Introduction

Section 3(1) of the Succession Act 1965 states the following:-

“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.

Total Intestacy

A deceased dies totally intestate if:

(a)           he has made no will;

(b)           he has made an invalid will;

(c)           he has revoked a will; or

(d)           he had made a will which does not dispose of all his property.

In the case of Fitzpatrick v Collins (1978; ILRM 244) the plaintiff, the administrator of the will of John Collins (the testator) who died on 2 of October 1973, brought proceedings for the determination of a number of questions arising on the interpretation of the said will. The testator had made in his will provisions for the spiritual welfare of his wife and himself and both their parents in the event of the wife surviving him and/or dying within two months of the testator’s death, but made no provision for the case of his wife pre-deceasing him, which she in fact did by a period of 8 years approximately. It was held by Mr Justice McWilliam that John Collins had died intestate.

Partial Intestacy

Section 74 of the Succession Act states:-

‘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’.

Section 74 makes it clear that the undisposed estate must be distributed as if the testator had died intestate and had left no other estate, thus rendering a partial intestacy independent of the provisions of the will of the deceased.

Hotchpot

Section 63 of the Succession Act provides that advancements to children of the deceased made during his/her lifetime only are to be brought into account when calculating their entitlements on intestacy or under a will. This also applies to a partial intestacy and therefore any lifetime advancements made to children must be taken into account when calculating their total shares under a will, under an intestacy or a partial intestacy (note section 63(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?).

Section 115(2)(a) states:-

‘Where a person dies partly testate and partly intestate, a spouse 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.’

Section 115(2)(b) goes on to state:-

‘In default of election, the spouse 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’.

The net effect of this is that a spouse is entitled to take her/his share on an intestacy together with any gift under the Will.

Example of Partial Intestacy

Mrs Grant dies and gives various pecuniary legacies with the residue of her Estate to be divided among three sisters and two brothers. One of her sisters dies before Mrs Grant and no provision is made in the Will for this. The question is whether this share falls into the residue of the Estate or fall on an intestacy?

Solution

The solution is that the share of the deceased’s sister is to be distributed by the rules of partial intestacy.

Note of Warning

Section 98 of the Succession Act provides an exception to the doctrine of lapse for wills. In effect it provides that if a child of a testator dies before the testator, under the purposes of the Succession Act they are deemed to have died immediately after the testator thus preserving the share for the child’s estate.

Devolution of Property

Section 13 of the Succession Act provides:-

‘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.’

Therefore, an executor derives his title under the will and the authority of an administrator only arises under the Grant of Administration. As practitioners are aware, a will speaks from death and the title of the administrator does not relate back to death but from the Grant of Administration.

Pre-Succession Act Rules on Devolution

The Pre-Succession Act Rules made a distinction between real and personal property. Real property descended to the heir-at-law, except freehold registered land which, under Part IV of the 1891 Registration of Title Act, was distributed as personality. (The distribution of shares on intestacy for personality are set out on page 91-92 of Eamonn Mongey’s book Probate Practice in a Nutshell (2^nd edition).)

Order 79, Rule 5(16) of the Rules of the Superior Courts 1986 provides:

‘In determining to whom a grant of administration intestate or with will annexed may be made in the case of a person who died prior to the 1^st day of January, 1967, the rules heretofore in force applicable to such a case shall be observed’.

Section 12 of the Succession Act 1965 assimilates both real and personality into a single estate of the deceased.

Succession Act Rules on Distribution

Part VI of the Succession Act sets out the rules which govern the distribution of an intestate estate where the intestate dies after 1 January 1967. The relevant sections are 66-75.

Section 66

This is an introductory section providing that property available for distribution (after payment of debts and liabilities) and not disposed of by will is to be distributed in accordance with this part of the Act.

Shares on Intestacy for a Death (on or since 1 January 1967)

Section 67(1) states ‘Spouse and no issue: surviving spouse takes all’.

Section 67(2) states ‘Spouse and issue: two thirds to surviving spouse; one third equally among children, with issue of predeceased child taking per stirpes. Issue and no spouse: children take equally, with issue of predeceased child taking per stirpes.’

Surviving Spouse

A spouse’s entitlement to share in the intestate estate is based on the marital status, thus, when a Decree of Divorce is granted, a share on intestacy ceases contemporaneously with the dissolution of the marriage but the court, when making such a Decree, will take such inheritance matters into account. Under section 18 of the Divorce Act 1996, a divorced spouse may apply to the Court for provision to be made for him/her out of their divorced spouse’s estate.

A Separation Agreement, or indeed a Decree of Judicial Separation, does not change the marital status of a spouse, although an inheritance issue will probably be covered under an Agreement/Court Order.

Issue (Children)

The term ‘issue’ is not defined in the Act. The term will normally encompass the children of an intestate and other lineal descendants.

Adopted Children - section 53(2) of the Status of Children Act, 1987

Adopted children have, under section 26 of the Adoption Act 1952, the same rights as a natural born child of the adoptive parent. It is important to point out, however, once an Adoption Order is made that an adopted child ceases to be treated as a child of his natural parent(s). Under the Finance Act 2001, adopted children have Group A threshold from both their adoptive and natural parents for tax purposes.

Children Born out of Wedlock

Prior to the Status of Children Act 1987, the only Succession Act rights of a child born out of wedlock on the death of a parent intestate was found in the Legitimacy Act 1931 which gave the right to succeed to the estate of the mother, but no right to succeed against the estate of the father. The Status of Children Act now provides that any relationship between child and parent will be adduced irrespective of the marital status of the parents and all the relationships will be determined accordingly. In other words, children will be deemed legitimised notwithstanding the marital status of their parents.

No Spouse or Issue

Section 68 of the Succession Act provides that if there is no spouse or issue, each parent takes a one-half share or, if only one parent is alive, that parent takes the full share. In other words, if a bachelor dies without issue leaving a father, brothers and sisters, the father would take the full share.

No Spouse, Issue or Parent

Section 69 of the Succession Act deals with the shares of brothers and sisters and their children. ‘Brothers’ and ‘Sisters’ includes half-brothers and half-sisters, legitimised and adopted brothers and sisters and, since the commencement of the Status of Children Act 1987, brothers and sisters born out of wedlock also.

Section 69(1) provides that if a person dies without spouse or issue or parent, all brothers and sisters take equally and the children of a predeceased brother or sister take per stirpes.

Section 69(2) provides that if an intestate dies leaving neither spouse nor issue nor parent nor brother and sister, all nephews and nieces take equally.

The net effect of this that if any brother or sister survives the intestate, the surviving brothers and sisters will continue to take their share per capita while surviving children of a deceased brother or sister take per stirpes. But, if no brother and sister survive, nephews and nieces become entitled to equal shares per capita and not per stirpes. The effect, therefore, is that the larger families of a deceased brother or sister will benefit more than they would have done per stirpes where no brother and sister survive.

Section 70 (Shares of next-of-kin)

Section 70(1) provides that if the intestate is not survived by a spouse, issue, parents, brother, sister, nephew or niece his/her estate will be distributed among his/her next of kin.

Section 70(2) provides that lineal descent is preferred to collateral succession with one exception. The exception is made for representation in the case of children of brothers and sisters of an intestate where any other brother or sister survives. This in effect deals with section 69.

Ascertainment of Next-of-Kin

Section 71 deals with the ascertainment of next-of-kin. Next-of-kin is based on a blood relationship to the intestate. The degrees of blood relationship are ascertained by counting upwards to the nearest common ancestor and then downwards from that ancestor to the relative. The subsection provides that as between relatives of the same the degree of relationship under this rule, preference is given to those who are not direct lineal ancestors. The following is a diagram of an intestate succession for deaths on or after 1 January 1967 (courtesy of Probate Practice in a Nutshell, by Eamonn Mongey).

INTESTATE SUCCESSION FOR DEATHS ON OR AFTER 1/1/1967 AND ORDER OF ENTITLEMENT TO GRANT

Great Great Grandparents (13)

                ?

Great Grandparents (11)

                ?---------------------------------------------------------------?-----------------

Grandparents (9)                                                  Great Uncle/Great Aunt (12)

                ?------------------------------------------------------?

Father-Mother (6)                                                  Uncle/Aunt (10)

                ?                                                                                              ?-----------------?----------

                ?                                                                                                     First Cousin (12)

                ?--------------------------------------------------------------?

                ?                                                                                                   ?

                Spouse (1) INTESTATE                        Brother/Sister (7)

                ?                                                                                              ?------------?           

                Children (2)                                                             Nephew/Niece(8)

                ?                                                                                                              ?--------------------------           Grandchildren (3)                                                                 Great Nephew/Niece (12)

                ?

                Great Grandchildren (4)

                ?

                Great Great Grandchildren (5)

Example of Ascertaining Next-of-Kin

Jackie dies intestate, a bachelor without any parents, brothers, sisters or grandparents. Surviving him are a great grandmother and an aunt. The degree of the relationship of the great grandmother is a direct lineal ancestor and is traced upwards from a parent to his first degree, grandparents second degree and great grandmother third degree.

The aunt is ascertained as follows. The common ancestor is a grandfather who is the second degree. Counting down makes the aunt a relative in the third degree.

Therefore the great grandmother and aunt are in the third degree but the aunt would take in preference to the great grandmother. The reason is that the great grandmother is a direct lineal ancestor and the aunt is ?the other relative? which takes preference.

Next-of-kin will not necessarily have identical relationship to the intestate. The thing to watch is that lineal ancestors are not preferred. Thus, for example, if an intestate is survived by three cousins and a grand aunt, all four are relatives in the fourth degree (see the chart) and would take equally. Similarly a grand-nephew and niece would take equally with a first cousin or a great uncle/aunt.

Relatives of the Half-blood

Section 72 states that relatives of the half-blood will be treated as succeeding as relatives of the whole blood.

It should be noted that for Capital Acquisitions Tax purposes stepchildren are deemed to bear the same relationship to their stepparents as natural children, but not under the Succession Act.

Ultimate Intestate Successor

Section 73 of the Succession Act deals with the State as ultimate intestate successor.

While the State is the ultimate intestate successor, the Minister for Finance under section 73(2) has a right to waiving wholly or in part in favour of such person and upon such terms, as he shall think fit, having regards to all the circumstances of the case.

Examples of Cases where the Minister for Finance has Waived

-                      In favour of charities where there was evidence that the deceased had expressed a wish that the charities would inherit.

-                     Where the deceased has made an express wish as to his beneficiary in a will which might be deemed invalid due to incorrect witnessing.

-                     The deceased had a special relationship with a child, for example, prior to the Status of Children Act, one born out of wedlock.

The Effect of Disclaimer on an Intestate Share

Section 72(a) of the Succession Act, as inserted by section 6 of the Family Law (Miscellaneous Provisions) Act 1997, states:

‘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 by 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 not the spouse or direct lineal ancestor of the intestate, as if that person had died without leaving issue’.

Prior to the enactment of that Act there were two schools of thought, one of which felt that if a disclaimer was made on an intestacy the estate was the ultimate beneficiary. This section puts beyond doubt that if someone disclaims on an intestacy it reverts back to the estate and is distributed among those who are already entitled to a share. This sec