| Preface to the Fourth Edition |
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v | |
| Authors |
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vi | |
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xix | |
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xxii | |
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Table of Statutory Instruments |
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xxvii | |
| Introduction |
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xxix | |
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1 Introduction to Will Drafting |
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1 | (7) |
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1.1 The Constituent Elements of a Will, including the Statutory Formalities |
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1 | (5) |
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The role of the solicitor in making a will |
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Of what can a will dispose? |
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Statutory formalities for the making of a will |
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When does a will take effect? |
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1.2 The Basic Elements of a Will |
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6 | (2) |
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2 Basic Elements of a Will and Mutual Wills |
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8 | (40) |
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2.1 Introduction: The Constituent Elements of a Will |
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8 | (1) |
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2.2 Name and Address of the Testator |
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8 | (1) |
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2.3 Revocation of Previous Wills |
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8 | (3) |
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Best practice and common errors |
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2.4 The Appointment of Executors |
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11 | (4) |
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Best practice and common errors |
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2.5 Appointment of Trustees |
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15 | (1) |
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2.6 Appointment of Guardians |
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15 | (1) |
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Best practice and common errors |
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2.7 Provision for Specific or Pecuniary Bequests in the Form of Legacies/Devises |
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16 | (14) |
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Best practice and common errors |
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Section 47: property subject to a charge |
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Distinction between freehold and leasehold in land |
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Identify the property that is the subject of the bequest |
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Summary of the distinction between different types of legacies |
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2.8 The Establishment of a Trust (If Required) |
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30 | (1) |
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30 | (2) |
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Best practice and common errors |
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2.10 Enabling Clauses: Advancement, Appropriation, Apportionment, Charging Clause for Executors/Trustees |
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32 | (4) |
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36 | (4) |
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Power of investment of trustees |
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Power of trustees to purchase assets forming part of the estate |
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Power to borrow and to mortgage |
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Power to trade/run a business |
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40 | (1) |
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2.13 Signature of Testator |
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40 | (1) |
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Best practice and common errors |
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41 | (1) |
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2.15 Signature of Witnesses |
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41 | (1) |
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2.16 Conclusion of Basic Elements |
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42 | (1) |
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Physical condition of will/will printed on single sheets with writing on one side only |
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2.17 Precedent Will Illustrating Basic Components of a Will |
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43 | (2) |
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45 | (3) |
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Application of mutual wills |
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Precedent clause in respect of mutual will |
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3 The Legal Personal Representative |
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48 | (18) |
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3.1 The Role of a Legal Personal Representative |
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48 | (1) |
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3.2 Who Can Be an Executor? |
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48 | (3) |
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Can a family member be an executor? |
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Can there be a professional executor? |
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When can a trust corporation act? |
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Can a person under a disability be an executor? |
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Can a minor be an executor? |
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Can a charitable body be an executor? |
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3.3 How is an Executor Appointed? |
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51 | (1) |
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What is an executor according to tenor? |
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3.4 How Many Executors Can Be Appointed? |
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51 | (1) |
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3.5 Does an Executor Have to Act? |
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51 | (4) |
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Can an executor be removed? |
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3.6 The Role and Duties of an Executor |
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55 | (4) |
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The duties of an executor |
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3.7 How to Advise the Executor of a Ward of Court |
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59 | (1) |
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3.8 The Powers of an Executor |
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59 | (7) |
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Powers of executor conferred by statute |
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What is the difference between the roles of an executor, a trustee and a guardian? |
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Powers conferred on an executor by will |
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4 Will Drafting---The Rights of Spouses/Civil Partners, Cohabitants and Children |
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66 | (50) |
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66 | (2) |
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Taking instructions re spouses, civil partners and cohabitants |
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4.2 Who is a Civil Partner in Ireland? |
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68 | (1) |
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Is a foreign civil partnership recognised? |
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How can a civil partner cease to be a civil partner for succession act purposes? |
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4.3 Spouses'/Civil Partners' Rights |
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69 | (1) |
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4.4 Death 'wholly or partly testate' |
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69 | (1) |
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4.5 The Surviving Spouse/Civil Partner (Legal Right Share) |
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69 | (22) |
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What exactly is the legal right share? |
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How can a surviving spouse/civil partner cease to be considered a surviving spouse/civil partner? |
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Calculating the legal right share |
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The priority of the legal right share |
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Section 114 (bequest in addition to legal right share) |
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What is the effect on the will/administration of the estate of the surviving spouse/civil partner taking his/her legal right share? |
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What choices are open to the surviving surviving spouse/civil partner |
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Limitation periods---enforceability of legal right share |
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What property will the court consider in relation to a surviving spouse's/civil partner's legal right share or a successful application by a child under section 117 or 117(3A)? |
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Section 56--appropriation in favour of a surviving spouse/civil partner of the family home |
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Section 121 of the Succession Act, 1965 |
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91 | (21) |
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What actions can a child take against an estate |
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The tax status of a child |
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Other legislation relating to children which may affect a will |
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To what is a child entitled? |
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112 | (4) |
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Cohabitant versus surviving spouse |
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What is a 'qualified cohabitant'? |
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Cohabitant versus civil partner |
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What provision can be made for a qualified cohabitant on the death of the other? |
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The cohabitant and the legal personal representative |
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Can a cohabitant contract out of the redress scheme under the act? |
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What will the court consider? |
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Can a cohabitant 'renounce'? |
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Which parties must the cohabitant notify? |
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What is the status of cohabitant agreements signed before the Civil |
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What can a cohabitant receive? |
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Partnership Act Commenced? |
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5 Instructions, Attendance and Execution |
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116 | (30) |
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5.1 The Difference Between Taking Instructions and Drafting an Attendance |
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116 | (1) |
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The distinction between instructions and attendance |
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5.2 Precedent Instruction Sheet for a Will |
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117 | (4) |
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5.3 Taking the Instruction Sheet Section by Section |
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121 | (4) |
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5.4 Taking Instructions in Special Cases |
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125 | (9) |
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hospital or nursing home or psychiatric institution/is a ward of court |
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Taking instructions where the client is ill/in imminent danger of death/in |
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5.5 What is the Absolute Best Practice when Taking Instructions for a Will in Relation to Mental Capacity? |
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134 | (1) |
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134 | (1) |
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5.7 Taking Instructions Regarding an Elderly Beneficiary |
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135 | (1) |
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136 | (1) |
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Attendances regarding instructions |
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Attendance regarding execution |
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5.9 The Solicitor's Duty of Care |
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137 | (9) |
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6 Introduction to Administration of Estates |
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146 | (51) |
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6.1 Introduction and Overview |
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146 | (3) |
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Steps in administering an estate (pre-grant) |
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General notes on administration of estates |
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Overview of chapters 7 to 11 |
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Stages of the administration of an estate |
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Further steps in administering an estate (post-grant) |
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6.2 Immediate Tasks of the Practitioner on Notification |
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149 | (3) |
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Burial directions or other urgent matters |
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Where apparently there is no will |
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6.3 Is It Necessary for the Solicitor to Extract a Grant? |
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152 | (1) |
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6.4 Where a Grant is Always Necessary |
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153 | (1) |
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The estate of a ward of court |
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Where a grant may be necessary even though there are no assets |
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Distinction between personal representatives and trustees |
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6.5 Preparing for the Initial Interview with the Personal Representative |
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154 | (2) |
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Introduction and issues that may arise |
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6.6 Instruction and Progress Sheet |
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156 | (20) |
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General notes on completing the Instruction sheet |
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If the deceased was separated/divorced |
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Foreign assets and debts of the estate |
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6.7 The First Meeting with the Personal Representative |
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176 | (2) |
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Potential beneficiaries Protection of assets |
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6.8 Initial Steps to be Taken after the First Meeting with the Personal Representative |
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178 | (9) |
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Precedent letter (section 68) |
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Opening an executor's/administrator's account |
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Precedent letter giving authority to act (to comply with solicitors' regulations) |
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Letters to establish value of estate |
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6.9 Inland Revenue Affidavit |
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187 | (10) |
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Part 1 general information |
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Part 2 details of the applicants |
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Part 4 property in the estate forming part of the estate |
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Part 5 property outside the state |
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Part 7 schedule of lands and buildings |
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Part 8 summary of benefits |
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7 Introduction to Probate Practice |
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197 | (46) |
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7.1 Probate Practice Background)? |
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197 | (2) |
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Grants of representation generally |
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Contentious and non-contentious probate application |
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Types of grants of representation |
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7.2 Extracting a Grant of Probate |
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199 | (4) |
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When does a grant of probate arise? |
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7.3 Who May Apply for a Grant of Probate? |
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203 | (1) |
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Number of proving executors |
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7.4 Documents/Proofs Required for Grant of Probate |
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203 | (18) |
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Original will (and codicil if applicable) |
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Affidavit of attesting witness or witnesses |
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Certified copy will/engrossment of will (and codicil if any) |
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Affidavit of due execution |
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Affidavit of plight and condition |
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Certified copy of the oath of executor |
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Affidavit of mental or testamentary capacity |
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Probate tax clearance certificate |
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221 | (1) |
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222 | (1) |
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Executor according to tenor |
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Executor under disability: grant to a committee of a ward of court |
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7.7 Other Problems with Wills and Possible Solutions |
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223 | (1) |
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Will in pre-printed standard will form |
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Document referred to in a will/incorporation by reference |
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Original will is missing Application to prove a will in terms of a copy |
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7.8 Precedent Probate Application---John Smyth Deceased( |
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224 | (16) |
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Will dated 10 August 1998 |
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Grant of probate incorporating probate engrossment |
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7.9 Where a Trust Corporation Acts as Executor |
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240 | (1) |
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Oath for executor when executor is a trust corporation (in this case AIB) |
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Resolution of bank board referred to in affidavit |
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7.10 Seat Office Checklist |
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241 | (2) |
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8 Extracting a Grant of Administration with Will Annexed |
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243 | (42) |
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8.1 Notes on Grant of Administration with Will Annexed |
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243 | (1) |
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8.2 Entitlement to Extract the Grant |
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243 | (2) |
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Who is entitled to extract the grant? |
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8.3 What Proofs (Documents) are Required to Apply for the Grant? |
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245 | (7) |
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Oath for administrator with the will annexed |
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Affidavit of market value or certificate of market value |
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8.4 Letters of Administration with Will Annexed Grants Compared with Other |
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252 | |
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Grant of letters of administration intestate |
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4 | (249) |
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253 | (1) |
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8.6 Precedent Application for a Grant of Letters of Administration with Will |
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253 | (25) |
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Certificate of market value |
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Inland Revenue affidavit CA24 (schedule of assets) |
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Form to be completed for the Commissioners of Charitable |
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Oath for administrator with the will |
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Donations and Bequests for Ireland |
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8.7 Simultaneous Deaths (Commorientes)---Section 5 of the Succession Act |
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278 | (3) |
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8.8 Exception to Doctrine of Lapse---Section 98 of the Succession Act |
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281 | (1) |
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Three conditions must be satisfied for section 98 to apply |
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Example of operation of section 98 |
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Distinction between section 98 and section 67 (per stirpes) |
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8.9 Seat Office Checklist---Grant of Administration with Will Annexed |
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282 | (3) |
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9 Extracting a Grant of Administration Intestate |
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285 | (48) |
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285 | (1) |
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9.2 Notes on Establishing Entitlements to Grants |
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285 | (2) |
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The interest is determined at date of death |
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The grant follows the interest |
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9.3 Documents Required when Applying for a Grant of Letters of |
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287 | (5) |
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Oath of administrator intestate |
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Certified copy of the oath of administrator intestate |
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Renunciation on intestacy |
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Affidavit of current market value of land |
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Specimen renunciation on intestacy titles |
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9.4 Order of Entitlement on Intestacy after 1 January 1967 |
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292 | (3) |
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Revocation of grant of administration intestate |
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9.5 Per Stirpes Rule (ie By the Roots) |
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295 | (5) |
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Issue of a deceased are inheriting (section 67(2)-(4)) |
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Where siblings of a deceased are inheriting (section 69(1)) |
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9.6 Relatives of Half-Blood and Step-Relatives (No Blood Relationship) |
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300 | (1) |
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Relatives of half-blood Step-relatives |
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9.7 Ascertainment of Next-of-Kin |
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301 | (4) |
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Chart of degrees of blood relationship |
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Chart of intestate succession for deaths on or after 1 January 1967 |
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9.8 Precedent Administration Intestate Application Documents |
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305 | (17) |
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Letters of administration |
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9.9 Seat Office Checklist---Grant of Administration Intestate |
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322 | (1) |
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9.10 Disclaiming on Intestacy |
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323 | (5) |
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Deeds of disclaimer in general |
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Direct lineal ancestor (eg father, grandfather) disclaiming on intestacy |
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Effect of disclaimers on intestacy prior to 5 May 1997 |
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General operation of section 72A |
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Effect of disclaimers on intestacy after 5 May 1997 |
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Sample deed of disclaimer on intestacy |
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Specimen titles when disclaiming on intestacy |
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Spouse disclaiming on intestacy |
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9.11 Status of Children Born Outside Marriage and Their Property Rights |
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328 | (5) |
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Historical and legal background |
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Remoter relationships than parent-child where the applicant is claiming through a person whose parents have not married each other, eg 'non-marital nephew to uncle |
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Status of Children Act, 1987: Commencement date and effects |
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Deaths intestate before 14 June 1988 Deaths intestate after 14 June 1988 |
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10 Second, and Subsequent Grants (De Bonis Non Grants) |
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333 | (22) |
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10.1 Background and Introduction to De Bonis Non Grants |
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333 | (1) |
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Distinction between de bonis non grants and revocation of grant |
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De bonis non grants and deeds of assent Probate fees |
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10.2 How to Determine What Type of De Bonis Non Grant is Needed |
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334 | (1) |
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Who is entitled to apply for the DBN grant |
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Where to apply for a DBN grant? |
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10.3 Documents/Proofs Required to Extract a De Bonis Non Grant in Either Case |
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335 | (2) |
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Original or primary grant |
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10.4 Proofs Required for Grant of Letters of Administration with Will Annexed |
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337 | (2) |
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Oath for administrator with the will annexed DBN |
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Affidavit of market value |
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Probate engrossment or certified copy will |
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10.5 The Administration Bond De Bonis Non |
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339 | (1) |
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Administration with will-annexed bond de bonis non (for deaths pre-1 June 1959) |
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Administration bond de bonis non (for deaths post-1 January 1967) |
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Administration with will-annexed bond de bonis non (for deaths between 1 June 1959 and 31 December 1966) |
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10.6 Documents Never Required for a Will-Annexed De Bonis Non Grant |
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340 | (1) |
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10.7 Proofs Required for a Grants of Letters of Administration |
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340 | (1) |
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Sample titles administration intestate de bonis non (deaths on or after 1 January 1967) |
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10.8 When is a De Bonis Non Grant Not Required? |
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341 | (1) |
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10.9 Chain of Executorship |
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342 | (1) |
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10.10 Other Second or Subsequent Grants |
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342 | (1) |
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343 | (1) |
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Property Registration Authority titles |
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Problems regarding assents |
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10.12 Precedent-Application Documents for Grant of Letters of Administration |
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344 | (11) |
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Oath for administrator de bonis non |
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Administration bond de bonis non |
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Revenue form A3(C) and CA6 |
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Affidavit of market value |
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Primary grant of administration Intestate |
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Precedent de bonis non grant |
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11 Non-Contentious Applications (Either to the Probate Officer or to the Court) |
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355 | (42) |
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11.1 Practice and Procedure in Respect of Non-Contentious Matters Coming before the Probate Officer |
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355 | (11) |
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Requirements of Probate Office in respect of applications under Order 79 of the Rules of the Superior Courts |
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Powers of the Probate Officer |
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Orders of the Probate Officer pursuant to Order 79 of the Rules of the Superior Courts |
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11.2 Revocation and Amendment of Grants |
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366 | (2) |
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Revoking and cancelling a grant |
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Precedent application to lead to revocation of a grant |
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11.3 Practice and Procedure in Respect of Non-Contentious Probate Matters Coming before the High Court |
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368 | (7) |
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Leave to presume death on information and belief for the purpose of extracting a grant |
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Where such applications are necessary |
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To admit a will to proof by presumption as to due execution |
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Section 27(4) of the Succession Act, 1965 |
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Simultaneous deaths---section 5 of the Succession Act, 1965 |
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Application to prove a will in terms of a copy |
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Applications for a grant limited for a particular purpose or to a particular part of the estate |
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Rival applications for a grant of administration |
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375 | (1) |
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Who may lodge a caveat and what is its effects |
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How may a caveat be lodged? |
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How long does a caveat last? |
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376 | (2) |
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What is a warning and when is it appropriate to use it? |
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What is the effect of the warning? |
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378 | (2) |
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What is the value of a citation? |
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Example of a citation in operation |
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380 | (1) |
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Procedure for obtaining twenty-one-day order from Probate Officer---Order 79, rule 5(3) |
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11.8 Precedent Testamentary Pleadings |
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381 | (6) |
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Citation to introduce and deposit a will and to accept or refuse probate Notice of motion thereof |
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387 | (10) |
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Appendix A Preparation of wills on word processors |
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Appendix C Probate Office fees |
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Appendix D Structure of the Probate Office |
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12 Initial Steps after the Grant has Issued |
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397 | (19) |
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12.1 Introduction and Overview |
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397 | (1) |
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Reread the fife (especially the will) |
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12.2 Further Meeting with the Personal Representative |
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398 | (2) |
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Collection of assets of the estate |
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Surviving spouse/civil partner/qualifying cohabitee---Part IX of the Succession Act, 1965 |
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12.3 Collection of Assets of the Estate |
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400 | (8) |
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Building society/credit union |
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Social welfare old-age pensions |
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Post office savings account, savings certificates and bonds |
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Stocks and shares (transfer and/or sale) |
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12.4 Payment of Liabilities (First Schedule, Parts I and n, Succession Act, 1965) |
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408 | (5) |
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12.5 Steps to Take Prior to Distribution of Assets |
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413 | (3) |
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Protection of representatives |
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Protection of purchasers and creditors |
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Section 49 notice to creditors |
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13 Personal Representatives' Duties---The Rights of Spouses/Civil Partners, Cohabitants and Children |
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416 | (9) |
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416 | (1) |
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13.2 Spouse's/Civil Partner's Legal Right Share |
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417 | (4) |
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Priority of legal right of spouse/civil partner |
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Right to elect between legal right share and bequest under will where the testator died partially intestate |
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Right to elect between legal right share and bequest under will where the testator died wholly testate |
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Distinction between the legal right share and the right to elect |
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13.3 Right of Spouse/Civil Partner to Appropriate Dwellinghouse and Contents |
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421 | (1) |
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Effect of section 56 on disponee of family home |
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422 | (3) |
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Non-marital children and the Status of Children Act, 1987 |
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Section 63: Advancements to children to be brought into account |
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14 Benefits and Beneficiaries |
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425 | (17) |
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425 | (1) |
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425 | (4) |
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Presumption of advancement/resulting trust |
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Taxation consequences of joint property Distinction between real/leasehold property and joint deposits |
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429 | (2) |
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Nominations and the legal right share |
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Non-statutory nominations |
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14.4 Section 72 Policies (Formerly Known as 'Section 60 Policies') |
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431 | (1) |
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431 | (5) |
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Valuation for appropriation purposes |
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436 | (4) |
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Beneficiary under disability |
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14.7 Communication with Beneficiaries |
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440 | (1) |
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14.8 Summary of Guidelines for Dealing with Beneficiaries in Any Estate |
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440 | (2) |
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15 Obligations, Duties and Claims on the Estate |
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442 | (13) |
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442 | (1) |
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'Conditional' undertakings or letters on which a third party might rely |
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Discharge from undertaking |
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443 | (1) |
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Exceptions to the 'executor's year' |
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15.3 Section 339 of the Social Welfare (Consolidation) Act, 2005 (Liability of Personal |
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444 | (2) |
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Obligation on personal representative to inform Minister |
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Personal liability of personal representative |
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15.4 Nursing Home Support Scheme 'Fair Deal' |
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446 | (1) |
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15.5 Statutory Notice to Creditors (Section 49 Notice) |
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447 | (1) |
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Precedent statutory notice to creditors |
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448 | (1) |
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Precedent letter to residuary legatee/intestate successor |
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Precedent receipt and indemnity |
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15.7 Taxation Obligations |
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449 | (6) |
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Income tax clearance Capital gains tax |
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The non principal private residence (NPPR) charge |
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16 Distributing the Estate and Vesting of Property |
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455 | (14) |
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455 | (1) |
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455 | (6) |
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Where the personal representative is also the beneficiary |
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Assent subject to a charge |
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Memorials of assent/application form 1 |
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16.3 Deeds of Family Arrangement |
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461 | (5) |
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Introduction and overview |
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Transactions between spouses/civil partners |
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A deed of family arrangement |
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Precedent deed of family arrangement |
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All voluntary dispositions |
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466 | (3) |
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What is the effect of a disclaimer? |
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What is the effect of disclaimers on the right to extract a grant? |
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469 | (18) |
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17.1 Introduction and Overview |
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469 | (1) |
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17.2 Payment of Legacies: Devises, Bequests, Residue |
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469 | (1) |
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Section 47 (Charges on property) |
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470 | (1) |
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Exceptions to the doctrine of lapse |
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17.4 Partial Intestacy: Where the Residue (or Part of the Residue) Lapses |
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471 | (1) |
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Read the residuary clause carefully |
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Dealing with a partial intestacy |
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472 | (2) |
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17.6 Administration Accounts |
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474 | (6) |
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Purpose and type of accounts |
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Precedent set of administration accounts |
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480 | (4) |
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Actions by the estate to recover land belonging to the deceased |
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Claims by beneficiaries against the estate |
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17.8 Time Limits and Periods of Notice |
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484 | (3) |
| Bibliography |
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487 | (6) |
| Index |
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493 | |
