There have been significant developments in Probate Practice in recent times. These have fundamental and far–reaching implications for practitioners. The object of this seminar is to highlight such changes and to assess their practical importance in day to day practice.

Chaired by Nuala Casey, Solicitor

The matters to be addressed include the following:

The “Fair Deal Scheme”: Pitfalls for Probate Practitioners
Maria Dillon, Solicitor

The “Fair Deal Scheme” provided for in the Nursing Home Support Scheme Act, 2009 has significant implications for Probate practitioners. A successful application for “ancillary state support” results in the creation of a charging order against the applicant’s property. It is repayable on the occurrence of a “relevant event” most frequently on the death of the applicant. This section of the seminar is will provide a practical guide to the problems and pitfalls which are likely to occur.
  • Who can apply for “ancillary state support” if the applicant has reduced capacity or is unable to complete an application?
  • What are the implications for a person who fails to disclose or makes a mis-statement in relation to the value of assets or income?
  • What events trigger a review or re-valuation of an asset by the HSE?
  • The applicable levy for a principal private dwelling-house
  • Does the principal private dwelling-house cease to be a “relevant asset” if the person has availed of ancillary State Support for three years?
  • What happens if the person sells the principal private dwelling-house before the expiry of the three year period?
  • In what circumstances, will the cap apply to farmlands or businesses?
  • Postponement of house sale: Where the resident who is benefiting from the scheme dies, will the HSE sell the house if it is the only asset but is occupied by another family member?
  • Can the sale of the house be avoided if there are other assets in the estate which can meet the liability?
  • Does the legislation require the Personal Representative to submit a schedule of assets?
  • Can the Personal Representative be held primarily accountable for repayment of “ancillary state support”?
  • What is the time limit within which “ancillary state support” must be repaid?
  • What are “transferred assets”?
The changes to the definition of “transferred assets” introduced by section 7 of the Health (General Practitioner Service) Act 2014
Issues Arising on Registration of Enduring Powers of Attorney
Margaret Walsh, Solicitor

  • The most frequent queries raised by the Registrar as to the content and service of the Enduring Power of Attorney
  • Objections to the proposed Attorney by third parties
  • Attorneys appointed to act jointly or severally and difficulties arising in these respective circumstances
  • A review of recent case law
Taxation Issues: Tips and Traps
Michelle McLoughlin, Solicitor

No one likes to have to pay taxes. However, if taxes must be paid practitioners ought to seek to claim all available reliefs. Taxation should be discussed with clients when they are deciding to make a gift or leave a bequest so that they are aware of the possible taxation implications for the beneficiary. All available reliefs and the related conditions should be considered to ascertain if they can be availed of so that property can be transferred as tax efficiently as possible.
A general overview of the main reliefs and some areas to watch out for:
  • Agricultural relief
    • Can your client meet the asset test?
    • Is your client an active farmer?
    • What triggers a clawback of relief?
  • Business relief
    • What is relevant business property?
    • Is the disponer holding test satisfied?
    • Do shares qualify for business relief?
  • Dwellinghouse relief
  • Post 25 December 2016, do any gifts qualify?
  • What conditions must be satisfied to qualify for dwelling-house relief
  • Claiming a credit for Capital Gains Tax against CAT
    • Why do you need to be careful in the two years post claiming this credit?
  • Transferring property within 3 years of receiving it as a gift – issues to consider
  • Breakup of a fixed trust during the lifetime of the life tenant:
  • Consequences for the remainder person
A Review of Recent Case Law
Mark Tottenham, Barrister-at-Law

  • Claims against the estate of the deceased and the two year limitation period in section 9 of the Civil Liability Act 1961: Can a cause of action accrue without demand being made and thus be regarded as subsisting at the date of death and subject to the limitation period provided for in section 9? : Allied Irish Bank V Pollock
  • Testamentary Capacity: A legal or a medical test? : Laaser V Earls
  • Non- Revocation of an Irish will and four codicils by a subsequent home -made will made in England: Admissibility of extrinsic evidence to “fully understand and construe the testamentary intentions of the testator”: In the Estate of William Joseph Courtney
  • What principles are applied by a court in construing a will where there is a disputed bequest? : Mullen V Mullen
  • Negligence and Breach of duty of an executor in administering an estate: Can an executor be held liable for any devaluation in the lands bequeathed to beneficiaries under a will? Shaughnessy V Shaughnessy
  • The inter-relationship between section 50 of the Succession Act 1965 and the fiduciary duties of personal representatives: What is the extent of the protection for personal representatives in section 50 and when can this be ousted? : Doyle V White 
  • Drafting a will which contains a “provisional or limiting clause”: traps for the unwary:
    Corrigan V Corrigan
  • Where a bequest consists of a fee simple which is “to be automatically determined by the happening of a certain event” must that event be ascertainable from the beginning, precisely and distinctly”? What happens if it is not? : Corrigan V Corrigan