Survival of Actions on Death….

Survival of Actions on Death….

Do legal actions and claims survive the death of a Plaintiff or prospective Plaintiff? Can such claims/actions be maintained or initiated subsequent to the death of the intended Defendant?


Prior to 1961 when an individual died (“the Deceased”) any cause of action in civil cases ended upon his/her death. The Civil Liability Act 1961 reformed this area and since then certain causes of action survive for the benefit of the Deceased’s estate i.e., assets owned by the Deceased as at the date of death (“the Estate”). In practical terms this resulted in the Deceased’s personal representative being able to sue and be sued, with some limits applied. Such limited or excluded causes of action (referred to in the legislation and case law as “excepted causes of action”) which do not survive death include breaches of promise to marry, seduction, inducing one’s spouse to stay or leave or criminal conversation. Defamation was also excluded until the introduction of the Defamation Act 2009.

The Personal Representative

Civil actions, which are not in the list of exceptions, survive for the benefit of the Estate. The personal representative of the Estate becomes responsible for actions on behalf of (or against) the Estate under s.48 Succession Act 1965. As such, it is required that a Grant of Probate (if the Deceased died testate), or Letters of Administration (if the Deceased died intestate) are taken out to enable proceedings to be issued or defended on behalf of the Estate.

Claims on Behalf of the Estate

Where a personal representative of an Estate takes an action against a third party, the damages which are recoverable for the benefit of the Estate are limited. For example, the personal representative can take an action seeking damages on foot of a defamatory statement made by an individual against the Deceased and can recover damages where financial loss was suffered by the Deceased as a consequence of the defamatory statement. However, certain damages will not be awarded by the courts and therefore the Estate will not be successful in a claim for damages which fall into the following categories;

  • exemplary damages, which are generally awarded only in limited circumstances where a wrongdoer’s actions are particularly aggravated;
  • pain and suffering;
  • personal injury;
  • loss of or diminution of life expectancy or happiness.

These exclusions are listed in Section 7 of the Civil Liabilities Act 1961 and are describes as “excepted causes of action”.

Recent Case

The 2016 case of Doyle (As Per. Rep. Of the Estate of Bridget Doyle, Deceased) v Dunne [2016] IESC 68 is a recent example of the limitation of damages being upheld by the Supreme Court and provides useful commentary from as to the rationale for these exclusions.

The Plaintiff, Mr. Doyle, cared for his mother who was in ill health since suffering a brain haemorrhage in 1996 up until the time of her passing in July 2014. In 2010, Mrs. Doyle underwent a surgical procedure to remove cataracts and suffered complications in surgery. Arising out of these complications, Mrs. Doyle brought legal proceedings seeking damages for personal injury on the basis that those in charge of her treatment acted negligently.

For technical legal reasons, Mrs. Doyle’s case was ultimately dismissed. Due to Mrs. Doyle’s ill health she was unable to appeal the dismissal herself. As her son and next-of-kin, Mr. Doyle, acting on behalf of his mother, appealed the dismissal his mother’s action to the Supreme Court. Unfortunately, Mrs. Doyle died before the conclusion of this hearing and the Estate was not awarded any compensation on her behalf.

The Supreme Court upheld the arguments of the Defendant that the relevant provisions under the Civil Liability Act were designed to uphold the compensatory nature of personal injuries and not to afford a windfall to the Estate. The Supreme Court emphasised that as the Deceased was dead, damages for the personal injury of the Deceased could not be awarded to the Estate in line with the Civil Liability Act. It was held that damages for pain and suffering could only be claimed by the individual who experienced the injury for which compensation was sought and the Estate could not claim for the suffering of another person i.e. the Deceased.

This case confirms that the provisions of Section 7 of the Civil Liability Act continue to apply.

Claims Against the Estate

The personal representative of an Estate can also be sued by someone who decides to take an action against the Estate, but not an action based on the “excepted causes of action” listed above. Any loss or damage suffered by the Deceased under these headings will be deemed by the court have occurred before the death of the deceased and therefore not eligible for an award in favour of the Estate.

In order to make a claim against an estate, legal proceedings must be issued within a specific time limit. Proceedings must be commenced within the relevant period under the Statute of Limitations 1957 i.e., i) prior to the death of the Deceased or ii) within a period of two years after the death occurs. Failure to adhere to these time limits will result in the prospective plaintiff’s inability to take action against an Estate.

Wrongful Death

A claim can be taken on behalf of the Estate in circumstances where the death was caused by a tortious action, on foot of which the Deceased could have sued had they not died. This is known as “wrongful death” and is actionable under Part IV of the Civil Liability Act 1961. Only one action in respect of wrongful death can be taken and is for the benefit of all or any close family members, known as dependants, as its purpose is to compensate the family. Dependants include the spouse, children (including step children), parents, grandparents, grandchildren, and siblings (including half-siblings).

This action should be taken by the personal representative. If after six months of the Deceased’s death no Grant of Probate or Letters of Administration have issued and there are therefore no personal representatives legally entitled to issue such proceedings, any dependant can take the action. The action must however be commenced within three years following the Deceased’s death.

Damages/Compensation Payable on Foot of Wrongful Death

There are three types of damages which may be awarded under a wrongful death action;

  1. Special damages including funeral and other expenses, legal costs etc;
  2. Compensation as solace for suffering, loss or injured feelings i.e., reasonable mental distress but not physical suffering (called a “solatium” in legal jargon). Compensation under this category is capped at €35,000 and divided between all of the Deceased’s dependants, regardless of the number of dependants;
  3. Financial loss caused by the death of the Deceased such as prospective income and other benefits due to him/her prior to death.

The court will not take into consideration and will ignore the proceeds of insurance policies or pensions payable upon death when calculating the amount of damages under a wrongful death action.

If you would like any further information and legal advice in relation to the above issues, please contact Sharon Scally at, telephone 01 213 5940 or your usual contact at Amorys.

Extracting a Grant of Probate in Ireland from Abroad

If you have been appointed executor in a Will of a deceased person who had property in Ireland and you live abroad below are some things you will need to do before extracting a Grant of Probate in Ireland, if required.

  1. Obtain the original Will

First of all, in order to extract a grant of probate in Ireland, you will need the original will.  As is frequently the case, a deceased may die leaving assets in multiple jurisdictions but might have only one Will dealing with assets worldwide.  In such a situation you will more than likely need to first apply for a grant of probate (or equivalent thereto) in the country with which the deceased had the most permanent connection, usually called the ‘country of domicle’ but it could also be called the country in which the deceased was ‘habitually resident’ if s/he had a connection to those member states of the EU which had subscribed to the EU Succession Regulation.  The matter of the application of the EU succession regulation to each particular case where a deceased died leaving assets in several jurisdictions will need to be decided on carefully with the benefit of expert legal advice.

  1. Complete a Schedule of Assets of the Deceased

Assuming a grant of probate in Ireland is required, you will need to complete and submit an Inland Revenue Affidavit or a CA24 to the Irish Probate Office with your application for a grant of probate.  The Inland Revenue Affidavit includes a list of all of the assets and liabilities of the deceased in Ireland and elsewhere as of the date of death.  It also seeks information about the beneficiaries and other matters.  This is the document which takes the most time to complete as if there are numerous beneficiaries it can be time-consuming to find the necessary information to complete this document. Guidelines on how to complete this form are available here.

  1. Land/Property in Ireland

In order to complete the Inland Revenue Affidavit you will need to see evidence of the deceased’s interest in land in Ireland.  In Ireland, property is either Registered Land – in which case there exists a document called a ‘folio’ which would have the deceased’s name on it (unless it is held under a trust or is owned by a wholly owned company of the decased), and would constitute conclusive evidence of the deceased’s title – or Unregistered Land – in which case the property will be held under a deed of conveyance, a lease, an assignment (of a leasehold interest) or a deed of assent (this is a deed which records transmission on death).

You should obtain an original or a certified copy of all folios, leases, deeds of conveyance, assignments and assents, where appropriate in respect of each property owned by the Deceased in Ireland as of the date of death.  The information in the relevant documents would be necessary to complete the Inland Revenue Affidavit.

  1. Bank Accounts

 You will need Certificates of Balances as of the date of death in respect of each bank account owned by the deceased in Ireland as of the date of death.  Once you inform the financial institution of the death, after having provided an official death certificate, a Certificate of Balance should issue to you.

  1. You will need an Original or Certified Copy of the Death Certificate or Interim Death Certificate

Apply to obtain a copy of the death certificate by following this link. There is a small charge for the death certificate which is €40 at the time of writing.

If the issue of a death certificate depends on the outcome of a Coroner’s Report, you can apply to the Dublin Coroner’s Office for an interim death certificate.  The interim death certificate should issue free of charge.

  1. Irish Resident Beneficiaries

 In the Inland Revenue Affidavit you will need to state the name, address and PPS Number of each Beneficiary of the estate who is likely to inherit €16,800 or more.  Usually, the beneficiaries are named in the will but other personal information might not be known.  Non-Irish resident beneficiaries might not have PPS Numbers and they may need to apply to the Department of Social Protection for one which could take up to 12 weeks which would delay your application to the Probate Office.  An application for a grant of probate is incomplete without a PPS number for a non-Irish resident beneficiary and will not be accepted.  It is therefore important for you to obtain PPS Numbers of Beneficiaries at the outset where possible.

  1. Non-Irish Resident Beneficiaries – Requirement to Appoint a Practising Solicitor in Ireland

If you as executor are non-Irish resident and you have no co-executors who are, prior to submitting your application to the Probate Office, you will need to appoint a practising solicitor in Ireland to act as a tax collection agent for any capital acquisitions tax arising on inheritances to be received by a non-resident beneficiary – see section 45AA and section 48(10) of Capital Acquisitions Tax Consolidation Act 2003 (as inserted by Finance Act 2010) -.  The solicitor, as tax collection agent, will be secondarily liable to pay inheritance tax on the non-Irish resident beneficiary’s benefit and various procedures to apply before s/he can release the benefit to the beneficiary entitled.

 8.Foreign Assets and Foreign Estate/ Inheritance Tax

 Taxation on death differs from country to country.  Some countries levy a charge on the assets of the estate on death (such as in the United Kingdom) and other countries (including Ireland) levy a tax on inheritances received by beneficiaries. See here for Revenue Outline of inheritance tax in Ireland.

A foreign tax liability should be included in the Inland Revenue Affidavit if it arises on the date of death and if it is charged to the estate.

A common situation is the following: a deceased dies domiciled in Ireland leaving assets both in Ireland and in the United Kingdom.  A tax liability arises on the assets of the estate in the UK on the date of death and interest thereon accrues from 6 months thereafter.  The executor is unable to access funds in the estate either in Ireland or the UK to discharge the UK tax liability because a grant of probate in Ireland (and consequently in the UK) has not yet issued.  Even when an Irish grant of probate has issued, a UK grant of probate is required to access funds there.  Due to the current delays in processing grants of probate in Ireland, it is often the case that grants of probate do not issue within six months of the date of death and interest on late payment of tax in the UK is incurred.  There is at present no way of avoiding liability for payment of interest in this situation.

Whilst it is outside the remit of this article, an executor should be aware that if a tax liability arises both in Ireland and in another jurisdiction in respect of the same asset one of the 74 double taxation agreements between Ireland and 74 other countries (see Revenue Commissioner’s list here ) might operate to relieve a beneficiary of some or all of the burden that arises.

In summary whilst being appointed an executor in a Will is an honour it is not without its responsibilities.  Not only does an executor need to ensure that the Inland Revenue Affidavit is complete s/he then needs to distribute the assets of the estate amongst the beneficiaries according to the terms of the Will which can be difficult in contentious situations. An experienced solicitor in probate matters would assist an executor in corresponding with beneficiaries, various lending institutions and tax authorities to acquire the information necessary to complete the Inland Revenue Affidavit, and would collect and distribute assets of the estate according to the terms of the Will.  A solicitor would assume the role of Irish Resident Agent for inheritance tax purposes if necessary.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Extracting a Grant of Probate in Ireland from Abroad”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

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