Succession

Where a person dies his assets vest in his personal representative.  This may be the executor appointed by will or an administrator, generally the person with the greatest entitlement to the net assets.

The conflict of law rules differ depending on the type of asset concerned.  Generally, succession to immovable goods is determined by the law of the place in which they are situated.  In contrast, the law of the deceased’s domicile determines succession to non-immovable assets; the movables.  There are however qualifications and exceptions to this principle.

Where a person dies intestate, his movable property is determined by the law of the deceased’s domicile at the date of death.  The rules of the place where the immovable property is situated determine succession to it irrespective of the deceased’s domicile.

In the case of a will, broadly similar rules apply.  The will takes effect subject to rules and laws of the deceased’s domicile in the case of movable property and the place in which the assets are situated in the case of immovable property.  Accordingly, even though Irish assets must be administered in accordance to Irish law, the Irish executor may be obliged to distribute them to the persons entitled in accordance with the deceased\’s domicile.

The capacity or ability of a person to make a will is determined by domicile.  Capacity refers to  age and mental capacity.  Complications arise where a person has changed his domicile between the date of making his will and death.  There are divided views on which rule should apply.  No difficulties arise if the person has capacity under the relevant law of domicile at both dates.

The capacity to make a will in relation to immovable property is determined in accordance with the law of the place where the immovable asset is situated.

In the case of formal validity of a will, the deceased’s domicile was originally determined by domicile.  However the criteria for formal validity have been expanded very considerably so as to save wills which are valid in accordance with one of any number of possibilities.

Ultimately the Hague Convention 1961 was given effect by PartVIII of the Succession Act.  A will is  valid as regards form where it complies with the law of any one of a number of countries.

• The place where the will was made.
• Nationality at the date of death or at the date of the disposition.
• Domicile at date of death all date of the will
• The place of habitual residence at either at the time of death or of the will.
• As regards to immovable, any place where they are situated.

Wills written aboard vessels or aircraft, which comply with the internal law of the place which having regard to the registration or any other relevant circumstances, with which the vessel or aircraft may be said to have its most real connection, is valid.

The Succession Act provides that any rules, which limit the permitted forms of will by referring to nationality and other personal conditions of the deceased, are deemed to be matters of form.  Once again, this seeks to uphold the validity of wills.

The Act further provides that in determining whether a will complies with a particular law, regard is to be had of the requirements of the law at that time the will was made.  This does not prevent taking account of alterations of the law after that time, if the alteration enables the will to be treated as valid.

The validity of the terms of the will themselves is determined by the deceased’s domicile at death in relation to movable.  In relation to immovables it is determined by the law of the place where they are situated.  This is relevant in the number of context, including in particular so-called forced heirship law.  These are rules requiring certain person percentages of the deceased’s assets to be left to spouse or and/or children.

Many countries have compulsory statutory entitlement for the part of spouses or children to shares of a deceased’s assets.  In Ireland, a spouse has a legal right share to half the deceased’s estate or one third where there are children of the deceased.  Children have no specific entitlement but may apply under section 117 of the Succession Act on the basis that the deceased has failed in his or her moral duty to make proper provision as a prudent and just parent would have done.

A claim to a share by statute is deemed to relate to the essential validity of the will.  It is not a procedural matter that applies in the state where the will is being administered.  Generally the domicile or residence of claimants i.e.  Spouse and children is irrelevant.  For example, in Ireland, the fact that a child is born abroad does not disentitled him to make an application under section 117.  The general approach is that the deceased\’s domicile at the date of death governs the position with immovables and that the law of the place where an immovable asset is situated applies.

In determining the position in Ireland regard is had to assets abroad.  However the Irish orders in relation to, for example, section 117 may refer only to Irish assets.  Accordingly, the parent, the provision maybe made out of Irish situated assets taking account of where an asset is not affecting them.The court should in principle take account of equivalent forced heirship rules in the foreign jurisdiction.

Similar considerations apply to the legal right share and the discretionary section 117 application.  It would appear that account is taken of the entire estate worldwide, but that the provision is made from the Irish assets only.  Once again, provision should be made for the effect of other foreign laws.

There are a number of older Irish cases, depending on the interpretation of older statutes which allowed widows a  statutory share of Irish assets notwithstanding an overlapping statutory share in at jurisdiction where other assets were situated.

Wills are generally interpreted in accordance with the law which the deceased intended to apply.  This is presumed to be the law of his domicile at the time the will was made.  This however is not a strict rule and it may be shown that the rule was written with the reference to laws of another country.

Generally, a common sense approach to interpretation of wills is taken.  The courts seek to find  and discern the deceased’s intention in the event of dispute.  The Succession Act provides that the interpretation of a provision in the will is not to be changed by reason of any change in the deceased\’s domicile after the will was made.

It may  also be apparent what law was intended to be referred to from circumstances.  If for example solicitors and lawyers of a particular country have prepared the will, the likelihood is that they’ve prepared it with the reference to the law of that country.

The interpretation of a gift of immovable properties in a will is somewhat uncertain.  The courts will endeavour to see the transfers operate in the country where the land situated to the fullest extent that they can.  If however in spite of this they cannot be upheld under that law, they will not be effective.

If the transfer as interpreted by the system of law intended by the deceased is unlawful and impossible under the law of the place where the land is situate, the interpretation most favoured by that law must prevail.  The courts will however endeavour to interpret it in accordance with the deceased’s intentions.

Whether a revocation is effective depends on the validity of the later will, codicil or act.  The deceased must have had the capacity and the  formal requirements must be satisfied. The Succession Act provides that the revocation of a will, will also be valid as regard forms if it — complies with any one of the laws under which it would be valid if that question was an issue.  See above.

Where a person makes a new will revoking an existing will and the new will is not valid under the one of above criteria then if the new will complies with the requirements of any one of the laws which govern the validity of the former will, the new will is valid under the Succession Act.

Revocation of a will by destruction is valid under Irish law.  However, complex issues may arise where there are foreign law elements.  The general view is that the revocation should be given effect by the law of the deceased’s domicile at the time of revocation.  The courts may seek to give effect to the intention of the deceased at the time of revoking the will.  In the case of immovables, it appears that the law of the place of where they are situate govern.