D. v D

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 31 July 1981
• Neutral Citation: 1982 WJSC-HC 491
• Judgment citation (vLex): [1981] 7 JIC 3104
• Date: 31 July 1981
• Court: High Court

(H.C.)

D

and

D

Proceedings by widow and children against estate of deceased -Late application - Practice and procedure -Whether application in respect of children dependent on success of s. 117 application - Jurisdiction of the Court - Relevance of separation agreement - Succession Act, 1965 (No. 27), ss.117, 121, 127.

The deceased testator was survived by his widow and four children of the marriage and by the respondent, with whom he was living, and two children of their relationship. The deceased and his wife had entered into a separation agreement whereby he paid annual maintenance (index-linked), she acquired a life interest in the marital home and was provided with a motor car and all living expenses, and the children's education etc. were provided for. During the lifetime of the deceased and within three years of his death the defendant acquired a one-half interest in the deceased's business and was named as joint tenant of the home in which she had lived with the deceased. After his death probate of his will was granted to the defendant on the 25th September, 1978. Two summonses, both dated the 16th October, 1979, were issued concerning the estate. One sought a declaration under s. 117 of the Act of 1965 and the other sought a declaration under s. 121 of that Act. Held that the widow was barred from making an application under s. 121 in her own interest, because it was not made within one year of the grant of probate (see s. 121. sub-s. 5 (a) of the Act of 1965). The success of the...