The Gazette 1973

THE SOCIETY

Proceedings of the Council

November

23rd, 1972. The President in the chair,

also present Messrs W. B. Allen, Walter Beatty, Bruce

St. J. Blake, John F. Buckley, John Carrigan, Anthony

E. Collins, Laurence Cullen, Gerard M. Doyle, James

R. C. Green, Gerald Hickey, Christopher Hogan,

Michael P. Houlihan, Nicholas S. Hughes, Thomas

Jackson Junior, John B. Jermyn, Francis J. Lanigan,

John Maher, Eunan McCarron, Patrick McEntee,

Brendan A. McGrath, Senator J. J. Nash, Patrick

Noonan, John C. O'Carroll, Peter E. O'Connell,

Thomas V. O'Connor, William A. Osborne, Peter E.

M. Prentice, David R. Pigot, Mrs. Moya Quinlan,

Robert McD. Taylor, and Ralph J. Walker.

The following was among the business transacted.

Publication of popular legal handbook

A member is the author of a book

You

and

the

Law

which was published in September 1972. Arising out of

the publication of the book he was asked to appear on

a sponsored programme on RTE for interview in con-

nection with matters dealt with in the publication. Due

to ill health he has been obliged to discontinue practice.

In the opinion of the Council there is no professional

objection to publication of the book or to members'

appearing on the RTE programme.

Administration of Estates. Secret Assets. Privilege

X died intestate in Ireland in 1970 and was survived

by his widow and brothers and sisters. For many years

X and his wife were estranged. The deceased's widow

resides in the U.S.A. The deceased's only asset was a

sum of approximately £1,500 on deposit in the Bank of

Ireland. The widow was aware that there was money in

the bank but does not know its whereabouts. The

widow is probably entitled to the money in the bank.

Members were consulted by Y a brother of the deceased

and members and Y both know the bank holding the

accounts. Y instructed members to submit the following

proposal to the widow.

1. She should agree to share the money in the bank

with Y and Y would then take the necessary steps

to obtain a release of the money.

2. The widow should execute a power of attorney

enabling Y to obtain letters of administration.

Member believes that the widow would agree to

these proposals for the reason that failing agreement

she would be unable to ascertain the whereabouts of

the bank account. Members required a direction as to

whether it would be proper to act for their client in

the matter outlined above.

The committee which reported and whose report was

adopted by the Council were unanimous in stating

that it would be improper for member to act in the

manner suggested and directed the Secretary to write

immediately informing him of this fact.

The committee were divided on the question as to

whether it would be proper for members to inform

the bank confidentially of the death of the deceased

and the existence and address of the widow without

the wife's instructions having regard to the fact that

any communications between Y and members were on

a solicitor and client basis. There is authority for the

proposition that communications between solicitor and

client relative to the commission or furtherance of a

crime or fraud do not fall within the professional

privilege and this exception applies as well where the

solicitor is ignorant of criminal or fraudulent purpose

for which his advice is sought as where the solicitor is

a conspirator with the client

(R. v. Cox and Railton,

14 OBD 153).

Will—direction to employ solicitor—attestation

A member acted for a client who is executrix and

universal legatee of a will of a deceased husband. The

will contains a codicil drawn by the solicitor who pre-

pared the will directing the administratrix to instruct

him to take out probate and to administer the estate.

The solicitor himself was one of the witnesses to the

codicil. The Council on a report from a committee

were of the opinion that the direction in the codicil to

employ the particular solicitor is void on two grounds.

One it was witnessed by the solicitor himself. Two

according to Cordery, 6th edition, page 83, a direction

in a will that trustees are to appoint a particular

solicitor does not give them any right to be so employed

longer than the trustees choose.

Sale of registered land part subject to equity note

The Council on a report from a committee decided

to republish the statement in the Society's Gazette, May

1971, page 3, to be printed in the February Gazette.

REGI STERED LAND ONE SALE

WITH SEVERAL T I TLES

(Reprinted from May 1971 Gazette)

Members wrote to the Society stating that he acted

for a client in the sale of property comprised in three

separate folios in the Irish Land Commission. The

examiner in the Land Commission had directed that

the facts be submitted to the Society for a ruling as to

the correct basis of charging costs. The greater portion

of the lands are comprised in a folio which is subect

to equities. The equity note can be cancelled only after

investigating the pre-registration title. The smaller part

is comprised in two folios in one of which there is no

equity note and in the other of which the equity note

can be cancelled under the thirty year registration rule

i.e. Rule 33 L.R.R. 1966. The Council considered

Opinion C 38 and C 40 in the Society's Handbook and

also opinion published in the November 1969 Gazette,

page 54. The Council decided to revoke the decision

published in the November 1969 Gazette. They are of

opinion that where the title to register land is com-

prised in several folios the solicitor for the purchaser is

entitled to treat each folio separately and should appor-

tion the purchase price between the several folios and

the same proportion as the rateable valuation for the

purpose of ascertaining the costs.