Succession Act , 1965

64. Duty of personal representatives as to inventory. [1357 (st. 1.c.11); 1537 (c. 18); 1695 (c. 6) s. 1]

64.—The personal representatives of a deceased person shall, when lawfully required to do so, exhibit on oath in the court a true and perfect inventory and account of the estate of the deceased, and the court shall have power to require personal representatives to bring in inventories.

65. Administration on behalf of the State. [1884 (c. 71) ss. 2, 3]

65.—(1)Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.

(2)Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.

[New]

(3)Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant

PART VI Distribution on Intestacy

66. Rules for distribution on intestacy.

66.—All estate to which a deceased person was beneficially entitled for an estate or interest not ceasing on his death and as to which he dies intestate after the commencement of this Act shall, after payment of all expenses, debts and liabilities and any legal right properly payable thereout, be distributed in accordance with this Part.

67. Shares of surviving spouse and issue. [New. See 1695 (c. 6) ss. 1, 2, 3]

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

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

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

(b)the remainder shall be distributed among the issue in accordance with F32[section 67B(2)].

(3)F33[…]

(4)F33[…]

67A. F34[Shares of surviving civil partner and issue

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

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

(a)F35[subject to subsections (3), (3A) (inserted by section 67(c) of the Act of 2015), (4), (5), (6) and (7)], the civil partner shall take two-thirds of the estate; and

(b) the remainder shall be distributed among the issue in accordance with section 67B(2).

(3)F35[Subject to subsection (3A), the court may], on the application by or on behalf of a child of an intestate who dies leaving a civil partner and one or more children, order that provision be made for that child out of the intestate’s estate only if the court is of the opinion that it would be unjust not to make the order, after considering all the circumstances, including—

(a) the extent to which the intestate has made provision for that child during the intestate’s lifetime,

(b) the age and reasonable financial requirements of that child,

(c) the intestate’s financial situation, and

(d) the intestate’s obligations to the civil partner.

F36[(3A) An application may not be made under subsection (3) by or on behalf of a child of an intestate where that child is also the child of the surviving civil partner.]

(4) The court, in ordering provision of an amount under subsection (3) shall ensure that—

(a) the amount to which any issue of the intestate is entitled shall not be less than that to which he or she would have been entitled had no such order been made, and

(b) the amount provided shall not be greater than the amount to which the applicant would have been entitled had the intestate died leaving neither spouse nor civil partner.

(5) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.

(6) The costs in the proceedings shall be at the discretion of the court.

(7) An order under this section shall not be made except on an application made within 6 months from the first taking out of representation of the deceased’s estate.]

67B. F37[Share of issue where no surviving spouse or surviving civil partner.

67B.—(1) If an intestate dies leaving issue and no spouse or civil partner, the estate shall be distributed among the issue in accordance with subsection (2).

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

68. Shares of parents. [New. See 1695 (c. 6) ss. 3, 8]

68.—F38[(1)] F39[Subject to this section, if an intestate dies] leaving neither spouse F40[nor civil partner] nor issue, his estate shall be distributed between his parents in equal shares if both survive the intestate, but, if only one parent survives, that parent shall take the whole estate.

F41[(2) If an intestate who is an affected person dies leaving neither spouse nor civil partner nor issue, his or her estate shall be distributed between each person who is his or her surviving parent in equal shares, but, if only one parent survives, that parent shall take the whole estate.

(3) Where subsection (2) applies, and a surviving parent is both the father and the social father (within the meaning of section 4B) of the intestate concerned, the estate of the intestate shall be distributed between him and the other surviving parents in equal shares, but, if he is the only surviving parent, he shall take the whole estate.]

69. Shares of brothers and sisters and their children. [See 1695 (c. 6) ss. 2, 3]

69.—(1)If an intestate dies leaving neither spouse F42[nor civil partner] nor issue nor parent, his estate shall be distributed between his brothers and sisters in equal shares, and, if any brother or sister does not survive the intestate, the surviving children of the deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share that their parent would have taken if he or she had survived the intestate.

(2)If an intestate dies leaving neither spouse F42[nor civil partner] nor issue nor parent nor brother nor sister, his estate shall be distributed in equal shares among the children of his brothers and sisters.

69A. F43[Share of relatives: special provision

69A.—Where, in the application of section 4B to any provision of this Part, the same person would be entitled to take, in relation to the estate of an intestate—

(a) a share by virtue of a relationship with the intestate deduced in accordance with a determination under paragraph (a) of section 4B(1), and

(b) a share by virtue of a relationship with the intestate deduced in accordance with a determination under paragraph (b) of section 4B(1),

the person—

(i) shall take only one of the shares in the estate referred to in paragraphs (a) and (b), and

(ii) may elect to take either the share referred to in paragraph (a) or the share referred to in paragraph (b).]

70. Shares of next-of-kin. [See 1695 (c. 6) ss. 2, 3]

70.—(1)If an intestate dies leaving neither spouse F44[nor civil partner] nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.

(2)Representation of next-of-kin shall not be admitted amongst collaterals except in the case of children of brothers and sisters of the intestate where any other brother or sister of the intestate survives him.

71. Ascertainment of next-of-kin. [New]

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

(2)Degrees of blood relationship of a direct lineal ancestor shall be computed by counting upwards from the intestate to that ancestor, and degrees of blood relationship of any other relative shall be ascertained by counting upwards from the intestate to the nearest ancestor common to the intestate and that relative, and then downward from that ancestor to the relative; but, where a direct lineal ancestor and any other relative are so ascertained to be within the same degree of blood relationship to the intestate, the other relative shall be preferred to the exclusion of the direct lineal ancestor.

72. Half-blood. [New as regards real estate]

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

72A. F45[Distribution of disclaimed estate.

72A.—Where the estate, or part of the estate, as to which a person dies intestate is disclaimed after the passing of the Family Law (Miscellaneous Provisions) Act, 1997 (otherwise than under section 73 of this Act), the estate or part, as the case may be, shall be distributed in accordance with this Part—

(a)as if the person disclaiming had died immediately before the death of the intestate, and

(b)if that person is notF46[the spouse, civil partner or a direct lineal ancestor]of the intestate, as if that person had died without leaving issue.]

73. State as ultimate intestate successor. [New. Replaces escheat and bona vacantia]

73.—(1)In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.

[Cf. 1954 (No. 25) s. 31]

(2)The Minister for Finance may, if he thinks proper to do so, waive, in whole or in part and in favour of such person and upon such terms (whether including or not including the payment of money) as he thinks proper having regard to all the circumstances of the case, the right of the State under this section.

(3)Section 32 of the State Property Act, 1954 (which provides for the disclaimer of certain land devolving on the State by way of escheat or as bona vacantia) shall extend to the grantee's interest under a fee farm grant and the lessee's interest under a lease, where the State has a right to such interest as ultimate intestate successor.

74. Partial intestacy. [1830 (c. 40)]

74.—Where the will of a testator effectively disposes of part only of his estate, the remainder shall be distributed as if he had died intestate and left no other estate.

75. Construction of documents. [New]

75.—(1)References to any Statutes of Distribution in an instrument inter vivos made, or in a will coming into operation, after the commencement of this Act shall, unless the contrary thereby appears, be construed as references to this Part; and references in such an instrument or will to statutory next-of-kin shall, unless the contrary thereby appears, be construed as referring to the persons who would succeed on an intestacy under the foregoing provisions of this Part.

(2)Trusts declared by reference to any Statutes of Distribution in an instrument inter vivos made, or in a will coming into operation, before the commencement of this Act shall, unless the contrary thereby appears, be construed as referring to the enactments (other than the Intestates' Estates Act, 1954) relating to the distribution of effects of intestates which were in force immediately before the commencement of this Act.

PART VII Wills

76. Property which may be disposed of by will. [1837 (c. 26) s. 3]

76.—A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representatives.

77. Capacity to make a will. [1837 (c. 26) s. 7 amended]

77.—(1)To be valid a will shall be made by a person who—

(a)has attained the age of eighteen years or is or has been married, and

(b)is of sound disposing mind.

[1964 (No. 7) s. 7 (7)]

(2)A person who is entitled to appoint a guardian of an infant may make the appointment by will notwithstanding that he is not a person to whom paragraph (a) of subsection (1) applies.

78. Signing and witnessing will. [1837 (c. 26) s. 9 and 1852 (c. 24) s. 1]

78.—To be valid a will shall be in writing and be executed in accordance with the following rules:

1.It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction.

2.Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

3.So far as concerns the position of the signature of the testator or of the person signing for him under rule 1, it is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.

4.No such will shall be affected by the circumstances—

(a)that the signature does not follow or is not immediately after the foot or end of the will; or

(b)that a blank space intervenes between the concluding word of the will and the signature; or

(c)that the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, or under, or beside the names or one of the names of the attesting witnesses; or

(d)that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or

(e)that there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature;

and the enumeration of the above circumstances shall not restrict the generality of rule 1.

5.A signature shall not be operative to give effect to any disposition or direction inserted after the signature is made.

79. Appointments by will. [1837 (c. 26) s. 10]

79.—(1)An appointment made by will, in exercise of any power, shall not be valid unless it is executed in accordance with this Act.

(2)Every will so executed shall, so far as concerns its execution and attestation, be a valid execution of a power of appointment by will, notwithstanding that it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity.

80. Publication of will not necessary. [1837 (c. 26) s. 13]

80.—Every will executed in accordance with this Act shall be valid without any other publication thereof.

81. Will not void on account of incompetency of witness. [1837 (c. 26) s. 14]

81.—If a person who attests the execution of a will is, at the time of execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid.

82. Gifts to an attesting witness, or spouse of witness, to be void. [1837 (c. 26) s. 15]

82.—(1)If a person attests the execution of a will, and any devise, bequest, estate, interest, gift, or appointment, of or affecting any property (other than charges and directions for the payment of any debt or debts) is given or made by the will to that person or his spouse F47[or civil partner], that devise, bequest, estate, interest, gift, or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse F47[or civil partner] of that person, or any person claiming under that person or spouse F47[or civil partner], be utterly null and void.

(2)The person so attesting shall be admitted as a witness to prove the execution of the will, or to prove the validity or invalidity thereof, notwithstanding such devise, bequest, estate, interest, gift, or appointment.

83. Creditor attesting will charging estate with debts admissible as witness. [1837 (c. 26) s. 16]

83.—If by will any estate is charged with any debt or debts, and a creditor, or the spouse F48[or civil partner] of a creditor, whose debt is so charged, attests the execution of the will, the creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of the will, or to prove the validity or invalidity thereof.

84. Executor admissible as witness. [1837 (c. 26) s. 17]

84.—A person shall not, by reason only of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will, or a witness to prove the validity or invalidity thereof.

85. Revocation of will. [New. Cf. 1837 (c. 26) s. 18]

85.—(1)A will shall be revoked by the subsequent marriage F49[or entry into a civil partnership] of the testator, except a will made in contemplation of that marriage F49[or entry into a civil partnership], whether so expressed in the will or not.

F50[(1A) Notwithstanding subsection (1), where the parties to a subsisting civil partnership with each other marry each other, a will made in contemplation of entry into the civil partnership or during the civil partnership by a testator who is a party to the marriage shall not be revoked by that marriage and a reference in the will to the testator’s civil partner shall be construed as a reference to the testator’s spouse.]

[1837 (c. 26) ss. 19, 20]

(2)Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

86. Alterations in will after execution. [1837 (c. 26) s. 21]

86.—An obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.

87. Revoked will not revived otherwise than by re-execution or codicil. [1837 (c. 26) s. 22]

87.—No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.

88. Subsequent conveyance or other act not to prevent operation of will. [1837 (c. 26) s. 23]

88.—Where, subsequently to the execution of a will, a conveyance or other act is made or done relating to any estate comprised in the will, except an act by which the will is revoked, the conveyance or act shall not prevent the operation of the will with respect to any estate or interest in the property which the testator has power to dispose of by will at the time of his death.

89. Will to speak from death of testator. [1837 (c. 26) s. 24 extended so as to overrule Wild's Case (1599) 6 Co. Rep. 16b]

89.—Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.

90. Extrinsic evidence as to will. [New]

90.—Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.

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

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

92. General devise of land to include leasehold as well as freehold. [1837 (c. 26) s. 26]

92.—A general devise of land shall be construed to include leasehold interests as well as freehold estates, unless a contrary intention appears from the will.

93. General gift of realty or personalty to include property over which testator has general power of appointment. [1837 (c. 26) s. 27]

93.—A general devise of land shall be construed to include any land which the testator may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will; and in like manner a general bequest of the personal estate (other than land) of the testator shall be construed to include any such estate which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will.

94. Devise of real estate without words of limitation to pass whole estate. [1837 (c. 26) ss. 28, 30, 31]

94.—Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.

95. Creation of estates tail. [New. Overrules Wild's Case (1599) 6 Co. Rep. 16b]

95.—F51[…]

96. Meaning of “die without issue”. [1837 (c. 26) s. 29]

96.—In a devise or bequest of real or personal estate, the words “die without issue”, or “die without leaving issue”, or “have no issue”, or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in his lifetime or at the time of his death, and not an indefinite failure of his issue, unless a contrary intention appears from the will.

97. Devise of estate tail not to lapse where inheritable issue survives. [1837 (c. 26) s. 32]

97.—F52[…]

98. Gifts to children or other issue who leave issue living at testator's death. [1837 (c. 26) s. 33 extended to cover appointments under special powers and class gifts]

98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

99. Interpretation of devise or bequest in case of doubt. [New]

99.—If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.

100. Restriction on executory limitations. [See 1882 (c. 39) s. 10]

100.—Where a person is entitled under a will to—

(a)land for an estate in fee simple or for any lesser estate or interest not being an estate tail, or

(b)any interest in other property,

with an executory limitation over in default or failure of any of his issue, whether within a specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue of the class in default or failure of which the limitation over was to take effect.

PART VIII Conflict of Laws relating to Testamentary Dispositions

101. “Testamentary disposition”.

101.—In this Part, “testamentary disposition” means any will or other testamentary instrument or act.

102. Validity as regards form. [Hague Convention, Arts. 1, 2. As to existing law, see 1861 (c. 114) ss. 1, 2]

102.—(1)A testamentary disposition shall be valid as regards form if its form complies with the internal law—

(a)of the place where the testator made it, or

(b)of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or

(c)of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or

(d)of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or

(e)so far as immovables are concerned, of the place where they are situated.

(2)Without prejudice to subsection (1), a testamentary disposition revoking an earlier testamentary disposition shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under that subsection, the testamentary disposition that has been revoked was valid.

(3)For the purposes of this Part, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.

(4)The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

103. Dispositions made on board vessel or aircraft. [New]

103.—Without prejudice to section 102, a testamentary disposition made on board a vessel or aircraft shall also be valid as regards form if its form complies with the internal law of the place with which, having regard to its registration (if any) and any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connexion.

104. Exercise of power of appointment. [New]

104.—(1)Without prejudice to section 102, a testamentary disposition shall also be valid as regards form so far as it exercises a power of appointment, if its form complies with the law governing the essential validity of the power.

(2)A testamentary disposition so far as it exercises a power of appointment shall not be treated as invalid as regards form by reason only that its form is not in accordance with any formal requirements contained in the instrument creating the power.

105. Joint dispositions. [Hague Convention, Art. 4]

105.—This Part shall also apply to the form of testamentary dispositions made by two or more persons in one document.

106. Effect of restrictions on capacity. [Hague Convention, Art. 5]

106.—(1)For the purposes of this Part, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator shall be deemed to pertain to matters of form.

(2)The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition and to the provisions of section 82.

107. Construction of testamentary disposition. [1861 (c. 114) s. 3] [New]

107.—(1)The construction of a testamentary disposition shall not be altered by reason of any change in the testator's domicile after the making of the disposition.

(2)In determining whether or not a testamentary disposition complies with a particular law, regard shall be had to the requirements of that law at the time of making the disposition, but this shall not prevent account being taken of an alteration of law affecting testamentary dispositions made at that time if the alteration enables the disposition to be treated as valid.

108. Effect of testamentary disposition under Part VII. [New]

108.—A testamentary disposition which under this Part is valid as regards form shall have the same effect as if it were a will executed in compliance with Part VII.

PART IX Legal Right of Testator’s Spouse and Provision for Children

109. Application of Part IX. [New]

109.—(1)Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse F53[or civil partner] or children or both spouse F53[or civil partner] and children, the provisions of this Part shall have effect.

(2)In this Part, references to the estate of the testator are to all estate to which he was beneficially entitled for an estate or interest not ceasing on his death and remaining after payment of all expenses, debts, and liabilities (other than estate duty) properly payable thereout.

110. Legitimated, illegitimate and adopted persons. [New]

110.—F54[…]

111. Right of surviving spouse. [New]

111.—(1)If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

(2)If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

111A. F55[Right of surviving civil partner.

111A.—(1) If the testator leaves a civil partner and no children, the civil partner shall have a right to one-half of the estate.

(2) Subject to section 117(3A), if the testator leaves a civil partner and children, the civil partner shall have a right to one-third of the estate.]

112. Priority of legal right. [New]

112.—The right of a spouse under section 111 F56[or the right of a civil partner under section 111A] (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

113. Renunciation of legal right. [New]

113.—The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.

113A. F57[Renunciation of legal right.

113A.—The legal right of a civil partner may be renounced in an ante-civil-partnership-registration contract made in writing between the parties to an intended civil partnership or may be renounced in writing by the civil partner after registration and during the lifetime of the testator.]

114. Effect of devise or bequest to spouse F58[or civil partner]. [New]

114.—(1)Where property is devised or bequeathed in a will to a spouse F58[or civil partner] and the devise or bequest is expressed in the will to be in addition to the share as a legal right of the spouse F58[or civil partner], the testator shall be deemed to have made by the will a gift to the spouse F58[or civil partner] consisting of—

(a)a sum equal to the value of the share as a legal right of the spouse F58[or civil partner], and

(b)the property so devised or bequeathed.

(2)In any other case, a devise or bequest in a will to a spouse F58[or civil partner] shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse F58[or civil partner].

115. Election between legal right and rights under a will and on partial intestacy. [New]

115.—(1)(a)Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse F59[or civil partner], the spouse F59[or civil partner] may elect to take either that devise or bequest or the share to which he is entitled as a legal right.

(b)In default of election, the spouse F59[or civil partner] shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

(2)(a)Where a person dies partly testate and partly intestate, a spouse F59[or civil partner] may elect to take either—

(i)his share as a legal right, or

(ii)his share under the intestacy, together with any devise or bequest to him under the will of the deceased.

(b)In default of election, the spouse F59[or civil partner] shall be entitled to take his share under the intestacy, together with any devise or bequest to him under the will, and he shall not be entitled to take any share as a legal right.

(3)A spouse F59[or civil partner], in electing to take his share as a legal right, may further elect to take any devise or bequest to him less in value than the share in partial satisfaction thereof.

(4)It shall be the duty of the personal representatives to notify the spouse F59[or civil partner] in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse F59[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.

(5)Where the surviving spouse F59[or civil partner] is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse's F59[or civil partner’s] estate, be exercised on behalf of the spouse F59[or civil partner] by the committee by leave of the court which has appointed the committee or, if there is no committee, be exercised by the High Court or, in a case within the jurisdiction of the Circuit Court, by that Court.

(6)In this section, but only in its application to a case to which subsection (1) of section 114 applies, “devise or bequest” means a gift deemed under that subsection to have been made by the will of the testator.

116. Provision in satisfaction of legal right.

116.—(1)Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other than periodical payments made for her maintenance during his lifetime) shall be taken as being given in or towards satisfaction of the share as a legal right of the surviving spouse.

(2)The value of the property shall be reckoned as at the date of the making of the provision.

(3)If the value of the property is equal to or greater than the share of the spouse as a legal right, the spouse shall not be entitled to take any share as a legal right.

(4)If the value of the property is less than the share of the spouse as a legal right, the spouse shall be entitled to receive in satisfaction of such share so much only of the estate as, when added to the value of the property, is sufficient, as nearly as can be estimated, to make up the full amount of that share.

(5)This section shall apply only to a provision made before the commencement of this Act.

117. Provision for children. [New]

117.—(1)Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

F60[(1A)(a)An application made under this section by virtue ofPart Vof the Status of Children Act, 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the saidPart V.

(b)Nothing in paragraph (a) shall be construed as conferring a right to apply under this section in respect of a testator who dies before the commencement of the saidPart V.]

(2)The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

(3)An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.

F61[(3A) An order under this section—

(a) where the surviving civil partner is a parent of the child, shall not affect the legal right of that surviving civil partner or any devise or bequest to the civil partner or any share to which the civil partner is entitled on intestacy, or

(b) where the surviving civil partner is not a parent of the child, shall not affect the legal right of the surviving civil partner unless the court, after consideration of all the circumstances, including the testator’s financial circumstances and his or her obligations to the surviving civil partner, is of the opinion that it would be unjust not to make the order.]

(4)Rules of court shall provide for the conduct of proceedings under this section in a summary manner.

(5)The costs in the proceedings shall be at the discretion of the court.

(6)An order under this section shall not be made except on an application made within F62[6 months] from the first taking out of representation of the deceased's estate.

118. Estate duty. [New]

118.—Property representing the share of a person as a legal right and property which is the subject of an order under section 117 shall bear their due proportions of the estate duty payable on the estate of the deceased.

119. Proceedings to be in chambers.

119.—All proceedings in relation to this Part shall be heard in chambers.

PART X Unworthiness to Succeed and Disinheritance

120. Exclusion of persons from succession. [New]

120.—(1)A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.

(2)A spouse F63[…] guilty of desertion which has continued up to the death for two years or more shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.

F64[(2A) A deceased’s civil partner who has deserted the deceased is precluded from taking any share in the deceased’s estate as a legal right or on intestacy if the desertion continued up to the death for two years or more.]

(3)A spouse who was guilty of conduct which justified the deceased in separating and living apart from him shall be deemed to be guilty of desertion within the meaning of subsection (2).

F64[(3A) A civil partner who was guilty of conduct which justified the deceased in separating and living apart from him or her is deemed to be guilty of desertion within the meaning of subsection (2A).]

(4)A person who has been found guilty of an offence against the deceased, or against the spouse F64[or civil partner] or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.

(5)Any share which a person is precluded from taking under this section shall be distributed as if that person had died before the deceased.

121. Dispositions for purpose of disinheriting spouse or children. [New]

121.—(1)This section applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later.

(2)If the court is satisfied that a disposition to which this section applies was made for the purpose of defeating or substantially diminishing the share of the disponer's spouse F65[or civil partner], whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for, then, whether the disponer died testate or intestate, the court may order that the disposition shall, in whole or in part, be deemed, for the purposes of Parts VI and IX, to be a devise or bequest made by him by will and to form part of his estate, and to have had no other effect.

(3)To the extent to which the court so orders, the disposition shall be deemed never to have had effect as such and the donee of the property, or any person representing or deriving title under him, shall be a debtor of the estate for such amount as the court may direct accordingly.

(4)The court may make such further order in relation to the matter as may appear to the court to be just and equitable having regard to the provisions and the spirit of this Act and to all the circumstances.

(5)Subject to subsections (6) and (7), an order may be made under this section—

(a)in the interest of the spouse F65[or civil partner], on the application of the spouse F65[or civil partner] or the personal representative of the deceased, made within one year from the first taking out of representation,

(b)in the interest of a child, on an application under section 117.

(6)In the case of a disposition made in favour of the F66[spouse or civil partner, as the case may be,] of the disponer, an order shall not be made under this section on an application by or on behalf of a child of the disponer who is also a child of the F66[spouse or civil partner, as the case may be].

(7)An order shall not be made under this section affecting a disposition made in favour of any child of the disponer, if—

(a)the spouse F65[or civil partner] of the disponer was dead when the disposition was made, or

(b)the spouse F65[or civil partner] was alive when the disposition was made but was a person who, if the disponer had then died, would have been precluded under any of the provisions of section 120 from taking a share in his estate, or

(c)the spouse F65[or civil partner] was alive when the disposition was made and consented in writing to it.

(8)If the donee disposes of the property to a purchaser, this section shall cease to apply to the property and shall apply instead to the consideration given by the purchaser.

(9)Accrual by survivorship on the death of a joint tenant of property shall, for the purposes of this section, be deemed to be a vesting of the beneficial ownership of the entire property in the survivor.

(10)In this section “disposition” includes a donatio mortis causa.

122. Proceedings to be in chambers.

122.—All proceedings in relation to this Part shall be heard in chambers.

PART XI Limitation of Actions

123. Personal representative, as such, not a trustee under Statute of Limitations, 1957. [1959 (No. 8) s. 26]

123.—(1)A personal representative in the capacity of personal representative shall not, by reason only of section 10, be a trustee for the purposes of the Statute of Limitations, 1957.

(2)Subsection (1) is in substitution for paragraph (d) of subsection (2) of section 2 of the Statute of Limitations, 1957, repealed by this Act.

124. “Trustee” in Statute of Limitations, 1957, not to include a bailiff. [New. Overrules Rice v. Begley [1920] 1 I.R. 243]

124.—Notwithstanding any rule of law, “trustee” in the Statute of Limitations, 1957, shall not include a person whose fiduciary relationship arises merely because he is in possession of property comprised in the estate of a deceased person in the capacity of bailiff for another person.

125. Persons entitled to shares in land. [New. Cf. Ward v. Ward (1871) L.R. 6 Ch. 789, Coyle v. MC Fadden [1901] 1 I.R. 298, Smith v. Savage [1906] 1 I.R. 469]

125.—(1)Where each of two or more persons is entitled to any share in land comprised in the estate of a deceased person, whether such shares are equal or unequal, and any or all of them enter into possession of the land, then, notwithstanding any rule of law to the contrary, those who enter shall (as between themselves and as between themselves and those (if any) who do not enter) be deemed, for the purposes of the Statute of Limitations, 1957, to have entered and to acquire title by possession as joint tenants (and not as tenants in common) as regards their own respective shares and also as regards the respective shares of those (if any) who do not enter.

(2)Subsection (1) shall apply whether or not any such person entered into possession as personal representative of the deceased, or having entered, was subsequently granted representation to the estate of the deceased.

126. Actions in respect of estates of deceased persons. [New]

126.—The Statute of Limitations, 1957, is hereby amended by the substitution of the following section for section 45:

127. Limitation period in case of disability. [New]

127.—Section 49 of the Statute of Limitations, 1957, which extends the periods of limitation fixed by that Act where the person to whom a right of action accrued was under a disability, shall have effect in relation to an action in respect of a claim to the estate of a deceased person or to any share in such estate, whether under a will, on intestacy or as a legal right, as if the period of three years were substituted for the period of six years mentioned in subsection (1) of that section.

PART XII Provisions relating to Probate Office and District Probate Registries

128. Assistant Probate Officer. [1959 (No. 8) s. 25.

128.—(1)In this section “the Assistant Probate Officer” means the officer employed in the Probate Office who is next in rank to the Probate Officer and is qualified to be appointed to be Probate Officer.

(2)The powers, authorities, duties and functions exercisable or performable by the Probate Officer may, subject to any restrictions which the President of the High Court may think fit to impose, be exercised or performed by the Assistant Probate Officer.

129. District probate registries. [1857 (c. 79) ss. 16, 17; 1926 (No. 27) s. 56]

129.—(1)There shall be district probate registries for such districts and at such places as the Minister may by order appoint.

(2)The Minister may by order—

(a)alter the district served by a district probate registry;

(b)add to or reduce the number of such districts;

(c)direct that any district probate registry may be at such place within the district as he thinks fit;

(d)close any district probate registry.

(3)Whenever the Minister makes an order closing a district probate registry, the Minister may by that order make provision for enabling applications for representation, in cases in which the deceased, at the time of his death, had a fixed place of abode within the district previously served by that registry, to be lodged with the county registrar for the area in which that place of abode was situate and for the transmission of the applications by the county registrar to the Probate Office and the transmission of the grants (if and when issued) from the Probate Office to the said county registrar for delivery to the person entitled thereto.

(4)Until provision is otherwise made under this section, the district probate registries existing at the commencement of this Act shall continue to function for the districts and at the places theretofore appointed by law.

130. Fees to be taken at district probate registries.

130.—(1)In this section, “the Act of 1936” means the Courts of Justice Act, 1936.

[1959 (No. 8) s. 24 (1)]

(2)For the purposes of section 65 (which empowers the Minister to prescribe court fees) of the Act of 1936, every district probate registry shall be deemed to be an office established by the Court Officers Act, 1926.

S.I. No. 251 of 1956.

(3)The Supreme Court and High Court (Fees) Order, 1956, as modified by section 24 of the Administration of Estates Act, 1959, shall, notwithstanding the repeal of that Act by this Act, continue to apply in respect of each district probate registry and each district probate registrar.

131. Acting district probate registrars. [1959 (No. 8) s. 24 (2)]

131.—Where a person (in this section referred to as the acting district probate registrar) is for the time being required and authorised by the Minister under section 9 of the Court Officers Act, 1945, as amended by section 5 of the Court Officers Act, 1951, to perform the duties of district probate registrar for the district served by a particular district probate registry, the Minister may authorise a specified officer serving in that district probate registry or in the circuit court office which serves the area within which such district probate registry is located to execute, during the temporary absence or temporary incapacity through illness of the acting district probate registrar, the office of district probate registrar for that district and, if the Minister does so, then, such officer shall, during any such temporary absence or temporary incapacity, have and exercise all the powers and fulfil all the duties of the district probate registrar for that district unless and until the Minister otherwise directs.