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1. Thomas Cummins and Kathleen Cummins in the title hereof were husband and wife. Thomas Cummins died on the 2 February 1995. At the time of his death his wife was in a coma. She died later on the same day without having regained consciousness nor without becoming aware that her husband had died. The couple had no children. They both died testate. The wife left a substantial estate, its net value being #370,914.06. That of the husband was considerably greater, amounting to #2,408,211.14.

Since her husband made no provision for his wife by his will, the question arose as to what interest, if any, Kathleen Cummins acquired in her husband's estate under the provisions of Part IX of the Succession Act, 1965 by reason of his death before hers. She had not renounced her rights under that Part in accordance with the provisions of s 113 nor had she been disentitled to succeed by virtue of the provisions of Part X of the Act.

A residuary legatee of her estate claimed that her estate included the legal right under s 111 of the Act. Accordingly, her executors commenced these proceedings in which they sought for the determination of the following question:

"Whether by virtue of the death of her husband Thomas Cummins, Kathleen Cummins acquired a half share in the estate of her husband."?

This appeal raises a net issue, whether the right given by s 111 of the Succession Act, 1965 creates an interest in the property comprising the appropriate share in the estate of a deceased or merely a right personal to the widowed spouse to elect to take such interest. Part IX of the Act gives to a widowed spouse a right to share in the estate of the deceased spouse notwithstanding testamentary disposition to the contrary. S 109 provides as follows:

"(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."

Section 111 is as follows:

"(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate."

The question which arises is as to the meaning to be given to the words "shall have a right to". It is not just a question of construing the word "right" in the context in which it is used because in s 112 "the right of a spouse under section 111 is to be known as a "legal right". This expression is defined in s 3 of the Act as meaning "the right of a spouse under s 111 to a share in the estate of a deceased person". "Share" in relation to the estate of a deceased is also defined in s 3 as including "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".

From these definitions, two matters are clear. First, the surviving spouse has a right to a share in the estate, and secondly, this right has the same quality as an interest arising under a will or a share arising on intestacy. The two latter interests vest on death. In my view, the former does so also.

A similar view has been expressed by Walsh J in In re Urquhart [1974] IR 197 at p 211. Having considered several sections in Part IX of the Act he continued:

"In my opinion, the whole of this structure presupposes and is based on an assumption implicit in the statute, in addition to what is expressly stated in s 111, that a legal right arises on the moment of the death of the testator. Where there is no legacy or devise or where there is a legacy or a devise expressed to be in addition to the legal share, the legal share vests upon the death. But when a testator in his will makes a devise or bequest to a spouse and it is not expressed to be in addition to the share as a legal right, then the spouse has a statutory right to take the share as a legal right -- but that share does not vest until he takes it. If the spouse does not take the share as a legal right, then the legacy or devise under the will which vested in the spouse at the death of the testator will remain vested in the spouse without his taking any step in relation to it. The spouse can never have both."

In In re Urquhart a husband survived his wife by a day and the question which arose was whether or not the legal right arising on the death of the wife became part of the husband's estate. In that case a legacy had been left to the husband in the wife's will but had lapsed because the husband had not survived her by the time prescribed by the will. Accordingly, the question of election under the provisions of s 115 arose as did also the question of tax law as to whether or not a husband was competent to dispose of the particular interest. These considerations do not arise in the present case and it seems to me that the appropriate statement to take from the judgments in that case is that which I have referred and which relates to a construction of Part IX in general.

Even if I did not take the view as to the proper construction of the section from the provisions to which I have referred it seems to me that the absence of any procedure whereby the surviving spouse could be notified of the right and given the opportunity to exercise it would have been fatal to the plaintiffs' contentions.

It is true that the interest of a spouse on intestacy is expressed in different terms. But the concept of the legal right deals with an estate all or part of which my have been left by will away from the spouse. This requires special treatment and is particularly recognised by the provisions of s 112 of The Succession Act 1965 which give priority to the interest of the spouse over those created by the will.

In my view it is not appropriate to submit that to construe s 111 as creating a vested interest is to frustrate the intentions of either or both of the deceased and the surviving spouse. The situation in the instant case arises through misfortune, but the legal result is not so dependent. It must be presumed that in the absence of a renunciation under s 113 that both spouses realised that the survivor of them would be entitled to the legal right and, even accepting that this was an interest conditional on acceptance, so could distribute the relevant assets as he or she wished. It is important that the law should be certain so that those who rely upon it when they make their wills should be in no doubt as to how their assets will be distributed not only in expected circumstances but in unexpected circumstances also.

There will be an order allowing the appeal, and the question posed in the special summons will be answered in the affirmative.