Re Urquhart

• Jurisdiction: Ireland
• Judgment Date: 30 July 1974
• Date: 30 July 1974
• Docket Number: [1972. No. 72 .]
• Court: Supreme Court

(S.C.)

In re Urquhart

Legal right - Whether surviving spouse competent to dispose of statutory share in estate - Election - Finance Act, 1894 (57 58 Vict., c. 30). ss. 2, 22 - Succession Act, 1965 (No. 27), ss. 111, 115.

Section 1 of the Finance Act, 1894, provides that estate duty shall be paid on the value of property which passes on the death of a deceased, including property of which the deceased at the time of his death was "competent to dispose." Section 22, sub-s. 2 (a), of the Act of 1894 provides that a person shall be deemed competent to dispose of property if he has such an estate or interest therein or such "general power" as would enable him to dispose of the property, including "every power or authority enabling the donee or other holder thereof to appoint or dispose of property as he thinks fit." Section 111 of the Succession Act, 1965, provides that, if a testatrix leaves a spouse and no children, the spouse shall have a right to one-half of the estate of the testatrix, and s. 112 states that such right shall be known as a "legal right."Section 115, sub-s. 1, of the Act of 1965 provides that, where under the will of a deceased who dies wholly testate there is a devise or bequest to a spouse, the spouse "may elect to take either that devise or bequest or the share to which he is entitled as a legal right" and that, in default of election, the spouse shall be entitled to take under the will only. A wife died having bequeathed by her will a legacy to her husband on condition that he should survive her for a month; she was not survived by any children of her marriage. Her husband survived her by one day and then died without having made an election pursuant to s. 115 of the Act of 1965, so that the husband's estate was not benefited by a legal right or by...