Probate vs succession act

Pixie Chief

Hi, just a quick query! I'd be really grateful if any of the learned bods could clarify!

I know that a will operates from the moment of the testator's death but how does the election of a legal share operate?

As an example, a man dies leaving wife and two children all catered for under the will. Probate isn't taken out for ten years. In the intervening period, one of the children also dies. Subsequently, spouse elects to take her legal right to one third (as there is a will).

Does that election act on the day it is elected? As in, the spouse would receive one third and remaining child would receive remainder?

Or would it act like the will and return to the date of death of testator? As in, spouse would receive one third and remainder split between surviving child and the estate of deceased child?

Can't find anything in any of my books on it - any ideas or reading recommendations gratefully received!

P. Breathnach

Let's clean down your question: if a child of a testator who is a beneficiary under his will dies after the testator's death but before probate is granted, what happens that child's legacy?

It becomes part of the child's estate.

Pixie Chief

Thank you!

I know that's what would happen if the estate were probated according to the will but if it were administered under the succession acts instead where a spouse elected to received their third legal right share, would the same apply?

P. Breathnach

Pixie Chief wrote: »

Thank you!

I know that's what would happen if the estate were probated according to the will but if it were administered under the succession acts instead where a spouse elected to received their third legal right share, would the same apply?

The Succession Act provides for estates where there is a will and also for cases where there is no will (intestacy). So, in a way, your question makes no sense. But I think I get what you are driving at:
- If there is a will, it must probated and executed in accordance with the testator's wishes (insofar as that is possible).
- There isn't an option to have it administered under the provisions of the Succession Act as if there were no will.

[If there were no will, and a child who was in line for a share died between the death of the parent and the grant of administration, then that child's share becomes part of that child's estate.]

Pixie Chief

That's fantastic, much much appreciated. I have read in several cases where there was a will and a spouse elected to take their share under the succession acts instead that the effect of that would be "to accelerate the remainder interest in the surviving beneficiaries" but I can't find any provenance for such statements?

From what you're saying, that isn't actually possible?

P. Breathnach

All I can say is that I don't think so.

Lockedout2

Pixie Chief wrote: »

That's fantastic, much much appreciated. I have read in several cases where there was a will and a spouse elected to take their share under the succession acts instead that the effect of that would be "to accelerate the remainder interest in the surviving beneficiaries" but I can't find any provenance for such statements?

From what you're saying, that isn't actually possible?

I wonder if it's the case that despite the spouse getting 100% of the assets under a will, they decided to allocate the 33% to their children as if there was no will.

Effectively taking her full share under the will and passing it to the children. I'd imagine a disclaimer of sorts!

She has decided to gift 33% to her children, which she is entitled to do.

Pixie Chief

I see what you mean but not in this particular example - spouse left everything for life and then onto both children. Electing legal right share means spouse would receive one third now with two thirds to testator's issue. In the intervening ten years between death of testator and probate of estate one child passed away. It reads as though the election taking place after one of the beneficiaries passed away means that the two remaining thirds would go to the remaining beneficiary but can't find any information to either support or deny that?

P. Breathnach

Ah. This becomes more interesting!

A beneficiary under a will can renounce his/her bequest. That's relatively simple. Where that is done, the renounced bequest becomes part of the residue, and is distributed in accordance with the provisions of the will - in this case, it goes to the surviving child and to the estate of the deceased child.

But can the widow, having renounced her bequest of a life interest, then substitute a "legal right" claim? I don't know the answer to that one.

Did the deceased child have a spouse or children? Did the deceased child make a will? If the answers are "no", then the surviving parent should inherit the deceased child's estate.

Pixie Chief

There is a provision in the succession acts that allows a spouse to elect to take one third of the estate instead of their share under the will with two thirds going to the children of the testator. In this case deceased child died intestate with no issue so their share would go to surviving parent. What I can't find is whether the date of election had any effect. There doesn't seem to be any clarity on this yet several cases quote it having an effect

Lockedout2

Not a solicitor but I would have thought that in order to claim a legal right share the spouse would have had to actively pursued it.

By accepting the status quo it I feel represents her accepting the life interest.

Can you quote the cases you are referring to?

Pixie Chief

She did indeed pursue it by electing her share....sadly can't share case at the moment as is ongoing. Has just sparked lively debate to which I now can't find the answer - enquiringly minds need to know �� I will update when I find somethings!

Lockedout2

What's the time frame between the death of the spouse, the death of the child and the claim of legal right share?

Are there other cases you referred to?