Probate Conference 2023

Disclaimers: Tips and Traps

• Is it possible to disclaim after the grant of representation?
• Can a beneficiary disclaim part of a benefit?
• What is the effect of a disclaimer of an interest forming part of the residue?
• Testate and intestate situations
• The effect of a disclaimer on a gift over
• Intestate disclaimers: implications of section 72A of the Succession Act: traps for the unwary
• What is the effect of a disclaimer on the right to extract a grant?
• Can the act of taking out of the Letters of Administration be interpreted as an acceptance of an inheritance?
• Taxation implications of disclaimers
• How to use disclaimers for tax planning purposes
• Deeds of family arrangement: legal and taxation considerations

Dealing with Property in the Course of Administration

Assents

• Assents in relation to registered and unregistered land
• Practice Direction of the PRAI: “Devolution and Transmission”
• Documents in a chain of title which predate 1959 and have a death on title.
• Is it necessary to complete an assent where the Personal Representative is vesting the property in himself?: implications of Mohan v Roche and Trentdale v Mary O Shea

Jointly Owned Property

• What is the procedure for withdrawing the name of a deceased joint tenant when the property is registered in the Land Registry? What should you do in the case of a registry of deeds title?
• Land Registry applications where the applicant has died.

Sales by Personal Representatives

• S 50 of the Succession Act: the statutory power of sale and circumstances when it might be exercised
• How is the purchaser from a Personal Representative protected?
• The contract for sale: practical considerations

Appropriation

• Section 55 of the Succession Act, 1965
• Do notices have to be issued and are consents required?
• Possible taxation consequences of the appropriation

Deeds of Family Arrangement

• Taxation considerations: possible CGT and stamp duty
• Is it necessary to lodge a deed of family arrangement in the land registry in cases involving registered land?
• Can you rely on a deed of family arrangement in a registry of deeds title?

Partition and Joint Ownership of Beneficiaries

• How can a beneficiary force a sale?
• Examining the provisions of the will when beneficiaries are inheriting property jointly: is the property to be vested in them as joint tenants or as tenants in common?

Sale where the Appointed Executor or Administrator is the Donor under a Registered Enduring Power of Attorney

• Does the Attorney of a Donor under an EPA have the authority to act as a personal representative for the Donor?

Cross Border Issues

This is an issue which is arising with increased frequency in practice as many clients have holiday homes and investment assets in Europe and further afield. Furthermore, many foreign nationals own property in Ireland.

This section of the seminar will examine the following:

• Taking instructions and advising on Wills with non-Irish situate assets.
• Taking instructions and advising on Wills for Irish situate assets only.
• Tax advice required pre-death when advising on Wills with a foreign element.
• Succession law issues.
• EU Succession Regulation.
• Dealing with non-Irish situate assets in an estate post death.
• Dealing with Irish situate assets in a foreign estate post death.

Unworthiness to Succeed, Disinheritance and Exclusion of Persons from Succession

• Is it sufficient to rely on Counsel’s opinion in deciding that the surviving spouse is unworthy to succeed or is necessary for the Personal Representative to obtain a declaration of unworthiness to succeed before administering the estate?
• Desertion and exclusion from benefiting in an estate.
• Is a spouse/civil partner who is guilty of conduct which justified the deceased separating and living apart deemed guilty of desertion?
• What are the implications where a couple enter into a formal separation agreement after a period of desertion?
• Does murder or manslaughter result in severance of a joint tenancy?
• Nevin and Lavelle v Nevin: what was the anomaly within the provisions of s 120(1) and (4) referred to in the judgment?
• S121 of the Succession Act: Dispositions for the purpose of disinheriting the spouse/civil partner/ children
• What dispositions are caught by the provisions of the section?
• Is the sale by a deceased affected? Are there any implications for the proceeds of sale?
• What is the position in relation to a transfer of property by way of gift?
• Could the broad power of the Court pursuant to s121(4) be used to protect an innocent donee who has acted to their detriment?
• Connection between s117 and s121 of the Succession Act 1965

Section 194 of the Civil Partnership and Certain Rights of Co-Habitants Act 2010

• Who is a “qualified cohabitant” and what will be regarded as an intimate and committed relationship?
• Does a relationship cease to be an intimate relationship because it is no longer sexual in nature or where the deceased looses capacity?
• Can a person claiming to be a “qualified cohabitant” rely on a period of cohabitation which pre-dates the commencement of the legislation? CD v BB
• The qualifying period: how has the Court of Appeal interpreted section 172(5) of the legislation on the issue of whether broken periods of cohabitation can be aggregated or whether the period of cohabitation must be continuous in nature? MW v DC
• Will a court overlook periods of separation during the qualifying period? MW v DC
• Claims out of the estate of a deceased cohabitant under section 194: must the applicant prove financial dependence? DC v DR
• What are the factors set out in section 173 (3) to which a court must have regard in considering an application under section 194?
• Is the right to make a claim under section 194 founded on “the mere fact of the relationship” or is the court required to consider “the nature and duration of the relationship and any mutual contribution to welfare made in the relationship”? GR v Niamh Regan
• To what extent will the court balance the interests of beneficiaries against factors which suggest that provision ought to be made out of the estate for the cohabitant? GR v Niamh Regan
• Should the court take into account the closeness or otherwise of the relationship between the deceased and the beneficiaries and whether there was any financial dependence on the deceased?

GR v Niamh Regan

• Can adult children who dispute a co-habitation claim against their parent’s estate attend the in camera hearing in order to assist the Personal Representative to contest the claim?: DvB