The Gazette 1964/67

The Grant of Probate issues on January 1st, 1968. Subject to a possible service of the notice by the representative therefore the spouse has a right of election up to the 1st of January, 1969 (a year after the Grant). If the notice by the representative is served earlier than the 1st of July,1968 then the 1st of January, 1969 will still be the "later" date. It follows therefore that the only case in which the notice can operate to create a "later" date for the election will be if it is served after the 1st of July, 1968 —if, say, it is served on the 1st of August, 1968, then the period of election will be extended for one month after the period of a year determined by the issue of the Grant. It does not cure the position to say that in practice the solicitor for the representative will of course advise him on the necessity of giving the notice to the spouse as soon as possible so as to put a definite period of his right of election. The solicitor may fail to do so, through oversight, or negligence or even ignorance. The solicitor might for instance, through a misinterpretation of the Section, assume that on the expiration of a year from the date of the Grant the right of election has lapsed and that no notice to the spouse was necessary. Be that as it may, that would not deprive the spouse of his right of election, should the representative take it into his head at some indefinite date later to give him notice of that right. The spouse would then have six months within which to exercise his right, although the estate might in the meantime have been administered and distributed on the assumption that the right of election has lapsed. It is not necessary to point out the serious situation which would be created in such an eventuality and the confusion and litigation to which it would give rise. Requisitions on title in future will certainly have to take care of this point. These undesirable results would of course be avoided if the Section were amended by providing that the right of election would have to be exercised within a year from the Grant or within six months form the notice whichever date is the earlier— and not whichever is the later. Such a provision however might cause in justice in so far as it could deprive the spouse of his right to make a choice between the bequest and his legal right through his not being made aware of his right of election by notice before the expiration of the year from the date of the Grant, nor would such a provision avoid this injustie even if it was coupled with a condition making it obligatory on the representative to give the notice in time to enable the spouse to make his choice, since it would make him dependent on the representative performing his duty and at the best leave the spouse with nothing but a right of action against him for his failure to do so. There may be other ways of attaining the desired object of securing to the spouse his right of election, whilst at the same time definitely limiting the period when it has to be exercised, but it occurs to me that one way would be to provide that the notice to the spouse should be served on him by the Probate Registrar im mediately on the issue of the Grant, informing him of his right of election and naming a definite period within which it would have to be exercised.

14. If extra copies of a letter are required, this desire should be indicated after "Yours sincerely", or overleaf so as to ensure that it is the last thing the typist will see when the letter is completed. If a typist is making a tricky alteration re quiring concentration and precision, always stand over her and breathe down her neck while she does it. CORRESPONDENCE Re: Succession Act 1965 Dear Sir, I do not know if attention has been called to some of the anomalies which may arise from a strict inter pretation of Section 115 (4) of the above Act limiting the period for election by the spouse as between a devise or bequest in the will and his (or her) legal right. The right of election may be exercised within six months of the spouse receiving notice of his right from the personal representative, or within one year from the date of the issue of the Grant of Probate whichever is I he later. I wish to emphasise the importance of the words "whichever shall be later" as creating the crux which, as I see it, rightly or wrongly, the Section may give rise to in practice. Although it is declared to be the duty of the personal representative to give the notice to the spouse of his right of election, there is nothing in the Section which specifies when he is obliged to give the notice. He may give the notice a year after the issue of the Grant, or two years after, or in fact at any time, and whenever it may be that the spouse receives the notice (unless he has already taken it on himself to elect) the provision giving him six months from the date of the notice to exercise his right of election comes automatically into force. As I will point out, the consequence of this could lie far-reaching. It is necessary first of all to make clear that, although a hasty reading of the Section 115 (4) might give the impression that, in the absence of notice being served on the spouse by the personal representative, the right to elect would then be governed by the date of the Grant and would automatically lapse on the expiration of one year from that date, this is not so; the year after the Grant has to be the "later" date provided for in the Section, before it can be the limiting date and there is no way of determining whether it is in fact that "later" date so long as there is a possibility of the notice being served on the spouse by the representative. Furthermore, a simple calculation shows that if the words "whichever is the later" are to have the effect (which of course they are inteded to have) of making the expiration of the six months period following the notice a possible "later" date the words can only operate to have such effect if the notice by the representative is served more than six months after tthe issue of the Grant. That being so it is clear that the Section contemplates and therefore authorises the service of the notice at least more than six months after the Grant if it is to have any meaning, and if six months, why not twelve months, or a year, or two years, since, as stated, there is no time limit in the Section for service of the notice? An instance will show what I mean: The deceased dies, say on January 1st, 1967. 15.

Yours faithfully,

JOHN J. DUNNE,

Kildare.

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