1. What are the main rights in rem arising from successions in your system?
Rights in property situated in Ireland arising on succession are determined according to law i.e. under the Succession Act, 1965. Rights may arise either by will where a property is devised in accordance with the wishes of the testator and may be subject to certain other rights, for example, the statutory right of a spouse or civil partner to a statutory share.
Where a deceased dies without leaving a will, property is administered in accordance with the rules on shares arising on intestacy as set out in the 1965 Act. For example, X dies without a will and was married/civil partner and had 3 children.
The spouse/civil partner is entitled to a two third share and the children to a one third share divided in three (one ninth share each) in the net assets of the deceased. If the deceased had property, and it is registered land, in order to change the register a Grant of Probate is extracted in court and a personal representative or executor is appointed who will have the power to deal with the deceased’s estate and distribute in accordance with succession law.
For registered land, as stated above, an application is made by the personal representative to vest the property in those entitled under succession law in the appropriate form, or where the property is sold in the course of administration in the estate of the deceased, an application in the appropriate form of transfer is lodged.
Registration of Title Acts and Rules do not allow the Property Registration Authority to look behind the Grant of Probate and once lodged to support a registration i.e. to show who has the power to administer, will register as per the forms lodged.
2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?
In order to adapt the certificate into Irish law, changes in legislation are required. Currently, it is not possible to make any changes to the Register in respect of ownership of legal rights in land arising on succession in the absence of a Grant of Probate issued through the Irish courts system.
In the event that Irish law is changed to allow for acceptance of a Certificate of Succession, changes to Land Registration Rules would be required to be made by the Rules Committee of the Property Registration Authority.
- Imagine you receive a request for the registration of a foreign European Certificate of Succession. It follows from this Certificate that one of the heirs is entitled to a right that is not part of your national numerus clausus. How do you approach this problem?