WILLS

The old saying “it is never too late…”does not apply to the making of your will and making a will is always advisable and a prudent part of organising one’s life.

If a person dies intestate (i.e. no will) a grant of “letters of administration” in the estate of the deceased domiciled in the Republic of Ireland, shall be granted to the persons having a beneficial interest in the estate of the deceased in the following order of priority ( Order 80 RSC) , namely:

(a) the surviving spouse or, as the case may be, the surviving civil partner;

(b) the surviving spouse or, as the case may be, the surviving civil partner jointly with a child of the deceased nominated by the said spouse;

(c) the child or children of the deceased (including any person entitled by virtue of the Status of Children Act 1987, to succeed to the estate of the deceased);

(d) the issue of any child who has died during the lifetime of the deceased;

(e) the father or mother of the deceased or where the presumption contained in Section 4A(2) of the Succession Act 1965, (inserted by Section 29 of the Status of Children Act 1987) applies, the mother;

(f) brothers and sisters of the deceased (whether of the whole or half-blood);

(g) where any brother or sister survived the deceased, the issue of a predeceased brother or sister;

(h) nephews and nieces of the deceased (whether of the whole or half-blood);

(i) grandparents;

(j) uncles and aunts (whether of the whole or half-blood);

(k) great grandparents;

(l) other next of kin of nearest degree (whether of the whole or half-blood) preferring collaterals to direct lineal ancestors;

(m)  the nominee of the State.

(2) The personal representative of any of the persons hereinbefore mentioned (other than the nominee of the State) shall have the same right to a grant as the person whom he represents, subject to sub-rule (8)(b) hereof which provides that life interests be preferred to dead interests.

(3) Where there are conflicting claims for a grant among the members of a class entitled to administration, the matter shall be referred to the Probate Officer and the grant shall be made to such of the claimants as the Probate Officer shall select having given not less than 21 days notice to the rival applicants, or, on objection having been made in writing within the said period, to such person as the Court shall select.

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The perils of not making a will are seen in the 2020 High Court case of McGrath & Ors v The Solicitors Disciplinary Tribunal (Approved) [2020] IEHC 238 (06 March 2020) where Jean Connors being one of the six adult children (being a practising solicitor) applied for such a grant in the estate of her intestate mother and then faced unfounded and subsequently dismissed allegations of professional misconduct from her sibling(s) before her regulatory body. The background history of the legal personal representative bringing proceedings against her brother and a firm of solicitors seeking to set aside the conveyance of her late mother’s family home in Bray to her brother (who had been involved in the purchase of this property by his parents from Bray Urban District Council under the Tenant Purchase Scheme) must also be noted.

Mr. Justice Meenan stated as follows:

“The appellants have failed to understand that the respondent Solicitor, as an adult child of the late Frances Kinsella deceased, was entitled, pursuant to the Rules of the Superior Courts, to apply for grant of letters of administration. It was open to the appellants to apply for a grant themselves, but they failed to do so. Further, it was also open to the appellants to seek to revoke the grant of the letters of administration, which they also failed to do.

9.       As regards the proceedings entitled Jean Connors v. Daniel Kinsella & Ors. (the High Court (2014 No. 10908 P)), the proceedings referred to by the appellants herein, an application was brought to strike out and/or dismiss the proceedings on the grounds that they were frivolous and vexatious and/or an abuse of process. This application was refused in a judgment delivered by Simons J. on 21 June 2019 ([2019] IEHC 451).

Conclusion

10.     By reason of the foregoing, I am satisfied that the decision of the Solicitors Disciplinary Tribunal was correct and in accordance with law, holding that there was no prima facie case of misconduct on the part of the respondent Solicitor. I therefore refuse the appeal.”