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Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
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Experience:  Barrister 17 years experience
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Hello again 1. Under a divorce court order of 2011, in respect

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Hello again

1. Under a divorce court order of 2011, in respect of lands, the court order states in respect of myself and my late ex-husband that the lands are "to be held by the Applicant and Respondent as tenants in common as to 40% to the Applicant and 60% to the Respondent [myself]". Does this mean that I am the joint owner of the lands or would I only be so when I gain title?

2. Would it be correct to describe me as a creditor of my husband's estate?

3. If a caveat is removed can it be replaced later? My son already has a caveat in place (which he is considering removing) but can I also lodge one in my own name simultaneously with his? My intention is to issue the executrix with a citation calling on her to prove or renounce and to lodge the will in the Probate Office. I'm thinking that my citation would have a greater chance of success than if my son were to bring one as he is not a beneficiary in the will.
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.
1. Hello again! To deal with your first question, as and from the date of the order of the divorce court, you are the beneficial owner of 60% of the land. There is no need for a formal registration of title for you to be owner in equity. Registration of title merely means that the legal ownership then accords with the equitable ownership.
2. You are not a creditor of your husband's estate merely because you are beneficial owner of 60% of land you own as tenants in common.
3. A caveat should not be removed if entered. A person entering a caveat can be sued for bad faith should they have incorrectly entered a caveat,, removed it and then entered it again. So either do it or don't!! But don't be entering it and removing it. Be aware that if your son is merely bringing a s.117 action, he has no lawful basis on which to enter a caveat, as his claim merely relates to the distribution of the estate and not the essential validity of the will. You can lodge a caveat but it must relate to a contention that the will is bad and on some grounds. You cannot enter a caveat merely because you want to issue a citation. This is not grounds for doing so.
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Customer: replied 1 year ago.

1. Thanks for that. So am I right in thinking that whether or not his estate is being administered is pretty much irrelevant to the sale of the land itself and that it cannot be used as an excuse to delay sale? The same auctioneer and solicitor are involved in my late ex-husband's estate.


 


2. That's what I thought myself. I had been told that I was essentially his creditor but I found that odd, if I was indeed joint owner of the land. I imagine that gives me considerably more power than a creditor?


 


3. I take your point about removing and then re-entering the caveat. I suppose we're just checking on what can and can't be done. However, do the Rules of the Superior Courts, 1986 (o. 79, r. 54) not say that a caveat must be in place before issuing a citation? I could be wrong, but I remember Spierin and Keating (books on probate practice) saying that there are other grounds for lodging a caveat besides the issue of the validity of the will, including someone wishing to bring a s117 application?

Expert:  Buachaill replied 1 year ago.
1. Yes, administration is irrelevant to issues of sale.
2. Yes, you are better an owner that a creditor of an estate.
3. A caveat does not have to be in place before issuing a citation. And be aware that I acted myself against Brian Spierin SC in a case where this section 117 point came up. There is no lawful basis for entering a caveat when pursuing a section 117 action.
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Customer: replied 1 year ago.

3. Very interesting! But where then does that leave rule 54 of order 79? Does the case law override it?

Expert:  Buachaill replied 1 year ago.
3. I must say that I have never been aware of Order 79, rule 54. If this is the case, then before entering a citation, you will have to enter a caveat for the purposes of citing the executrix. I must congratulate you as you certainly have done your research!
Buachaill, Lawyer
Satisfied Customers: 8516
Experience: Barrister 17 years experience
Buachaill and other Republic of Ireland Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks! Well my son has been doing most of the research on this, just so that we're not completely in the dark.


 


Thanks again for your help and your kind comments.

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