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GAZETTE
MARCH 1979
BOOK REVIEWS
Brighouse, Short Forms of Wills. 10th Edition by Edward
F. George and Arthur George, 1978. Sweet &
Maxwell, 232 p. £8.75 net.
The task of drafting a will is rarely an easy one. It
cannot be thought of as an isolated matter because
taxation is also an important factor. "Tax planning" has
to be considered and this makes the task more difficult as
the draftsman must keep up to date with tax legislation.
He must, of course, be fully conversant with the Law of
Succession in order to be able to illustrate the restrictions
placed on a testator's freedom of testamentary disposition
and to ensure that the formalities required for making a
will are observed. In that way can the 10th Edition of
Brighouse
make the task easier for Irish lawyers?
There is a helpful introduction of approximately 30
pages (15 pages longer than the introduction in the 9th
Edition) which gives a summary of legislation (including
tax legislation) which must be considered when drafting a
will. The remainder of the book follows what is now the
familiar pattern in
Brighouse:
a variety of clauses and
precedents of wills with the minimum of explanatory
notes and the traditional sections on Wills of Traders and
Wills of Farmers. There is in this edition a new section
entitled "D i s c l a ime rs
and Deeds of Family
Arrangement".
In the U.K. Finance Act 1978 it is provided that where
within two years after a person's death any of the
dispositions (whether by will, under intestacy or
otherwise) of the property comprised in his estate
immediately before his death are varied by an instrument
in writing made by the persons (or any of them) who
benefit or would benefit under the dispositions, the
variation is not a transfer of value and takes effect as if
the variation had been effected by the deceased. The
parties must within six months of the instrument elect by
written notice (which must also be signed by the personal
representatives) to the U.K. Capital Taxes Office that the
variation shall take effect. The editors, having explained
the effect of these provisions in the introduction, comment
that "for the purpose of Capital Transfer Tax the notion
°f a 'family arrangement' has been abandoned. If a will
gives peoperty to the deceased's son he can vary the will
and direct it to his mistress, a trade union or any other
Person or institution". A variation must, therefore, be
contrasted with a disclaimer whereby a legatee refuses a
benefit and does nothing more. The legatee cannot by his
disclaimer direct the benefit elsewhere. What happens to
the benefit is determined by law. Section 13 of our
Capital Acquisitions Tax Act 1976 relates to disclaimers
and provides that the interest disclaimed in accordance
with the terms of the Section does not give rise to any
liability to Capital Acquisition Tax. Section 14 (6) of our
Capital Gains Tax Act 1975 contains a relieving
Provision from Capital Gains Tax concerning deeds of
family arrangement or similar instruments but there is no
corresponding relief in the Capital Acquisitions Tax Act
1976. The U.K. Capital Transfer Tax provisions
(summarised above) according to the editors give "an
°Pportunity to beneficiaries to correct the mistakes or
overcaution of testators or, if we dare say so, their legal
advisers". A beneficiary can, therefore, re-write the
testator's will and, by doing so, save tax. A beneficiary in
Ireland (or a lawyer advising him) is in a less fortunate
position. A testator here should review his will
periodically to enable his legal advisers to take into
account amendments to finance legislation and changes in
the testator's personal circumstances. If this is not done
the consequences could be costly for the beneficiaries.
This is one disadvantage which Irish Lawyers have to
face concerning the drafting of wills vis-a-vis their English
counterparts. Another is that they do not have an up-to-
date precedent book of Irish wills to work with which is
comparable to
Brighouse.
Because of the differences in legislation in the two
countries the most that Irish lawyers can expect to get
from a modern English book of will precedents like
Brighouse
is a set of clauses or precedents which in most
cases will have to be carefully adapted. This is not meant
to suggest, however, that there is any lack of merit in their
book for English lawyers for whom it clearly is primarily
intended.
Hugh M. Fitzpatrick
Textbook of Criminal Law by Glanville Williams. Stevens
& Sons, 1978. 973 pages. Paperback £10.00 net but
available in hardback £16.00 net.
We have here something new in the criminal law textbook
scene. To start with, it is fresh ground for Professor
Glanville Williams of Cambridge and is quite a
compendium in 973 pages. Its most interesting feature,
and one which is immediately apparent, is the question
and answer motif throughout the work. The problems
posed by the questions make for compulsive refuting for
the dedicated inquirer. One wonders if there is not a subtle
rationale in this — by being posed questions which one
hasn't actually thought of, one is subsconsciously made
to feel "why didn't I think of that intelligent question?"
and so is impelled onwards. At the end of each chapter is
a summary which is concise and to the point — for a
student the value of such is obvious. That the book is
"unusual in its layout", as the author avers in the preface,
is thus no idle boast.
To quote the end-note of the book — " a notable feature
is the attention paid to the social, philosophical and
psychological considerations that underlie the law." This
constitutes another unusual feature and something which
adds considerably to the readibility. Typical is the
insertion in the chapter on involuntary manslaughter of
an interesting expose on "killing and die prolongation of
life" (p. 233) which concludes with two questions and
answers which invoke some relevant social philosophy.
Also notable is the critique devoted to many topics —
thus for example in the chapter on rape there is a small-
print section about different procedures in different
jurisdictions and one notes how many of these represent
what the Council for the Status of Women are presently
demanding. Incidentally there are many of these small-
print sections and it is suggested that they can be ignored
in the interest of skip-reading. Be that as it may, not a few
pertinent matters are to be found there.
In the preface the author remarks he has had to omit
dealing with offences such as prostitution, possession of
drugs, offences against the government, and some others.
It is suggested a comprehensive textbook cannot do that.
It is interesting to contrast the section on "the justifica-
tion of punishment" with its equivalent in O'Siochain's
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