ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY

PART II
DISTRIBUTION ON INTESTACY

PART III
PROVISIONS FOR DEPENDANTS

PART IV
SUPPLEMENTAL

FIRST SCHEDULE - Rights of Surviving Spouse as respects the Matrimonial Home.

SECOND SCHEDULE - Repeals.

CHAPTER 116

INHERITANCE

[Assent 31st January, 2002]
[Commencement 1st February, 2002]

"administration" means, with reference to the real and personal estate of a deceased person, letters of administration, whether general or limited, or with the will annexed or otherwise;

"administrator" means a person to whom administration of an estate is granted;

"conveyance" includes a mortgage, charge by way of legal mortgage, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by an instrument, except a will, and "convey" has a corresponding meaning;

"the court" means the Supreme Court;

"disposition" includes a conveyance, a devise, a bequest and an appointment of property contained in a will, and "dispose of" has a corresponding meaning;

"equitable interests" means all other interests and charges subsisting in equity or over land or in respect of the proceeds of sale thereof;

"income" includes rents and profits;

"intestate" includes a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate;

"legal estate" means the estate, charge and interest in or over land subsisting or created at law which is by statute authorised to subsist or to be created at law;

"personal representative" means the executor (original or by representation) or administrator for the time being of a deceased person;

"possession" includes the receipt of rents and profits or the right to receive the same, if any;

"probate" means the probate of a will;

"probate rules" means rules and orders made by the Rules Committee established under the Supreme Court Act for regulating the procedure and practice of the Supreme Court in regard to non-contentious or common form probate business;

"property" includes a thing in action and any interest in real or personal property;

"purchaser" means a lessee, mortgagee or other person who in good faith acquires an interest in property for valuable consideration, also an intending purchaser and "valuable consideration" includes marriage, but does not include a nominal consideration in money;

"real estate" save as provided in Part II means real estate, including chattels real, which by virtue of Part II devolves on the personal representative of a deceased person;

"Registrar" means the Registrar of the court;

"rent" includes a rent service or a rent charge, or other rent, toll, duty, or annual or periodical payment in money or money's worth, issuing out of or charged upon land but does not include a mortgage interest;

"representation" means the probate of a will and administration, and the expression "taking out representation" refers to the obtaining of the probate of a will or of the grant of administration;

"will" means a will made in accordance with the provisions of the Wills Act, 2002.

(2) A reference to a child or issue living at the death of any person includes-

(3) A reference to the estate of a deceased person includes property over which the deceased exercises a general power of appointment including a statutory power to dispose of an entailed interest by the deceased's will.

firstly, to the brothers and sisters of the intestate in equal shares, and in the absence of any, then secondly, to the nephews and nieces of the intestate in equal shares, and in the absence of any, then thirdly, to the grandparents of the intestate and if more than one survive the intestate, in equal shares, but if there is no member of this class, then fourthly, to the uncles and aunts of the intestate (being brothers or sisters of a parent of the intestate) in equal shares, and if none, then fifthly, to the children of uncles and aunts of the intestate (being brothers or sisters of a parent of the intestate) in equal shares;

(2) A husband and wife for all purposes of distribution or division under the foregoing provisions of this section shall be treated as two persons.

(3) Where the intestate and the intestate's husband or wife have died in circumstances rending it uncertain which of them survived the other and the intestate's husband or wife is by virtue of any other law deemed to have survived the intestate, this section shall nevertheless have effect as respects the intestate as if the husband or wife had not survived the intestate.

(4) In this Part, "residuary estate" means every beneficial interest (including rights of entry and reverter) of the intestate in real and personal estate, after payment of all such funeral and administration expenses, debts and other liabilities that are properly paid thereout, which (otherwise than in right of a power of appointment) the intestate could, if of full age and capacity, have disposed of by his will.

(5) For the purposes of this Part, "brother" or "sister" in relation to an intestate shall include a child of the father or mother of the intestate.

(2) The personal representatives may permit any infant contingently interested to have the use and enjoyment of any household chattels in such manner and subject to such conditions (if any) as the personal representatives may consider reasonable and without being liable to account for any consequential loss.

(3) In subsection (2), "household chattels" has the meaning assigned to it in paragraph 7 of the First Schedule.

(4) Where under this Part the residuary estate of an intestate or any part thereof devolves upon or is directed to be distributed among any class of relatives of the intestate, other than issue of the intestate, the same shall be distributed in the manner corresponding to the distribution among the issue of the intestate (other than the provision for bringing any money or property into account) as if such distribution (other than as aforesaid) were repeated with the substitution of references to the members or member of that class for references to the issue of the intestate.

(2) If the share of a surviving spouse is insufficient to enable an appropriation to be made under subsection (1), the right conferred by that subsection may also be exercised in relation to the share of any minor for whom the surviving spouse is a trustee under section 7 or otherwise.

(3) The personal representative shall notify the surviving spouse of the rights conferred by this section.

(2) On any such application referred to in subsection (1), the court may, if it is of the opinion that, in the special circumstances of the case, hardship would otherwise be caused to the surviving spouse or to the surviving spouse and such minor, order that appropriation to the spouse shall be made without the payment of money provided for under section 6, or subject to the payment of such amount as the court considers reasonable.

(3) The court may make such further order in relation to the administration of the deceased's estate as may appear to the court to be just and equitable having regard to this Act and to all the circumstances.

(4) Proceedings under this section and section 6 shall be made in the manner prescribed by rules of court.

(2) References in the foregoing provisions of this section to "beneficial interests acquired under a will" shall be construed as including a reference to a beneficial interest acquired by virtue of the exercise by the will of a general power of appointment, but not of a special power of appointment.

(2) Trusts declared in an instrument inter vivos made, or in a will coming into operation, before the commencement of this Act by reference to the Statutes of Distributions, shall unless the contrary thereby appears, be construed as referring to the written laws relating to the distribution of effects of intestates which were in force immediately before the commencement of this Act.

(2) Nothing in this part shall affect existing rights of dower.

that person may apply to the court for an order under section 13 on the ground that the disposition of the deceased's estate effected by his will is not such as to make reasonable financial provision for the applicant.

(2) In this Part, "reasonable financial provision" means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance:

Provided that in the case of a husband and wife who have been living apart for a period of twelve months or more the court may refuse to make an order for financial provision if it considers that in all the circumstances of the case it is just and reasonable to refuse such order.

(2) An order under subsection (1)(a) providing for periodical payments to be made out of the net estate of the deceased may provide for-

or may provide for the amount of the payments or any of them to be determined in any other way the court thinks fit.

(3) Where an order under subsection (1)(a) provides for the making of payments of an amount specified in the order, the order may direct that such part of the net estate as may be set aside or appropriated for the making out of the income thereof of those payments; but no larger part of the net estate shall be so set aside or appropriated than is sufficient, at the date of the order, to produce by the income thereof the amount required for the making of those payments.

(4) An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to the generality of this subsection-

(5) In this section, residual personal estate means the remainder of the personal estate after all funeral, testamentary and administration expenses, debts and liabilities payable out of the estate, have been paid.

(2) Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 13 is made by virtue of section 12(1)(a), the court shall in addition to the matters specifically mentioned in paragraphs (a) to (f) of subsection (1), have regard to the age of the applicant and the duration of the marriage; the court shall also, unless at the date of death a decree of judicial separation was in force or the husband and wife were living apart for a period of twelve months or more and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died, the marriage, instead of being terminated by death, had been terminated by a decree of divorce.

(3) Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 13 is made by virtue of section 12(1)(b) or 12(1)(c), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of subsection (1), have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, and where the application is made by virtue of section 12(1)(c), the court shall also have regard-

(4) In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing.

(5) In considering the financial resources of any person for the purposes of this section, the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.

the court may , subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, order that there be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court may order that, subject to the provisions of this Part, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under the said section 13 or decides not to exercise its powers under that section.

(2) Subsections (2), (3) and (4) of section 13 shall apply in relation to an order under this section as they apply in relation to an order under that section.

(3) In determining what order, if any, should be made under this section, the court shall so far as the urgency of the case admits, have regard to the same matters as those to which the court is required to have regardunder section 14.

(4) An order made under section 13 may provide that any sum paid to the applicant by virtue of this section shall be treated to such an extent and in such manner as may be provided by that order as having been paid on account of any payment provided for by that order.

(5) The provisions of this section shall apply mutatis mutandis to a beneficiary entitled under a will.

(2) Without prejudice to the generality of subsection (1), an order made on an application for the variation of the original order may-

(3) Where the original order provides that any periodical payments payable thereunder to the original recipient are to cease on the occurrence of an event specified in the order or on the expiration of a period so specified, then, if before the end of the period of six months from the date of the occurrence of that event or of the expiration of that period, an application is made for an order under this section, the court shall have power to make any order which it would have had power to make if the application had been made before that date (whether in favour of the original recipient or any such person as is mentioned in subsection (2)(a) and whether having effect from that date or from such later date as the court may specify).

(4) Any reference in this section to the original order shall include a reference to an order made under this section and any reference in this section to the original recipient shall include a reference to any person to whom periodical payments are required to be made by virtue of an order under this section.

(5) An application under this section may be made by any of the following persons, that is to say-

(6) An order under this section may only affect-

and any such property as is mentioned in paragraph (a) or (b) is in subsections (2) and (5) referred to as "relevant property".

(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates.

(8) Where the court makes an order under this section, it may give such consequential directions as it thinks necessary or expedient having regard to the provisions of the order.

(9) For the avoidance of doubt it is hereby declared that, in relation to an order which provides for the making of periodical payments which are to cease on the occurrence of an event specified in the order or on the expiration of a period so specified, the power to vary an order includes power to provide for the making of periodical payments after the occurrence of that event or the expiration of that period.

(2) Where an order is made by virtue of subsection (1) the court shall have the power, on an application made by the person to whom the lump sum is payable, by the personal representatives of the deceased or by the trustees of the property out of which the lump sum is payable, to vary that order by varying the number of instalments payable, the amount of any instalment and the date on which any instalment becomes payable.

(2) Any order made under section 13 or 16 in favour of an applicant who was the husband or wife of the deceased shall in so far as it provides for the making of periodical payments, cease to have effect on the remarriage of the applicant, except in relation to any arrears due under the order on the date of the remarriage.

(3) Any order made under section 13 or 16 directing periodical payments to be made to or for the benefit of a person referred to in section 12(1)(b) or (c) shall cease to have effect not later than-

and in any case upon the death of such person.

(4) A copy of every order made under this Part shall be endorsed on, or permanently annexed to, the probate or letters of administration under which the estate is being administered.

but this subsection shall not prejudice any power to recover by reason of the making of an order under this Part, any part of the estates so distributed.

(2) Where the personal representative of a deceased person pays any sum directed by an order under section 16 to be paid out of the deceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment, unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient.

(3) Where a deceased person entered into a contract by which he agreed to leave by his will any sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any person out of his estate, then, if the personal representative to the deceased has reason to believe that the deceased entered into the contract with the intention of defeating an application for financial provision under this Part, he may, notwithstanding anything in that contract, postpone the payment of that sum of money or the transfer of that property until the expiration of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out or, if during that period an application is made for an order under section 13, until the determination of the proceedings on that application.

"beneficiary" in relation to the estate of a deceased person, means-

"net estate" in relation to a deceased person, means-

(2) For the purposes of paragraph (a) of the definition of "net estate" in subsection (1), a person who is not of full age and capacity shall be treated as having power to dispose by will of all property of which he would have had power to dispose by will if he had been of full age and capacity.

(3) Any reference in this Part to provision out of the net estate of a deceased person includes a reference to provision extending to the whole of that estate.

(2) The enjoyment of the right of occupation conferred by subsection (1) upon a surviving spouse (hereinafter referred to as "the holder") shall cease upon the death or remarriage of the holder or be modified to such extent as is necessary on the coming into force of an order under this Act or the Matrimonial Causes Act affecting the rights or occupation of the holder.

(3) Where the right of occupation has become vested in the holder by virtue of the death of the spouse of the holder any person having an interest in the matrimonial home if adversely affected may, by originating summons, apply to the court for an order regulating the exercise by the holder of the right of occupation.

(4) On an application for an order under this section, the court may make such order as it thinks just and reasonable having regard to the needs of the holder or any children of the deceased spouse and to all the circumstances of the case, and, without prejudice to the generality of the foregoing provision-

(5) Without prejudice to subsection (2), orders under subsection (9) may, in so far as they have a continuing effect, be limited so as to have effect for a period specified in the order or until further ordered.

(6) Notwithstanding anything to the contrary in any other law and subject to the provisions of subsection (9) the right of occupation of the holder shall be a charge on the beneficial estate or interest held by the spouse of the holder in the matrimonial home and having the like priority as if it were an equitable interest created at whichever is the latest of the following dates-

(7) Where a spouse's right of occupation is a charge on an estate or interest in the matrimonial home, and that estate or interest is surrendered so as to merge in some other estate or interest expectant thereon in such circumstances that, but for the merger, the person taking the estate or interest of the other spouse would be bound by the charge, then the surrender shall have effect subject to the charge and the persons thereafter entitled to the other estate or interest shall, for so long as the estate or interest surrendered would have endured if not so surrendered be treated for all purposes of this section as deriving title to the other estate or interest under the other spouse by virtue of the surrender.

(8) Save as otherwise provided in the foregoing subsection after the coming into operation of this section, no act by, or transaction of, the spouse or a holder of a right of occupation shall have the effect of prejudicing the charge arising from the right of occupation under subsection (6) unless upon a like application to the court under subsection (3) by an interested party it is shown to the satisfaction of the court that-

(9) The provisions of subsections (6), (7) and (8) shall be subject to the rights of a mortgagee in any estate or interest in a matrimonial home.

(10) Notwithstanding anything to the contrary in any other law, no proceedings shall be commenced in any court against a surviving spouse within three months of the death of the other spouse for the possession of any premises by reason of the non-payment of any sum which were, immediately prior to that death, jointly occupied as a dwelling by both spouses or where such proceedings were in existence at the time of the death no order shall be made or be executed which shall have the effect of dispossessing the surviving spouse within three months of the date of death.

(11) For the purposes of this section "matrimonial home" means the dwelling house and any yard, garden or garage appurtenant thereto for the time being occupied by the parties to the marriage, and in respect of which house one spouse is entitled to occupy by virtue of the ownership therein of the beneficial estate or interest.

(2) In this section, "child" means any person who would under section 12(1)(b) or 12(1)(c) be entitled to apply for reasonable financial provision under section 13.

(2) Until rules are made pursuant to subsection (1), proceedings under sections 6 and 7 shall commence by originating summons.

RIGHTS OF SURVIVING SPOUSE AS RESPECTS THE MATRIMONIAL HOME

1. (1) Subject to the provisions of this Schedule, where the estate of a deceased person comprises a dwelling-house in which the surviving husband or wife was resident at the time of death, the surviving husband or wife may require the personal representative, in exercise of his powers under the Administration of Estates Act, 2001 to appropriate the interest in the dwelling-house in or towards satisfaction of any share of the surviving husband or wife in the estate of the deceased.

(2) The surviving husband or wife may also require the personal representatives in writing to appropriate any household chattels in or towards satisfaction of any share of the surviving husband or wife in the estate.

(3) Notwithstanding any provision in any other law, nothing shall prevent the personal representative from giving effect to the rights conferred by this paragraph.

(4) The reference in this paragraph to a share in the estate of the deceased includes a reference to the capital value of a life interest which the surviving husband or wife has under this Act elected to have redeemed.

2. Where-

the right conferred by paragraph 1 shall not be exercisable unless the court, on being satisfied that the exercise of that right is not likely to diminish the value of assets in the estate (other than the said interest in the dwelling-house) or make them more difficult to dispose of, so orders.

3. (1) The right conferred by paragraph 1-

(2) A notification in writing under subparagraph (1)(d) shall not be revocable except with the consent of the personal representative; but the surviving husband or wife may require the personal representative to have the said interest in the dwelling-house valued and to inform him or her of the result of the valuation before he or she decides whether to exercise the right.

4. (1) Subject to subparagraph (2), so long as the rights conferred by paragraph 1 continue to be exercisable the personal representative shall not without the written consent of the surviving husband or wife sell or otherwise dispose of the interest in the dwelling-house or household chattels except in the course of administration owing to want of other assets.

(2) An application to the court under paragraph 2 may be made by the personal representatives as well as by the surviving husband or wife, and if, on an application under the paragraph, the court does not order that the right conferred by paragraph 1 shall be exercisable by the surviving husband or wife, the court may authorise the personal representative to dispose of the said interest in the dwelling-house within the said period of twelve months.

(3) Where the court under subparagraph (3) of paragraph 3 grants an extension to a period of twelve months, the court may direct that this paragraph shall apply in relation to the extended period as it applied in relation to the original period of twelve months.

(4) This paragraph shall not apply where the surviving husband or wife is the sole personal representative or one of two or more personal representatives.

(5) Nothing in this paragraph shall confer any right on the surviving husband or wife as against a purchaser from the personal representative.

5. (1) Where the surviving husband or wife is one of the two or more personal representatives, the rule that a trustee may not be a purchaser of trust property shall not prevent the surviving husband or wife from purchasing out of the estate of the deceased the dwelling-house in which the surviving husband or wife was resident at the time of the deceased's death or any household chattels.

(2) The power of appropriation shall include power to appropriate an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the deceased's death partly in satisfaction of an interest of the personal estate of the deceased and partly in return for a payment of money by the surviving husband or wife to the personal representative.

6. (1) Where the surviving husband or wife is a person incapable, by reason of mental disorder within the meaning of the Mental Health Act to make a requirement or give a consent such requirement or consent under this Schedule may be made or given on his or her behalf by his testamentary or other guardian or committee or receiver, if any, or by the court.

(2) A requirement or consent made or given under this Schedule by a surviving husband or wife who is a minor shall be as valid and binding as it would be if he or she were of age; and as respects an appropriation in pursuance of paragraph 1 the provisions of the Administration of Estates Act, 2001 as to obtaining consent of the minor shall not apply.

7. For the purpose of this Schedule-

"dwelling-house" means an estate or interest in a building occupied as a separate dwelling or part so occupied, of any building, and includes any garden or portion of ground attached to and usually occupied by the dwelling or otherwise required for the amenity or convenience of the dwelling;

"household chattels" means furniture, linen, china, glass, books or other chattels of ordinary household use or ornaments and also consumable stores, garden effects, domestic animals and includes motor cars and accessories (not used for business purposes) but does not include any chattels used at the death of the deceased for business or professional purposes, or money or security for money.

REPEAL