Administering Estates of Divorced Persons
14 October 2021
Where a person is divorced they are single in the eyes of the law. One would expect that the probate office would take the same approach but not necessarily. This article is part of a two part series on dealing with this topic.
Grants of Probate
Grants of probate follow a regular pattern. The will appoints the executor and title to administer the estate is set out in the will. Really issues of examining divorce is one the solicitor should advise on at the time of making the will. The solicitor advising a divorced testator at will drafting stage, should fully satisfy him or herself that their client is properly divorced and obtain sight of the divorce order.
When it comes to proving the will of a divorcee, the divorce does not come into it. Just to remind oneself, the core title for proving a will is as follows:
that same was made by the said deceased after attaining the age of 18 years, and that the said deceased did not intermarry or enter into a civil partnership with any person after the making of same;
that I am the [state relationship] of the said deceased and the * [sole] executor/executrix in the said will [or will and codicil(s)] named;
So you can see, title is not concerned with the marital status of the testator, but rather whether or not the will was subsequently revoked by a marriage or a civil partnership.
Not so with intestacy cases. The probate system, as the name implies, is a system to prove a will or entitlement to administer an estate. That entitlement is based on sworn evidence. The sworn evidence being the Oath of the Administrator. A divorced person is single on death. So title should be just simply that of a single person. If the system is based on the truth statement of the person applying for administration, one would wonder why the probate office would not accept the oath of the administrator that a person died single and not look beyond this. However, the probate office does; perhaps understandably if a person is divorced, as it is the role of the office to ensure that the divorce is valid and binding.
In light of this, the probate office have set out the suggested title for divorced cases as follows:
Died intestate a divorced person and I am the lawful child
They also require the divorce decree to be exhibited.
So one can see that there are nuances when dealing with a divorced case. In fact, it would be simpler if the divorced person remarried, as then the title would be that of a married person (although in married cases, its interesting to note that the probate office don’t look to exhibit the marriage certificate).
This note one must remember only deals with Irish persons who have an Irish divorce. In the next post, I will deal with how the probate office deals with intestate administration of those who have divorced abroad.