Some reflections on the legal right share
19 November 2020
Just a quick note. I acted for Mary for many years. She had separated from her husband but there was no separation agreement, divorce or judicial separation. She left her estate in equal shares to her children, with no mention of her spouse, who now lived abroad. I repeatedly encouraged her to ensure her spouse would waive his legal right share. She repeatedly assured me that she would get round to it and discuss it with him. I repeatedly kept an attendance note.
Mary passed away without ever dealing with the spouse issue. Her children had a worrisome consultation with me. A couple of questions arose. Was there an obligation to notify the surviving spouse of the existence of the legal right share? Answer. No. Obligations of notification only arise where there is an election (s. 115 Succession Act 1965). An election only arises where there is a bequest to the spouse in the will. Here there was none.
Now, for four however’s:
1. However, just because we had no obligation to notify doesn’t make the problem go away. S. 111 of SA 65 provides that the legal right share shall have priority over devises, bequests and shares on intestacy. The case of O’Dwyer v Keegan  IESC 5, confirms that the interest vests on death without any action required by the surviving spouse.
2. However, while the interest vests on death, a claim for its recovery is statute barred after six years from the date of death. (s, 126 SA 65). So like lots of things in what we do, the answer is not straight forward and the net effect is that really no action could be taken in relation to the estate until at least the passage of six years from death.
3. However, there is a happy ending to this story which meant that I didn’t have park this issue into that dark cavern of unresolved problems (I think you have one too, its that smelly thing in the corner of the filing cabinet). The surviving spouse was agreeable to waive his legal right share. If only he did this earlier. Now technically speaking, one can only waive the legal right share while the other spouse is alive. (Section 113 SA 65).
4. However, even happier again, just because the section indicates that the legal right share must be waived during the lifetime of the testator that is not the end of the matter. The legal right share may be disclaimed in the normal course. This is what occurred in our situation.