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27 1965

SUCCESSION ACT, 1965

PART IX

Legal Right of Testator's Spouse and Provision for Children

Application of Part IX.

[New]

109. —(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse 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.

Legitimated, illegitimate and adopted persons.

[New]

110. —In deducing any relationship for the purposes of this Part, the provisions of the Legitimacy Act, 1931 , and of section 26 of the Adoption Act, 1952 , shall apply as they apply in relation to succession on intestacy.

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.

Priority of legal right.

[New]

112. —The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

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.

Effect of devise or bequest to spouse.

[New]

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

(a) a sum equal to the value of the share as a legal right of the spouse, and

(b) the property so devised or bequeathed.

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

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, the spouse 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 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 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 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, 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 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 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 is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse's estate, be exercised on behalf of the spouse 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.

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.

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.

(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.

(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 twelve months from the first taking out of representation of the deceased's estate.

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.

Proceedings to be in chambers.

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