Is this a contradiction, Spouse succession law

Rudolph Claus

Just reading up on this law and it seems to contradict itself?
From my reading and understanding of the 2 answers below, the remaining spouse is entitled to 2Thirds of the estate if the dead spouse died without making a will and has no children. But, the 2nd answer seems to suggest the remaining spouse only gets 1Third as opposed to the 2Thirds that the 1st answer seems to suggest.


"Q. What happens if I die without making a Will?

A. If you die without making a Will you are said to have died in testate. The Succession Act (1965) provides that your spouse is entitled to your entire estate if there are no children and otherwise two thirds (one third goes to your children). If you do not have a spouse, your entire estate goes to your children (children of a deceased child taking their parent’s share) and if you have no children to your parents; and if both parents are deceased then to your brothers and sisters.

And

"Q. What inheritance rights has my spouse and children if I have made a Will?

A. The Succession Act imposes certain restrictions. Spouses
Your spouse has a legal right to a minimum share of half your estate where there are no children, and otherwise one third."

Edit::::Heres the link to the article i was reading
http://www.namhi.ie/will.cfm

Jo King

There is no contradiction. The first situation is the default situation where there is no will. Clearly this means that property may go to someone that the deceased person may not have wished to leave property to. They may not want to give anything to one or more of their brothers and sisters for example.
The second situation simply prevents the deceased person using the will to avoid giving anything to the spouse by providing a minimum proportion be reserved to the spouse. There is no reason why more than the minimum cannot be left to the spouse if desired.

Rudolph Claus

Hello Jo-King,

So if a spouse dies having made a will and has children,,, the remaining spouse is entitled legally to a minium of 1THIRD.

Whereas if a spouse dies without making a will and has children the remaining spouse is legally entitled to a minium of 2THIRDS.

Am i right in saying the above 2 statements?

Tom Young

Intestate:

Distribution – current law
• No distinction between real and personal property rules
• Section 67
(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.
(2) If an intestate dies leaving a spouse and issue—
(a) the spouse shall take two-thirds of the estate, and
(b) the remainder shall be distributed among the issue in accordance with subsection (4).
(3) If an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue in accordance with subsection (4).
(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes.

• Section 68 - If an intestate dies leaving neither spouse nor issue, his estate shall be distributed between his parents in equal shares if both survive the intestate, but, if only one parent survives, that parent shall take the whole estate.

• Section 69
(1) If an intestate dies leaving neither spouse nor issue nor parent, his estate shall be distributed between his brothers and sisters in equal shares, and, if any brother or sister does not survive the intestate, the surviving children of the deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share that their parent would have taken if he or she had survived the intestate.

(2) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister, his estate shall be distributed in equal shares among the children of his brothers and sisters.

• Section 70
(1) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.

Testate:

• Section 111: If a testator leaves a spouse but no children – the spouse has the right to ½ of the testator’s estate.
If there are both spouse and children – the spouse has right to 1/3.
• Section 112 gives the legal right priority over the Will or intestacy share.
• Section 113: Legal right may be renounced.
• Section 114: If a testator wants to make provision in a Will in addition to legal right, this must be done expressly

*Legal Right Share*
Section 115
• (1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right.
(b) In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

seamus

Nuttzy wrote:

So if a spouse dies having made a will and has children,,, the remaining spouse is entitled legally to a minium of 1THIRD.

Whereas if a spouse dies without making a will and has children the remaining spouse is legally entitled to a minium of 2THIRDS.

Seems to be about right. Note that the one-third doesn't include the maintenance for the children;

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

Which basically means that if a person makes a will and dies, then the spouse is entitled to take one-third of the estate (regardless of the will), and a court can also take as much of the estate as it deems necessary for the well being of the children, regardless of the will.

Tom Young

Seamus:

Don't forget the time limit on 117 applications. There is much case law on this and a 117 is not the easiest to bring to be quite frank without decent grounds.

Why should it:

include the maintenance for the children

??

The Succession Act is complicated enough and you do really need to read it a few times before it will make sense properly.

seamus

Tom Young wrote:

Why should it: ??

Well, my initial interpretation was that a spouse with children is entitled to less of the estate, purely to ensure that more of the estate if left over for the children.

Tom Young

Section 111
• (1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

Section 112
• The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

Section 113
• The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.

Section 114
• (1) Where property is devised or bequeathed in a will to a spouse and the devise or bequest is expressed in the will to be in addition to the share as a legal right of the spouse, the testator shall be deemed to have made by the will a gift to the spouse consisting of—
(a) a sum equal to the value of the share as a legal right of the spouse, and
(b) the property so devised or bequeathed.
• (2) In any other case, a devise or bequest in a will to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse.

Section 115

• (1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right.
(b) In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

Jo King

Nuttzy wrote:

Hello Jo-King,

So if a spouse dies having made a will and has children,,, the remaining spouse is entitled legally to a minium of 1THIRD.

Whereas if a spouse dies without making a will and has children the remaining spouse is legally entitled to a minium of 2THIRDS.

Am i right in saying the above 2 statements?

The second one is not quite accurate. The spouse is entitled to two-thirds. No minimum involved.

OTK

Can the spouse's right to a minimum inheritance be removed through a prenuptial agreement?

seamus

OTK wrote:

Can the spouse's right to a minimum inheritance be removed through a prenuptial agreement?

I don't think so. IIRC, because of separation laws and the above succession laws, prenuptial agreements are not recognised in this state.

johnnyskeleton

OTK wrote:

Can the spouse's right to a minimum inheritance be removed through a prenuptial agreement?

Tom Young wrote:

Section 113
• The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.

If I can add my two cents, in a situation where a husband and wife hold the family home (or any other piece of land) as joint tenants (as opposed to tenants in common or it being in one of their names only), the estate passes instantly to the surviving spouse, irregardless of any will or intestacy, and as far as I know, it will not affect the spouses share under the Succession Act.

Rudolph Claus

johnnyskeleton wrote:

If I can add my two cents, in a situation where a husband and wife hold the family home (or any other piece of land) as joint tenants (as opposed to tenants in common or it being in one of their names only), the estate passes instantly to the surviving spouse, irregardless of any will or intestacy, and as far as I know, it will not affect the spouses share under the Succession Act.

I know that, i was confused with the situation where there were children involved that would need to get a share.