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GAZETTE
DECEMBER 1995
Succession Law in Ireland
By James C. Brady. Published by
Butterworths, 2nd Edition, 1995,
364pp., hardback, IR£45.00.
As a former student of Professor
Brady, I will always remember his
abiding enthusiasm for his subject
matter, his clarity of thought, his
detailed analysis of statute law and
case law, his erudite commentary on
judicial decisions and his call for law
reform, where appropriate.
All these qualities as a lecturer, are in
evidence in his second edition of
"Succession Law in Ireland" which is
essential reading for the general
practitioner or Probate specialist.
This edition contains a very useful
commentary on the decision of the
House of Lords in
White
-v-
Jones
[1995] 1 All ER 691, where the Court
held that solicitors are liable to
compensate legatees where omitted
from a Will which had not been
drafted expeditiously in accordance
with the testator's instructions.
Professor Brady believes this decision
would be followed in Ireland.
Professor Brady also analyses a
decision of
O'Hanlon J.
in
Lynch -v-
Bourke and A.I.B.
[1990] IR1*. The
decision gives a salutary warning to
those who believe that joint accounts
are adequate Will substitutes.
O 'Hanlon J.
applied the doctrine of a
resulting trust in a case where a lady
died having earlier opened a joint
bank account with her niece. The
Judge held the monies in the Joint
bank account belonged to the
deceased lady's estate. However,
while following an earlier Supreme
Court decision,
O'Hanlon J.
disputed
the correctness of that Supreme Court
decision and Professor Brady queries
whether a resulting trust should
operate in the area of joint bank
accounts, if there is no evidence of the
donor intending a resulting trust.
Professor Brady also discusses the
Court of Appeal decision in
Sen -v-
Headley
[1991] Ch 425, where the
Court held that title deeds could be the
subject matter of a
donatio mortis
causa.
He believes that this decision
would be followed in the Irish Courts.
In the area of law reform, the author
discusses the time limit for bringing a
Section 117 application. He says that
there should be some extension of
time allowed, where the child is under
a disability and that this omission
must rank as an oversight which cries
out for amending legislation.
He also strongly supports the Law
Reform Commission Report of the
Hague Convention (LRC36 1991), so
that in general, the law that supports a
person's succession is his nationality
or habitual residence.
In relation to assents, Professor Brady
believes that the wide and unqualified
language of Section 51 of the
Succession Act was intended to
J
protect purchasers irrespective of the
] length of time between the death of
| the owner and the sale of the owner's
property. He queries the correctness of
Irish decisions which held that the
validity of assents could be questioned
twenty years after the death of the
owner without proof that there were
unpaid debts still outstanding.
In summary, any problems regarding
the Succession Act, 1965, which a
practitioner may have, are likely to be
discussed in a clear, analytical and
thorough fashion by Professor Brady
in his book. All the major cases up to
mid 1995, involving the Succession
Act and many English and other
common law cases regarding
Succession Law in general, are also
referred to in detail. As an academic,
Professor Brady is not slow to
criticise the judiciary for certain
decisions and his criticism is always
well reasoned.
This work is a superb example of how
a legal text book should be written
and all practitioners and academics
owe a great debt to Professor Brady
for sharing his erudition with us.
John Costello
* See Supreme Court's decision of
7
November, 1995, which reverses
the High Court decision. This
became available after the Review
was written.
Explorations in Law and
History
Irish Legal History Society
Discourses, 1988 - 1994. By W.N.
Osborough (ed), Dublin, The Irish
Academic Press in association with
The Irish Legal History Society,
1995, xiv + 193pp., hardback,
IR£24.95.
Professor
W.N. Osborough,
Professor
of Law at University College, Dublin
and Joint Secretary of the Irish Legal
History Society in his address at the
inauguration of the Society on
February 12, 1988 told the story of a
workman in a deserted graveyard in
County Down engaged in deepening
the fading letters on an old tombstone,
to preserve a little longer, from total
oblivion, the memory of some obscure
name. The image was most apt.
Law, in the context of the common law
and certain statute law, constitutes a
government of the living by the dead.
Accordingly, we cannot forget the dead
and their influence on our
jurisprudence. A page of history is
often worth many folios of logic.
Professor
Paul Brand,
Judge
A.R. Hart,
Dr.
Colum Kenny
and Mr.
W.D.H.
Sellar,
the contributors to this present
volume - the fourth in the series
published by The Irish Legal History
322