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.
When a deceased dies leaving assets, the assets pass to his personal representative. In order to carry into effect the deceased\’s wishes (or in the case of administrators, the division of assets required by law), they must obtain a grant of representation. This is a grant of probate in the case of a will and letters of administration where there is no will. The personal representative collects and distributes the assets in accordance with law.
It is a basic principle that assets within the jurisdiction generally require a grant of representation from that jurisdiction. Even if a person dies with a relatively small amount of assets in that jurisdiction, a grant of representation in that jurisdiction would be required in order to transfer those assets.
In civil law jurisdictions assets pass directly to the heirs without the requirement for a grant. However Irish law will not recognise transfer of Irish assets without a domestic grant.
The succession to movable property is determined by the deceased’s domicile. If the deceased left movable assets within the jurisdiction, a grant of probate may be required even though the deceased is not neither domiciled nor resident.
Many jurisdictions will not make a grant in their jurisdiction unless a grant has been made in a jurisdiction with which he has a closer connection. The High court has jurisdiction to make this grant. A grant of representation may be made in respect of a deceased person notwithstanding that he left no assets in the State. This allows an Irish grant that facilitates the issue of grants in other jurisdictions.
A deceased may make a separate wills dealing with his Irish assets and foreign assets. Difficulties may arise where they are not compatible. A grant may be made in respect of the Irish will only. However, if it is more appropriate, a grant may be made in respect of either or both wills if they are not independent. It appears that if there is some practical benefit to be derived from making a grant in respect of a foreign will, the Irish courts will make it.
The High Court has power to grant administration with or without will annexed of the assets of a deceased person. The grant may be limited as the court sees fit. Where there are special circumstances, it may make the grant of administration to such a person as it sees fit.
The Irish courts will generally appoint as administrator a person entitled under the law of the domiciled of the deceased. Where however that person takes no steps to obtain probate or letters of administration, the court may grant it to another person including a creditor. An grant may be made, ancillary to the principal administration in the country of the person\’s domicile.
An Irish personal representative must gather the assets of the deceased that are situated in the State. His obligations in respect of foreign assets are less well defined but generally he will require a foreign grant of representation to gathering those assets. He may be subject to penalties and risks under foreign law.
The administration of a deceased’s estate is governed by the law of the country in which the grant is obtained. It is effectively a procedural matter. In common with the general principle, the law of the forum determines the position.Therefore,this law applies as regards payment — entitlement to of debtors and orders of payment including priority. Foreign creditors and Irish creditors rank equally.
The only difference between a principal and ancillary administration, is that the Irish ancillary administration need not advertise for foreign debts or take steps to ascertain that position as far as Irish law is concerned.
The distribution of assets after payment of debts is a matter of succession rather than administration (procedure). It is therefore determined by the deceased\’s domicile as far as movables are concerned. Where an ancillary personal representative has collected in assets and paid debts within the jurisdiction, he will generally give the residue to the foreign administrator or persons entitled under foreign law. A court may however prevent the ancillary administrator handing over the balance.
An administrator appointed by a foreign court may not act in Ireland without an Irish grant. If he deals with assets within the jurisdiction he may be deemed an executor de son tort and be obliged to account for assets received. Where a foreign administrator brings movable assets of the deceased into Ireland without having accounted for them in the administration in the state from which its grant derives, a creditor or beneficiary may take an action in Ireland for their administration in accordance with law.
Where there are separate wills one disposing of Irish assets and one of foreign assets it may be that Irish law only applies to the Irish will. It may be possible to admit the foreign will to probate provided there is good reasons for doing so. In theory, domestic grant extends to property worldwide. This is of limited practical effect, because the right to administer the property in the foreign country must depend on local law. However, he shall remain accountable as a representative in Ireland.
The title of administrator and personal representatives applies to assets situated in the jurisdiction at the date of death. It also applies to property that comes into it afterwards. Where however the assets have been appropriated by an administrator acting under foreign law prior to that, this rule does not apply.
Where an ancillary representative has been authorised to deal with movable Irish assets of a person dying domiciled abroad, the administration is governed by Irish law although beneficial distribution is governed by the law of the domicile. The representative must pay debts whether domestic or foreign according to Irish domestic law.
Where a foreign creditor seeks payment in the jurisdiction, he must take domestic law as he finds it. He may not claim personal advantages or advantages which the foreign law allows if this is inconsistent with his obligations under domestic law. This may arise, for example, if the debts are statute barred under foreign law but not domestic law. The principal administrator is not entitled to demand surplus assets to be handed over to pay a debt statute barred under domestic law but not statute barred under the foreign law.
Once all debts have been paid by the ancillary administrator in accordance with domestic law funds are remitted to the principal administrator. They may then be distributed among beneficiaries under the law of the domicile.
A foreign grant of probate or representation is not recognised. A domestic grant is required to recover assets within the jurisdiction. If the personal representative succeeds in obtaining assets without a grant, he may be liable as an executor de son tort.
A foreign personal representative may assert personal rights even though they are connected with the estate. If he has obtained adjustment abroad, he can enforce adjustment in Ireland without a grant or probate.