Section 117 and Intestacy – Part 3 (Final)
08 June 2023
We all know that you can only bring a s. 117 action where there is a will and there is no s. 117 in an intestacy situation. However we had looked at some exceptions to that rule and this was set out here onthe site in two previous blogs (the links to which I set out below to those interested). Here we are looking at the final exception to this rule.
Section 121 of the Succession Act allows the court to set aside dispositions made by a deceased in the three years prior to their death where the purpose of those dispositions was to defeat the effect of the legal right share or shares on intestacy. So a testator cannot strip out all of their assets prior to death so as to ensure that a spouse or children have nothing on death. If a deceased did transfer assets and made no will a child can make an application to set aside that disposition. The effect of a successful application under that section is that the disposition is treated as a devise under a will. So if the deceased died intestate they are now deemed to have died partially intestate. Not only that the effect of s. 121 is that the disposition which has now been set aside is treated as if it has been a devise made under a will and so there is now a form of statutory “will” in existence. This means that the deceased now becomes a “testator” within the meaning of the SA 65.
A child cannot bring an action under s. 121 on its own, but it must be brought in the context of a section 117 application. So to set aside the disposition a s. 117 is brought and in that context a s. 121 claim is made.
It also works the other way. Invariably when a child is bringing a s. 117 application (where there is a will) the child will also bring a s. 121 claim into their pleadings at the same time. This is to ensure that this claim is properly pleaded in the event that during the course of the litigation, it transpires that there were assets disposed of within 3 years prior to death with the purpose of defeating rights. So as a precaution a child in a s. 117 will also bring that the s. 121 element to bear as well.
Hope this helps. The two other articles on the exception to the rule that there s. 117 is not available on intestacy are set out here
If you have any probate, will drafting or tax issues, please reach out to me through the probate hub website. Colm Kelly