In the matter of the estate of Thomas Cummins deceased and in the matter of the estate of Kathleen Cummins deceased.

John O'Dwyer and Gerard Charleton (plaintiffs) v Thomas Keegan, William Cummins, Patrick Cummins Senior, Michael Cummins, Patrick Cummins Junior and Kathleen Moreley (defendants).

Succession - Statute - Interpretation Death of spouse - Surviving spouse's statutory right to one half of spouse's estate - Whether right operates to vest one half of estate in estate of surviving spouse - Whether surviving spouse required expressly to exercise statutory right - Succession Act 1965 (No 27), section 111(1).

The High Court (before Mr Justice Kelly); judgment delivered 12 July 1996.

Section 111(1) of the Succession Act 1965, which confers upon a surviving spouse, with no children, a right to one half of the deceased spouse's estate confers a right which the surviving spouse must explicitly exercise and does not operate to vest automatically one half of the deceased's estate in that of the surviving spouse.

Mr Justice Kelly so held in answering a question of law brought before the court by the executors of the estate of Thomas Cummins whose wife, Kathleen Cummins, had died before renouncing or choosing to exercise her right, pursuant to section 111(1) of the Succession Act 1965, to one half of her deceased husband's estate.

Brian McGovern SC and Senan Allen BL for the plaintiff; Mary Finlay SC and Brian Spierin BL for the first defendant; Paul Callan SC and Oonagh McCrann BL for the second, third, fourth, fifth and sixth defendants.

MR JUSTICE KELLY, in outlining the facts of the case, said that Thomas Cummins had died in February 1995, and that his wife, Kathleen Cummins, who had been in a coma at the time of his death, died some twelve hours later. Each of the deceaseds had died testate and Thomas had made no provision for his wife in his will; there were no children of the marriage. At no stage had Kathleen Cummins renounced in the appropriate fashion her legal right share in her husband's estate, nor was there any statutory mechanism to preclude her from taking her appropriate share in her husband's estate.

In those circumstances, Mr Justice Kelly said that Kathleen Cummins' entitlements on the death of her husband fell to be decided by reference to section 111(1) of the Succession Act 1965, which provides: "If the testator leaves a spouse and no children, the spouse shall have a right to one half of the estate." Mr Justice Kelly said that he proposed to decide the matter by applying the ordinary established canons of construction to the provision.

The purpose of the canons was to establish the intention of the legislature by looking primarily to the words used and, where they are unambiguous, to apply the words as they stand. Mr Justice Kelly said that the word "right" contained in section 111(1) meant that the recipient was conferred with a right protected by law but that it was up to the recipient to choose whether or not to exercise that right. Accordingly, should the recipient fail to exercise the right, it might be lost.

Mr Justice Kelly said that the Succession Act 1965 had introduced a certain curtailment in the absolute freedom of a testator to dispose of his property as he saw fit. Section 111(1) of the Act operated in circumstances where there existed a lawful marriage between the spouses. It may be that spouses, while both are still alive, would make perfectly adequate arrangements between themselves as to the disposal of property in the event of the death of one or other of them and, in such a case, the surviving spouse might choose not to interfere with a spouse's will notwithstanding his or her rights under the Act of 1965. Alternatively, where a marriage has not been happy, a surviving spouse may choose to exercise a right under section 111(1) of the Act. Mr Justice Kelly said that by construing the subsection as conferring a personal right capable of being exercised at the discretion of the surviving spouse, the purpose of the provision was achieved with the minimum of interference with one's testamentary freedom. Any other interpretation led to the possibility of the automatic transfer of one half of a deceased's estate even where the surviving spouse did not wish to interfere with the wishes of the deceased.

Turning to the cases which had been cited by counsel in argument, Mr Justice Kelly said that he believed that they supported his view that section 111(1) of the Act did not give rise to an automatic transfer of one half of Thomas Cummins' estate to Kathleen Cummins.

The case of In Re Urquhart [1974] IR 197 concerned a bequest made by a wife to her husband on condition that he survive her by one month. As it happened, her husband survived her by just one day and had died before he could make an election under section 115 of the Act of 1965 which entitles a surviving spouse to elect either to take under a devise or bequest or to take under a legal right. Accordingly, the husband's estate did not benefit either by way of the bequest or by way of his legal right share under section 111(1). Mr Justice Kelly said that this case was of little assistance to the resolution of the instant proceedings; it had been concerned with the construction of section 115 of the Act and a spouse's right of election thereunder. To the extent that that the judgments in that case did refer to the operation of section 111(1) of the Act they did so accurately, in the view of Mr Justice Kelly, where they described the right given to a surviving spouse under the sub section as "at best ... a statutory offer which is not binding upon the surviving spouse until it is accepted."

Noting that section 113 of the Act of 1965 allowed a spouse to renounce a legal right share either by way of an ante nuptial agreement or after marriage and during the lifetime of the testator, Mr Justice Kelly said that such a statutory scheme suggested that the right conferred by section 111 was a personal one to be exercised by the surviving spouse. In addition, the right of election of a surviving spouse under section 115 of the Act was a personal right to be exercised at one's choice, further suggesting that this also was the correct interpretation of section 111(1).

Finally Mr Justice Kelly referred to the position which obtained where a spouse died intestate and there were no children of the marriage. By virtue of section 67(1) of the Act of 1965, the surviving spouse "shall take the whole estate". He said that the Oireachtas could have used similar language in section 111(1) but had not done so and referred instead to a spouse's "right" to a one half share of the estate.

Solicitors: Reddy Charlton & McKnight (Dublin) for the plaintiffs; Hooper & Co (Dublin) for the first defendant; McKeown James for the second, third, fourth, fifth and sixth defendants.