These guidelines1 are intended to assist solicitors when acting for elderly clients who may be either:
- A personal representative of an estate,
- An elderly beneficiary of an estate, or
- surviving spouse.
When someone dies, their property must be distributed in accordance with the Succession Act 1965, whether they died testate or intestate, and in accordance with the provisions of their will if they died testate. A number of other legislative and common law provisions are also relevant as to how assets should be distributed, charged or transferred and the Superior Court Rules set out who is entitled to make application for probate or letters of administration (either intestate or with will annexed). However, when the client is elderly, a solicitor must be alert to the different considerations that may apply when advising such a client.
One of the first issues that a solicitor must have regard to is the capacity of an elderly client to carry out functions and/or make decisions in relation to the administration of an estate. If the person entitled to extract a grant to an estate of a deceased person lacks the capacity to do so, the Rules of the Superior Court specify who is then entitled to extract the grant.2
The fact that a person is elderly does not imply that such a person does not have capacity.3 Similarly, physical infirmity does not imply lack of capacity. There is a presumption at law that a person has capacity. However, age and frailty may be indications that capacity may be at issue. A solicitor should be satisfied that the person they are advising has the ability to understand the nature and effect of the advice and the decisions to be made in relation to different aspects in the administration of an estate. Solicitors should also remember that, even though medical evidence may be sought, the test of capacity is a legal one and not a medical one.4 Legal capacity should be assessed in relation to each particular decision at the time the decision needs to be made.5
Obligations that must be carried out in the course of the administration of an estate of a deceased person should not be underestimated. Decisions may include having regard to the interests of beneficiaries, some of whom may be minors, vulnerable, or elderly and frail, but may also relate to the value of assets that must be protected for the benefit of beneficiaries. It is important to appreciate that a person may have capacity in one regard but may not have capacity in a different context, depending on the complexities of the decisions to be made. For example, different levels of capacity are required depending on whether the elderly client is a personal representative, a surviving spouse or a beneficiary.
3.1. Elderly client as a personal representative
i) Should the elderly client be advised to act as personal representative?
Clearly the client must have capacity to give instructions, but the size and complexity of the estate may have a bearing on whether the client has capacity to understand the issues and what has to be done. Considerations that a solicitor should take into account when assessing a client’s capacity to make decisions and when advising as to whether the client should act in the administration of an estate will vary depending on the particular circumstances and may include the following:
- Client is appointed sole executrix and sole beneficiary under the terms of a will or is the person entitled to apply for letters of administration to the estate and is entitled to the entire estate,
- Client is appointed as one of two or more executors and is the principal beneficiary of the estate or is one of a number of persons entitled to apply for letters of administration,
- Client is appointed as one of two or more executors or is one of a number of persons entitled to apply for letters of administration but has little or no entitlement to or interest in the estate,
- The assets in the estate are substantial (which may include business assets and/or assets in other jurisdictions) or there may be complexities over title to real property,
- There is an indication that the administration of the estate may be contentious.
In the first case outlined, there is no reason why an elderly client (even though physically frail) should not act in the administration of the estate. If there is a chance that the matter may be contentious, then it may be in the interest of a frail and elderly client for a solicitor to advise them not to act. It may also be the case that the elderly client, although the person entitled to extract a grant to the estate, may have a claim against the estate (see below under ‘surviving spouse’). It may be prudent in such circumstances to advise the client to pursue their interest against the estate and not act as personal representative. An issue may sometimes arise as to the capacity in which a solicitor is instructed. Is it on behalf of a beneficiary of an estate or is it on behalf of an executor/administrator? Independent legal advice may be appropriate.
Solicitors should advise the elderly client of the options available to him or her, which are:
- If the deceased died intestate leaving a surviving spouse, that spouse is the person entitled to apply for a grant of administration, or the application can be made for the grant jointly by the spouse with a child of the deceased nominated by said spouse.
- If the client applies for a grant of probate or letters of administration, he/she will be responsible either alone or with others (depending on appointment or entitlement to extract relevant grant) to make all decisions in relation to the administration of the estate, including the transfer of assets to beneficiaries.
- If the client is one of several named executors, the client has the option of reserving the right to extract the grant of probate. In such circumstance, all rights in relation to the administration of the estate are conferred on the proving executors.6 However, if the client decides to act as one of the executors/administrators, then the client must participate fully in all aspects of the administration and is equally responsible with others to finalise the administration.
- If the client is one of a class entitled to apply for letters of administration, he/she can decide to consent to the other members of the class acting in the administration.
- The client also has the option of formally renouncing the right to extract a grant to an estate. A person who renounces cannot subsequently apply for a grant without an application to court.7
- Finally, if the client is suffering from ‘severe continuing physical disability’, he/she can apply to appoint an attorney to extract a grant on his/her behalf.8
When advising an elderly client as to whether he/she should accept the role of personal representative, it may be prudent for a solicitor to follow up verbal advice by written advice to give the client time to consider what is involved with regard to the particular estate. Such advice should outline the legal requirements for the formal application for the relevant grant, to include (depending to the complexity of the estate but not limited to) the schedule of assets, returns to the Revenue Commissioners, the sale of assets in the course of administration, the transfer of assets to those entitled, the various taxation implications, which may include not only capital acquisitions tax but other taxes such as discretionary trust tax, capital gains tax, income tax, stamp duty and VAT, and the time limit for the administration of the estate.
3.2. Elderly client as surviving spouse
If the deceased did not provide for the surviving spouse to obtain an entitlement to a ‘legal right share’ in the estate, then the surviving spouse requires independent legal advice.9
i) Legal right share
The Succession Act provides that a surviving spouse has an entitlement to a share of the estate whether the deceased spouse dies testate or intestate.10 A solicitor should initially establish that the surviving spouse is a spouse for the purposes of Irish law.11
If the deceased died intestate, then the surviving spouse should be advised as to the share of the estate he/she is entitled to, depending on whether or not there are any issue (to include marital and non-marital children).
If the deceased died testate, but has left less than half of the estate to the surviving spouse if there are no children, or less than one third of the estate if there are children, then a solicitor has to make further inquiries before advising the surviving spouse about entitlements under the Succession Act. The solicitor must establish:
• Was there any valid renunciation of the legal right of the spouse either before or after the marriage?12 If there was a renunciation, then the surviving spouse may have no further entitlement to a share in the estate.
• Was the dwellinghouse, in which the deceased and the surviving spouse resided at the date of death, in joint names as joint tenants (in which case the dwellinghouse will pass by survivorship and is not as asset in the estate), or is the house an asset in the deceased’s estate?13 If the house is an asset in the estate, then the surviving spouse should be advised as to the possible appropriation of the dwellinghouse in satisfaction of any share to which he/she is entitled.
• Was any disposition made by the deceased within three years before the death of the deceased spouse?14 If such a disposition was made, a solicitor must make further enquiries as to its purpose. If the purpose was to defeat or substantially diminish the share of the surviving spouse, then a solicitor must advise of the right to make an application to court for a review of such disposition.
• Are there any grounds upon which a spouse may be excluded from entitlement to any share in the estate?15
ii) Vesting of legal right share
Where no provision has been made in the will for the surviving spouse, the solicitor should advise that there is an automatic entitlement to the appropriate legal right share and it is not necessary to take any step for the legal share to vest.16
Where the will makes provision for the surviving spouse, which is deemed to have been intended by the deceased to be in satisfaction of the share (and not in addition to it) as a legal right of the spouse, then a solicitor must advise the client of their right to:
• Elect to take either the bequest in the will, or
• The share to which they are entitled to as of legal right, or
• Decide not to make any election
and a notice must be served on the surviving spouse (see below).
A solicitor should also advise the client of their right to disclaim any interest in the estate.17 However, if an elderly client indicates that they will elect to take either less than their legal right share or to renounce any interest in the estate, it is important that the advising solicitor establishes that the client fully understands the implications of such decisions. It may be necessary to have a discussion with the client to establish that there is provision for future needs and to establish that undue pressure is not being exercised by any other party that may stand to gain from such non-election or disclaimer.
iii) Notices and time limits
Personal representatives have a statutory duty to notify a spouse of the right of election and also to notify the spouse of the right of appropriation of the dwellinghouse and household chattels, if relevant. A solicitor should advise the client of the notification but should also advise the client that he/she can elect prior to receiving any such notice. As soon as instructions are received from an elderly surviving spouse, the solicitor acting for such spouse should notify the solicitor acting in the administration of the estate to ensure that the surviving spouse’s interest is dealt with expeditiously.18
The right of the spouse to elect to take legal right share does not expire until six months after the spouse has received notification or one year from the date of taking out representation, whichever is the later. The limitation period for the purposes of s45 of the Statute of Limitations, as amended by s126 of the Succession Act, begins to run when an election has been made or when the time within which an election may be made has elapsed.19
iv) Issues for solicitors acting in the course of the administration of an estate with regard to a surviving spouse
Best practice dictates that any statutory notice to a surviving spouse is sent by registered post (a copy of the certificate of postage should be retained). It should also be suggested that, on receipt of such notice, legal advice be obtained. It would be prudent to advise that the estate should not be distributed prior to receiving a response from the surviving spouse.
When a solicitor acting in the administration of an estate receives a waiver or renunciation without confirmation that independent legal advice has been obtained or where notices have been served and no response is forthcoming, and it cannot be established that the surviving spouse has in fact received them, then best practice also dictates that further enquiries are necessary before any action is taken to finalise the administration of the estate. In such circumstances, the personal representative should be advised that it is necessary to ensure that the elderly surviving spouse be independently advised.
v) Surviving spouse does not have capacity to elect
If the surviving spouse lacks capacity to elect to take the legal right share and is a ward of court,20 the committee can exercise the right of election by leave of the court that appointed the committee or, if there is no committee, then an application must be made to either the High or Circuit Court.21
3.3. Elderly client as beneficiary
A solicitor acting for an elderly client who is a beneficiary of an estate should first ensure that the client has the capacity to give instructions and to understand the benefit they are entitled to receive from the relevant estate. In addition to the client having capacity to give instructions with regard to potential benefit they are due to receive, the client must also have capacity to give a valid discharge to the personal representatives of the estate when the benefit is received. If the ‘client’ lacks capacity, then a wardship application to the court may be necessary. Alternatively, if the beneficiary has appointed an attorney with general authority, the attorney can give a receipt for any benefit received.
Any purported waiver/disclaimer of any interest in an estate should be considered in similar terms as outlined above when dealing with a surviving spouse.
ii) Prior gifts
Elderly people are particularly vulnerable to abuse and to ‘encouragement’ by family members to transfer assets prior to death without regard to, for example, a surviving dependent elderly sibling. It may be necessary for a solicitor acting in the interest of their client (who may be the surviving dependent sibling) to make enquiries, if any disposition was made within a short period prior to the death of an elderly person, which might raise the possibility of undue influence.
Receiving an inheritance from an estate of a deceased may have an impact on an elderly client’s state benefits, and this should be fully explained to the client. The inheritance may also give rise to a charge to capital acquisitions tax. The client may require referral to obtain taxation and investment advice.
iv) Vesting of assets
While it is a matter for the personal representative of an estate to ensure that assets vest in those entitled to them, a solicitor acting for an elderly beneficiary should ensure that all assets are transferred to the client promptly or that any rights or interest that an elderly beneficiary inherits are registered against the property concerned.22
It is important to re-emphasise the fact that a person being elderly does not imply such a person does not have capacity. However, a solicitor in advising an elderly client in any aspect of the administration of an estate should ensure that the client has the benefit of full information and is not put under any undue pressure or influence with regard to any decisions that require to be made.
- More detailed and general guidelines regarding the administration of estates can be found in the Law Society
publication Wills, Probate and Estates.
- Rule 79, orders 5 and 6, Superior Court Rules.
- Blackall v Blackall (In Re Helena Blackall Deceased), unreported SC judgment, 1 April 1998.
- Re Glynn  2IR 326.
- This is what is known as the functional approach to the assessment of capacity.
- Section 20, Succession Act 1965.
- Order 79, rule 38, Superior Court Rules.
- Order 79, rule 23, Superior Court Rules.
- It will also be necessary to advise in relation to any claim for the purposes of the Family Law (Divorce) Act 1996.
- Sections 67 and 111 of the Succession Act 1965.
- If the deceased obtained a divorce in a jurisdiction outside Ireland, will such a divorce be recognised for Irish law purposes?
- Section 113, Succession Act 1965.
- If held as tenants in common, then the deceased’s share in the house would be an asset in the estate.
- Section 121, Succession Act 1965.
- Section 120, Succession Act 1965.
- Re Cummins; O’Dwyer v Keegan  2 ILRM.
- There may be taxation implications if a benefit is disclaimed.
- An election cannot be made by the personal representatives of a surviving spouse; Reilly v McEntee  ILRM.
- JH v WJH (20 December 1979, unreported, HC).
- See scheme of Mental Capacity Bill, published September
- Section 115(5), Succession Act 1965.
- These could include full or lesser interest in property ranging from a right to reside, a right of residence, support and maintenance, an exclusive right to reside or a life interest in property.