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Proving Entitlement To Extract A Grant Of Letters Of Administration (Where There Is No Will) In Unusual Cases

In intestate situations, usually the surviving spouse or a child wishes to extract a grant of letters of administration (the “grant”) in his/her name to administer the estate.  However, in order to do so, s/he will need to prove their entitlement to inherit to the Probate Office1.

In many cases, proving entitlement to extract a grant is straightforward: the deceased lived in Ireland all his/her life and the deceased’s relationship to his/ her ‘next of kin’ can be traced through marriage and/or birth certificates. However, in cases where a surviving spouse wishes to extract the grant, and the deceased obtained a foreign divorce of a prior marriage additional steps will be required to enable the grant to issue. Similarly, if a surviving child wishes to extract a grant but the deceased, being a father was not named as such on that child’s birth certificate, a court order declaring that child as the deceased’s natural parent will be required before the grant will issue in the child’s name. The article below sets out the steps to be taken to extract a grant in these two unusual cases where a deceased did not make a Will.

Surviving Spouse wishes to Extract a Grant but the Deceased was Divorced in a Foreign Country

The recognition of a foreign divorce in Ireland2 is an extremely complex area. In most situations, a court order declaring the foreign divorce as valid in Ireland is required. However, the Probate Office has issued a policy, whereby it will in limited circumstances in ease of time and expense, forgo the need for a court order. In order to comply with the criteria, set out in the policy, the foreign divorced spouse will need to sign a Deed of Renunciation and potentially, another document called a Deed of Disclaimer. If the foreign divorced spouse cannot be contacted or will not execute the relevant deed/s a court application under Section 27(4) of the Succession Act 1965 will be required.

Surviving Natural Child wishes to Extract a Grant but the Deceased is not Named as father on the child’s Birth Certificate

As set out above, in this situation, the Probate Rules office will require a declaration of parentage3 first being obtained from the Circuit Court confirming that child is the natural child of the deceased. Unfortunately, the Probate Office has not issued a policy which would circumvent the need for a court order in certain cases. Whilst DNA evidence is not absolutely required to establish parentage it is recommended in all cases where it is available without exhuming the deceased’s body, which it is recognised would be hugely distressing for any family member. If DNA evidence is not available, a child should consider whether the presumption under section 46 of the Status of Children Act 1987, that a child born to a married mother is the child of her husband4, could be relied upon in his/her application. It is worth noting however that this presumption does not apply if the child was born more than 10 months from the date the mother separated from her husband.

Perhaps logically, a way of avoiding the need to engage in the above potentially protracted additional steps, is for the surviving spouse or natural child, as the case may be, to renounce his/her right to extract a grant in favour of someone who may not come within the unusual situations described above. There are however many valid reasons why s/he would not do so.

For specific tailored advice and assistance in relation to any aspect of the above please contact Deirdre Farrell, solicitor and AITI Chartered Tax Adviser by email or your usual contact at Amorys Solicitors.

1 The order of priority of those entitled to extract a grant of letters of administration is set out in Order 79, Rule 5 of the Rules of the Superior Court
2 To be recognised as valid in Ireland a foreign divorce must comply with the criteria set out in section 5 of the Domicile and Recognition of Foreign Divorces Act 1986.  Note, section 5 will be amended by s. 5 of the Family Law Act 2019 (re UK and Gibraltar) when that section comes into force which is expected to be when the transition period for UK leaving the EU takes place.
3 Under order 79, rule (5) (1) (e) of the Rules of the Superior Courts
4 Section 46 of the Status of Children Act 1947 (as amended)

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