The Legal Right Share and Foreign Testators
19 March 2021
They say that competition is good and a bit of healthy conflict never did any harm. On the other hand . .having to deal with conflict of laws, on top of a lockdown . . . now that is tough!!
The reason for my rant is because I am acting for Patrick who lives in Spain. A single man, with no children, he is now marring his female Spanish friend. He has property in Ireland and Spain. He made an Irish will in advance of his marriage leaving all of this Irish property to his niece. Mmm . . I thought . . . that’s not gonna work.
So. It got me thinking. Will the legal right share apply even if the will is made abroad and the parties reside abroad? The short answer is, the legal right share applies to Irish real property (regardless of the location of the married parties) and it is more complex in respect of personal property. (These emails are too short to deal with the question of choice of laws in wills and comments here do not go into that issue).
The next question is, will his Irish will be revoked by his Spanish marriage? The answer is yes. There is nothing in the SA 65 dealing with this. Section 85 of SA 65 which talks about wills being revoked by marriage, do not define “marriage” nor indicate the location of the “marriage”. It simply refers to marriage. There is no commentary on whether that applies only to an Irish marriage but it appears that the term “marriage” means marriage wherever conducted. However, the marriage must be a marriage recognised in Ireland. So the rule there is, Irish law recognises foreign marriages as long as the marriage complies with the local rules of marriage and you have capacity to marry in Ireland (eg over 18, not married, 3 months notice etc). So for example, if the Spanish rules require civil registration for the marriage to be valid and my client conducts a church wedding only, then, that would not be a marriage recognised in Irish law. So that would not revoke the Irish will.
The next question is, whether a pre or post marriage renunciation of the legal right share is enforceable if made abroad by a party domiciled or resident abroad? Again SA 65 is silent on this issue, but it would be very strange if the validity of the renunciation is effected by the residence or nationality of the spouse renouncing. Disapplication of the legal right share is valid if executed abroad. Of course the usual provision that full independent legal and financial advice be given to the renouncing spouse. That advice should be legal and financial advice from an Irish practitioner and in advance of the signature of the renunciation.
If you have come across these issues or similar conflicts problems, I’d (perversely) love to hear from you.