Disclaiming Spouse and Probate Practice

27 July 2023

etienne-boulanger-C5yfbvMWxC8-unsplash (1)

This is just a short note on probate practice that I came across recently. We acted in an estate where the husband left everything to the spouse. In the event that the spouse pre-deceased then the estate went various ways to a range of children. All very normal.

The surviving spouse is elderly and is happy to disclaim the entirety of her estate. She lives with and is cared for and supported by a child and those arrangements will continue. The estate consists of a farm, house and monies of which she has no immediate need. The surviving spouse was happy to accelerate the provisions of the will, so that the estate would drop down to her surviving children.

When we applied for probate we first applied on the basis that the surviving spouse renounced her entitlement to extract. On that basis, we continued with an application by the substituted executor being one of the children. This was correctly rejected by the probate office because, as the spouse was executor and residuary legatee, then notwithstanding her renunciation as executorship, she should have also disclaimed her entitlement under the will as residuary legatee and devisee. As one is aware where there is no executor the next in line is a residuary beneficiary.

We therefore duly prepared a renunciation and disclaimer and re-submitted papers. However again this was rejected, because, once again the probate office correctly pointed out that if the surviving spouse disclaims her entitlement and she is the sole beneficiary, then, the estate falls into intestacy a share of which she will have. This will in turn provides her an entitlement to apply for administration with will annexed in priority to the surviving children.

So in this case, we had to do a triple step. Renunciation of executorship, disclaiming of residue under the estate and disclaiming of share on intestacy.

On that basis then the surviving children could apply.

Obviously, this then creates an intestacy situation which has to be remedied by the children entering into disclaimers themselves so as to ensure that the shares of the estate pass in a manner that benefit them. In this case, we can enter into disclaimers for consideration, where in consideration of receipt of portions of the estate the beneficiary disclaims their share.

Hope this helps and if you have any probate, will drafting or capacity issues, please let me know. Colm Kelly founder of theprobatehub.ie