The Gazette 1983

SEP T EM BER 1983

GAZETTE

made except on an application made within twelve months from the first taking out of representation of the deceased's estate." The first provision to note is the time limit contained in sub-section (6). The application by or on behalf of the child of the testator must be made within twelve months from the first taking out of representation. However, the personal representative is under no obligation to notify any child of his right to apply to the Court. In fact there would be a conflict of interest as pointed out by William J. Maguire in his commentary on the Succession Act (Page 107 para. 5) "an executor's first duty is to administer the estate in accordance with the directions contained in his testator's will, and he would be imprudent (particularly if he was a professional executor), to do anything by way of notifying the child or otherwise which would encourage, or instigate proceedings under Section 117." It seems very short-sighted not to have provided at least for the notifi- cation by a personal representative in the case of infant children with a stipulation that the children be separately advised, as the personal representative is very often the parent or step-parent of the children. Carroll J. dealt in some detail with this aspect of Section 117 applications in the case of In the Matter of the Estate of EJ.D. Deceased (1979 No. 596Sp, Judgment delivered 19/2/1981). In this case the application under Section 117 was made more than one year after the Grant of Probate issued. The wording of sub-section (6) specifically limits the power of the Court "an Order under this Section shall not be made except on an application made within 12 months . . . .". This is unusual in that the Court cannot judge an applica- tion on its merits even where the defence of effluxion of time has not been raised. Section 127 The Succession Act contains a provision in Section 127 for the extension of limitation period in the case of disability. Carroll J. considered whether this section applied to applications under Section 117 so that in case of disability (e.g. infancy) the period of limitation fixed by Section 117 could be extended to three years after the disability ends. She gave some examples of situations showing that there are compelling reasons why a time limit of 12 months should be mitigated. But "equally there are reasons why the administration of estates should not be delayed beyond a reasonable time". This was adverted to by the Supreme Court in Moynihan -v- Greensmith [1977] IR 55, 72. Applying the Section 127 limitation period to Section 117 would have the effect of leaving the estate of a deceased testator open to claims on

behalf of his children until three years after they had attained their majority. Section 127 applies Section 49 of the Statute of Limitations 1957 (extending periods of limitation for persons under disability) to actions "in respect of a claim to the estate of a deceased person or to any share in such estate, whether under a will, on intestacy or as a legal right'Cbut Carroll J. points out that an application under Section 117 is not a claim "under a will" nor a claim "on intestacy^ Nor can it be regarded as a claim as "a legal right" because that phrase has a special meaning as defined in Section 3 of the Succession Act as "the right of a spouse under Section III to a share in the estate of a deceased person". Therefore no application brought under this Section more than 12 months after the taking out of a Grant of Representation can succeed. Any child who has been guilty of the murder, attempted murder or manslaughter of a testator shall not be entitled to make an application under Section 117 (Section 120 sub-section 1). A person who has been found guilty of an offence against the deceased or his spouse or any other children, punishable by imprisonment for a maximum period of at least two years or by a more severe penalty is precluded from making an application under Section 117. An application under Section 117 cannot be brought in the case of a person dying intestate since the distribution of his estate is governed by Part VI "Distribution on Intestacy", Section 67. However a testator's will may be rendered inoperative, for example by reason of the prior death of the universal legatee and if there is no surviving spouse the estate devolves as on intestacy. This situation arose in a case before Carroll J., R.G. -v- P.S.G. and J.R.G. (Judgment delivered 20/11/1980). It was held that as the deceased died testate, although his will was inoperative and his estate fell for distribution as on intestacy, a Section 117 application could be made. Testacy did not depend on the effectiveness of, but upon the execution of, the will and the testator remains testate until and unless he revokes it in accordance with Section 85. The Courts approach to these applications was briefly stated by Costello J. in L. -v- L. [1978] IR 288. He stated that there are basically two issues which may require to be determined in Section 117 applications. The first is the question "Has there been a failure by the testator in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise?" The second issue, which arises when the first question is answered in the affirmative, is "what provision should the Court make?" The Courts have held that an objective test must be applied to ascertain whether the testator failed in his moral duty. In the case of R.E. -v-

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