Succession Act 1965

Election between legal right and rights under a will and on partial intestacy.

[New]

115

115. (1) ( a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse F48 [ or civil partner ], the spouse F48 [ or civil partner ] may elect to take either that devise or bequest or the share to which he is entitled as a legal right.

( b) In default of election, the spouse F48 [ or civil partner ] shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

(2) ( a) Where a person dies partly testate and partly intestate, a spouse F48 [ or civil partner ] may elect to take either—

(i) his share as a legal right, or

(ii) his share under the intestacy, together with any devise or bequest to him under the will of the deceased.

( b) In default of election, the spouse F48 [ or civil partner ] shall be entitled to take his share under the intestacy, together with any devise or bequest to him under the will, and he shall not be entitled to take any share as a legal right.

(3) A spouse F48 [ or civil partner ], in electing to take his share as a legal right, may further elect to take any devise or bequest to him less in value than the share in partial satisfaction thereof.

(4) It shall be the duty of the personal representatives to notify the spouse F48 [ or civil partner ] in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse F48 [ or civil partner ] of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the later.

(5) Where the surviving spouse F48 [ or civil partner ] is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse's F48 [ or civil partner s ] estate, be exercised on behalf of the spouse F48 [ or civil partner ] by the committee by leave of the court which has appointed the committee or, if there is no committee, be exercised by the High Court or, in a case within the jurisdiction of the Circuit Court, by that Court.

(6) In this section, but only in its application to a case to which subsection (1) of section 114 applies, “ devise or bequest” means a gift deemed under that subsection to have been made by the will of the testator.

Annotations:

Amendments:

F48

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 85, S.I. No. 648 of 2010.