256 / 364
14.
If extra copies of a letter are required, this
desire
should be
indicated after
"Yours
sincerely", or overleaf so as to ensure that
it is the last thing the typist will see when
the letter is completed.
15.
If a typist is making a tricky alteration re
quiring concentration and precision, always
stand over her and breathe down her neck
while she does it.
CORRESPONDENCE
Re: Succession Act 1965
Dear Sir,
I do not know if attention has been called to some
of the anomalies which may arise from a strict inter
pretation of Section 115
(4) of
the above Act limiting
the period
for election by
the spouse as between a
devise or bequest
in
the will and his
(or her)
legal
right.
The right of election may be exercised within six
months of the spouse
receiving notice
of his right from
the personal representative, or within one year from the
date of the issue of the Grant of Probate
whichever is
I he
later.
I wish
to emphasise the importance of the
words "whichever shall be later" as creating the crux
which, as I see it, rightly or wrongly, the Section may
give rise to in practice.
Although it is declared to be the duty of the personal
representative to give the notice to the spouse of his
right of election, there is nothing in the Section which
specifies
when
he is obliged to give the notice. He may
give
the notice a year after the
issue of
the Grant,
or two years after, or in fact at any time, and whenever
it may be that the spouse receives the notice (unless he
has already taken it on himself to elect) the provision
giving him six months from the date of the notice to
exercise his right of election comes automatically into
force. As I will point out, the consequence of this could
lie far-reaching.
It is necessary first of all to make clear that, although
a hasty reading of the Section 115
(4) might give the
impression that, in the absence of notice being served
on the spouse by the personal representative, the right
to elect would then be governed by the date of the
Grant and would automatically lapse on the expiration
of one year from that date, this
is not so;
the year
after the Grant has to be the "later" date provided for
in the Section, before it can be the limiting date and
there is no way of determining whether it is in fact that
"later" date so
long as
there
is a possibility of
the
notice being served on the spouse by the representative.
Furthermore, a
simple calculation shows
that
if
the
words "whichever is
the later" are to have the effect
(which of course they are inteded to have) of making
the expiration of the six months period following the
notice a
possible
"later" date the words can only operate
to have such effect if the notice by the representative
is served more than six months
after
tthe issue of the
Grant. That being
so
it
is
clear
that
the Section
contemplates and therefore authorises the service of the
notice at least
more
than six months after the Grant
if it is
to have any meaning, and if six months, why
not twelve months, or a year, or two years, since, as
stated, there is no time limit in the Section for service of
the notice? An instance will show what I mean:
The deceased dies, say on January 1st, 1967.
The Grant of Probate issues on January 1st, 1968.
Subject to a possible service of
the notice by
the
representative therefore the spouse has a right of election
up to the 1st of January, 1969 (a year after the Grant).
If the notice by the representative is served
earlier
than the 1st of July,1968 then the 1st of January, 1969
will still be the "later" date.
It follows therefore that the only case in which the
notice can operate
to create a "later" date for the
election will be if it is served
after
the 1st of July, 1968
—if, say, it is served on the 1st of August, 1968, then
the period of election will be extended for one month
after the period of a year determined by the issue of
the Grant.
It does not cure the position to say that in practice
the solicitor for the representative will of course advise
him on the necessity of giving the notice to the spouse
as soon as possible so as to put a definite period of
his right of election. The solicitor may fail to do so,
through oversight, or negligence or even ignorance. The
solicitor might for instance, through a misinterpretation
of the Section, assume that on the expiration of a year
from the date of the Grant the right of election has
lapsed and that no notice to the spouse was necessary.
Be that as it may, that would not deprive the spouse of
his right of election, should the representative take it
into his head at some indefinite date later to give him
notice of that right. The spouse would then have six
months within which to exercise his right, although the
estate might in the meantime have been administered
and distributed on
the assumption
that the right of
election has
lapsed. It is not necessary to point out
the serious situation which would be created in such an
eventuality and the confusion and litigation to which
it would give rise. Requisitions on title in future will
certainly have to take care of this point.
These undesirable results would of course be avoided
if
the Section were amended by providing that the
right of election would have to be exercised within a
year from the Grant or within six months form the
notice whichever date is the
earlier—
and not whichever
is the later. Such a provision however might cause in
justice in so far as it could deprive the spouse of his
right to make a choice between the bequest and his
legal right through his not being made aware of his
right of election by notice before the expiration of the
year from the date of the Grant, nor would such a
provision avoid this injustie even if it was coupled with
a condition making it obligatory on the representative
to give the notice in time to enable the spouse to make
his choice, since it would make him dependent on the
representative performing his duty and at the best leave
the spouse with nothing but a right of action against
him for his failure to do so.
There may be other ways of attaining the desired
object of securing to the spouse his right of election,
whilst at the same time definitely limiting the period
when it has to be exercised, but it occurs to me that one
way would be to provide that the notice to the spouse
should be served on him by the Probate Registrar im
mediately on the issue of the Grant, informing him of
his right of election and naming a definite period within
which it would have to be exercised.
Kildare.
Yours faithfully,
JOHN J. DUNNE,
38