Testamentary defamation

The_Minister

Does this exist in Ireland?
I know it exists in America, but a quick search of Justis turns up nothing.

Victor

What is is defamation from the grave?

The_Minister

Victor wrote: »

What is is defamation from the grave?

It is libel contained in a will.

For instance: "I hereby leave nothing to my brother Victor, for he is a well known-Neo-Nazi, and a raging sodomite to boot".

Apparently there are very few cases, but it has been litigated in other jurisdictions (you sue the estate). I was wondering if it had or could, occur here.

EDIT: Apparently what you should say is "To my brother Victor, I leave nothing, for reasons that are known to him"
It is the closest thing a well-drafted will gets to "Oh, snap", or so I believe.

Reloc8

S. 8 civil liability act 1961 - on the death of a person on or after the date of the passing of this Act all causes other than excepted causes of action subsisting aganinst him shall survive against his estate.

S. 6 states that excepted cause of action includes a cause of action for defamation.

In a will, the defamation is committed on publication. This might be when the will was drafted if drafted by someone other than the deceased (there is no guarantee that witnesses have read the will before witnessing it so if you draft your own will there may be no publication until after you are dead). If the will was drafted by someone other than the deceased then the example given by the Minister is in my view defamatory prima facie as it is malicious hence not covered by any qualified privilege. However, the publication occurred when the will was drafted, i.e. prior to death, and therefore does not survive the death of the tortfeasor, defamation being an excepted action.

If s. 6 did not apply, and publication occurred after death i.e. be having the will read s. 8(2) would allow the claim to be brought as it applies where damage is suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before (or at the same time) as the damage was suffered. S. 8(2) deems the cause of action in those circumstances as having susbsisted before his death for the purpose of S. 8(1).

However, s. 6 clearly excludes action for defamation from the saver in s. 8.

The_Minister

Reloc8 wrote: »

S. 8 civil liability act 1961 - on the death of a person on or after the date of the passing of this Act all causes other than excepted causes of action subsisting aganinst him shall survive against his estate.

S. 6 states that excepted cause of action includes a cause of action for defamation.

In a will, the defamation is committed on publication. This might be when the will was drafted if drafted by someone other than the deceased (there is no guarantee that witnesses have read the will before witnessing it so if you draft your own will there may be no publication until after you are dead). If the will was drafted by someone other than the deceased then the example given by the Minister is in my view defamatory prima facie as it is malicious hence not covered by any qualified privilege. However, the publication occurred when the will was drafted, i.e. prior to death, and therefore does not survive the death of the tortfeasor, defamation being an excepted action.

If s. 6 did not apply, and publication occurred after death i.e. be having the will read s. 8(2) would allow the claim to be brought as it applies where damage is suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before (or at the same time) as the damage was suffered. S. 8(2) deems the cause of action in those circumstances as having susbsisted before his death for the purpose of S. 8(1).

However, s. 6 clearly excludes action for defamation from the saver in s. 8.

Would the new Defamation Act affect this in any way?

Reloc8

Nobody has paid me to read it yet

Anyway, nah don't think so.