Reflections on S. 115 and Election

15 May 2024

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Just a reminder on the key elements of s. 115 of the Succession Act. It applies where a bequest is made to a spouse but that bequest is not stated to be in addition to the spouse’s legal right share. In that case, the spouse must elect to take the bequest or their legal right share. If the spouse does not elect then the spouse is deemed to have taken the bequest.

The section places a duty on the personal representative to inform the spouse of the right of election. The right of election shall not be exercisable by the spouse if the spouse does not elect within six months of receipt of the notice or one year from the date of grant of probate/letters of administration whichever is later.

Some reflections

  • It should be noted that the section now applies to civil partners as well as spouses.
  • The section does not apply where the spouse dies wholly intestate. This is because the spouse will always receive more on intestacy than as a legal right. As a reminder, if a spouse dies intestate with no children the legal right is 50% (s. 111 (1)), and if with children the legal right is 33% of the estate (s. 111(2).)
  • What if the spouse is also the executor? How does the election work in those cases? It is possible for a person to act in two separate capacities (think of a director and shareholder of a company). In those cases, the formalities would be followed as if the person was different and notices sent in the normal course.
  • A question arises with respect to foreign cases. What of a UK deceased who leaves a bequest to his wife which falls short of the legal right share? Does that trigger the notice provisions? While there is little commentary on this point, one would have thought the answer is no. Take the following two examples:-
  • Foreign Example 1. If a spouse based in England (owning no Irish assets) leaves an English based bequest to her English husband then there can be no question of the section applying to Ireland as there is no Irish connection.
  • Foreign Example 2. Take the case of a spouse based in England who leaves a bequest to her English husband of English property, but there is also Irish property not referred to in the English will. In this case as well, the spouse does not share in the residue. Here one would have thought election does not arise. It would seem absurd that an English spouse in that case would have to elect between an English bequest and the legal right share of an Irish asset. It would appear to this writer that no election arises. As there was no bequest of an Irish asset under the will, the English surviving husband takes the UK bequest and is entitled to enforce his legal right share in Ireland of the Irish asset.
  • It should be noted that the section applies to the vast majority of wills where couples make mutual wills. S. 115 is triggered where there is a devise or bequest to a spouse. While not stated, it is implicit in the section that such a devise or bequest is less than what would arise under the legal right share. However, there is nothing that qualifies the section in that regard. So in theory, where a spouse receives the entire estate from a deceased spouse, there is a duty on the executor to notify the spouse of their right of election. However, this does not occur in practice. It should be noted that section s. 115(1)(b) states that in default of election, the spouse takes under the will. It is assumed in practice that if notified, the spouse would elect to take the bequest of the entire estate under the will rather than the legal right share and given that the election would be moot, that notice by the per rep is not made.
  • Finally, while it is a duty of the per rep to notify the spouse of the right of election, there is no sanction on the per rep to do so. However, commentators note that failure to notify could constitute a breach of trust by the per rep. One would have thought that if it can be proven that the spouse suffered a loss due to a failure to be notified that a remedy in negligence would be available.

Hope this helps and if you have any probate, tax, will drafting, or capacity issues, please do not hesitate to email me at colm@theprobatehub.ie.