[(1A)In this Act a reference, however expressed, to a person whose parents have married or have not married each other shall be construed in accordance withsection 4of the Status of Children Act, 1987.]

(2)Descendants and relatives of a deceased person begotten before his death but born alive thereafter shall, for the purposes of this Act, be regarded as having been born in the lifetime of the deceased and as having survived him.

(3)Where a deceased person's estate or any share therein is to be distributed per stirpes among his issue, any issue more remote than a child of the deceased shall take through all degrees, according to their stocks, in equal shares if more than one, the share which the parent of such issue would have taken if living at the death of the deceased, and no issue of the deceased shall take if the parent of such issue is living at the death of the deceased and so capable of taking.

(4)In this Act, a reference to any enactment is to that enactment as amended or extended by any other enactment, including this Act.

(5)In this Act, a reference to a Part, section, or Schedule is to a Part, section, or Schedule of this Act, unless it is indicated that a reference to some other enactment is intended.

4. Meaning of “real estate” and “estate or interest”. [1959 (No. 8) ss. 2, 6]

4.—For the purposes of this Act—

(a)“real estate” includes chattels real, and land in possession, remainder, or reversion, and every estate or interest in or over land (including real estate held by way of mortgage or security, but not including money to arise under a trust for sale of land, or money secured or charged on land);

(b)the estate or interest of a deceased person in an estate tail shall be deemed to be an estate or interest ceasing on his death, but any further or other estate or interest of the deceased person in remainder or reversion which is capable of being disposed of by his will shall not be deemed to be an estate or interest so ceasing;

(c)the estate or interest of a deceased person under a joint tenancy where any tenant survives the deceased person shall be deemed to be an estate or interest ceasing on his death;

(d)on the death of a corporator sole his estate or interest in the corporation's real estate shall be deemed to be an estate or interest ceasing on his death;

(e)the estate or interest of a deceased person in real estate shall not be deemed to be an estate or interest ceasing on his death merely because by reason of illegitimacy or otherwise he did not leave next-of-kin surviving him.

4A. F6[Succession rights.

4A.—(1)F7[F8[Subject to subsection (1A) and section 4B,]in deducing any relationship]for the purposes of this Act, the relationship between every person and his father and mother shall, subject tosection 27Aof this Act (inserted by the Act of 1987), be determined in accordance withsection 3of the Act of 1987, and all other relationships shall be determined accordingly.

F9[(1A) In deducing any relationship for the purposes of this Act, the relationship between every donor-conceived child (within the meaning of the Act of 2015) and his or her parents shall be determined in accordance withsection 5of the Act of 2015 and all other relationships shall be determined accordingly.]

(2)F7[Subject to subsection (2A) (inserted bysection 65(d) of the Act of 2015), where a person]whose father and mother have not married each other dies intestate, he shall be presumed not to have been survived by his father, or by any person related to him through his father, unless the contrary is shown.

F9[(2A) The reference to father in subsection (2) does not include a man who is, undersection 5of the Act of 2015, a parent of the first-mentioned person referred to in that subsection.]

(3)The reference in section 75(1) to Part VI and the reference in the said section 75(1) to the foregoing provisions of the said Part VI shall, in relation to an instrumentinter vivosmade, or a will coming into operation, after the commencement ofPart Vof the Act of 1987, be construed as including references to this section.

F10[(4) This section is without prejudice to section 60 (which section as construed in accordance with section 27(3) of the Act of 1987 relates to the property rights of adopted persons) of the Adoption Act 2010.]

(5)This section shall not affect any rights under the intestacy of a person dying before the commencement ofPart Vof the Act of 1987.

(6)In this sectionF11[and section 4B,]"the Act of 1987" means the Status of Children Act, 1987.]

4B. F12[Special provisions in relation to affected persons

4B.—(1) Where, under this section, a relationship between an affected person and another person is to be deduced in accordance with this subsection, the relationship between the affected person and—

(a) his or her father and mother shall, subject to section 27A of this Act, be determined in accordance with section 3 of theAct of 1987, and

(b) his or her social father and social mother shall, subject to section 27A of this Act, be deemed, respectively, to be the same as the relationship between the affected person and his or her father and mother,

and all other relationships shall be determined accordingly.

(2) Without prejudice to the generality of subsection (1) —

(a) where the relationship between an affected person and another person is to be deduced in accordance with that subsection, this Act shall be construed as follows—

(i) a reference, other than in section 4A, to the father of an affected person shall be construed as including a reference to both the father and the social father of the affected person,

(ii) a reference, other than in section 4A, to the mother of an affected person shall be construed as including a reference to both the mother and the social mother of the affected person,

(iii) a reference to the parent of an affected person shall be construed as including a reference to both the parent and the social parent of the affected person,

(iv) a reference to the brother of an affected person shall be construed as including a reference to both the brother of the affected person and a person who is determined in accordance with subsection (1) to have the same relationship with the affected person as a brother of the affected person,

(v) a reference to the sister of an affected person shall be construed as including a reference to both the sister of the affected person and a person who is determined in accordance with subsection (1) to have the same relationship with the affected person as a sister of the affected person,

(vi) a reference to the child of a person shall be construed as including a reference to both the child of the person and an affected person in relation to whom the person is a social parent, and

(vii) a reference to the issue of a person shall be construed as including a reference to both the issue of the person and a person who is determined in accordance with subsection (1) to have the same relationship with the person as the issue of the person,

and

(b) for the purposes of section 71, an affected person shall be deemed to have the same blood relationship with his or her social parent as he or she would have were the social parent his or her parent.

(3) Where—

(a) an order under section 117 or 121, or

(b) a provision to a person out of the estate of a testator pursuant to an order under section 117 or 121 or in connection with proceedings or a claim under such section or sections,

was made before the date on which this subsection comes into operation—

(i) an affected person in whose interest the order, or to whom the provision, was made and in relation to whom the testator concerned was a social parent shall be treated as if the relationship between him or her and the testator was deduced in accordance with subsection (1), and

(ii) the order or provision shall not be rendered invalid by reason of the fact that the testator was the social parent, and not the parent, of any affected person.

(4) The taking, before the date on which this subsection comes into operation, by—

(a) the spouse of a testator of the share of the testator’s estate referred to in section 111(2), or

(b) the civil partner of a testator of the share of the testator’s estate referred to in section 111A(2),

shall not be rendered invalid by reason of the fact that the testator concerned was the social parent, and not the parent, of a person.

(5) Where, in the distribution of the estate of an intestate—

(a) a person, before the date on which this subsection comes into operation, took the estate or a share of the estate, and

(b) at the time of such taking—

(i) the person did not have the relationship with the intestate that would have entitled him or her under Part VI to the taking, but

(ii) the person would have had such a relationship with the intestate had the relationship been deduced in accordance with subsection (1),

the taking of the estate or share of the estate, as the case may be, by the person shall not be rendered invalid by reason of the fact that the person did not have the relationship referred to in paragraph (b)(i).

(6) This subsection applies where—

(a) an intestate dies before the date on which subsection (7) comes into operation, and

(b) administration of the estate of the intestate has been granted on or before the relevant date.

(7) Where—

(a) subsection (6) applies, and

(b) by the date on which this subsection comes into operation, the affected person concerned has not taken the estate or a share of the estate of the intestate to which he or she would be entitled were his relationship with the intestate deduced in accordance with subsection (1),

for the purposes of the distribution under Part VI of the part of the estate which has not yet been taken by any person, the relationship between an affected person and the intestate, and all other relationships, shall be deduced in accordance with subsection (1).

(8) Where—

(a) an intestate dies before the date on which this subsection comes into operation, and

(b) administration of the estate of the intestate is granted after the relevant date,

for the purposes of the distribution under Part VI of the estate of the intestate, the relationship between an affected person and the intestate concerned, and all other relationships, shall be deduced in accordance with subsection (1).

(9) This subsection applies where—

(a) a testator dies before the date on which this subsection comes into operation, and

(b) representation of the testator’s estate is taken out after the relevant date.

(10) Where subsection (9) applies—

(a) for the purposes of sections 111 and 111A, the relationship between the testator and an affected person, and all other shall be deduced in accordance with subsection (1),

(b) where the effect of paragraph (a) is that the share of the estate of the testator to which the spouse or civil partner, as the case may be, of the testator is entitled as a legal right is different to the share to which he or she would have been entitled had the paragraph not applied, section 115(4) shall apply as if the words "or one year from the date on which section 4B(10) comes into operation," were substituted for "or one year from the first taking out of representation of the deceased’s estate," and

(c) for the purposes of section 117—

(i) the relationship between an affected person and the testator, and all other relationships, shall be deduced in accordance with subsection (1), and

(ii) where an affected person, pursuant to subparagraph (i), makes an application under section 117(1), section 117(6) shall apply as if the words "from the date on which section 4B(10) comes into operation" were substituted for "from the first taking out of representation of the deceased’s estate".

(11) For the purposes of this Act, a person is an affected person where—

(a) as a result of the giving of information that was false or misleading, the name of a person other than his or her mother was entered in the register of births as his or her mother, and

(b) the person named as mother and, if applicable, father in the entry assumed the role of a parent in relation to him or her and treated him or her as her or their lawful child,

whether or not the entry has been corrected or cancelled pursuant to Part 3B or section 63, 64 or 65 of the Act of 2004.

(12) In this section—

"register of births" means a register of births maintained by An tArd-Chláraitheoir under section 13 (1)(a) of the Civil Registration Act 2004 , as amended, or under the repealed enactments (within the meaning of that Act);

"relevant date" means the 26th day of April 2022;

"social father" means, in relation to an affected person, the man named in the entry in the register of births referred to in subsection (11) as his or her father;

"social mother" means, in relation to an affected person, the woman named in the entry in the register of births referred to in subsection (11) as his or her mother;

"social parent" means, in relation to an affected person, his or her social father or social mother.]

5. Presumption of simultaneous death in cases of uncertainty. [New]

5.—F13[(1)] Where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, then, for the purposes of the distribution of the estate of any of them, they shall all be deemed to have died simultaneously.

F13[(2) Where immediately prior to the death of two or more persons they held any property as joint tenants and they died, or under subsection (1) were deemed to have died, simultaneously, they shall be deemed to have held the property immediately prior to their deaths as tenants in common in equal shares.

(3) Property deemed under subsection (2) to have been held by persons as tenants in common shall form part of their respective estates.]

6. Jurisdiction. [1961 (No. 39) s. 22 (1) and Third Schedule at ref. nos. 16 and 17]

6.—(1)The jurisdiction conferred on a court by this Act may be exercised by the High Court.

(2)Subject to subsection (3), the Circuit Court shall, concurrently with the High Court, have all the jurisdiction of the High Court to hear and determine proceedings of the following kinds:

(a)an action in respect of the grant or revocation of representation of the estate of a deceased person in case there is any contention in relation thereto;

(b)proceedings in respect of the administration of the estate of a deceased person or in respect of any share therein;

(c)any proceeding under section 56, 115, 117 or 121.

F14[(3) Unless the necessary parties to the proceedings in a cause sign, either before or at any time during the hearing, the form of consent prescribed by rules of court, the Circuit Court shall not, by virtue of subsection (2), have jurisdiction where the estate of the deceased person, in so far as it consists of real estate of which, at the time of his death, he was beneficially seised or possessed, exceedsF15[market value]ofF16[€3,000,000].]

(4)The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode.

F17[(5) In this section "market value" means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.]

7. Expenses.

7.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

8. Repeals.

8.—The enactments mentioned in the Second Schedule are hereby repealed to the extent specified in the third column.

9. Savings. [1959 (No. 8) s. 8]

9.—(1)Nothing in this Act shall affect any unrepealed enactment dispensing with probate or administration in the case of personal estate not including chattels real.

(2)Subject to section 118, nothing in this Act shall—

(a)affect any duty payable in respect of real estate or impose on real estate any other duty than is payable in respect thereof immediately before the commencement of this Act, or

(b)affect any remedy for the recovery of any death duty;

provided, however, that succession duty shall be payable having regard to the rules of distribution of property contained in this Act.

(3)Except to the extent to which any provision of this Act expressly provides to the contrary, the provisions of this Act shall not apply to the estate of any person dying before the commencement of this Act.

(4)The provisions of this Act shall not apply to the will of a testator who dies before the commencement of this Act but shall apply to the will of every testator who dies after such commencement, whether the will was executed before or after that time.

(5)The repeal of any enactment by this Act shall not, save where the contrary appears, affect any established jurisdiction, form or course of pleading, practice or procedure derived from the repealed enactment.

PART II Devolution of Real and Personal Estate on Death

10. Devolution of real and personal estate. [1881 (c. 41) s. 30; 1959 (No. 8) ss. 6, 7 (1), 15 (pt.)]

10.—(1)The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.

(2)The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3)The personal representatives shall be the representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto.

(4)The references in this section to the real and personal estate of a deceased person are to property to which he was entitled for an estate or interest not ceasing on his death, and include property over which he exercised by will a general power of appointment.

(5)This section shall apply to property vested on any trust in a deceased person solely, as it applies to his real and personal estate.

11. Abolition of existing rules of descent, escheat, etc. [New]

11.—(1)Without prejudice to the succeeding provisions of this section, all existing rules, modes and canons of descent and of devolution by special occupancy are hereby abolished except in so far as they may apply to the descent of an estate tail.

(2)Dower and tenancy by the curtesy are hereby abolished.

(3)Escheat to the State and escheat to a mesne lord for want of heirs are hereby abolished.

12. Further assimilation of law respecting real and personal estates of deceased persons. [1959 (No. 8) s. 7 (2)]

12.—(1)All enactments (including this Act) and rules of law relating to—

(a)the effect of representation as respects personal estate,

(b)the dealing with personal estate before representation,

(c)the powers, rights, duties, and liabilities of personal representatives in respect of personal estate,

(d)the payment of costs of administration, and

(e)all other matters with respect to the administration of personal estate,

shall, so far as applicable, apply to real estate as if it were personal estate; and subsequent provisions of this section shall not prejudice the generality of this subsection.

(2)All jurisdiction of any court with respect to the appointment of administrators or otherwise with respect to the grant of representation as respects personal estate shall extend over, and be exercisable in relation to, real estate as if it were personal estate and the rights, as respects citations to see proceedings, of persons interested or claiming to be interested in the real estate of a deceased person shall be the same as those of persons interested or claiming to be interested in the personal estate of that deceased person.

(3)A grant of representation shall, unless containing an express limitation to the contrary, have effect as well over the real as over the personal estate.

13. Vesting of estate between death and grant of administration. [1959 (No. 8) s. 13]

13.—Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.

14. Construction of references to estates of deceased persons. [New]

14.—References in the subsequent provisions of this Act and in any subsequent enactment to the estate of a deceased person shall, unless the contrary intention appears, include references to both the real and personal estate of that deceased person.

15. Construction of references to heirs. [1891 (c. 66) s. 89]

15.—(1)The word “heir” or “heirs”, used as a word of limitation in any enactment, deed or instrument passed or executed either before or after the commencement of this Act, shall have the same effect as if this Act had not been passed.

(2)The word “heir” or “heirs”, used as a word of purchase in any enactment, deed or instrument passed or executed before the commencement of this Act, shall bear the same meaning as if this Act had not been passed.

(3)The word “heir” or “heirs”, used as a word of purchase in any enactment, deed or instrument passed or executed after the commencement of this Act, shall, unless the contrary intention appears, be construed to mean the person or persons, other than a creditor, who would be beneficially entitled under Part VI to the estate of the ancestor if the ancestor had died intestate.

(4)Subject as aforesaid, references in any enactment, deed or instrument passed or executed either before or after the commencement of this Act to the heirs of any person shall be construed to refer to his personal representatives.

PART III Executors and Administrators

16. Summons to executor to prove or renounce. [1537 (c. 18)]

16.—The High Court shall have power to summon any person named as executor in a will to prove or renounce probate.

17. Cesser of right of executor to prove. [1857 (c. 79) s. 84; 1859 (c. 31) s. 12]

17.—Where a person appointed executor by a will—

(a)survives the testator but dies without having taken out probate, or

(b)is cited to take out probate and does not appear to the citation, or

(c)renounces probate,

his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his estate shall devolve and be committed in like manner as if that person had not been appointed executor.

18. Withdrawal of renunciation. [New]

18.—(1)Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously taken out representation, and a memorandum of the subsequent probate shall be endorsed on the original grant.

(2)This section applies whether the testator died before or after the commencement of this Act.

19. Death of sole or last surviving executor. [New]

19.—(1)Where the sole or last surviving executor of a testator dies after the commencement of this Act, the executor of such executor shall not be the executor of that testator.

(2)This section applies whether the testator died before or after the commencement of this Act.

20. Right of proving executors to exercise powers. [Cf. 1959 (No. 8) s. 18 (2)]

20.—(1)Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by this Act or otherwise by law conferred on the personal representative may be exercised by the proving executor or executors or the survivor or survivors of them and shall be as effectual as if all the persons named as executors had concurred therein.

(2)This section applies whether the testator died before or after the commencement of this Act.

21. Executor not to act while administration is in force. [1857 (c. 79) s. 80]

21.—Where administration has been granted in respect of the estate, or any part of the estate, of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked or has expired.

22. Protection of persons acting on probate or administration. [1857 (c. 79) ss. 82, 83]

22.—(1)Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation.

(2)Where a representation is revoked, all payments and dispositions made in good faith to a personal representative under the representation before the revocation thereof are a valid discharge to the person making the same; and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.

23. Liability of person fraudulently obtaining or retaining estate of deceased. [1634 (sess. 3. c. 10)]

23.—(1)If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the estate received or coming to his hands, or the debt or liability released, after deducting—

(a)any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and

(b)any payment made by him which might properly be made by a personal representative.

(2)In this section, “full valuable consideration” means such valuable consideration as amounts or approximates to the value of that for which it is given.

24. Liability of estate of personal representative. [1695 (c. 6) s. 11]

24.—Where a person as personal representative of a deceased person (including an executor in his own wrong) wastes or converts to his own use any part of the estate of the deceased, and dies, his personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.

25. Validity of conveyance not affected by revocation of representation. [New]

25.—(1)All conveyances of any estate or interest in the estate of a deceased person made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the grant.

(2)This section takes effect without prejudice to any order of the court made before the commencement of this Act, and applies whether the deceased died before or after such commencement.

PART IV Grants of Representation

26. Grants of probate. [1857 (c. 79) s. 6]

26.—(1)The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.

(2)The High Court shall have power to revoke, cancel or recall any grant of probate.

27. Grants of administration. [1357 (st. 1. c. 11); 1537 (c. 18); 1959 (No. 8) s. 12]

27.—(1)The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.

(2)The High Court shall have power to revoke, cancel or recall any grant of administration.

(3)Subject to subsection (4), the person or persons to whom administration is to be granted shall be determined in accordance with rules of the High Court.

(4)Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.

(5)On administration being granted, no person shall be or become entitled without a grant to administer any estate to which that administration relates.

(6)Every person to whom administration is granted shall, subject to any limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.

[1857 (c. 79) ss. 75, 76, 77]

(7)Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate control of the Court and act under its direction.

(8)The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7) such reasonable remuneration as the Court thinks fit.

(9)This section applies whether the deceased died before or after the commencement of this Act.

27A. F18[Entitlement to grant of probate or administration.

27A.—F19[(1)]F20[Subject tosubsection (2), for the purpose of the application]ofsection 26or27in respect of the estate of a deceased person, the deceased shall be presumed, unless the contrary is shown, not to have been survived by any person related to himF20[whose parents have not married each other or whose parents are not civil partners of each other]or by any person whose relationship with the deceased is deduced through a personF20[whose parents have not married each other or whose parents are not civil partners of each other].

F19[(2)Subsection (1)shall not apply in relation to a person whose parents have not married each other or whose parents are not civil partners of each other where—

(a) the person has been adopted by a cohabiting couple—

(i) under an adoption order, or

(ii) outside the State, where that adoption is recognised by virtue of the law for the time being in force in the State,

or

(b) they are the parents, undersection 5of the Act of 2015, of the person.

(3) In this section—

"Act of 2010" means theAdoption Act 2010;

"adoption order" has the same meaning as it has in section 3(1) of the Act of 2010;

"cohabiting couple" has the same meaning as it has in section 3(1) (amended bysection 102of the Act of 2015) of the Act of 2010.]]

28. Representation of real and personal estate separately or together. [1959 (No. 8) s. 15]

28.—(1)Representation may be granted either separately in respect of real estate and in respect of personal estate, or in respect of real estate together with personal estate, and may be granted in respect of real estate although there is no personal estate, or in respect of personal estate although there is no real estate.

(2)Where the estate of the deceased person is known to be insolvent, the grant shall not be severed except as regards a trust estate.

29. Power to grant representation where no estate. [1959 (No. 8) s. 16]

29.—The High Court shall have jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the State, and to make a de bonis non or other form of grant in respect of unadministered estate, notwithstanding that there is no unadministered estate of the deceased in the State.

30. Power to grant representation to a trust corporation. [New. Cf. 1928 (No. 9)]

30.—(1)The High Court may—

(a)where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant probate to the corporation either solely or jointly with another person, as the case may require, and

(b)grant administration to a trust corporation, either solely or jointly with another person,

and the corporation may act accordingly as executor or administrator, as the case may be.

(2)Representation shall not be granted to any person on behalf of a trust corporation.

(3)Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Court may require with a view to the grant to the corporation of representation, and the acts of an officer so authorised shall be binding on the corporation.

(4)In this Act, “trust corporation” means—

(a)a corporation appointed by the High Court in any particular case to be a trustee;

(b)a corporation empowered by its constitution to undertake trust business, and having a place of business in the State or Northern Ireland, and being—

(i)a company established by Act or charter, or

(ii)an Associated Bank under the Central Bank Act, 1942, or

(iii)a company (whether registered with or without limited liability) within the definition contained in the Companies Act, 1963, or within the meaning of the corresponding law of Northern Ireland, having a capital (in stock or shares) for the time being issued of not less than £250,000, of which not less than £100,000 has been paid up in cash, or

(iv)a company (registered without limited liability) within the definition contained in the said Companies Act or within the meaning of the said law of Northern Ireland, one of the members of which is a corporation within any of the previous provisions of this paragraph; or

F21[(v)a building society authorised under the Building Societies Act, 1989; or]

(c)a corporation which satisfies the President of the High Court that it undertakes the administration of any charitable, ecclesiastical or public trust without remuneration, or that by its constitution it is required to apply the whole of its net income for charitable, ecclesiastical or public purposes and is prohibited from distributing, directly or indirectly, any part thereof by way of profits, and is authorised by the President of the High Court to act in relation to such trusts as a trust corporation.

(5)Where a body corporate, as defined by section 4 of the Bodies Corporate (Executors and Administrators) Act, 1928, is named as executor in a will executed before the commencement of this Act, probate may be granted to that body corporate under this section, notwithstanding that it is not a trust corporation as defined in subsection (4).

31. Grant of special administration where personal representative is abroad. [1857 (c. 79) s. 79; 1859 (c. 31) s. 14]

31.—(1)If at the expiration of twelve months from the death of a person any personal representative of the deceased person to whom a grant has been made is residing out of the jurisdiction of the High Court, the High Court may, on the application of any creditor or person interested in the estate of the deceased person, grant to him in such form as the High Court thinks fit special administration of the estate of the deceased person.

(2)The Court may, for the purpose of any legal proceedings to which the administrator under the special administration is a party, order the transfer into court of any money or securities belonging to the estate of the deceased person, and all persons shall obey any such order.

(3)If the personal representative capable of acting as such returns to and resides within the jurisdiction of the High Court while any legal proceedings to which a special administrator is a party are pending, that personal representative shall be made a party to the legal proceedings, and the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as the court in which the proceedings are pending may direct.

32. Administration during minority of executor. [1818 (c. 81); 1857 (c. 79) s. 79; 1859 (c. 31) s. 14]

32.—(1)Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the High Court thinks fit, until the infant attains the age of twenty-one years and applies for and obtains a grant of probate or letters of administration with the will annexed, and on his attaining that age, and not before, probate of the will may be granted to him.

(2)Where a testator by his will appoints an infant to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section.

33. Continuance of legal proceedings after revocation of temporary administration. [1857 (c. 9) s. 81]

33.—If, while any legal proceedings are pending in any court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, that court may order that the proceedings be continued by or against the new personal representative in like manner as if the proceedings had been originally commenced by or against him, but subject to such conditions and variations, if any, as that court directs.

34. Administration bonds. [1959 (No. 8) s. 14]

34.—(1)Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.

(2)(a)An administration bond shall be in a penalty of double the amount at which the estate of the deceased is sworn, unless the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar shall in any case direct it to be reduced, in which case the Court, the Probate Officer or the district probate registrar may do so.

(b)The High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar may also direct that more administration bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court, the Probate Officer or the district probate registrar (as the case may be) shall think reasonable.

(3)An administration bond shall be in such form as the President of the High Court may prescribe by rules, and shall include a provision for payment of all death duties payable in respect of the estate of the deceased for which the personal representative is accountable and a further provision for the payment of all income tax and sur-tax payable out of the estate of the deceased.

(4)Where it appears to the satisfaction of the High Court that the condition of an administration bond has been broken, the High Court may, on application in that behalf, order that the bond be assigned to such person as may be specified in the order, and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the President of the High Court and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.

(5)Nothing in this section shall require the Chief State Solicitor or the Solicitor for the Attorney General, when applying for or obtaining administration for the use or benefit of the State, to give an administration bond.

[New]

(6)Sureties to administration bonds shall not be required when the grant is made to a trust corporation.

[New]

(7)An administration bond issued by a guarantee society or insurance company approved by the President of the High Court shall be acceptable for the purposes of this section whether the application for the grant is made in person or by a solicitor.

35. Applications for grants and revocations. [1857 (c. 79) ss. 50, 63]

35.—(1)An application for the grant or revocation of representation may be made to the Probate Office or the district probate registry for the district where the deceased, at the time of his death, had a fixed place of abode.

[R.S.C., O. 79, r. 3; O. 80, r. 3]

(2)The application may be made either in person or through a solicitor.

(3)Where, in any contentious matter arising out of an application to the Probate Office, the High Court is satisfied that the Circuit Court has jurisdiction in the matter, the High Court may remit the matter to the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode and the said judge shall proceed in the matter as if the application had been made to the Circuit Court in the first instance.

36. Grants in district probate registries. [1857 (c. 79) ss. 50, 52, 54]

36.—(1)A grant may be made in common form by a district probate registrar in the name of the High Court and under the seal of the registry where the deceased, at the time of his death, had a fixed place of abode within the district where the application for the grant is made.

(2)No grant shall be made by a district probate registrar in any case in which there is contention until the contention is disposed of, or in any case in which it appears to him that a grant ought not to be made without the direction of the Court.

(3)In any case where it appears doubtful to a district probate registrar whether a grant should or should not be made, or where any question arises in relation to a grant, or an application for a grant, the district probate registrar shall send a statement of the matter to the Probate Office for the directions of a judge of the High Court for the time being exercising probate jurisdiction, and the judge may direct the district probate registrar to proceed with the matter in accordance with such instructions as the judge thinks necessary, or may forbid any further proceedings by the district probate registrar in relation to the matter, leaving the party applying for the grant to apply to the High Court through the Probate Office or, if the case is within the jurisdiction of the Circuit Court, to that court.

[1857 (c. 79) ss. 53, 55, 56; 1859 (c. 31) ss. 21, 22]

(4)A district probate registrar shall send to the Probate Office a notice in the prescribed form of every application made in the registry for a grant as soon as may be after the application has been made, and no grant shall be made by him F22[until he has satisfied himself, on the basis of an examination of all notices of applications for grants made to the Probate Office and the district probate registries,] that no other application appears to have been made in respect of the estate of the deceased.

(5)F23[…]

(6)All notices so transmitted to the Probate Office shall be filed and kept in that Office.

(7)F23[…]

(8)A district probate registrar shall, twice in every month, transmit to the Probate Office a list in the prescribed form of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate, certified by him to be correct.

(9)A district probate registrar shall file and preserve all original wills of which probate or administration with the will annexed has been granted by him, subject to such regulations with respect to the preservation and inspection of the wills as may from time to time be made by the President of the High Court.

(10)The President of the High Court may from time to time give directions for the disposal, whether by destruction or otherwise, of such of the notices kept in the Probate Office in pursuance of this section, as have, in his opinion, ceased, owing to lapse of time, to be of any public value.

37. Second and subsequent grants. [1859 (c. 31) s. 16]

37.—Second and subsequent grants shall be made in the Probate Office or district probate registry, as the case may be, from which the original grant issued.

38. Caveats. [1857 (c. 79) s. 57]

38.—(1)A caveat against a grant may be entered in the Probate Office or in any district probate registry.

(2)On a caveat being entered in a district probate registry, the district probate registrar shall immediately send a copy thereof to the Probate Office to be entered among the caveats in that Office.

39. Calendars of grants. [1959 (No. 8) s. 17]

39.—(1)The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of grants made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.

(2)Every such calendar shall contain a note of every probate or administration with the will annexed and of every other administration granted within the period specified in the calendar, setting forth—

(a)the date of the grant,

(b)the place (being the Probate Office or a district probate registry) in which the grant was made,

(c)the name and address and the date of death of the testator or intestate,

(d)the names and descriptions of the executors or administrators, and

(e)the value of the estate, if any.

(3)A copy of every calendar so prepared shall be sent by post or otherwise to every district probate registry, and every copy so sent shall be kept in the district probate registry to which it is sent.

(4)Calendars and copies may be inspected in accordance with the directions of the President of the High Court.

40. Copies of wills, etc., to be delivered to Revenue Commissioners. [1857 (c. 79) s. 100]

40.—Subject to any arrangements which may from time to time be made between the President of the High Court and the Revenue Commissioners, the Probate Office and every district probate registry shall, within such period after a grant as the President may direct, deliver to the Commissioners or their proper officer the following documents—

(a)in the case of a probate or of administration with a will annexed, the Inland Revenue affidavit and a copy of the will (if required);

(b)in the case of administration without a will annexed, the Inland Revenue affidavit;

(c)in every case of administration, a copy or extract of the administration;

(d)in every case, such certificate or note of the grant as the Commissioners may require.

41. Issue of grants of representation in case of Circuit Court decrees. [1857 (c. 79) s. 59]

41.—On a decree being made by the Circuit Court for the grant or revocation of representation the Probate Officer or the district probate registrar shall, on the application of a person entitled thereto, grant representation in compliance with the decree or, as the case may require, recall or vary, according to the effect of the decree, any representation already granted.

42. Deposit and inspection of wills and other documents. [1857 (c. 79) s. 71]

42.—(1)The following documents—

(a)all original wills of which representation is granted in the Probate Office,

(b)copies of all wills the originals of which are to be preserved in district probate registries, and

(c)such other documents as the President of the High Court may direct,

shall be deposited and preserved in the Probate Office under the control of the President of the High Court and may be inspected in accordance with his directions.

(2)Subsection (1) shall have effect subject to the provisions of the Public Records (Ireland) Act, 1867, which provides for the ultimate removal of records to the Public Record Office for safe keeping.

43. Official copies of wills and grants. [1857 (c. 79) s. 74]

43.—(1)An official copy of the whole or any part of a will, or of a grant of representation, may be obtained from the Probate Office or district probate registry where the will has been proved or the representation granted.

(2)An official copy of a grant of representation shall be sufficient evidence of the grant. This subsection applies whether the grant was made before or after the commencement of this Act.

44. Trial by jury of questions of fact. [1857 (c. 79) s. 41]

44.—(1)The court may cause any question of fact arising in any proceedings under this Act to be tried by a jury, and such question shall be so tried in any case where all the parties to the proceedings concur in an application to the court for a jury.

(2)Where any party makes an application for a jury without the concurrence of the other party and the court refuses the application, the refusal of the court shall be subject to appeal.

PART V Administration of Assets

45. Estate of deceased to be assets for payment of debts and legal right. [1285 (c. 19); 1357 (st. 1.c.11); 1695 (c. 12) ss. 7, 8; 1833 (c. 104); 1869 (c. 46)]

45.—(1)The estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the estate of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of the funeral, testamentary and administration expenses, debts (whether by specialty or simple contract) and liabilities, and any legal right, and any disposition by will inconsistent with this section is void as against the creditors and any person entitled to a legal right, and the court shall, if necessary, administer the property for the purpose of the payment of the expenses, debts and liabilities and any legal right.

(2)This section takes effect without prejudice to the rights of incumbrancers.

46. Administration of assets. [New]

46.—(1)Where the estate of a deceased person is insolvent, it shall be administered in accordance with the rules set out in Part I of the First Schedule.

(2)(a)The right of retainer of a personal representative and his right to prefer creditors may be exercised in respect of all assets of the deceased, but the right of retainer shall only apply to debts owing to the personal representative in his own right whether solely or jointly with another person, and shall not be exercisable where the estate is insolvent.

(b)Subject to paragraph (a), nothing in this Act affects the right of retainer of a personal representative, or his right to prefer creditors.

(3)Where the estate of a deceased person is solvent, it shall, subject to rules of court and the provisions hereinafter contained as to charges on property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the discharge of the funeral, testamentary and administration expenses, debts and liabilities and any legal right in the order mentioned in Part II of the First Schedule.

(4)Nothing in subsection (3) affects the rights of any creditor of the deceased or the legal right of a spouse.

(5)Where a creditor, a person entitled to a legal right or a personal representative applies an asset out of the order mentioned in Part II of the First Schedule, the persons entitled under the will or on intestacy shall have the right to have the assets marshalled so that a beneficiary whose estate or interest has been applied out of its order shall stand in the place of that creditor or person pro tanto as against any property that, in the said order, is liable before his own estate or interest.

(6)A claim to a share as a legal right or on intestacy in the estate of a deceased person is a claim against the assets of the estate to a sum equal to the value of that share.

47. Charges on property of deceased to be paid primarily out of the property charged. [1854 (c. 113), 1867 (c. 69) and 1877 (c. 34) extended to personalty]

47.—(1)Where a person dies possessed of, or entitled to, or, under a general power of appointment, by his will disposes of, an interest in property, which at the time of his death is charged with the payment of money, whether by way of legal or equitable mortgage or charge or otherwise (including a lien for unpaid purchase money), and the deceased person has not by will, deed or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased person, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall bear a proportionate part of the charge on the whole thereof.

(2)Such contrary or other intention shall not be deemed to be signified—

(a)by a general direction for the payment of debts or of all the debts of the testator out of his estate, or any part thereof, or

(b)by a charge of debts upon any such estate,

unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge.

(3)Nothing in this section affects the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.

48. Causes of action surviving on death.

48.—The personal representatives of a deceased person may sue and be sued in respect of all causes of action which, by virtue of Part II of the Civil Liability Act, 1961, survive for the benefit of, or against, the estate of the deceased, subject to the provisions of that Act and the rules of limitation under the Statute of Limitations, 1957, or otherwise.

49. Distribution of assets after notice to creditors. [1859 (c. 35) s. 29]

49.—(1)Where the personal representatives have given such notices to creditors and others to send in their claims against the estate of the deceased as, in the opinion of the court in which the personal representatives are sought to be charged, would have been given by the court in an administration suit, the personal representatives shall, at the expiration of the time named in the said notices, or the last of them, for sending in such claims, be at liberty to distribute the assets of the deceased, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which the personal representatives have then notice.

(2)The personal representatives shall not be liable to any person for the assets or any part thereof so distributed unless at the time of such distribution they had notice of that person's claim.

(3)Nothing in this section shall prejudice the right of any creditor or claimant to follow any such assets into the hands of any person who may have received them.

(4)This section applies whether the deceased died before or after the commencement of this Act.

50. Powers of personal representatives to sell and to act as trustees. [1959 (No. 8) s. 18]

50.—(1)The personal representatives may sell the whole or any part of the estate of a deceased person for the purpose not only of paying debts, but also (whether there are or are not debts) of distributing the estate among the persons entitled thereto, and before selling for the purposes of distribution the personal representatives shall, so far as practicable, give effect to the wishes of the persons of full age entitled to the property proposed to be sold or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons so, however, that—

(a)a purchaser shall not be concerned to see that the personal representatives have complied with such wishes; and

(b)it shall not be necessary for any person so entitled to concur in any such sale.

(2)Subject to section 20, it shall not be lawful for some or one only of several personal representatives, without leave of the High Court, to exercise any power conferred by this section or section 60 to dispose of any land.

(3)F24[…]

51. Protection of purchasers. [1959 (No. 8) s. 19]

51.—(1)A purchaser from the personal representatives of a deceased person of any property, being the whole or any part of the estate of the deceased, shall be entitled to hold that property freed and discharged from any debts or liabilities of the deceased, except such as are charged otherwise than by the will of the deceased, and from all claims of the persons entitled to any share in the estate, and shall not be concerned to see to the application of the purchase money.

(2)(a)This subsection applies to all property other than property the ownership of which is registered under the Registration of Title Act, 1964.

(b)A purchaser of any property to which this subsection applies, being the whole or any part of the estate of a deceased person, which has been conveyed by the personal representatives to any person shall be entitled to hold that property freed and discharged from the claims of creditors of the deceased and from any claims of the persons entitled to any share in the estate.

(3)F25[…]

52. General provisions as to assent or transfer by personal representatives. [1959 (No. 8) s. 20]

52.—(1)In this section and in section 53—

(a)references to the land of a deceased person are references to land to which he was entitled or over which he exercised a general power of appointment by will;

(b)“person entitled” includes, in relation to any estate or interest in land—

(i)the person or persons (including the personal representatives of the deceased or any of them) who (whether by devise, bequest, devolution or otherwise) may be beneficially entitled to that estate or interest, and

(ii)the trustee or trustees or the personal representative or representatives of any such person or persons.

(2)Without prejudice to any other power conferred by this Act on personal representatives with respect to any land of a deceased person, the personal representatives may at any time after the death of the deceased execute an assent vesting any estate or interest in any such land in the person entitled thereto or may transfer any such estate or interest to the person entitled thereto, and may make the assent or transfer either subject to or free from a charge for the payment of any money which the personal representatives are liable to pay.

(3)Where an assent or transfer under subsection (2) is made subject to a charge for all moneys, if any, which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before the assent or transfer.

(4)At any time after the expiration of one year from the death of an owner of land, if the personal representatives have failed on the request of the person entitled to transfer, by assent or otherwise, the land to the person entitled, the court may, if it thinks fit, on the application of the person entitled and after notice to the personal representatives, order that the transfer be made, and, in default of compliance with that order within the time specified therein by the court, may make an order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.

(5)An assent not in writing shall not be effectual to pass any estate or interest in land.

(6)The statutory covenants implied where a person is expressed in a deed to convey as personal representative shall also be implied in any assent signed by a personal representative unless the assent otherwise provides.

(7)Subject to section 20, it shall not be lawful for some or one only of several personal representatives, without leave of the court, to make an assent or transfer under this section.

(8)This section shall not operate to impose any stamp duty in respect of an assent.

53. Special provisions as to unregistered land. [1959 (No. 8) s. 21]

53.—(1)An assent to the vesting of any estate or interest in unregistered land of a deceased person in favour of the person entitled thereto shall—

(a)be in writing,

(b)be signed by the personal representatives,

(c)be deemed, for the purposes of the Registration of Deeds Act, 1707, to be a conveyance of that estate or interest from the personal representatives to the person entitled,

(d)operate, subject to the provisions of the Registration of Deeds Act, 1707, with respect to priorities, to vest that estate or interest in the person entitled subject to such charges and incumbrances, if any, as may be specified in the assent and as may otherwise affect that estate or interest,

(e)subject to the provisions of the Registration of Deeds Act, 1707, be deemed (unless a contrary intention appears therein) for all purposes necessary to establish the title of the person entitled to intervening rents and profits to relate back to the death of the deceased, but nothing in this paragraph shall operate to enable any person to establish a title inconsistent with the will of the deceased.

(2)Any person in whose favour an assent or conveyance of any unregistered land is made by personal representatives may at his own expense require the personal representatives to register that assent or conveyance in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

[New]

(3)An assent or conveyance of unregistered land by a personal representative shall, in favour of a purchaser, be conclusive evidence that the person in whose favour the assent or conveyance is given or made is the person who was entitled to have the estate or interest vested in him, but shall not otherwise prejudicially affect the claim of any person originally entitled to that estate or interest or to any mortgage or incumbrance thereon.

(4)This section applies to assents and conveyances made after the commencement of this Act whether the deceased died before or after such commencement.

54. Special provisions as to registered land.

54.—(1)An assent or transfer made by a personal representative in respect of registered land shall be in the form required under section 61 of the Registration of Title Act, 1964, and shall be subject to the provisions of that Act.

(2)The Registration of Title Act, 1964, is hereby amended by the substitution of the following subsection for subsection (3) of section 61:

55. Powers of personal representatives as to appropriation. [New]

55.—(1)The personal representatives may, subject to the provisions of this section, appropriate any part of the estate of a deceased person in its actual condition or state of investment at the time of appropriation in or towards satisfaction of any share in the estate, whether settled or not, according to the respective rights of the persons interested in the estate.

(2)Except in a case to which section 56 applies, an appropriation shall not be made under this section so as to affect prejudicially any specific devise or bequest.

(3)Except in a case to which section 56 applies, an appropriation shall not be made under this section unless notice of the intended appropriation has been served on all parties entitled to a share in the estate (other than persons who may come into existence after the time of the appropriation or who cannot after reasonable enquiry be found or ascertained at that time) any one of which parties may within six weeks from the service of such notice on him apply to the court to prohibit the appropriation.

(4)An appropriation of property, whether or not being an investment authorised by law or by the will, if any, of the deceased, shall not (save as in this section mentioned) be made under this section except with the following consents:

(a)when made for the benefit of a person absolutely and beneficially entitled in possession, the consent of that person;

(b)when made in respect of any settled share, the consent of either the trustee thereof, if any (not being also the personal representative), or the person who may for the time being be entitled to the income.

(5)If the person whose consent is so required is an infant or a person of unsound mind, the consent shall be given on his behalf by his parents or parent, guardian, committee or receiver, or if, in the case of an infant there is no such parent or guardian, by the court on the application of his next friend.

(6)No consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into existence after the time of appropriation, or who cannot after reasonable enquiry be found or ascertained at that time.

(7)If no committee or receiver of a person of unsound mind has been appointed, then, if the appropriation is of an investment authorised by law or by the will, if any, of the deceased, no consent shall be required on behalf of the person of unsound mind.

(8)If, independently of the personal representatives there is no trustee of a settled share, and no person of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such share provided that the appropriation is of an investment authorised as aforesaid.

(9)Any property duly appropriated under the powers conferred by this section shall thereafter be treated as an authorised investment, and may be retained or dealt with accordingly.

(10)For the purposes of such appropriation, the personal representatives may ascertain and fix the values of the respective parts of the estate and the liabilities of the deceased person as they may think fit, and may for that purpose employ a duly qualified valuer in any case where such employment may be necessary; and may make any conveyance which may be requisite for giving effect to the appropriation.

(11)Unless the court on an application made to it under subsection (3) otherwise directs, an appropriation made pursuant to this section shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite.

(12)The personal representatives shall, in making the appropriation, have regard to the rights of any person who may thereafter come into existence, or who cannot after reasonable enquiry be found or ascertained at the time of appropriation, and of any other person whose consent is not required by this section.

(13)This section does not prejudice any other power of appropriation conferred by law or by the will, if any, of the deceased, and takes effect with any extended powers conferred by the will, if any, of the deceased, and, where an appropriation is made under this section, in respect of a settled share, the property appropriated shall remain subject to all trusts for sale and powers of leasing, disposition and management or varying investments which would have been applicable thereto or to the share in respect of which the appropriation is made, if no such appropriation had been made.

(14)If, after any property has been appropriated in purported exercise of the powers conferred by this section, the person to whom it was conveyed disposes of it or any interest therein, then, in favour of a purchaser, the appropriation shall be deemed to have been made in accordance with the requirements of this section and after all requisite notices and consents, if any, had been given.

(15)In this section, a settled share includes any share to which a person is not absolutely entitled in possession at the date of the appropriation and also an annuity.

(16)This section applies whether the deceased died intestate or not, and whether before or after the commencement of this Act, and extends to property over which a testator exercises a general power of appointment, and authorises the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.

(17)Where any property is appropriated under the provisions of this section, a conveyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for the like purpose.

(18)The powers conferred by this section may be exercised by the personal representatives in their own favour.

56. Right of surviving spouse F26[or civil partner] to require dwelling and household chattels to be appropriated. [New]

56.—(1)Where the estate of a deceased person includes a dwelling in which, at the time of the deceased's death, the surviving spouse F26[or civil partner] was ordinarily resident, the surviving spouse F26[or civil partner] may, subject to subsection (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse F26[or civil partner].

(2)The surviving spouse F26[or civil partner] may also require the personal representatives in writing to appropriate any household chattels in or towards satisfaction of any share of the surviving spouse F26[or civil partner].

(3)If the share of a surviving spouse F26[or civil partner] is insufficient to enable an appropriation to be made under subsection (1) or (2), as the case may be, the right conferred by the relevant subsection may also be exercised in relation to the share of any infant for whom the surviving spouse F26[or civil partner] is a trustee under section 57 or otherwise.

(4)It shall be the duty of the personal representatives to notify the surviving spouse F26[or civil partner] in writing of the rights conferred by this section.

(5)A right conferred by this section shall not be exercisable—

(a)after the expiration of six months from the receipt by the surviving spouse F26[or civil partner] of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the later, or

(b)in relation to a dwelling, in any of the cases mentioned in subsection (6), unless the court, on application made by the personal representatives or the surviving spouse F26[or civil partner], is satisfied that the exercise of that right is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration and authorises its exercise.

(6)Paragraph (b) of subsection (5) and paragraph (d) of subsection (10) apply to the following cases:

(a)where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate;

(b)where the dwelling is held with agricultural land an estate or interest in which forms part of the estate;

(c)where the whole or a part of the dwelling was, at the time of the death, used as a hotel, guest house or boarding house;

(d)where a part of the dwelling was, at the time of the death, used for purposes other than domestic purposes.

(7)Nothing in subsection (12) of section 55 shall prevent the personal representatives from giving effect to the rights conferred by this section.

(8)(a)So long as a right conferred by this section continues to be exercisable, the personal representatives shall not, without the written consent of the surviving spouse F26[or civil partner] or the leave of the court given on the refusal of an application under paragraph (b) of subsection (5), sell or otherwise dispose of the dwelling or household chattels except in the course of administration owing to want of other assets.

(b)This subsection shall not apply where the surviving spouse F26[or civil partner] is a personal representative.

(c)Nothing in this subsection shall confer any right on the surviving spouse F26[or civil partner] against a purchaser from the personal representatives.

(9)The rights conferred by this section on a surviving spouse F26[or civil partner] include a right to require appropriation partly in satisfaction of a share in the deceased's estate and partly in return for a payment of money by the surviving spouse F26[or civil partner] on F27[his or her] own behalf and also on behalf of any infant for whom the spouse F26[or civil partner] is a trustee under section 57 or otherwise.

(10)(a)In addition to the rights to require appropriation conferred by this section, the surviving spouse F26[or civil partner] may, so long as a right conferred by this section continues to be exercisable, apply to the court for appropriation on F27[his or her] own behalf and also on behalf of any infant for whom the spouse F26[or civil partner] is a trustee under section 57 or otherwise.

(b)On any such application, the court may, if of opinion that, in the special circumstances of the case, hardship would otherwise be caused to the surviving spouse F26[or civil partner] or to the surviving spouse F26[or civil partner] and any such infant, order that appropriation to the spouse F26[or civil partner] shall be made without the payment of money provided for in subsection (9) or subject to the payment of such amount as the court considers reasonable.

(c)The court may make such further order in relation to the administration of the deceased's estate as may appear to the court to be just and equitable having regard to the provisions of this Act and to all the circumstances.

(d)The court shall not make an order under this subsection in relation to a dwelling in any of the cases mentioned in subsection (6), unless it is satisfied that the order would be unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration.

(11)All proceedings in relation to this section shall be heard in chambers.

(12)Where the surviving spouse F26[or civil partner] is a person of unsound mind, a requirement or consent under this section may, if there is a committee of F27[his or her] estate, be made or given on behalf of the spouse F26[or civil partner] by the committee by leave of the court which has appointed the committee or, if there is no committee, be given or made by the High Court or, in a case within the jurisdiction of the Circuit Court, by that Court.

(13)An appropriation to which this section applies shall for the purposes of succession duty be deemed to be a succession derived from the deceased.

[Cf. "dwelling" in 1960 (No. 42) s. 2 (1)]

(14)In this section—

“dwelling” means an estate or interest in a building occupied as a separate dwelling or a part, so occupied, of any building and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling;

“household chattels” means furniture, linen, china, glass, books and other chattels of ordinary household use or ornament and also consumable stores, garden effects and domestic animals, but does not include any chattels used at the death of the deceased for business or professional purposes or money or security for money.

57. Appointment by personal representatives of trustees of infant's property. [New]

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.

(2)On such appointment the personal representatives, as such, shall be discharged from all further liability in respect of the property vested in the trustees so appointed.

58. Powers of trustees of infant's property. [New]

58.—(1)Property vested under section 57 may be retained in its existing condition or state of investment or may be converted into money and invested in any security in which a trustee is authorised by law to invest, with power, at the discretion of the trustees, to change such investments for others so authorised.

(2)F28[…]

(3)A person who is sole trustee under section 57 shall be entitled to receive capital trust money.

(4)Persons who are trustees under section 57 shall be deemed to be trustees for the purposes of sections 42 and 43 of the Conveyancing Act, 1881.

(5)Without prejudice to any powers under the said sections 42 and 43, persons who are trustees under section 57 may at any time or times pay or apply the capital of any share in the estate to which the infant is entitled for the advancement or benefit of the infant in such manner as they may, in their absolute discretion, think fit and may, in particular, carry on any business in which the infant is entitled to a share.

(6)The powers conferred by subsection (5) may also be exercised by the surviving spouse F29[or civil partner] as trustee of any property of an infant appropriated in accordance with section 56.

59. Right to follow property. [Restates existing law relating to right to follow property; as to real estate, see 1830 (c. 47) 1839 (c. 60) and 1848 (c. 87)]

59.—(1)Property which has been conveyed by personal representatives to any person (other than a purchaser) shall, so long as it remains vested in that person, or in any person claiming under him (not being a purchaser), continue to be liable to answer the debts of the deceased and any share in the estate to the extent to which it was liable when vested in the personal representatives.

(2)In the event of a sale or mortgage of the property by a person (not being a purchaser) to whom it was conveyed by the personal representatives, or by any person claiming under him (not being a purchaser), the seller or mortgagor shall continue to be personally liable for such debts and for any share in the estate to the extent to which the property was liable when vested in the personal representatives.

(3)This section applies whether the deceased died before or after the commencement of this Act.

60. Powers to deal with estate, etc. [Restates, clarifies and extends to real estate existing law relating to personal estate; as to real estate, see 1859 (c. 35) ss. 14 to 18]

60.—(1)The personal representatives of a deceased owner of land may, in addition to any other powers conferred on them by this Act—

(a)make such leases of the land as may be reasonably necessary for the due administration of the estate of the deceased owner; or

(b)with the consent of the beneficiaries, or with the approval of the court, make leases of the land for such term and on such conditions as the personal representatives may think proper; or

(c)make, on such terms and conditions as the personal representatives may think proper, F30[a sub-lease of the land] with a nominal reversion, where such F31[…] sub-lease amounts in substance to a sale and the personal representatives have satisfied themselves that it is the most appropriate method of disposing of the land in the course of the administration of the estate;

and, where personal representatives F31[…] lease any land pursuant to any power conferred on them by this subsection, they may sell F31[…] any reversion expectant upon the determination of any such lease.

(2)The right of the personal representatives to obtain possession of any premises demised by them pursuant to the power conferred by paragraph (a) of subsection (1) shall be exercisable notwithstanding anything to the contrary contained in the Rent Restrictions Act, 1960.

(3)The personal representatives of a deceased person may from time to time raise money by way of mortgage or charge for the payment of expenses, debts and liabilities, and any legal right and, with the approval of all the beneficiaries being sui juris or the court (but not otherwise), for the erection, repair, improvement or completion of buildings, or the improvement of lands forming part of the estate of the deceased.

(4)This section shall not prejudice or affect any power or duty of personal representatives to execute any document or do any other act or thing for the purpose of completing any transaction entered into by a deceased person before his death.

[1840 (c. 105) s. 61]

(5)The personal representatives of a deceased person may distrain upon land for arrears of rent due or accruing to the deceased in like manner as the deceased might have done had he been living.

[1840 (c. 105) s. 62]

(6)Such arrears may be distrained for after the termination of the lease or tenancy as if the term or interest had not determined, if the distress is made—

(a)within six months after the termination of the lease or tenancy;

(b)during the continuance of the possession of the lessee or tenant from whom the arrears were due.

The enactments relating to distress for rent apply to any distress made pursuant to this subsection.

[New]

(7)The personal representatives may distrain for arrears of a rentcharge due or accruing to the deceased in his lifetime on the land affected or charged therewith, so long as the land remains in the possession of the person liable to pay the rentcharge or of the persons deriving title under him, and in like manner as the deceased might have done had he been living.

[Enlarges powers conferred by 1893 (c. 53) s. 21]

(8)The personal representatives of a deceased person may—

(a)accept any property before the time at which it is transferable or payable;

(b)pay or allow any debt or claim on any evidence they may reasonably deem sufficient;

(c)accept any composition or security for any debt or property claimed;

(d)allow time for payment of any debt;

(e)compromise, compound, abandon, submit to arbitration, or otherwise settle, any debt, account, dispute, claim or other matter relating to the estate of the deceased;

(f)settle and fix reasonable terms of remuneration for any trust corporation appointed by them under section 57 to act as trustee of any property and authorise such trust corporation to charge and retain such remuneration out of that property,

and for any of those purposes may enter into such agreements or arrangements and execute such documents as seem to them expedient, without being personally responsible for any loss occasioned by any act or thing so done by them in good faith.

(9)This section shall not prejudice or affect any powers conferred by will on personal representatives, and the powers conferred by this section on the personal representatives of a deceased person who has died testate shall be exercised subject to any provisions contained in his will with respect to the disposal of his estate.

(10)This section applies whether the deceased died before or after the commencement of this Act.

61. Purchasers from personal representatives. [Restates existing law: as to real estate, see 1859 (c. 35) s. 17]

61.—A purchaser from personal representatives shall be entitled to assume that the personal representatives are acting correctly and within their powers.

62. Time allowed for distribution. [1695 (c. 6) s. 4]

62.—(1)The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.

(2)Nothing in this section shall prejudice or affect the rights of creditors of a deceased person to bring proceedings against his personal representatives before the expiration of one year from his death.

63. Advancements to children to be brought into account. [New]

63.—(1)Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased, and as between the children shall be brought into account in distributing the estate.

(2)The advancement shall, for the purposes of this section only, be reckoned as part of the estate of the deceased and its value shall be reckoned as at the date of the advancement.

(3)If the advancement is equal to or greater than the share which the child is entitled to receive under the will or on intestacy, the child or the issue of the child shall be excluded from any such share in the estate.

(4)If the advancement is less than such share, the child or the issue of the child shall be entitled to receive in satisfaction of such share so much only of the estate as, when added to the advancement, is sufficient, as nearly as can be estimated, to make up the full amount of that share.

(5)The onus of proving that a child has been made an advancement shall be upon the person so asserting, unless the advancement has been expressed in writing by the deceased.

(6)For the purposes of this section, “advancement” means a gift intended to make permanent provision for a child and includes advancement by way of portion or settlement, including any life or lesser interest and including property covenanted to be paid or settled. It also includes an advance or portion for the purpose of establishing a child in a profession, vocation, trade or business, a marriage portion and payments made for the education of a child to a standard higher than that provided by the deceased for any other or others of his children.

(7)For the purposes of this section, personal representatives may employ a duly qualified valuer.

(8)Nothing in this section shall prevent a child retaining the advancement and abandoning his right to a share under the will or on intestacy.

(9)Nothing in this section shall affect any rule of law as to the satisfaction of portion debts by legacies.

(10)In this section “child” includes a person to whom the deceased was in loco parentis.