The Gazette 1977

MAY-JUNE

GAZETTE

A Solicitor, when taking instructions, should persuade his client to disclose all his assets so that he might advise him of (a) the Wealth Tax and Inheritance Tax implications (b) the provisions of Part 9 of the Succession Act of 1965, and in particular the provisions for the widow and the children as set out in Sections 111 and 117, respectively, of the Succession Act. The usefulness of the Discretionary Trust to avoid the implications of Section 111 of the Succession Act was clearly demonstrated. Mr. Johnston gently reminded us of the doctrine of advancement and the necessity of the Testator taking advancements to children or would-be beneficiaries into account when expressing his intentions in the Will. He told us that a Solicitor should be able to remind his client of his widow's future liability for income tax, and this should be taken into account, particularly in larger estates. The powers of Trustees were fully set out. In advising the clients in the making of Wills, a Solicitor should have a good knowledge of the legal and tax implications of: 1. The making of life interests. 2. The Apportionment Rule. 3. The Rule in Howe v. Dartmouth and Allhusen v. Whittel. 4. Commorientes Clauses. 5. If the Estate is subject to mortgages and charges. 6. The doctrine of advancement. 7. Creation of annuities. 8. Whether or not Banks, individuals or corporations should be Executors or Trustees. 9. The Provisions of the Guardianship of Infants Act in relation to testamentary guardians. 10. Inheritance Tax considerations, especially Sections 22 and 68 (1) (b) of the Capital Acquisitions Tax Act. Mr. Johnston gave some very sound general advice to the practitioner, viz., always have the instructions typed up and kept with the original Will; if the Testator is disinheriting a child, he should make a signed statement indicating why the child is to be disinherited; paragraphs in the Will should be numbered. In the Appendix of the Will, Mr. Johnston included a draft specimen Will, which includes all precedent Clauses recommended by him. Finally, he gave us a list of don'ts:— 1. Don't punctuate the Will. 2. Don't puncture it with a pin or a clip. 3. Don't make extraneous comments. 4. Don't get a trainee typist to type the Will. 5. Don't make interlineations or amendments in the Will, but if they cannot be avoided, refer to them as having been made prior to the execution, in the Attestation Clause. We would recommend that a eopy of this most excellent lecture be always situate in the right-hand drawer of every Solicitor who has occasion to draft Wills. A copy of the lecture can be obtained from the Society's Keeper of Records and Lectures, Norman Spendlove, of Grafton Street, Dublin, on payment of the usual fee. REPORT ON JOINT DISCUSSION GROUP MEETING WITH THE JUNIOR ORGANISATION OF CHARTERED SURVEYORS A meeting arranged by the Society with the Junior Organisation of Chartered Surveyors was held in Buswell's Hotel on Monday, 23rd May at 6 p.m. to discuss the Landlord and Tenant Bill 1977. It had been 86

decided that a representative of both the Legal Profession and of the Chartered Surveyors should deliver a short talk on the Bill by way of introduction and discussion would then be invited from the floor. Mr. Maurice Curran had been asked to represent the Legal Profession and Mr. Sean McDermott to represent the Chartered Surveyors. After the two speakers had been introduced by the Chairman, Mr. Michael Carrigan, Mr. Curran commenced the discussion by detailing the principle changes in the Bill with particular regard to the most recent ministerial amendments. He mentioned that about three-quarters of the amendments suggested by the Incorporated Law Society had in fact been accepted by the Minister but further submissions were to be made. The amendments to the Bill as introduced in the Dail were extensive: the old distinction between proprietary and building leases had gone; Planning Permission was now to include outline Planning Permission; Landlords were prohibited from making a charge for supplying documents or maps to Tenants. Five year rent reviews were to replace seven year rent reviews; the definition of business has been amended from that contained in the Landlord and Tenant Act 1931. Mr. McDermott followed Mr. Curran and analysed the Bill from the standpoint of Surveyors. He was particularly concerned with the definition of Gross Rent in the Bill which he argued was impossible to understand and bound to lead to confusion. He also pointed out that the State Authorities and the Local and Planning Authorities were afforded protections in the Bill which he thought were unnecessary and unfair. A general discussion then followed and particular interest was shown in Section 35 of the Bill which it was argued is open to a lot of criticism in that it effectively permits a Court Order to be ignored and could be unconstitutional. It was also mentioned that many Landlord and Tenant cases are now being frozen in anticipation of an early enactment of the Bill. It is acknowledged that the entire Landlord and Tenant Legislation in recent years had been very pro Tenant and this had created severe hardship for the Landlords in some cases. The meeting, which was very well attended both by Solicitors and Surveyors alike, concluded after it was announced that further meetings would be held later in the year to discuss other topics. DID YOU KNOW? Did you know that under the Local Government (Planning and Development) Regulations 1977 the conversion of a garage for use as part of a dwellinghouse or the addition of a garage to a dwellinghouse is exempted development and that no planning permission is required? This only applies where the conversion of the garage is for use as a utility to the house. If the garage is converted to a shop or to a surgery, planning permission will be required. GUIDELINES - FAMILY LAW Readers' attention is drawn to the Table appearing on p. 61 of the April Gazette giving details of the various organisations which give counselling and assistance on the breakdown of a marriage. It should be noted that the correct address of the Marriage Counselling Service is 24, Grafton Street, Dublin 2. Telephone 01/720341, and that it is not associated with the Church of Ireland, but is an independent body whose services are available to anyone.