Consider the following situation. An elderly widower who has not remarried (Mr X) wishes, prior to his death, to make special provision for one of his five sons. He could choose to reflect this in his will, but wishes instead during his lifetime to give him a share of his interest in a small property portfolio. However, Mr X wishes to retain an interest in each of these properties and so ownership will be shared by way of a co-ownership.

But, most importantly, Mr X requires that on his death all of his interest in these properties will then vest in this one son. He also wants to do this in such a way that his other children will be precluded from taking an action under section 117 of the Succession Act 1965. For the purposes of this example, we will also presume that proper provision has not already been made for his other sons and that this property portfolio is Mr X's only significant asset.

One way to transfer the title during his lifetime might be to execute a deed passing the property into the joint names of himself and his son as joint tenants. On Mr X's death, the property would automatically vest in his favoured son without the need to make a will and without the formality of a grant of probate. As a co-owner, Mr X would still have control over the property right up until his death.

Unfortunately, the Succession Act provides that the vesting of legal title in a surviving joint tenant constitutes 'a testamentary disposition' and is therefore open to legal challenge by his other children if 'proper provision' hasn't been made for them. The Act may therefore be used to change or overturn Mr X's testamentary wishes.

Should Mr X choose instead to transfer a gift of 50% interest of a particular property portfolio to his favoured son, so that the property is held by them as tenants in common, the transfer of this interest could not be set aside under the Succession Act, provided this transfer was completed three years before Mr X's eventual death.

Even if this occurred, the 50% interest retained by Mr X would be open to potential attack under section 117 of the Succession Act, if Mr X attempts to leave this retained interest to his son through his will.

Mr X could sell his whole interest to his favourite son (in which case a section 117 application would not apply as against the deed but might as against the sale proceeds), or gift his interest to his son and live for at least three years after this grant (in which case an application under section 117 could not be grounded).

It would seem, however, that Mr X could not convey his entire interest to both himself and his son as joint tenants, without the other sons making a potential claim under section 117 on Mr X's death. Not so.

When reviewing the terms of section 121 of the Act, a curious anomaly appears. Under section 121(7), an order cannot be made by a court setting aside a disposition or deed 'made in favour of any child', first, where the spouse of the disponer (in this example, Mr X) was dead at the time the deed was executed or, second, where that spouse was alive but is herself precluded from claiming her share in Mr X's estate or, third, where that spouse was alive but consented to the deed in writing at the time it was granted.

In the example above, Mr X's other children will be precluded from making an application under section 117 simply by reason of the fact that Mr X's spouse (and their mother) died long before Mr X completed the deed to his son.

The significance of section 121(7) of the Act in modifying the claims that can be made by children under section 117 of the Act is important. A party wishing to prefer one or more children over others may do so freely in the event of any one of the above three circumstances occurring notwithstanding that proper provision has not been made for other children, and notwithstanding that the other child or children are completely blameless and have little or no control over the three restrictions referred to above.

For further information please contact Gerard O'Hanlon.


Winter 2006.