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Marriage and Wills

If a Testator is married he/she must make proper provision for their Spouse and Children.

Rights with vs. without children:
If there are no children a spouse has a legal right share to half of the estate including the family home.

If there are children, he or she has a legal right share to one third of the estate. This legal right share has priority over any other bequests (inheritance) , although it may be renounced in writing at any time while the testator is still alive.

Relinquishing of rights:
A spouse who has deserted or who has committed a serious offence against the testator loses the right to a share of the estate. The legal rights share may be extinguished following judicial separation and it is relinquished after divorce . The mutual rights of a husband and wife to succeed to each other's estate may be extinguished by the courts at any time on or after a Decree of Judicial Separation under the Family Law Act, 1995.

Succession Act rights are automatically extinguished after a divorce as the couple are no longer husband and wife.

Provisions for a former spouse:
Section 18 of the Family Law Divorce Act, 1996 and Section 25 of the Family Law Act, 1995 empowers the court to make provision for a former spouse out of the estate of a deceased. This application can only be made by a former spouse who is not remarried. The limitation for making this claim is as follows:-

A Divorce in a foreign county - 12 months
A Decree of Divorce issued in Ireland - 6 months

When can a Will be revoked?
A Will can be revoked by the following:-

1. Subsequent marriage;
2. Another Will;
3. Declaration in writing; and
4. Destruction by the testator.

It is essential in a change of circumstances, such as a subsequent marriage, that a new Will be drawn up.

Failure to make proper provisions in a Will:
If the testator fails to make proper provision for any children in the Will, a child (of any age) may bring an application under Section 117 of the Succession Act within six months from the first taking out of representation. The court has to take into account the following:-

1.Amount left to surviving spouse
2.Number of children
3.Ages of children
4.Position in Life of the children
5.Testator's means
6.Applicant's Age
7.Applicant's Financial position
8.Any other provision already made by the Testator for the Applicant.

There is no automatic entailment by children to the estate of the parent.

If you die intestate , that is die without leaving a Will, your estate is distributed in accordance with the Rules of Intestacy as set out in the Succession Act, 1965. For example, if you leave just a spouse and no issue then the spouse takes the whole estate. If you leave a spouse and issue, two thirds of the estate goes to the spouse and one third goes to the issue.

Seeking Family Law Advice

For further information, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Family Law.

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