Will aunt’s will be affected by unrecognised foreign marriage

Q&A: Dominic Coyle

Ironically, in Irish law, while marriage does generally invalidate any previously drafted will, divorce does not.

Ironically, in Irish law, while marriage does generally invalidate any previously drafted will, divorce does not.

 

My aunt recently passed away leaving her estate to her estranged “husband”. They split up acrimoniously some years ago but she never drew up a new will.

However, during their separation, it came to light that their marriage wasn’t legal/recognised in Ireland as they married in Cuba in early 1990s. As a result joint assets were split 50/50 on separation.

Does the fact their marriage is not recognised in Ireland have any impact on the will made stating that the estate is to be left to her “husband”?

Mr JF, email

This is going to end up with the lawyers. And, to be fair, despite my general preference for sorting out personal financial issues without resorting to expensive legal advice, there are times when it is both more sensible and, potentially, cheaper to go the legal route from the outset.

This case is complicated by your aunt’s failure to observe the first rule of succession planning – to alter one’s will when one’s circumstances change. It is impossible to overemphasise how important this is.

Assuming the break-up was as acrimonious as you state, it is likely that your aunt would not have wanted her former partner to benefit financially through any inheritance from her. The easy way to avoid that possibility would have been for her to redraft her will – a ridiculously easy exercise – to clarify her wishes.

In the absence of such clarification, as this example shows, processing an estate becomes a legal and financial minefield.

In this case, there are two evident sources of challenge. First, there is the family. Your reference to an “acrimonious” break-up points to potential for a challenge to the current will.

Ironically, in Irish law, while marriage does generally invalidate any previously drafted will, divorce does not. Logically, on that basis, nor does separation. While it is common practice in separation proceedings for separating partners to renounce their rights to inheritance from each other under the Succession Act, there is no obligation to do so.

Legal validity

However, you note that the legal validity of the original marriage arose and was effectively ruled upon in what appear to be court rulings on the distribution of assets between the couple. I would be surprised in those circumstances if the issue of inheritance was not also dealt with in the separation agreement but it would not be the first time I would be surprised by the failure of advisers to be comprehensive in representing clients.

I’d suggest that the first course of action is to unearth the actual deed of separation and confirm any terms in it that relate to inheritance. I presume any executor to your aunt’s estate would be doing this anyway but, when it comes to law, it’s never good to presume.

Separately, even if no express disinheritance provisions are made, there is a possibility of having the former partner declared “unworthy to succeed” though this is rarely resorted to.

The second potential for challenge concerns not so much the actual transfer of estate assets as their tax treatment. And again it depends, in part, on the nature of their break-up.

If your aunt and her former husband simply separated, he would be entitled to be treated under the spousal provisions for the capital acquisitions tax regime – ie he would be exempt from inheritance tax on any assets he inherits from her.

If, however, they were formally divorced, or the marriage was dissolved, then he no longer has any exemption from inheritance tax. That could, in itself, raise tax issues for him and could affect his decision to accept any inheritance or not. It is possible to decline an inheritance.

Even if he is still entitled to inherit tax-free as someone merely “separated” and not divorced, the Revenue could certainly challenge his tax status on the basis of the court finding that the original marriage was not legally valid in Ireland. If that challenge was successful, it would leave him back in the position where he would face a potentially significant tax bill.

Challenge to will

Regardless of the outcome, any challenge to a will is best made sooner rather than later as, if probate is already granted, it can become considerably more complicated.

And what would happen if the will was declared invalid?

Terms of an earlier will could be deemed to apply if such a document exists, or your aunt could be deemed to have died intestate.

In the latter case, there is a strict provision on allocation of assets. This starts with spouse/partners and/or children where there are any.

Thereafter the deceased’s parents inherit. If they have already predeceased your aunt, the assets are divided among her brothers and sisters. If any of those are also deceased, their allocation goes to their children.

If there are no siblings, nephews and nieces are the inheritors. Clearly, from your letter, there are some relatives at this remove. If there weren’t, the search would begin for even more distant relatives.

Finally, if someone dies intestate with no relatives at all, or no traceable relatives, the estate goes to the State.

As you can see, this is complicated and the ramifications are potentially far-reaching. That’s why you need to consult a lawyer, and I’m not one.

Send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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