succession act 1965 | Terry Gorry & Co. Solicitors

Registration of Ownership of Property Based on Adverse Possession/Squatter’s Title-the Basics

Have you lived in a property for a considerable period of time and now want to be registered as owner of that property with the Property Registration Authority?

Adverse Possession/Squatter’s Rights

One way to do this is by “adverse possession/squatters rights”.

Section 13 of the Statute of Limitations act, 1957 provides that no action to recover land can be taken at the end of a period of 12 years, unless there was established fraud, mistake, or disability.

The two relevant rules are rule 17 and rule 45 of the Land Registration Rules, 2013.

Rule 17 of the Land Registration Rules, 2013 provides:

Application for first registration based on possession

Where an application for registration of ownership of property is based on possession, or where the applicant has no documents of title in his/her possession or under his/her control in relation to such property, and the Authority is satisfied on inquiry or otherwise that the applicant is in possession or in receipt of the rents and profits of the property, the application may be made in Form 5, with such modifications as the case may require.

Therefore, to succeed with an application to the Property Registration Authority you must prove

Dispossession or continued dispossession of the owner
Adverse possession taken by you
Continued adverse possession for at least 12 years
No disability, mistake, or fraud exclusion to your claim.

The dispossession of the true owner must show an intention to exclude the true owner from enjoyment of the property and the possession must be inconsistent with the owner’s enjoyment of the land.

Unregistered Land

Applications for first registration of a freehold interest in unregistered land are made in form 5. (Applications in respect of registered land in form 6.)

The application for a freehold interest in unregistered land based on adverse possession/squatter’s title requires documentary title of at least 15 years starting with a good root of title and showing

The person entitled to the property on the date of dispossession
That person’s interest on that date
Evidence that possession taken was adverse.

You must show that the property has devolved to you and if you claim in succession to others you will have to show who they were, how they acquired their interest, and have written documentation to support your assertions. If you claim to have acquired some of your interest by adverse possession you will have to show the names and addresses of the people against whom you make that claim.

Proofs required

A summary of the proofs you will require include

Proof of adverse possession for at least 12 years. This will require an affidavit from you, corroborating affidavits from neighbours, documentary records and vouchers, etc
A PRA approved map
A general valuation office certificate
Details of all rated occupiers during the period of adverse possession and details of all persons registered as owners during the period of adverse possession
Death certificates, where necessary
Tax clearance certificate from Revenue Commissioners in respect of CAT (Capital Acquisitions Tax)

Registered Land

Section 49 of the Registration of Title Act, 1964 allows for this:

Registration of title acquired by possession.

49.— (1) Subject to the provisions of this section, the Statute of Limitations, 1957, shall apply to registered land as it applies to unregistered land.

(2) Where any person claims to have acquired a title by possession to registered land, he may apply to F62 [ the Authority ] to be registered as owner of the land and F62 [ the Authority ], if satisfied that the applicant has acquired the title, may cause the applicant to be registered as owner of the land with an absolute, good leasehold, possessory or qualified title, as the case may require, but without prejudice to any right not extinguished by such possession.

(3) Upon such registration, the title of the person whose right of action to recover the land has expired shall be extinguished.

(4) Section 24 of the Statute of Limitations, 1957, is hereby amended by the substitution, for “section 52 of the Act of 1891”, of “ section 49 of the Registration of Title Act, 1964”.

Rule 45 of the Land Registration Rules 2013 provides:

Title to registered property acquired by possession
45. Pursuant to Section 49 of the Act, any person claiming to have acquired a title by possession to registered property may apply for his/her registration as owner in Form 6 with such modifications as the case may require. The Authority if satisfied that the said person has acquired the title, may register the applicant as full owner with absolute, good leasehold, possessory or qualified title, as the case may require.

Special Cases

Unproved wills

Strictly speaking, possession on foot of an unproven will is not “adverse possession”. Nevertheless, a section 49 application may be accepted by the PRA if possession of at least 12 years is shown.

Spouses

A person cannot be in adverse possession to his/her spouse.

Lost Deed Possession

This is not adverse possession either, but a section 49 application may be used and accepted by the PRA.

Possession by Personal Representatives

A personal representative, since the commencement of the Succession Act, 1965, could bar the beneficiaries by 6 years’ adverse possession.

Action by Personal Representative

An action can be taken by a per rep of a deceased landowner seeking recovery of land has 12 years to bring the action to recover.

Next of Kin

A next of kin, with an entitlement to a share in an intestate estate, can bar the rights of other next of kin by adverse possession.

Section 125 of the Succession Act, 1965 states that where two or more persons enter into possession of land they shall be deemed to have entered and acquired title by possession as joint tenants as regards their own shares and the shares of the other next of kin who do not enter.

The Supreme Court case Gleeson v Feehan [1997] 1 ILRM 522 held that “the possession of lands by members of the family who had remained thereon was at all times adverset to the title of the true owner, the President of the High Court, in whom the entire estate in the lands was vested pending the raising of representation, and as they had been in possession for over 12 years, had acquired a title to the land as joint tenants”.

Relevant Sources

Land Registration Rules 2013

Adverse Possession – Title by Adverse Possession to Registered land guide from Land Registry

Statute of Limitations, 1957

Registration of Title Act, 1964

50 Things You Should Know About Making a Will in Ireland

Set out below are 50 things you may or may not know about making a will.

Quite frankly, the important thing to know is that it is a good idea to make a will for these two critical reasons:

1. YOU will decide who gets what
2. YOU will decide who administers your estate

Here are 50 other things you should know about making a will:

The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
To make a will you must be of sound disposing mind and at least 18 (or if younger, married)
If you don’t make a will an intestacy situation arises; this means that your property will be distributed in accordance with the Rules of the Superior Courts and the Succession Act, 1965
Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
If you leave a benefit in your will to your child who predeceases you the benefit will go to his estate, not to his children (section 98 of the Succession Act, 1965)
You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
You can engage in tax planning/minimisation of capital acquisitions tax by making a will
Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
You can make as many wills as you want
The only will that counts though is the last one before you pass away
Your will must be in writing-it could be carved in stone
You must sign it at the end of the will and your signature must be witnessed by 2 people
Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something ensure you get a different witness(es) (your solicitor can take care of this)
Your will must contain your name and address
Your will must be dated
Your will should revoke all previous wills (if any)
A list of legacies refers to your money or goods
A list of devises in your will is a list of your real property
Your will is not revoked by divorce
Your will is revoked by marriage
You cannot appoint alternative executors because your will is likely to fail for uncertainty eg “I appoint Mary or Sean to be my executor”
If you have children under the age of 18 you should appoint trustees and/or guardians
The spouse of any of your witnesses cannot benefit from your will
If an intended beneficiary predeceases you and there is no clause in your will dealing with the residuary of your estate that benefit will be distributed as if you died intestate
Your child can bring a legal action against your estate under section 117 of the Succession Act, 1965 if you fail in your “moral duty” towards him/her
Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
If you make a will your spouse is entitled to 1/3 of your estate if you leave children and ½ of your estate if you have no children
If you don’t make a will your spouse is entitled to 2/3rds of your estate if there are children and the whole shooting match if there is no children
Children referred to at 26, 27, 28 above includes martial and non-marital children and adopted children
Your spouse can cease to be a spouse in 4 ways:By renunciation (section 113, Succession Act, 1965), By separation (Judicial Separation and Family Law Reform Act, 1989 and Family Law act, 1995), By divorce (Family Law(Divorce) Act, 1996), By unworthiness to succeed (Succession act, section 120)
If your will is valid, there is a presumption of testamentary capacity
The test for testamentary capacity was set out in an 1870 case: Banks v Goodfellow
There are 3 aspects to testamentary capacity: a) you must understand you are making a will to dispose of your assets, 2) you must know the extent of your estate, 3) you must be able to give consideration to those who might expect to benefit from your will
Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
Your children can bring a legal action against your estate under section 117 of the Succession Act, 1965 for your failure to discharge your moral duty to them
The time limit for bringing such an action is 6 months; and it is a strict one
You can create a trust in your will
A trust is an equitable obligation binding someone (a trustee) to deal with your property for the benefit of beneficiaries whose identity may not be known yet
Your trustees will be the legal owners of your trust property but they must carry out the terms of the trust which you will decide
If your trust property is “real property” the trust must be evidenced in writing
A trust is not a legal entity so cannot be bound by a legal contract
The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
Your executor’s powers come from the will itself and the Succession Act, 1965
Capital acquisitions tax is the tax payable by beneficiaries of your will
The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will.

Put on the long finger?

Many of us put making a will on the long finger, even though we know it is the right thing to do.

Don’t make this mistake.

You can have your will drafted quickly and easily with the minimum of fuss-simply use the contact form to arrange a consultation with Terry and get it sorted.

Setting Up a Will Trust in Ireland-The Facts You Should Know

Trusts are incredibly useful legal devices which are typically used to

Ensure property is enjoyed by individuals in succession
Provide for beneficiaries whose identity may not yet be known.

Trusts can be broadly categorised into

Inter vivos (during the lifetime) trusts and
Will trusts.

Will Trusts

The focus of this piece will be on will trusts.

What is a Trust?

A trust is an equitable obligation, binding a person (who is called a trustee) to deal with the property over which he has control (which is called trust property) either for the benefit of persons (who are called beneficiaries) of whom he himself may be one, and any one of whom may enforce the obligation, or for a charitable purpose…, or for some other purpose permitted by law..(Source: Underhill)

The 3 Certainties

In order for a trust to be legally constituted it must have 3 certainties:

The subject matter of the trust must be certain (this imposes 2 obligations: the trust property must be certain and the interest to be taken by the beneficiaries must be certain)
The objects (beneficiaries) must be certain
The words used by the testator must have been imperative to show his (her) intention to create an obligation.

No particular form of words is required to create a valid trust but words like “wish”, “hope”, “desire” may cause a trust to fail as they are not sufficiently imperative.

If any of these certainties are “uncertain” or unclear, the trust will almost certainly fail.

Other Trust Requirements

Where the trust property is land/real property, the trust must be evidenced in writing.

If the trust is a will trust, the will must be valid and comply with the Succession Act, 1965.

There are also categories of trust which are void because they are contrary to public policy and further trusts which are voidable by the Courts on the grounds of fraud, mistake, undue influence, duress, misrepresentation.

Different Types of Trust

Before going on to look at will trusts in more detail it is worthwhile to take a brief look at some different types of trust:

Trusts which arise by operation of law

These types of trust are either resulting or implied trusts-where the law presumes that the owner of property intended that it should be held in trust-or constructive trusts-where the Courts will impose a trust to satisfy the demands of justice in particular circumstances eg where a person in a fiduciary position makes a personal profit.

2. Statutory Trusts

The Family Law Act, 1995 and Family Law (Divorce) Act, 1996 allows Courts to order that property held by one spouse should be placed in settlement/trust for the other spouse and/or children.

Charitable Trusts
Trusts Created for Purposes
Discretionary Trusts

A discretionary trust is one which is set up to gives the trust property to trustees with the power to the trustees to give the property as they see fit to members of a particular class of person.

3. Trusts for Sale

This occurs where trustees are given property on trust with the power to sell it or postpone a sale as they see fit.

4. Protective Trusts

This type of trust is usually for the benefit of family members and will have a restriction or condition attached eg “the income to Mick for life while he keeps out of betting shops.”

5. Revocable Trusts

A trust cannot generally be revoked but an exception is a trust for paying the settlor’s debts. This type of trust cannot be used to defeat the settlor’s creditors though.

The Parties to a Trust

There are usually 3 parties to a trust or settlement:

The testator/settlor (if the trust is created by a will he/she is referred to as the testator)
The trustee(s)
The beneficiaries.

A trust which takes effect on death is a will trust.

A settlor/testator can himself be a trustee and/or beneficiary and creates the trust by deed, will, or by act. (However if he is a testator he clearly cannot be a beneficiary or trustee!)

The Trustees

The trustees are the legal owners of trust property and carry out the terms of the trust. The trustees have legal title to the property while the beneficiaries have equitable title.

Anyone who is not under a handicap can be appointed a trustee, including a beneficiary (but a conflict of interest may clearly arise).

Trust property is held by the trustees as joint tenants with the right of survivorship arising on the death of a trustee. A completely constituted trust is one where a trust has been validly declared and the title to trust property has been transferred to the trustees.

You can have as many or as few trustees as you wish but the more trustees the more difficult it might be to manage the trust’s affairs.

Generally it is a good idea to have at least 2 trustees although one can perform all necessary duties.

Trustees are appointed by the settlor/testator in the first instance. Trustees can also be appointed by the original trustees, those who have statutory powers, and beneficiaries in some circumstances.

In a will trust the trustees and executors will usually be the same persons.

If trustees named in a will are unable to act or have disclaimed or if the settlor failed to appoint trustees then the Courts have the power to appoint trustees.

Both the Trustee Act, 1893 and the Succession Act provide for the appointment of trustees as circumstances dictate eg the predeceasing of the settlor by a trustee.

Trustees of a Minor/Infant Trust-Under Age Children

If a child inherits from a will, and there is no receipt clause in the will, or on intestacy there is nobody in whom the LPR (legal personal representative) can vest the asset or obtain a receipt.

However section 57 of the Succession Act, 1965 comes to the rescue:

57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.
		(2) On such appointment the personal representatives, as such, shall be discharged from all further liability in respect of the property vested in the trustees so appointed.

This means that where minors inherit and no trustees have been appointed the LPR (legal personal representative) can appoint trustees for the purposes of section 57 and a trip to Court can be avoided. If the LPR does not appoint trustees he/she shall be a trustee for the purposes of this section of the Succession Act, 1965.

However it should be noted that this only applies to the share of a minor. Anybody else who is a beneficiary and is under a disability and cannot give a receipt to the legal personal representative will necessitate a trip to Court.

The powers of trustees appointed under section 57 of the Succession Act are set out in section 58 of the Act.

Section 58 also provides for a situation where a minor inherits land on intestacy ie there is no will:

Section 58 (2) Where an infant becomes entitled to any estate or interest in land on intestacy and consequently there is no instrument under which the estate or interest of the infant arises or is acquired, that estate or interest shall be deemed to be the subject of a settlement for the purposes of the Settled Land Acts, 1882 to 1890, and the persons who are trustees under section 57 shall be deemed to be the trustees of that settlement.

Duties and Powers of Trustees

Trustees have both statutory and non statutory powers and duties. Non statutory powers will be granted by the trust deed itself.

Powers and duties usually given to trustees include

The power and duty to collect and preserve the assets
The power to invest
The duty not to make a profit from the trust eg to buy trust property
To be impartial between beneficiaries
To account for and distribute the assets and keep proper accounts.

Trustees’ statutory powers derive from

The Settled Land Acts 1882-90
The Succession Act 1965
The Land and Conveyancing Law Reform Act, 2009
The Trustees Act, 1893.

Additional non statutory powers should be given to trustees such as, depending on the circumstances,

the power of sale
the power to invest
the power to run a business
the power to lend money and borrow money
the power to delegate
the power to insure property
the power to advance capital
the power to pay professional fees
the power to compromise action in claims.

A trustee who is appointed does not have to act-he can disclaim from the outset- but in a will trust if a person is appointed as executor and trustee and accepts the executorship he will be presumed to have accepted the trusteeship.

Once he accepts the job he cannot disclaim. He can retire however according to the terms of the trust.

A trustee can be removed from office either in accordance with the terms of the trust or if all the beneficiaries agree.

Differences Between Legal Personal Representatives and Trustees

An LPR (legal personal representative) can be appointed by will or by Court.

A trustee can be appointed by the settlor/testator, by Court, or by existing trustees.

Only one LPR is required; it is recommended that at least 2 trustees be appointed as 2 are necessary to give receipts for capital monies under the Settled Land Acts.

Receipts for land: one LPR is all that is required (unless it is for settled land) but all trustees must join in getting valid receipts.

An LPR cannot retire but a trustee can.

The powers of personal representatives and trustees are different; LPRs have wide powers deriving from common law, statute and the will.

Trustees derive their powers from statute and the will or trust deed.

If a personal representative dies before the administration of the estate a de bonis non grant is necessary; if a trustee dies his personal representative can take his place until a new trustee is appointed in his place.

Beneficiaries of a Trust

Beneficiaries are those for whom trust property is being held.

However the legal interests of those beneficiaries can vary greatly eg a life interest, an interest for a certain period, an interest subject to a condition etc.

Powers of Beneficiaries of a Trust

Beneficiaries of a trust can act collectively to terminate the trust. A beneficiary can also disclaim or sell his interest.

Some Common Misconceptions about Trusts

As a trust is not a legal entity per se it cannot hold assets or enter contracts or carry out any other legal formalities. Trust property is owned by the trustee(s) and it is the trustee(s) that has legal capacity.

A trust therefore cannot be bound by a legal contract and any contracts entered into by a trust are not legally enforceable.

If you wish to set up a will trust for your loved ones please do not hesitate to contact Terry Gorry.

Spouses’ Rights under the Succession Act, 1965

The Succession Act, 1965 protects surviving spouses of deceased persons by affording considerable protection as the Act restricts the right of the testator to leave his/her property to whoever he/she wishes.

Section 111 of the Succession Act, 1965 states:

111.—(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.
		(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

The estate to which the surviving spouse is entitled to a share in is ‘net estate’ which is ‘all estate…not ceasing on his death’. So this excludes trust property, joint property passing by survivorship, property in which the deceased had a limited interest, and validly nominated property (credit union accounts, post office saving certificates, nominated pension schemes).

Costs, liabilities and expenses also need to be taken into account to leave a net estate figure. It is this figure that the spouse is entitled to either one half of (no children) or one third of (children).

Legal Right Share

This entitlement is called the ‘legal right share’ which only applies in a testate situation, that is where there is a will.

In an intestate situation, that is, there is no will, the surviving spouse is entitled to two thirds of the estate if the deceased has children; if the deceased has no children, the surviving spouse is entitled to the entire estate.

‘Children’ included for the purposes of section 111 above include

Children of his blood, both marital and non-marital
Children validly adopted by him.

It does not include

Step children
Foster children
Children for whom he acted in loco parentis

The right of the surviving spouse to the legal right share ranks after the rights of creditors of the deceased but before all other beneficiaries.

Legal Right Share Versus Bequest?

Section 114 (2) of the Succession Act, 1965 states that

(2) In any other case, a devise or bequest in a will to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse.

If this situation occurs and the testator dies fully testate, then the surviving spouse will have a choice to make as set out in section 115 of the Act which provides for the surviving spouse to elect to between the legal right share entitlement and the rights under the will.

115.—(1) (a) Where, under the will of a deceased person 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.
		(b) In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

If the surviving spouse does not elect to take either the bequest or the legal right share, he/she will be deemed to have taken the bequest and will lose the legal right share.

Where a testator dies partly testate and partly intestate the calculation is more complex and the following will need to be calculated-the value of the net estate, the value of all bequests under the will, and the value of the intestate part of the estate.

Section 115, Succession Act, 1965

(2) (a) Where a person dies partly testate and partly intestate, a spouse 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 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.

Appropriation of the Family Home by the Surviving Spouse

Section 56 provides for the right of surviving spouse to require dwelling and household chattels to be appropriated.

This section provides for the surviving spouse to request the personal representative to appropriate the dwelling in which the surviving spouse ordinarily resides if this property is part of the estate of the deceased person. This appropriation will be towards the satisfaction of his/her legal right share. (There are certain restrictions on this right to appropriate which are set out in subsection 5)

Spouse no longer a spouse?

There are 4 ways by which a spouse ceases to be a spouse for Succession Act, 1965 purposes.

a) Renunciation

Section 113 provides for renunciation before or after marriage by way of a written contract.

b) Separation

The Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995 can provide for property adjustment orders and the extinguishment of succession rights.

c) Divorce

The Family Law (Divorce) Act, 1996 and the subsequent marriage of a testator will have important implications here. For example, a will is revoked by the subsequent marriage of a testator.

d) Unworthiness to succeed

Section 120 of the Succession Act, 1965 provides for the unworthiness of the surviving spouse to succeed. An example of this situation is the ‘Catherine Nevin/Jack Whites Pub’ case: In Re Nevin, High Court, 1997.

Making a Will in Ireland-6 Critical Reasons to Make a Will

Making a will in Ireland is a seemingly straightforward task.

But it can go disastrously wrong and open up a can of worms for those left behind if not done properly.

The requirements for a valid will in Ireland are set out in the Succession Act, 1965 and you can read more about the requirements for a valid will elsewhere on our site.

Why make a will in Ireland?

Put simply, making a will ensures that you dictate how your assets will be distributed on your death and who will administer your estate.

Failure to make a will in Ireland will see an intestacy situation arising and who gets what will then be largely determined by the Succession Act 1965 with the Rules of the Superior Courts, 1986 (Order 79,rule 5) determining who is entitled to extract a grant of letters of administration intestate.

However, there are four further reasons why you should make a will-

1) It will allow you to provide for the special needs of family members and

2) It can lead to good taxation planning with the minimum amount of tax going to the Government and

3) It is cheaper and faster to administer an estate with a Grant of Probate rather than a Grant of Letters of Administration Intestate and

4) An insurance bond will need to be taken out for an intestacy situation.

Further considerations in making a will

There are a number of significant considerations about which you should be advised when making a will and which you should consider.

Section 98 of the Succession Act, 1965

Section 98 of the Succession Act, 1965 deals with a situation where a child (who him/herself leaves children) who is to benefit from an estate predeceases a testator.

If this occurs then Section 98 determines that the benefit does not lapse but goes into the estate of the deceased child. This could mean, depending on his/her will that the original benefit will go to the surviving spouse of that child and not to the grandchildren.

This may not have been the intention of the original testator but there is nothing that can be done about it post-death; you can make provision to prevent this happening while drafting your will though.

This is one of many unintended outcomes which may arise if you are not advised professionally when having your will drafted.

For this reason, it is strongly advised that you have your will drafted by a solicitor who can advise you as to the various outcomes and nuances that you might want to guard against.

Don’t put it on the long finger. Use this contact form to make an appointment or enquiry about making your will.

Tag: succession act 1965