O 'Dwyer v Keegan & Cummins
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 12 July 1996 |
| Neutral Citation | 1996 WJSC-HC 4294 |
| Court | High Court |
| Date | 12 July 1996 |
1996 WJSC-HC 4294
THE HIGH COURT
BETWEEN
AND
Citations:
SUCCESSION ACT 1965 S120
SUCCESSION ACT 1965 S111(1)
SUCCESSION ACT 1965 PART IX
MURRAY V IRELAND 1985 IR 532
CONSTITUTION ART 41.3
SUCCESSION ACT 1965 S111
URQUHART & REVENUE COMMISSIONERS V AIB LTD 1979 IR 197
SUCCESSION ACT 1965 S115
FINANCE ACT 1894
SUCCESSION ACT 1965 S46
SUCCESSION ACT 1965 S113
SUCCESSION ACT 1965 S114
SUCCESSION ACT 1965 S115
SUCCESSION ACT 1965 S10
REILLY V MCENTEE 1984 ILRM 572
SUCCESSION ACT 1965 S67(1)
Synopsis:
SUCCESSION
Testacy
Husband - Death - Wife - Survivor - No children - Testate wife in coma at husband's death - Wife survived for 12 hours in that state - Enactment provided that surviving wife shall have a right to one-half of husband's estate - Enactment construed as giving right to claim that share - No share of husband's estate vested in wife in absence of her election to claim that right - Succession Act, 1965 (No. 27), s. 111 - (1995/648 Sp - Kelly J. - 12/7/96) - [1997] 1 ILRM 102
|O'Dwyer v. Keegan|
Judgment of Mr. Justice Kelly delivered the 12th day of July, 1996.
Thomas Cummins died on the 2nd February, 1995. His wife Kathleen was comatose at the time of his death. She died twelve hours later without regaining consciousness.
Both Thomas and Kathleen died testate. A Grant of Probate to Thomas's estate was extracted on the 10th January, 1996. The net value of his estate was £2,408,211.14.
A Grant of Probate was extracted to the estate of Kathleen on the 12th October, 1995. The net value of her estate was £370,914.06.
Thomas did not make provision for Kathleen in his will. Given the value of her estate she was obviously reasonably comfortable in her own right.
Thomas and Kathleen had no children. Kathleen did not renounce her legal right either by way of an ante-nuptial contract or in writing after marriage and during the life time of Thomas. Nor was she precluded from taking her appropriate share in his estate by reference to the provisions of Section 120 of the Succession Act, 1965 (the Act).
Given these facts it is clear that Kathleen's entitlements on the death of Thomas fall to be dealt with pursuant to the provisions of Section 111(1) of the Act. Indeed it is that subsection that has given rise to the instant proceedings.
The subsection provides as follows:-
"111(1) If the testator leaves a spouse and no children, the spouse shall have a right to one half of the estate".
I am asked to construe this subsection in the context of the facts already alluded to. On one side it is argued that upon the death of her husband, Kathleen automatically became entitled to one half of his estate and therefore when she died twelve hours later, her estate had been enhanced by having added to it one half of the estate of her late husband.
The counter argument is to the effect that Section 111(1) did not give rise to an automatic transfer of half of Thomas's estate to Kathleen but rather created a right exercisable by Kathleen, if she so wished, to one half of the estate of Thomas. As she did not exercise that right (and indeed could not in the circumstances) her estate was not increased by the addition to it of one half of Thomas's estate.
It was agreed at the Bar that there is no decided case which is precisely on point. None of the decisions cited deal directly with the true construction of Section 111(1) of the Act. In these circumstances, I propose, in the first instance, to apply the ordinary and well established canons of construction to the relevant provision.
The object of the judicial interpretation of a statute is the ascertainment of the intention of the legislature as expressed in the statute. The intention and therefore the meaning of an Act, is primarily to be sought in the words used. They must, if they are plain and unambiguous, be applied as they stand.
If there is nothing to modify, alter or qualify the language which is contained in the Act, then the words and sentences must be construed in their ordinary and natural meaning.
In my view, when Section 111 (1) speaks of a spouse having a right to one half of the deceased's estate, the word "right" is to be given its ordinary and natural meaning. The conferring of a right gives the recipient an interest which will be recognised and protected by law. But the recipient is free to decide whether or not to exercise such a right. Not every right need be exercised and there are circumstances where, if it is not exercised, it may be lost. It appears to me that the right which is conferred under Section 111(1) is a personal right which falls to be exercised by the surviving spouse who is the beneficiary of such right. Applying these ordinary canons of construction, there is nothing in Section 111(1) which suggests that the right which is given to the surviving spouse operates automatically in favour of that spouse regardless of his or her wishes. As with any other right, the surviving spouse may choose to exercise it or not. If he or she does not or cannot exercise the right, the benefits of it do not accrue. I have formed this view by the application of conventional rules of construction. If one adopts the more modern purposive approach to construction, the same result is achieved. I now turn to consider the subsection from that point of view.
The Succession Act brought about major changes in the law of succession in this State. Prior to its enactment, a person could deal with his property as he thought fit. The legislature was obviously of the view that some curtailment of this freedom was required in the interest of a testator's spouse. So, Part IX of the Act contains provisions dealing with the legal right of a testator's spouse. The section under consideration in this case gives a spouse a right to one half of the estate where the testator leaves no children. This is reduced to one third of the estate where there are children who survive the testator. But it must be borne in mind that this section has effect only in circumstances where there existed a lawful marriage between the spouses. That relationship is one of great solemnity and has been described by Costello J. (as he then was) in Murray -v- Ireland ( [1985] IR 532) as:-
"A partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship".
This description may require some adjustment having regard to the recent amendment to Article 41.3 of the Constitution. But even if, as a matter of law, marriage may not be lifelong it still retains very special and solemn characteristics.
Given the nature of that relationship, the husband and wife may well order their affairs so that perfectly adequate provision is made one for the other prior to death. In such circumstances, the surviving spouse may, having regard to personal and domestic considerations, prefer to honour the testamentary wishes of the deceased spouse even in circumstances where the survivor has been left nothing under the will. If, on the other hand, the marriage relationship has been less than ideal and the deceased failed to provide in an adequate way for the surviving spouse or chose to exclude her from the benefits of his will, she has a perfect entitlement to enforce her rights pursuant to Section 111. By construing the relevant subsection as being one which confers a personal right which is capable of being exercised by the surviving spouse at his or her discretion, the purpose of the statutory provision is achieved. The mischief which it seeks to rectify is fully addressed with minimal interference with testamentary freedom. At the same time it allows for the surviving spouse to opt either to honour the testator's wishes or, if appropriate, to insist on her legal rights.
To accede to the argument which is made by Ms. Finlay would mean that an automatic transfer of one half of the estate would occur even in circumstances where a surviving spouse would desire to honour the testamentary wishes of the deceased.
I am of the view that Section 111(1) did not give rise to an automatic transfer of half of Thomas's estate to Kathleen. Rather, it created a right exercisable on her part, if she so wished, to one half of the estate of Thomas. Insofar as assistance may be gleaned from the cases which have been cited to me, I am of opinion that they are broadly supportive of this notion. I turn now to consider them.
The first case which was cited in argument was Re: Urquhart and the Revenue Commissioners -v- Allied Irish Banks Limited ( [1979] IR197). That was a claim by the Revenue Commissioners for estate duty. The circumstances were that a wife died having bequeathed by her will a legacy to her husband on condition that he should survive her by a month. She was not survived by any children of her marriage. Her husband survived her by just one day. He died without having made an election pursuant to Section 115 of the Act so that his estate was not benefited by a legal right under Section 111(1) or by the legacy. Nevertheless, the Plaintiffs claimed that a half share in his wife's estate was property of which the husband was competent to dispose at the time of his death for the purposes of the Finance Act, 1894. The Plaintiffs were successful in the High Court but lost on appeal.
Reliance was placed on the judgment of Fitzgerald C.J. but I derive little help from it. In the course of his judgment, Fitzgerald C.J. considered the will made by the deceased. By Clause...
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