Deducting Title and Pre-59 Deaths
29 November 2023
Many practitioners find administering pre 59 deaths a challenge and rightly so, because locating the rules can be cumbersome , these cases come up infrequently and textbook commentary on this area sometimes just doesn’t seem to nail the issue.
This issue can arise in particular if you deducting title in a chain of title, (whether under pyramid titles or just generally).
So take for example a freehold title where a 99 lease was granted in 1880 and has now expired. While the underlying title may have been assignments of the leasehold interest, since 1979 you will need a conveyance of the freehold title to be able to regularise your title.
In this case, there may be on title a number of wills passing down the freehold or just the freehold may be contained in residuary provisions of historic wills.
Somewhat thankfully in these types of cases, many freehold titles tend to be held by English landlord/acendancy type situations. One of the (ahem) many advantages of British occupation, was that frequently in those cases English landlords regularly held land in England and Ireland, and, as a result, one tends to find extensive wills in place which can be used as a basis of deducting title.
The central point is that until the coming into force of the Administration of Estates Act 1959, realty passed directly to the devisee, without the requirement of representation. So at times, a despondent solicitor can be reviewing historical title and note that freehold has passed by will, but will be concerned, that there are no historic grants on title. This should not be a need for dispair, because a will is a valid part of the chain of title. To bring home the point, it may be worth looking at the Dáil debates at the introduction of the Administration of Estates Act 1959. Oscar Traynor, (Fianna Fáil Minister for Justice at the time and previously anti- Treaty member of the IRA during the War of Independence) (and probably more famous amongst residents of the Northside, as the road named after him links Santry to Coolock) noted as follows:-
I move that the Bill be now read a Second Time. The purpose of this Bill is to make certain amendments in the law relating to the administration of the estates of deceased persons with a view to clearing the way for a more comprehensive measure of reform in this branch of the law which is at present under consideration in my Department.
Of these amendments, the principal one is that which provides for the devolution of all real estates in the same way, that is to say, on the executor or administrator of the deceased. Under the law as it stands, real estate, other than freehold registered land, does not devolve on the personal representative but passes directly to the heir-at-law or to the person to whom it has been devised.
The greater part of the real estate in the country already devolves on the personal representative as it consists of registered land purchased under the Land Purchase Acts, which is treated as personal property for the purposes of devolution. It is chiefly in towns that there is to be found unregistered freehold land though there is a small quantity of such property elsewhere. In any case, the present differentiation in treatment is an anomaly which cannot be justified and the Bill proposes to put an end to it. Admittedly, the recognition of an heir-at-law and the privileged position of the eldest son are even greater anomalies but they are more complicated matters which can best be left over for consideration in connection with the more comprenhensive Bill to which I have referred.
Dáil Éireann debate –
Tuesday, 13 May 1958
Vol. 168 No. 1
What is interesting is that it was clear that the 1959 Act was seen as a stepping stone to the introduction of the Succession Act 1965. The above rule of the devolution of title onto personal representatives was contained in section 6 of the 1959 Act, which came into force on the 1st of June 1959 (by virtue of section 1(2)(b) of the 1959 Act ). More notably section 3 of the 1959 Act states that these provisions regarding devolution
shall not apply to the estate of any person dying before the 1st day of June, 1959.
It should be remembered that the above rules only apply to unregistered title. A different regime applied to registered title. So, when dealing with unregistered title, one only needs to start looking for grants for deaths on or after 1 June 1959.
Hope this helps and remember if you have any probate, will drafting or capacity issue, please do not hesitate to reach out to me on the website or at ckelly@hcalaw.ie
