Succession Act, 1965

Succession Act, 1965 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 1965 Succession Act, 1965 Succession Act, 1965 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Print Full ActPriontáil an tAcht Iomlán Number 27 of 1965.

SUCCESSION ACT, 1965 ARRANGEMENT OF SECTIONS

Part I

Preliminary and General Section

Section 1

Short title.

Section 2

Commencement.

Section 3

Interpretation.

Section 4

Meaning of “real estate” and “estate or interest”.

Section 5

Presumption of simultaneous death in cases of uncertainty.

Section 6

Jurisdiction.

Section 7

Expenses.

Section 8

Repeals.

Section 9

Savings.

Part II

Devolution of Real and Personal Estate on Death

Section 10

Devolution of real and personal estate.

Section 11

Abolition of existing rules of descent, escheat, etc.

Section 12

Further assimilation of law respecting real and personal estates of deceased persons.

Section 13

Vesting of estate between death and grant of administration.

Section 14

Construction of references to estates of deceased persons.

Section 15

Construction of references to heirs.

Part III

Executors and Administrators

Section 16

Summons to executor to prove or renounce.

Section 17

Cesser of right of executor to prove.

Section 18

Withdrawal of renunciation.

Section 19

Death of sole or last surviving executor.

Section 20

Right of proving executors to exercise powers.

Section 21

Executor not to act while administration is in force.

Section 22

Protection of persons acting on probate or administration.

Section 23

Liability of person fraudulently obtaining or retaining estate of deceased.

Section 24

Liability of estate of personal representative.

Section 25

Validity of conveyance not affected by revocation of representation.

Part IV

Grants of Representation

Section 26

Grants of probate.

Section 27

Grants of administration.

Section 28

Representation of real and personal estate separately or together.

Section 29

Power to grant representation where no estate.

Section 30

Power to grant representation to a trust corporation.

Section 31

Grant of special administration where personal representative is abroad.

Section 32

Administration during minority of executor.

Section 33

Continuance of legal proceedings after revocation of temporary administration.

Section 34

Administration bonds.

Section 35

Applications for grants and revocations.

Section 36

Grants in district probate registries.

Section 37

Second and subsequent grants.

Section 38

Caveats.

Section 39

Calendars of grants.

Section 40

Copies of wills, etc., to be delivered to Revenue Commissioners.

Section 41

Issue of grants of representation in case of Circuit Court decrees.

Section 42

Deposit and inspection of wills and other documents.

Section 43

Official copies of wills and grants.

Section 44

Trial by jury of questions of fact.

Part V

Administration of Assets

Section 45

Estate of deceased to be assets for payment of debts and legal right.

Section 46

Administration of assets.

Section 47

Charges on property of deceased to be paid primarily out of the property charged.

Section 48

Causes of action surviving on death.

Section 49

Distribution of assets after notice to creditors.

Section 50

Powers of personal representatives to sell and to act as trustees.

Section 51

Protection of purchasers.

Section 52

General provisions as to assent or transfer by personal representatives.

Section 53

Special provisions as to unregistered land.

Section 54

Special provisions as to registered land.

Section 55

Powers of personal representatives as to appropriation.

Section 56

Right of surviving spouse to require dwelling and household chattels to be appropriated.

Section 57

Appointment by personal representatives of trustees of infant's property.

Section 58

Powers of trustees of infant's property.

Section 59

Right to follow property.

Section 60

Powers to deal with estate, etc.

Section 61

Purchasers from personal representatives.

Section 62

Time allowed for distribution.

Section 63

Advancements to children to be brought into account.

Section 64

Duty of personal representatives as to inventory.

Section 65

Administration on behalf of the State.

Part VI

Distribution on Intestacy

Section 66

Rules for distribution on intestacy.

Section 67

Shares of surviving spouse and issue.

Section 68

Shares of parents.

Section 69

Shares of brothers and sisters and their children.

Section 70

Shares of next-of-kin.

Section 71

Ascertainment of next-of-kin.

Section 72

Half-blood.

Section 73

State as ultimate intestate successor.

Section 74

Partial intestacy.

Section 75

Construction of documents.

Part VII

Wills

Section 76

Property which may be disposed of by will.

Section 77

Capacity to make a will.

Section 78

Signing and witnessing will.

Section 79

Appointments by will.

Section 80

Publication of will not necessary.

Section 81

Will not void on account of incompetency of witness.

Section 82

Gifts to an attesting witness, or spouse of witness, to be void.

Section 83

Creditor attesting will charging estate with debts admissible as witness.

Section 84

Executor admissible as witness.

Section 85

Revocation of will.

Section 86

Alterations in will after execution.

Section 87

Revoked will not revived otherwise than by re-execution or codicil.

Section 88

Subsequent conveyance or other act not to prevent operation of will.

Section 89

Will to speak from death of testator.

Section 90

Extrinsic evidence as to will.

Section 91

Residuary devise or bequest to include estate comprised in lapsed and void gifts.

Section 92

General devise of land to include leasehold as well as freehold.

Section 93

General gift of realty or personalty to include property over which testator has general power of appointment.

Section 94

Devise of real estate without words of limitation to pass whole estate.

Section 95

Creation of estates tail.

Section 96

Meaning of “die without issue”.

Section 97

Devise of estate tail not to lapse where inheritable issue survives.

Section 98

Gifts to children or other issue who leave issue living at testator's death.

Section 99

Interpretation of devise or bequest in case of doubt.

Section 100

Restriction on executory limitations.

Part VIII

Conflict of Laws Relating to Testamentary Dispositions

Section 101

“Testamentary disposition”.

Section 102

Validity as regards form.

Section 103

Dispositions made on board vessel or aircraft.

Section 104

Exercise of power of appointment.

Section 105

Joint dispositions.

Section 106

Effect of restrictions on capacity.

Section 107

Construction of testamentary disposition.

Section 108

Effect of testamentary disposition under Part VII.

Part IX

Legal Right of Testator's Spouse and Provision for Children

Section 109

Application of Part IX.

Section 110

Legitimated, illegitimate and adopted persons.

Section 111

Right of surviving spouse.

Section 112

Priority of legal right.

Section 113

Renunciation of legal right.

Section 114

Effect of devise or bequest to spouse.

Section 115

Election between legal right and rights under a will and on partial intestacy.

Section 116

Provision in satisfaction of legal right.

Section 117

Provision for children.

Section 118

Estate duty.

Section 119

Proceedings to be in chambers.

Part X

Unworthiness to Succeed and Disinheritance

Section 120

Exclusion of persons from succession.

Section 121

Dispositions for purpose of disinheriting spouse or children.

Section 122

Proceedings to be in chambers.

Part XI

Limitation of Actions

Section 123

Personal representative, as such, not a trustee under Statute of Limitations, 1957.

Section 124

“Trustees” in Statute of Limitations, 1957, not to include a bailiff.

Section 125

Persons entitled to shares in land.

Section 126

Actions in respect of estates of deceased persons.

Section 127

Limitation period in case of disability.

Part XII

Provisions Relating to Probate Office and District Probate Registries

Section 128

Assistant Probate Officer.

Section 129

District probate registries.

Section 130

Fees to be taken at district probate registries.

Section 131

Acting district probate registrars.

FIRST SCHEDULE Rules as to Application of Assets SECOND SCHEDULE Repeals Acts Referred to Associated Bank under the Central Bank Act, 1942 1942, No. 22 Companies Act, 1963 1963, No. 33 Bodies Corporate (Executors and Administrators) Act, 1928 1928, No. 9 Public Records (Ireland) Act, 1867 1867, c. 70 Civil Liability Act, 1961 1961, No. 41 Statute of Limitations, 1957 1957, No. 6 Registration of Title Act, 1964 1964, No. 16 Registration of Deeds Act, 1707 1707, c. 2 Conveyancing Act, 1881 1881, c. 41 Rent Restrictions Act, 1960 1960, No. 42 State Property Act, 1954 1954, No. 25 Intestates' Estates Act, 1954 1954, No. 12 Legitimacy Act, 1931 1931, No. 13 Adoption Act, 1952 1952, No. 25 Courts of Justice Act, 1936 1936, No. 48 Court Officers Act, 1926 1926, No. 27 Administration of Estates Act, 1959 1959, No. 8 Court Officers Act, 1945 1945, No. 25 Court Officers Act, 1951 1951, No. 8 Number 27 of 1965.

SUCCESSION ACT, 1965 AN ACT TO REFORM THE LAW RELATING TO SUCCESSION TO THE PROPERTY OF DECEASED PERSONS AND, IN PARTICULAR, THE DEVOLUTION, ADMINISTRATION, TESTAMENTARY DISPOSITION AND DISTRIBUTION ON INTESTACY OF SUCH PROPERTY, AND TO PROVIDE FOR RELATED MATTERS. [22nd December, 1965.] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I

Preliminary and General Short title.

1.—This Act may be cited as the Succession Act, 1965.

Commencement.

2.—This Act shall come into operation on such day, not earlier than the 1st day of July, 1966, as the Minister by order appoints.

Interpretation.

3.—(1) In this Act, except where the context otherwise requires— “administration”, in relation to the estate of a deceased person, means letters of administration, whether with or without a will annexed, and whether granted for special or limited purposes; “administrator” means a person to whom administration is granted; “conveyance” includes a mortgage, charge, lease, assent, transfer, disclaimer, release and every other assurance of property by any instrument except a will; “the court” shall be construed in accordance with section 6; “estate” shall be construed in accordance with section 14; “grant” means grant of representation; “infant” means a person under the age of twenty-one years; “an intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate, and “intestate” shall be construed accordingly; “legal right” means the right of a spouse under section 111 to a share in the estate of a deceased person; “the Minister” means the Minister for Justice; “pecuniary legacy” includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest, or payment is made to take effect; “per stirpes” shall be construed in accordance with subsection (3); “personal representative” means the executor or the administrator for the time being of a deceased person; “possession” includes the receipt of, or the right to receive, rents and profits, if any; “probate” means probate of a will; “property” includes all property both real and personal; “purchaser” means a grantee, lessee, assignee, mortgagee, chargeant or other person who in good faith acquires an estate or interest in property for valuable consideration; “real estate” has the meaning assigned to it by section 4; “representation” means probate or administration; “share”, in relation to the estate of a deceased person, includes any share or interest, whether arising under a will, on intestacy or as a legal right, and includes also the right to the whole estate; “trust corporation” has the meaning assigned to it by subsection (4) of section 30; “valuable consideration” means consideration in money or money's worth; “will” includes codicil.

Meaning of “real estate” and “estate or interest”. [1959 (No. 8) ss. 2, 6] 4.—For the purposes of this Act— (a) “real estate” includes chattels real, and land in possession, remainder, or reversion, and every estate or interest in or over land (including real estate held by way of mortgage or security, but not including money to arise under a trust for sale of land, or money secured or charged on land); (b) the estate or interest of a deceased person in an estate tail shall be deemed to be an estate or interest ceasing on his death, but any further or other estate or interest of the deceased person in remainder or reversion which is capable of being disposed of by his will shall not be deemed to be an estate or interest so ceasing; (c) the estate or interest of a deceased person under a joint tenancy where any tenant survives the deceased person shall be deemed to be an estate or interest ceasing on his death; (d) on the death of a corporator sole his estate or interest in the corporation's real estate shall be deemed to be an estate or interest ceasing on his death; (e) the estate or interest of a deceased person in real estate shall not be deemed to be an estate or interest ceasing on his death merely because by reason of illegitimacy or otherwise he did not leave next-of-kin surviving him.

Presumption of simultaneous death in cases of uncertainty. [New] 5.—Where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, then, for the purposes of the distribution of the estate of any of them, they shall all be deemed to have died simultaneously.

Jurisdiction. [1961 (No. 39) s. 22 (1) and Third Schedule at ref. nos. 16 and 17] 6.—(1) The jurisdiction conferred on a court by this Act may be exercised by the High Court.

Expenses.

7.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Repeals.

8.—The enactments mentioned in the Second Schedule are hereby repealed to the extent specified in the third column.

Savings. [1959 (No. 8) s. 8] 9.—(1) Nothing in this Act shall affect any unrepealed enactment dispensing with probate or administration in the case of personal estate not including chattels real.

PART II

Devolution of Real and Personal Estate on Death Devolution of real and personal estate. [1881 (c. 41) s. 30; 1959 (No. 8) ss. 6, 7 (1), 15 (pt.)] 10.—(1) The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.

Abolition of existing rules of descent, escheat, etc. [New] 11.—(1) Without prejudice to the succeeding provisions of this section, all existing rules, modes and canons of descent and of devolution by special occupancy are hereby abolished except in so far as they may apply to the descent of an estate tail.

Further assimilation of law respecting real and personal estates of deceased persons. [1959 (No. 8) s. 7 (2)] 12.—(1) All enactments (including this Act) and rules of law relating to— (a) the effect of representation as respects personal estate, (b) the dealing with personal estate before representation, (c) the powers, rights, duties, and liabilities of personal representatives in respect of personal estate, (d) the payment of costs of administration, and (e) all other matters with respect to the administration of personal estate, shall, so far as applicable, apply to real estate as if it were personal estate; and subsequent provisions of this section shall not prejudice the generality of this subsection.

Vesting of estate between death and grant of administration. [1959 (No. 8) s. 13] 13.—Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.

Construction of references to estates of deceased persons. [New] 14.—References in the subsequent provisions of this Act and in any subsequent enactment to the estate of a deceased person shall, unless the contrary intention appears, include references to both the real and personal estate of that deceased person.

Construction of references to heirs. [1891 (c. 66) s. 89] 15.—(1) The word “heir” or “heirs”, used as a word of limitation in any enactment, deed or instrument passed or executed either before or after the commencement of this Act, shall have the same effect as if this Act had not been passed.

PART III

Executors and Administrators Summons to executor to prove or renounce. [1537 (c. 18)] 16.—The High Court shall have power to summon any person named as executor in a will to prove or renounce probate.

Cesser of right of executor to prove. [1857 (c. 79) s. 84; 1859 (c. 31) s. 12] 17.—Where a person appointed executor by a will— (a) survives the testator but dies without having taken out probate, or (b) is cited to take out probate and does not appear to the citation, or (c) renounces probate, his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his estate shall devolve and be committed in like manner as if that person had not been appointed executor.

Withdrawal of renunciation. [New] 18.—(1) Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously taken out representation, and a memorandum of the subsequent probate shall be endorsed on the original grant.

Death of sole or last surviving executor. [New] 19.—(1) Where the sole or last surviving executor of a testator dies after the commencement of this Act, the executor of such executor shall not be the executor of that testator.

Right of proving executors to exercise powers. [Cf. 1959 (No. 8) s. 18 (2)] 20.—(1) Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by this Act or otherwise by law conferred on the personal representative may be exercised by the proving executor or executors or the survivor or survivors of them and shall be as effectual as if all the persons named as executors had concurred therein.

Executor not to act while administration is in force. [1857 (c. 79) s. 80] 21.—Where administration has been granted in respect of the estate, or any part of the estate, of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked or has expired.

Protection of persons acting on probate or administration. [1857 (c. 79) ss. 82, 83] 22.—(1) Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation.

Liability of person fraudulently obtaining or retaining estate of deceased. [1634 (sess. 3. c. 10)] 23.—(1) If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the estate received or coming to his hands, or the debt or liability released, after deducting— (a) any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and (b) any payment made by him which might properly be made by a personal representative.

Liability of estate of personal representative. [1695 (c. 6) s. 11] 24.—Where a person as personal representative of a deceased person (including an executor in his own wrong) wastes or converts to his own use any part of the estate of the deceased, and dies, his personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.

Validity of conveyance not affected by revocation of representation. [New] 25.—(1) All conveyances of any estate or interest in the estate of a deceased person made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted are valid, notwithstanding any subsequent revocation or variation, either before or after the commencement of this Act, of the grant.

PART IV

Grants of Representation Grants of probate. [1857 (c. 79) s. 6] 26.—(1) The High Court shall have power to grant probate to one or more of the executors of a deceased person, and a grant may be limited in any way the Court thinks fit.

Grants of administration. [1357 (st. 1. c. 11); 1537 (c. 18); 1959 (No. 8) s. 12] 27.—(1) The High Court shall have power to grant administration (with or without will annexed) of the estate of a deceased person, and a grant may be limited in any way the Court thinks fit.

Representation of real and personal estate separately or together. [1959 (No. 8) s. 15] 28.—(1) Representation may be granted either separately in respect of real estate and in respect of personal estate, or in respect of real estate together with personal estate, and may be granted in respect of real estate although there is no personal estate, or in respect of personal estate although there is no real estate.

Power to grant representation where no estate. [1959 (No. 8) s. 16] 29.—The High Court shall have jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the State, and to make a de bonis non or other form of grant in respect of unadministered estate, notwithstanding that there is no unadministered estate of the deceased in the State.

Power to grant representation to a trust corporation. [New. Cf. 1928 (No. 9)] 30.—(1) The High Court may— (a) where a trust corporation is named in a will as executor, whether alone or jointly with another person, grant probate to the corporation either solely or jointly with another person, as the case may require, and (b) grant administration to a trust corporation, either solely or jointly with another person, and the corporation may act accordingly as executor or administrator, as the case may be.

Grant of special administration where personal representative is abroad. [1857 (c. 79) s. 79; 1859 (c. 31) s. 14] 31.—(1) If at the expiration of twelve months from the death of a person any personal representative of the deceased person to whom a grant has been made is residing out of the jurisdiction of the High Court, the High Court may, on the application of any creditor or person interested in the estate of the deceased person, grant to him in such form as the High Court thinks fit special administration of the estate of the deceased person.

Administration during minority of executor. [1818 (c. 81); 1857 (c. 79) s. 79; 1859 (c. 31) s. 14] 32.—(1) Where an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the High Court thinks fit, until the infant attains the age of twenty-one years and applies for and obtains a grant of probate or letters of administration with the will annexed, and on his attaining that age, and not before, probate of the will may be granted to him.

Continuance of legal proceedings after revocation of temporary administration. [1857 (c. 9) s. 81] 33.—If, while any legal proceedings are pending in any court by or against an administrator to whom a temporary administration has been granted, that administration is revoked, that court may order that the proceedings be continued by or against the new personal representative in like manner as if the proceedings had been originally commenced by or against him, but subject to such conditions and variations, if any, as that court directs.

Administration bonds. [1959 (No. 8) s. 14] 34.—(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.

Applications for grants and revocations. [1857 (c. 79) ss. 50, 63] 35.—(1) An application for the grant or revocation of representation may be made to the Probate Office or the district probate registry for the district where the deceased, at the time of his death, had a fixed place of abode. [R.S.C., O. 79, r. 3; O. 80, r. 3]

Grants in district probate registries. [1857 (c. 79) ss. 50, 52, 54] 36.—(1) A grant may be made in common form by a district probate registrar in the name of the High Court and under the seal of the registry where the deceased, at the time of his death, had a fixed place of abode within the district where the application for the grant is made.

Second and subsequent grants. [1859 (c. 31) s. 16] 37.—Second and subsequent grants shall be made in the Probate Office or district probate registry, as the case may be, from which the original grant issued.

Caveats. [1857 (c. 79) s. 57] 38.—(1) A caveat against a grant may be entered in the Probate Office or in any district probate registry.

Calendars of grants. [1959 (No. 8) s. 17] 39.—(1) The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of grants made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.

Copies of wills, etc., to be delivered to Revenue Commissioners. [1857 (c. 79) s. 100] 40.—Subject to any arrangements which may from time to time be made between the President of the High Court and the Revenue Commissioners, the Probate Office and every district probate registry shall, within such period after a grant as the President may direct, deliver to the Commissioners or their proper officer the following documents— (a) in the case of a probate or of administration with a will annexed, the Inland Revenue affidavit and a copy of the will (if required); (b) in the case of administration without a will annexed, the Inland Revenue affidavit; (c) in every case of administration, a copy or extract of the administration; (d) in every case, such certificate or note of the grant as the Commissioners may require.

Issue of grants of representation in case of Circuit Court decrees. [1857 (c. 79) s. 59] 41.—On a decree being made by the Circuit Court for the grant or revocation of representation the Probate Officer or the district probate registrar shall, on the application of a person entitled thereto, grant representation in compliance with the decree or, as the case may require, recall or vary, according to the effect of the decree, any representation already granted.

Deposit and inspection of wills and other documents. [1857 (c. 79) s. 71] 42.—(1) The following documents— (a) all original wills of which representation is granted in the Probate Office, (b) copies of all wills the originals of which are to be preserved in district probate registries, and (c) such other documents as the President of the High Court may direct, shall be deposited and preserved in the Probate Office under the control of the President of the High Court and may be inspected in accordance with his directions.

Official copies of wills and grants. [1857 (c. 79) s. 74] 43.—(1) An official copy of the whole or any part of a will, or of a grant of representation, may be obtained from the Probate Office or district probate registry where the will has been proved or the representation granted.

Trial by jury of questions of fact. [1857 (c. 79) s. 41] 44.—(1) The court may cause any question of fact arising in any proceedings under this Act to be tried by a jury, and such question shall be so tried in any case where all the parties to the proceedings concur in an application to the court for a jury.

PART V

Administration of Assets Estate of deceased to be assets for payment of debts and legal right. [1285 (c. 19); 1357 (st. 1.c.11); 1695 (c. 12) ss. 7, 8; 1833 (c. 104); 1869 (c. 46)] 45.—(1) The estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the estate of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of the funeral, testamentary and administration expenses, debts (whether by specialty or simple contract) and liabilities, and any legal right, and any disposition by will inconsistent with this section is void as against the creditors and any person entitled to a legal right, and the court shall, if necessary, administer the property for the purpose of the payment of the expenses, debts and liabilities and any legal right.

Administration of assets. [New] 46.—(1) Where the estate of a deceased person is insolvent, it shall be administered in accordance with the rules set out in Part I of the First Schedule.

Charges on property of deceased to be paid primarily out of the property charged. [1854 (c. 113), 1867 (c. 69) and 1877 (c. 34) extended to personalty] 47.—(1) Where a person dies possessed of, or entitled to, or, under a general power of appointment, by his will disposes of, an interest in property, which at the time of his death is charged with the payment of money, whether by way of legal or equitable mortgage or charge or otherwise (including a lien for unpaid purchase money), and the deceased person has not by will, deed or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased person, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall bear a proportionate part of the charge on the whole thereof.

Causes of action surviving on death.

48.—The personal representatives of a deceased person may sue and be sued in respect of all causes of action which, by virtue of

Part II

of the Civil Liability Act, 1961 , survive for the benefit of, or against, the estate of the deceased, subject to the provisions of that Act and the rules of limitation under the Statute of Limitations, 1957 , or otherwise.

Distribution of assets after notice to creditors. [1859 (c. 35) s. 29] 49.—(1) Where the personal representatives have given such notices to creditors and others to send in their claims against the estate of the deceased as, in the opinion of the court in which the personal representatives are sought to be charged, would have been given by the court in an administration suit, the personal representatives shall, at the expiration of the time named in the said notices, or the last of them, for sending in such claims, be at liberty to distribute the assets of the deceased, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which the personal representatives have then notice.

Powers of personal representatives to sell and to act as trustees. [1959 (No. 8) s. 18] 50.—(1) The personal representatives may sell the whole or any part of the estate of a deceased person for the purpose not only of paying debts, but also (whether there are or are not debts) of distributing the estate among the persons entitled thereto, and before selling for the purposes of distribution the personal representatives shall, so far as practicable, give effect to the wishes of the persons of full age entitled to the property proposed to be sold or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons so, however, that— (a) a purchaser shall not be concerned to see that the personal representatives have complied with such wishes; and (b) it shall not be necessary for any person so entitled to concur in any such sale.

Protection of purchasers. [1959 (No. 8) s. 19] 51.—(1) A purchaser from the personal representatives of a deceased person of any property, being the whole or any part of the estate of the deceased, shall be entitled to hold that property freed and discharged from any debts or liabilities of the deceased, except such as are charged otherwise than by the will of the deceased, and from all claims of the persons entitled to any share in the estate, and shall not be concerned to see to the application of the purchase money.

General provisions as to assent or transfer by personal representatives. [1959 (No. 8) s. 20] 52.—(1) In this section and in section 53— (a) references to the land of a deceased person are references to land to which he was entitled or over which he exercised a general power of appointment by will; (b) “person entitled” includes, in relation to any estate or interest in land— (i) the person or persons (including the personal representatives of the deceased or any of them) who (whether by devise, bequest, devolution or otherwise) may be beneficially entitled to that estate or interest, and (ii) the trustee or trustees or the personal representative or representatives of any such person or persons.

Special provisions as to unregistered land. [1959 (No. 8) s. 21] 53.—(1) An assent to the vesting of any estate or interest in unregistered land of a deceased person in favour of the person entitled thereto shall— (a) be in writing, (b) be signed by the personal representatives, (c) be deemed, for the purposes of the Registration of Deeds Act, 1707, to be a conveyance of that estate or interest from the personal representatives to the person entitled, (d) operate, subject to the provisions of the Registration of Deeds Act, 1707, with respect to priorities, to vest that estate or interest in the person entitled subject to such charges and incumbrances, if any, as may be specified in the assent and as may otherwise affect that estate or interest, (e) subject to the provisions of the Registration of Deeds Act, 1707, be deemed (unless a contrary intention appears therein) for all purposes necessary to establish the title of the person entitled to intervening rents and profits to relate back to the death of the deceased, but nothing in this paragraph shall operate to enable any person to establish a title inconsistent with the will of the deceased.

Special provisions as to registered land.

54.—(1) An assent or transfer made by a personal representative in respect of registered land shall be in the form required under section 61 of the Registration of Title Act, 1964 , and shall be subject to the provisions of that Act.

Powers of personal representatives as to appropriation. [New] 55.—(1) The personal representatives may, subject to the provisions of this section, appropriate any part of the estate of a deceased person in its actual condition or state of investment at the time of appropriation in or towards satisfaction of any share in the estate, whether settled or not, according to the respective rights of the persons interested in the estate.

Right of surviving spouse to require dwelling and household chattels to be appropriated. [New] 56.—(1) Where the estate of a deceased person includes a dwelling in which, at the time of the deceased's death, the surviving spouse was ordinarily resident, the surviving spouse may, subject to subsection (5), require the personal representatives in writing to appropriate the dwelling under section 55 in or towards satisfaction of any share of the surviving spouse.

Appointment by personal representatives of trustees of infant's property. [New] 57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.

Powers of trustees of infant's property. [New] 58.—(1) Property vested under section 57 may be retained in its existing condition or state of investment or may be converted into money and invested in any security in which a trustee is authorised by law to invest, with power, at the discretion of the trustees, to change such investments for others so authorised.

Right to follow property. [Restates existing law relating to right to follow property; as to real estate, see 1830 (c. 47) 1839 (c. 60) and 1848 (c. 87)] 59.—(1) Property which has been conveyed by personal representatives to any person (other than a purchaser) shall, so long as it remains vested in that person, or in any person claiming under him (not being a purchaser), continue to be liable to answer the debts of the deceased and any share in the estate to the extent to which it was liable when vested in the personal representatives.

Powers to deal with estate, etc. [Restates, clarifies and extends to real estate existing law relating to personal estate; as to real estate, see 1859 (c. 35) ss. 14 to 18] 60.—(1) The personal representatives of a deceased owner of land may, in addition to any other powers conferred on them by this Act— (a) make such leases of the land as may be reasonably necessary for the due administration of the estate of the deceased owner; or (b) with the consent of the beneficiaries, or with the approval of the court, make leases of the land for such term and on such conditions as the personal representatives may think proper; or (c) make, on such terms and conditions as the personal representatives may think proper, a sub fee farm grant of the land, or a sub-lease thereof with a nominal reversion, where such sub fee farm grant or sub-lease amounts in substance to a sale and the personal representatives have satisfied themselves that it is the most appropriate method of disposing of the land in the course of the administration of the estate; and, where personal representatives grant or lease any land pursuant to any power conferred on them by this subsection, they may sell any rent reserved on such grant or any reversion expectant upon the determination of any such lease.

The enactments relating to distress for rent apply to any distress made pursuant to this subsection. [New]

Purchasers from personal representatives. [Restates existing law: as to real estate, see 1859 (c. 35) s. 17] 61.—A purchaser from personal representatives shall be entitled to assume that the personal representatives are acting correctly and within their powers.

Time allowed for distribution. [1695 (c. 6) s. 4] 62.—(1) The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.

Advancements to children to be brought into account. [New] 63.—(1) Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased, and as between the children shall be brought into account in distributing the estate.

Duty of personal representatives as to inventory. [1357 (st. 1.c.11); 1537 (c. 18); 1695 (c. 6) s. 1] 64.—The personal representatives of a deceased person shall, when lawfully required to do so, exhibit on oath in the court a true and perfect inventory and account of the estate of the deceased, and the court shall have power to require personal representatives to bring in inventories.

Administration on behalf of the State. [1884 (c. 71) ss. 2, 3] 65.—(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.

PART VI

Distribution on Intestacy Rules for distribution on intestacy.

66.—All estate to which a deceased person was beneficially entitled for an estate or interest not ceasing on his death and as to which he dies intestate after the commencement of this Act shall, after payment of all expenses, debts and liabilities and any legal right properly payable thereout, be distributed in accordance with this Part.

Shares of surviving spouse and issue. [New. See 1695 (c. 6) ss. 1, 2, 3] 67.—(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.

Shares of parents. [New. See 1695 (c. 6) ss. 3, 8] 68.—If an intestate dies leaving neither spouse nor issue, his estate shall be distributed between his parents in equal shares if both survive the intestate, but, if only one parent survives, that parent shall take the whole estate.

Shares of brothers and sisters and their children. [See 1695 (c. 6) ss. 2, 3] 69.—(1) If an intestate dies leaving neither spouse nor issue nor parent, his estate shall be distributed between his brothers and sisters in equal shares, and, if any brother or sister does not survive the intestate, the surviving children of the deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share that their parent would have taken if he or she had survived the intestate.

Shares of next-of-kin. [See 1695 (c. 6) ss. 2, 3] 70.—(1) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.

Ascertainment of next-of-kin. [New] 71.—(1) Subject to the rights of representation mentioned in subsection (2) of section 70, the person or persons who, at the date of the death of the intestate, stand nearest in blood relationship to him shall be taken to be his next-of-kin.

Half-blood. [New as regards real estate] 72.—Relatives of the half-blood shall be treated as, and shall succeed equally with, relatives of the whole blood in the same degree.

State as ultimate intestate successor. [New. Replaces escheat and bona vacantia] 73.—(1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor. [Cf. 1954 (No. 25) s. 31]

(3)

Section 32

of the State Property Act, 1954 (which provides for the disclaimer of certain land devolving on the State by way of escheat or as bona vacantia) shall extend to the grantee's interest under a fee farm grant and the lessee's interest under a lease, where the State has a right to such interest as ultimate intestate successor.

Partial intestacy. [1830 (c. 40)] 74.—Where the will of a testator effectively disposes of part only of his estate, the remainder shall be distributed as if he had died intestate and left no other estate.

Construction of documents. [New] 75.—(1) References to any Statutes of Distribution in an instrument inter vivos made, or in a will coming into operation, after the commencement of this Act shall, unless the contrary thereby appears, be construed as references to this Part; and references in such an instrument or will to statutory next-of-kin shall, unless the contrary thereby appears, be construed as referring to the persons who would succeed on an intestacy under the foregoing provisions of this Part.

PART VII

Wills Property which may be disposed of by will. [1837 (c. 26) s. 3] 76.—A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representatives.

Capacity to make a will. [1837 (c. 26) s. 7 amended] 77.—(1) To be valid a will shall be made by a person who— (a) has attained the age of eighteen years or is or has been married, and (b) is of sound disposing mind. [1964 (No. 7) s. 7 (7)]

Signing and witnessing will. [1837 (c. 26) s. 9 and 1852 (c. 24) s. 1] 78.—To be valid a will shall be in writing and be executed in accordance with the following rules:

Appointments by will. [1837 (c. 26) s. 10] 79.—(1) An appointment made by will, in exercise of any power, shall not be valid unless it is executed in accordance with this Act.

Publication of will not necessary. [1837 (c. 26) s. 13] 80.—Every will executed in accordance with this Act shall be valid without any other publication thereof.

Will not void on account of incompetency of witness. [1837 (c. 26) s. 14] 81.—If a person who attests the execution of a will is, at the time of execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid.

Gifts to an attesting witness, or spouse of witness, to be void. [1837 (c. 26) s. 15] 82.—(1) If a person attests the execution of a will, and any devise, bequest, estate, interest, gift, or appointment, of or affecting any property (other than charges and directions for the payment of any debt or debts) is given or made by the will to that person or his spouse, that devise, bequest, estate, interest, gift, or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be utterly null and void.

Creditor attesting will charging estate with debts admissible as witness. [1837 (c. 26) s. 16] 83.—If by will any estate is charged with any debt or debts, and a creditor, or the spouse of a creditor, whose debt is so charged, attests the execution of the will, the creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of the will, or to prove the validity or invalidity thereof.

Executor admissible as witness. [1837 (c. 26) s. 17] 84.—A person shall not, by reason only of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of the will, or a witness to prove the validity or invalidity thereof.

Revocation of will. [New. Cf. 1837 (c. 26) s. 18] 85.—(1) A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not. [1837 (c. 26) ss. 19, 20]

Alterations in will after execution. [1837 (c. 26) s. 21] 86.—An obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect, unless such alteration is executed as is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the signature of each witness is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will.

Revoked will not revived otherwise than by re-execution or codicil. [1837 (c. 26) s. 22] 87.—No will or any part thereof, which is in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil duly executed and showing an intention to revive it; and when any will or codicil which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown.

Subsequent conveyance or other act not to prevent operation of will. [1837 (c. 26) s. 23] 88.—Where, subsequently to the execution of a will, a conveyance or other act is made or done relating to any estate comprised in the will, except an act by which the will is revoked, the conveyance or act shall not prevent the operation of the will with respect to any estate or interest in the property which the testator has power to dispose of by will at the time of his death.

Will to speak from death of testator. [1837 (c. 26) s. 24 extended so as to overrule Wild's Case (1599) 6 Co. Rep. 16b] 89.—Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.

Extrinsic evidence as to will. [New] 90.—Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.

Residuary devise or bequest to include estate comprised in lapsed and void gifts. [1837 (c. 26) s. 25] 91.—Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.

General devise of land to include leasehold as well as freehold. [1837 (c. 26) s. 26] 92.—A general devise of land shall be construed to include leasehold interests as well as freehold estates, unless a contrary intention appears from the will.

General gift of realty or personalty to include property over which testator has general power of appointment. [1837 (c. 26) s. 27] 93.—A general devise of land shall be construed to include any land which the testator may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will; and in like manner a general bequest of the personal estate (other than land) of the testator shall be construed to include any such estate which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears from the will.

Devise of real estate without words of limitation to pass whole estate. [1837 (c. 26) ss. 28, 30, 31] 94.—Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.

Creation of estates tail. [New. Overrules Wild's Case (1599) 6 Co. Rep. 16b] 95.—(1) An estate tail (whether general, in tail male, in tail female or in tail special) in real estate may be created by will only by the use of the same words of limitation as those by which a similar estate tail may be created by deed.

Meaning of “die without issue”. [1837 (c. 26) s. 29] 96.—In a devise or bequest of real or personal estate, the words “die without issue”, or “die without leaving issue”, or “have no issue”, or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in his lifetime or at the time of his death, and not an indefinite failure of his issue, unless a contrary intention appears from the will.

Devise of estate tail not to lapse where inheritable issue survives. [1837 (c. 26) s. 32] 97.—Where a person to whom real estate is devised for an estate tail or an estate in quasi entail dies in the lifetime of the testator leaving issue who could inherit under the entail, and any such issue is living at the time of the death of the testator, the devise shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

Gifts to children or other issue who leave issue living at testator's death. [1837 (c. 26) s. 33 extended to cover appointments under special powers and class gifts] 98.—Where a person, being a child or other issue of the testator to whom any property is given (whether by a devise or bequest or by the exercise by will of any power of appointment, and whether as a gift to that person as an individual or as a member of a class) for any estate or interest not determinable at or before the death of that person, dies in the lifetime of the testator leaving issue, and any such issue of that person is living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention appears from the will.

Interpretation of devise or bequest in case of doubt. [New] 99.—If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.

Restriction on executory limitations. [See 1882 (c. 39) s. 10] 100.—Where a person is entitled under a will to— (a) land for an estate in fee simple or for any lesser estate or interest not being an estate tail, or (b) any interest in other property, with an executory limitation over in default or failure of any of his issue, whether within a specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue of the class in default or failure of which the limitation over was to take effect.

PART VIII

Conflict of Laws relating to Testamentary Dispositions “Testamentary disposition”.

101.—In this Part, “testamentary disposition” means any will or other testamentary instrument or act.

Validity as regards form. [Hague Convention, Arts. 1, 2. As to existing law, see 1861 (c. 114) ss. 1, 2] 102.—(1) A testamentary disposition shall be valid as regards form if its form complies with the internal law— (a) of the place where the testator made it, or (b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or (c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or (d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or (e) so far as immovables are concerned, of the place where they are situated.

Dispositions made on board vessel or aircraft. [New] 103.—Without prejudice to section 102, a testamentary disposition made on board a vessel or aircraft shall also be valid as regards form if its form complies with the internal law of the place with which, having regard to its registration (if any) and any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connexion.

Exercise of power of appointment. [New] 104.—(1) Without prejudice to section 102, a testamentary disposition shall also be valid as regards form so far as it exercises a power of appointment, if its form complies with the law governing the essential validity of the power.

Joint dispositions. [Hague Convention, Art. 4] 105.—This Part shall also apply to the form of testamentary dispositions made by two or more persons in one document.

Effect of restrictions on capacity. [Hague Convention, Art. 5] 106.—(1) For the purposes of this Part, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator shall be deemed to pertain to matters of form.

Construction of testamentary disposition. [1861 (c. 114) s. 3] [New] 107.—(1) The construction of a testamentary disposition shall not be altered by reason of any change in the testator's domicile after the making of the disposition.

Effect of testamentary disposition under Part VII. [New] 108.—A testamentary disposition which under this Part is valid as regards form shall have the same effect as if it were a will executed in compliance with Part VII.

PART IX

Legal Right of Testator's Spouse and Provision for Children Application of Part IX. [New] 109.—(1) Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of this Part shall have effect.

Legitimated, illegitimate and adopted persons. [New] 110.—In deducing any relationship for the purposes of this Part, the provisions of the Legitimacy Act, 1931 , and of section 26 of the Adoption Act, 1952 , shall apply as they apply in relation to succession on intestacy.

Right of surviving spouse. [New] 111.—(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

Priority of legal right. [New] 112.—The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

Renunciation of legal right. [New] 113.—The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.

Effect of devise or bequest to spouse. [New] 114.—(1) Where property is devised or bequeathed in a will to a spouse and the devise or bequest is expressed in the will to be in addition to the share as a legal right of the spouse, the testator shall be deemed to have made by the will a gift to the spouse consisting of— (a) a sum equal to the value of the share as a legal right of the spouse, and (b) the property so devised or bequeathed.

Election between legal right and rights under a will and on partial intestacy. [New] 115.—(1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right. (b) In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

Provision in satisfaction of legal right.

116.—(1) Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other than periodical payments made for her maintenance during his lifetime) shall be taken as being given in or towards satisfaction of the share as a legal right of the surviving spouse.

Provision for children. [New] 117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

Estate duty. [New]