Question: This may seem an unusual question. However, my husband is the sole owner of the family home and surrounding lands which he inherited from his father. We are married a number of years now with children. Would it be possible for him to make a Will disinheriting me and giving everything to one of our children?

Answer: The simple answer is no, it would not be possible for him to do that because of the Succession Act 1965. As a brief background to this Act, it may be interesting to know, that when Charlie Haughey, the then Minister for Justice in 1965, was introducing the Succession Act, he wanted to have provisions placed in it to prevent situations where spouses were making Wills which totally cut off their families without money, or for example, in the case of a wife married to a farmer, everything would be given to a son with the widow only inheriting a Right of Residence in the farm house. Remember it was almost always the case,,not that long ago in Ireland,that a house or Business or Farm was solely owned by the man . And that is how the term “Legal Right Share” was introduced into Irish Law.

LEGAL RIGHT SHARE OF SURVIVING SPOUSE.

This guarantees that in a marriage, no matter what a Will says, a widow/widower has rights.

By virtue of Sections 111-116 along with Section 56 of the Act a surviving spouse is entitled to one half of the estate of the other spouse in a situation where there are no children or, as in your situation, one third of the estate where there are children.

Therefore if a spouse makes a Will purporting to give to his/her surviving spouse less than one third of the assets , it is open to the surviving spouse to challenge that Will and make a claim for one third of the assets. This does not mean that the widow/widower would have to go to Court. It simply means that Notification would need to be given to the Executor administering the estate of the intention to claim the share. It would then be a matter for the person in charge of administering the estate to make sure that the widow/widower’s rights were not ignored.

FAMILY HOME.

The family home holds a special enshrined place in our Constitution and that sentiment is reflected in the SuccessionAct.

Therefore if the estate of the deceased has a family home, it is open to the surviving widow/widower to appropriate the house and the household chattels in and towards satisfaction of the share. If the family home and household chattels are worth more than the shares of the widow/widower and any infant , he/she may settle up the balance in cash. However, in some circumstances, a Court may decide that in cases of hardship an appropriation can be made without the payment in cash, or on the other hand, with a payment of such amount as the court considers reasonable.

However, the right to appropriate a family home may require Court consent where for example, a dwelling is situate on a family farm. In the 1978 High Court case of H.vH. a farmer died leaving him surviving a wife and no children. In his Will, he gave the family home and 113 acres of land to his nephrew, subject to the right of his wife to the exclusive use of a bedroom in the dwelling. Not surprisingly, the widow elected to claim her legal right share. Kenny J. Held,in the High Court , that when the dwelling sought to be appropriated is held with agricultural land the onus of establishing that the appropriation of it is unlikely to diminish the value of the assets other than the dwelling, is on the surviving spouse. This may regretfully be expensive and cumbersome if the parties do not agree and it could be argued that that there is a grave defect in the Succession Act that it does not provide any method by which lands maybe divided between a widow/widower who is entitled to one-third or one-half share and the other beneficiaries.

CONCLUSION

The legal Right of a prospective spouse can also be renounced before marriage in a prenuptial contract made in writing between the parties to the intended marriage. However, this is not relevant in the context of the question being answered here.

Suffice to know that there is a legal mechanism in place to provide for the rights of a widow/widower and that a Will cannot be made that simply cuts a surviving widow/widower out.

Myra Dinneen

Published: West Cork People January 2009