Examples of completed verified answers Ireland

Question‍

Under Irish law, where a deceased person leaves a will that does not make any bequest to their spouse, is the spouse automatically entitled to a legal right share of the estate?

Verified Answer

Surviving Spouse’s “Legal Right Share” Under Irish Succession Law

Under Irish law (Succession Act 1965), a surviving spouse cannot be entirely disinherited by a will. If a deceased person leaves a will that omits the spouse (or leaves the spouse less than a certain minimum), the law guarantees the spouse a fixed portion of the estate, known as the “legal right share.” In a testate estate (where there is a valid will), the surviving spouse’s legal right share is one-half of the estate if the deceased left no children, or one-third of the estate if the deceased had children. This share is calculated from the “net estate” (the assets remaining after debts, funeral expenses, and liabilities are paid) The legal right share rule in the Succession Act 1965 reflects a policy to protect spouses by restricting a testator’s freedom to completely exclude their husband or wife. (By contrast, if there were no will (intestacy), a spouse would inherit even more – for example, two-thirds of the estate if there are children, or the entire estate if there are no children – but the term “legal right share” specifically refers to the minimum guaranteed share in a testate situation.

The spouse’s legal right share arises automatically by operation of law. The surviving spouse “does not have to go to court to get this share, as [the] executor must give this share where applicable.” In other words, the legal right share has priority and will be allocated to the spouse from the estate before any other gifts in the will are distributed. Section 112 of the Succession Act. Only after the spouse’s entitlement is satisfied can the remainder of the estate pass according to the will’s terms to other beneficiaries. If a will attempts to leave all assets to others (completely omitting the spouse), the will is not invalidated as a whole, but it will be overridden to the extent necessary to award the spouse their legal right share. For example, in the scenario described, the spouse would be entitled to carve out either one-half or one-third of the estate (depending on whether the deceased had children) despite the will leaving everything to Individuals A and B. Those other beneficiaries would receive only the balance of the estate after the spouse’s share is set aside.

No action by the spouse is needed to establish this entitlement, but the spouse does have a choice if the will does leave them something. Under Section 115 of the 1965 Act, if the will did include a bequest to the spouse (for example, a specific asset or sum), the spouse can elect either to take that bequest under the will or to claim their legal right share instead. In default of an election, the spouse is deemed to accept the will’s provision and forego the legal right share. However, if the will makes no provision at all for the spouse (as in this case), there is no need for an election – the surviving spouse simply takes the statutory legal right share as a matter of course. The executor should notify the surviving spouse of their entitlement and ensure the spouse’s share is distributed to them. The spouse would only lose this automatic entitlement in specific circumstances such as a valid prior renunciation of succession rights or if the marital relationship had been legally ended before death. For instance, Section 113 of the Act allows a spouse to “renounce” their legal right share in writing (often done via a prenuptial or separation agreement). Absent any such renunciation or a divorce (which removes the legal status of spouse), a surviving husband or wife remains entitled to claim their share. In the facts given, the deceased was “still married” at death and there is no indication of any renunciation, so the spouse retains full legal rights despite being left out of the will.

In summary, yes – under Irish law a surviving spouse is automatically entitled to a legal right share of the estate when omitted from a will. The Succession Act 1965 guarantees the spouse a fixed fractional share either one-half or one-third depending on whether there are children) of the testator’s net estate. This entitlement overrides the will’s terms and is granted by default to the spouse, without any need for a court application. The executor has a duty to distribute the estate in compliance with this legal right share. In practical terms, a will that makes no bequest to a surviving spouse cannot defeat the spouse’s statutory share – the spouse will receive their mandated portion of the estate automatically, and only the remainder (if any) can pass under the will to the other beneficiaries.

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Example 2

Question‍

What steps can the purchaser take to enforce the transferor's obligation to remove burdens?

Verified Answer

Key Legal Issue

The central issue is the enforcement by a purchaser of the transferor’s (vendor’s) obligation to remove burdens (such as charges, mortgages, or other encumbrances) from the title of a property prior to or at completion of a conveyancing transaction in Ireland.

Relevant Legal Principles

Contractual Obligations

Standard Conditions of Sale: Under the Law Society of Ireland’s General Conditions of Sale (commonly incorporated into contracts for sale), the vendor is typically obliged to provide good and marketable title, free from all burdens except those expressly disclosed and accepted by the purchaser.
Section 7, Conveyancing Act 1881: Implies a covenant for further assurance, obliging the vendor to do all acts necessary to perfect the purchaser’s title.

Specific Performance

If the vendor fails to remove a burden as required, the purchaser may seek an order for specific performance compelling the vendor to complete the sale in accordance with the contract, including the removal of burdens.

Retention of Purchase Monies

It is standard practice for the purchaser’s solicitor to retain part of the purchase price on closing if there is any doubt as to whether a burden will be removed, pending satisfactory evidence of its removal (e.g., a release of charge).

Refusal to Complete

The purchaser may refuse to complete the transaction if the vendor cannot provide title free from undisclosed or unacceptable burdens, unless the contract provides otherwise.

Rescission and Damages

If the vendor is unable or unwilling to remove the burden, the purchaser may be entitled to rescind the contract and/or claim damages for breach of contract.

Application to the Purchaser’s Position

Pre-Completion Steps

Title Investigation: The purchaser’s solicitor should conduct a thorough title investigation to identify all burdens.
Raising Requisitions: If a burden is discovered, requisitions on title should be raised, requiring the vendor to confirm how and when the burden will be removed.
Contractual Protections: Ensure the contract for sale contains clear provisions obliging the vendor to remove all burdens (other than those accepted by the purchaser).

At Completion

Retention of Funds: If a burden is to be removed contemporaneously with completion (e.g., a mortgage to be redeemed from sale proceeds), the purchaser’s solicitor may retain sufficient funds to discharge the burden and only release them upon receipt of satisfactory evidence (e.g., a release or discharge document).
Undertakings: The vendor’s solicitor may provide a solicitor’s undertaking to discharge the burden and furnish evidence of its removal post-completion.

Post-Completion

Registration: The purchaser’s solicitor should ensure that the release of the burden is registered with the Land Registry or Registry of Deeds.
Enforcement: If the vendor fails to remove the burden as agreed, the purchaser may:
- Seek specific performance of the contract.
- Retain or recover funds held on retention.
- Rescind the contract and/or claim damages if the breach is fundamental.
- Compel compliance with any undertakings received. If the Vendors solicitor has failed to comply with any undertaking they provided on or prior to closing then the Purchasers solicitor must take the necessary steps to compel compliance.

Caveats and Limitations

Express Contractual Terms: The purchaser’s rights will be governed by the express terms of the contract. If the contract allows for certain burdens to remain, the purchaser cannot insist on their removal post execution of the contract.
Nature of the Burden: Some burdens (e.g., statutory easements or rights of way) may not be capable of removal and may have to be accepted by the purchaser.
Timing: The purchaser must act promptly and in accordance with contractual timelines to preserve their rights.

Conclusion

The purchaser has several mechanisms to enforce the transferor’s obligation to remove burdens, including contractual requisitions, retention of funds, refusal to complete, and, if necessary, legal action for specific performance or damages. The effectiveness of these steps depends on the terms of the contract and the nature of the burden in question.

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