H. v H
| Jurisdiction | Ireland |
| Judge | Parke J. |
| Judgment Date | 01 January 1980 |
| Neutral Citation | 1977 WJSC-SC 750 |
| Docket Number | Record No. 111Sp No. 1975,[1973 No. 111 Sp.] |
| Court | Supreme Court |
| Date | 01 January 1980 |
and
1977 WJSC-SC 750
THE SUPREME COURT
Judgment of Parke J.delivered the 13th May 1977 (nem. diss.)
This is an appeal against so much of the order of Kenny J. dated 10th of December 1974 as directed the defendant as the executor to appropriate the dwellinghouse on the farm which forms part of the estate of the deceased towards the satisfaction of the legal right of the widow of the deceased, in pursuance of an application by her under s. 56(5)(b) of the Succession Act, 1965.
The plaintiff's application for such an order is only one of a number of disputes between the parties relating to the administration of the deceased's estate and after the hearing before Kenny J. the plaintiff in the present proceedings instituted a partition suit in relation to the lands forming part of the deceased's estate. Judgment in that suit was delivered by McWilliam J. on the 12th of January 1977 and we have been informed by counsel for the defendant that it is his intention to appeal to this Court from such judgment.
It is clear that no final order for the distribution of the assets of the estate can be made until that appeal is determined by this Court. This Court has, however, been asked to determine the issues arising on the construction of s. 56(5)(b) so that the rights of the parties in this respect may be ascertained.
Section 56(1) of the Succession Act 1965provides:-
"Where the estate of a deceased person includes a dwelling in which, at the time of the deceased's death, the surviving spouse was ordinarily resident, the surviving spouse may, subject to sub-section (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse."
Omitting sub-paragraph (a) of sub-section 5 (which is not relevant to this appeal) the sub-section provides:-
"A right conferred by this section shall not be exercisable - (b) in relation to a dwelling, in any cases mentioned in sub-section (6) unless the Court, on application made by the personal representatives or the surviving spouse, is satisfied that the exercise of that right is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them indue course of administration and authorises its exercise".
It appears to me that this appeal raises three questions on the construction of the paragraph.
The first relates to the onus of proof. The trial judge held that the onus lies upon an applicant under the paragraph to satisfy the Court that the exercise of the right of apprepriation is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of than in due course of administration. This finding was not challenged in argument and appears to me to be clearly correct.
The second question is to...
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