75 / 336
Recent Irish Cases
A childless spouse, who, though entitled to do so,
does not lake his legal right of a half-share under
the Succession Act, 1965, is not liable for Estate
. Duty in respect of that half share
Mrs. Kathleen Urquhart died on 4th May, 1969.
She was survived by her husband, Douglas Urquhart,
who died on the following day, 5th May, 1969. They
Were both domiciled in Ireland. Mr. Urquhart died
childless, unaware of his wife's death, -and was
unconscious at the time.
Mrs. Kathleen Urquhart made a will on 6th April,
1967. whereby she made certain provisions if her
husband survived her one month. If he survived for
a lesser period, her estate worth £95,000, was to be
disposed of to a number of relatives. On the same
date, in April, 1967, the husband, Douglas Urquhart,
made a will in similar terms relating to his wife.
Arising out of Douglas's death, the Revenue Com-
missioners have unconvincingly tried to contend that
nothing vested in Douglas by reason of the .death of
his wife, and that no property passed on his death
under that head. His executors, the Provincial Bank,
contend that under S . l l l ( l) of the Succession Act,
1965, Douglas was entitled as of right to a half share
In his deccased's wife's estate. The Revenue Com-
missioners put forward the tall proposition that under
S. 118 of the Act, the half share of the wife's estate
should bear its due proportion of Estate Duty paid
on the wife's estate. The executors contended that
Douglas had never had an opportunity to elect to
take the wife's estate under S. 115 of the Act and
therefore was not entitled to any share of the estate;
they also contend that, as ,under the will, he did not
survive his wife by a month, the gift to him under
the will lapsed. The Revenue contend that the right
conferred by S. I l l of the Act was a vested right
which took effect immediately, and would continue
to be effective unless divested by the election pro-
vided for under S. 115 (4). As "there had been no
election, it followed that Estate Duty should be pay-
able on the half share of his wife's estate as part of
estate after his death.
The Succession Act, 1965, brought about a revolu-
tionary change in the law of succession. Previously
this had been determined by the Irish State of Dis-
tribution 1695 and the Intestate Estate Act 1954.
Briefly a person who died testate after 1965 could
deal with his property as he thought fit. Part II of the
Succession Act, 1965, comprising Sections 10 to 15,
went a long distance in abolishing the difference
between real and personal estate. Section III of the
Succession Act operates in respect of both real and
personal estate; which is reminiscent of the Custom
of Ireland abolished by Section 10 of the Act of 1695.
The net point is whether, under S. I l l , a spouse can
claim as of right one half of the estate, or whether
the spouse has merely a right to claim one half of the
estate. S. I l l (1) says clearly that the surviving spouse
has a right to one half of the estate. S. 115 states that
the personal representative must notify the surviving
spouse in writing of his right to elect to take either
a devise or bequest under the will, or the share to
which he is entitled as a legal right; if there is no
election normally within six months, the spouse shall
be entitled to take under the will. S. 114 provides for
the case where a testamentary gift to a spouse is
expressed to be in addition to the legal share, and
may be so devised or bequeathed. The whole of the
structure of these sections is based on an implicit
assumption that a legal right arises on the moment
of the death of the testator. When a testator makes
a devise or bequest in his will to a spouse, and it is
not expressed to be in addition to the share as a legal
right, then the spouse has a statutory right to take
the share as a legal right, but the share does not vest
until he takes it.
The right to take the legal share requires a "taking"
to vest the share in the spouse. This may be an
actual taking by express election, or a constructive
taking, by dealing with the legal share in an incon-
sistent manner. If the death of the spouse takes place
before an election is made, then the legal share does
not form part of the spouse's estate, because the
spouse before death had done nothing to take the
share as a legal right. Under S. 115, the surviving
spouse is entitled to take the share as a legal right,
but it must be taken. Where there is no "taking" of
the property, there is no competence to dispose of it.
Penrose's case — (1933) 1 Ch. 793 — is no authority
for the proposition that, if at the time of death, the
deceased possessed the ability to make property his
own by exercising an option or an election, then,
whatever his wishes or action in the matter, the
property must be deemed to pass on his death. The
Finance Act 1894 never contemplated that Estate
Duty would be payable in' respect of property which
a person could obtain by exercising an election—and
nevertheless foregoing a testamentary disposition in
respect of the property not passing bv the will, where
in fact no such election was ever made. It follows that
at the date of his death, Douglas was entitled to take
the half share of his wife's estate as a legal right, but,
as he did not in fact do so before his death, this was
not property which he was competent to dispose of
for the Estate Duty purposes. Kenny J.'s decision is
accordingly reversed, and the appeal allowed.
(The Revenue Commissioners v. Provincial Bank of
Ireland—re Douglas Urquhart Deed.—Supreme Court
—Majority judgments by Fitzgerald C. J. and Walsh
J. — Dissenting judgment by Henchv J. — Separate
judgments by each Judge — unreported 30th Julv,
1974.)