News

International Lawyers Network Shortlisted as Global Network of the Year by “The Lawyer” for Second Year

ILN_640The International Lawyers Network has been shortlisted as Global Network of the Year by “The Lawyer” for a second year in a row.

The winners of this category will be announced at The Lawyer European Awards 2017 at a ceremony at Grange St. Paul in London, England on Thursday, March 16, 2017. This is only the second year the category for Global Network of the Year has been included for consideration in the awards.

Judges in this category examine evidence of strategic vision, with particular focus on cross-border initiatives, consistent excellence in the delivery of legal services and outstanding talent management, in evaluating the submissions.

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Supreme Court Set To Resolve Class Action Waiver Dispute

Supreme Court Set To Resolve Class Action Waiver DisputeOn January 13, 2017, the United States Supreme Court granted certiorari to hear three cases involving the enforceability of arbitration agreements that contain class action waivers.

Whether such agreements are enforceable has been a hotly contested issue for several years now, particularly in cases involving wage-hour disputes.

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Ambiguous Wills and Evidence

Recent case law re-iterates the requirements for the admissibility of extrinsic evidence to determine the intention of the deceased where there is ambiguity in a will.

Background

The making of a will is an important legal task but unfortunately it can often be left to the last minute, approached with haste and without due consideration. The primary purpose of a will is a definitive statement regarding the distribution of a person’s assets on their death. It therefore needs to be clear, concise, definitive and unambiguous.

The legal personal representative is obliged to administer the estate, in accordance with the terms of the will. Where terms are ambiguous court intervention may be required.

When a court is asked to intervene in the interpretation of specific clause(s) in a will, the primary duty of the court is to give effect to the intention of the testator as can be ascertained from the terms of the will. The will is often read as a whole so therefore the general intention overrides the particular one. There is great distinction however between rewriting a will, which a court cannot do, and making alterations, which they can do, so as to ensure the will is consistent with the testator’s intention.

The legislation

Where there is an ambiguity in a will and extrinsic (external) evidence will assist in the construction of the will and show the deceased’s intention, Section 90 of the Succession Act 1965 is used as a guide. Section 90 sets out in what circumstances extrinsic evidence is admissible. If a will cannot be construed from its own meaning then outside evidence can be adduced, but only if:-

a) There is a contradiction or an ambiguity in the will
b) Its admission will assist in gleaning the intention of the deceased and assist in the construction of the will.

Case Law

Wills should be clear and definitive. Examples of bequests which have been held to be void for uncertainty include a bequest of “some of my best linen”, and “a handsome gratuity to be given”. These bequests all lacked substance and certainty.

In the case of Bennett v Bennett the deceased gave his farm to his wife for life, with the remainder to his nephew “Denis Bennett”. The deceased had no nephew called Denis Bennett, but did have a brother named Denis, and a nephew named William Bennett. In this case extrinsic evidence was admissible to show that William Bennett was the intended beneficiary.

A recent case involving a home-made will of Dr. John O’ Donoghue was so entirely devoid of certainty, that the entire will failed resulting in an intestacy (where the deceased is treated as having made no will and legislation, the intestacy rules, are applied to distribute any estate). The court viewed the will as the perfect illustration of how a person should not make a will. The will was perfectly valid in its execution, but the terms of the will were utterly unclear and incapable of interpretation.

The terms of the will were as follows:-

I leave all my worldly possessions to Josie O’ Donoghue, my mother, to be divided equally and fairly between my family, with special care (&) extra help to be given to Mary O’ Donoghue, my sister. Also gifts of money to be given to Olivia (&) family & Marian O’Brien. Smaller gifts to Downey, Ethel, Sheila & Pat O’ Brien Laurie Johnston, Ellen Wingard, Deirdre O’ Dongohue.

As the will failed all of the named beneficiaries failed to inherit anything! This startling outcome reinforces that a will must be clearly and unambiguously drafted.

In the matter of the will of Evelyn Tomlinson, a specific bequest was made in the will to the National Society of the Prevention of Cruelty of Animals (Dogs and Cats Home), 1 Grand Canal, Quay, Dublin. However there was no such entity in existence. There were however two bodies, namely the Dublin Society for the Prevention of Cruelty to Animals and the Irish Society for the Prevention of Cruelty to Animals. The court allowed the admissibility of extrinsic evidence as a clear ambiguity existed and there was a legitimate dispute as to the meaning of the effect of the language used in the will. Extrinsic evidence showed that the deceased subscribed to the Dublin Society, and the Dublin Society owned the premises at 1 Grand Canal Quay, and operated the Dogs and Cats Home from that premises, before it moved elsewhere. On the balance of probabilities, the court leaned towards the Dublin Society for the prevention of Cruelty to Animals as the intended beneficiary.

Recent Case Law

In the case of Maureen Black v Anne Sullivan Centre Ltd, Our Lady’s Hospice and Family Solidarity Ltd (2016) the deceased in her will left an apartment at 41 Block C, Sydney Parade Avenue, Sandymount, Dublin 4 to:-

Rosemary Black (daughter of my niece Maureen Black of 51 Beechpark Ave, Castleknock, Dublin 15).

The difficulty arose as Maureen Black had no daughter Rosemary Black. She did have a daughter named Barbara Black and indeed that name was used in further sections of the will, not related to this specific bequest. Extrinsic evidence was admissible to show that Barbara Black had spent considerable time in the company of the deceased, and had built up a strong rapport and relationship with the deceased over many years and that she was the intended beneficiary.

Had the bequest failed to take effect, then it would have fallen into the residue of the estate and benefited the charitable recipients of the residuary estate. Clearly this was not the intent of the deceased, in that she wished to benefit one of the daughters of Maureen Black, and external evidence was admissible to explain the ambiguity and to clarify the intention of the deceased.

Summary

There is clear case-law to suggest courts lean towards testacy (applying the terms of a will), but not so far as to rewrite a will. Clearly it is advisable to be clear, definitive in the terms of your will, and to use plain and simple language. When describing assets and beneficiaries it is better to over-emphasise their description. In describing a beneficiary such as niece or nephew it is best to state the name and then the relationship with the brother or sister of the deceased, for example: Joe Bloggs (son of my brother David Bloggs) – lest there are more than one nephews by that name.

Applications for extrinsic evidence to be considered have cost implications for the estate so it is prudent to ensure the will is correct and unambiguous in the first instance so that such applications are unnecessary.

The post Ambiguous Wills and Evidence appeared first on Holmes O’Malley Sexton Solicitors.

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Governor Andrew D. Cuomo Introduces Employee Protective Mandates in New York State

Our colleagues Judah L. Rosenblatt, Jeffrey H. Ruzal, and Susan Gross Sholinsky, at Epstein Becker Green, have a post on the Hospitality Labor and Employment Law Blog that will be of interest to many of our readers in the health care industry: “Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York.”

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Lidings’ Partner Dmitry Gravin Joins The European Criminal Bar Association

Head of the Lidings’ criminal defense practice Dmitry Gravin has joined The European Criminal Bar Association (ECBA) becoming the only member in the network representing the Russian capital.

ECBA is an association of the European criminal defense lawyers – the leading advocates from over 40 countries specializing in criminal defense.  The primary purpose of ECBA is to support development of the criminal defense legislation in Europe, promoting the fundamental rights of persons under criminal investigation, suspects, accused and convicted persons in international criminal defense cases.

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Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York

Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal pay protection in New York State. The Governor’s actions are seen by many as an alternative to employer-focused federal policies anticipated once President-elect Donald J. Trump (R) takes office.

Legislative Proposals

According to the Governor’s Press Release, the Governor will seek to amend State law to hold the top 10 members of out-of-state limited liability companies (“LLC”) personally financially liable for unsatisfied judgments for unpaid wages. This law already exists with respect to in-state and out-of-state corporations, as well as in-state LLCs. The Governor is also seeking to empower the Labor Commissioner to pursue judgments against the top 10 owners of any corporations or domestic or foreign LLCs for wage liabilities on behalf of workers with unpaid wage claims.

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Howard & Howard welcomes H. William Burdett, Jr.

Royal Oak, Michigan, January 12, 2017: Howard & Howard Attorneys PLLC is pleased to announce that H. William Burdett, Jr. has joined the firm. He will practice out of the firm’s Royal Oak office.

Mr. Burdett concentrates his practice in commercial, probate, and free speech litigation in Michigan and across the country. He has tailored his practice to meet the needs of his diverse clientele. Be it private arbitration in Detroit, New York, Washington, D.C., or Chicago, high-stakes emergency injunctive actions to protect confidential trade secrets, or precedent-setting appellate cases, Mr. Burdett understands the impact of a strong litigation strategy in obtaining the best business results for his clients.

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Separability of Arbitration Clauses in Insurance Contracts in Ireland

Do such clauses survive if the contract is rendered void ab initio?

The issue of whether an arbitration clause in an insurance contract survives notwithstanding the fact that the contract itself is void ab initio is one which has exercised the courts in Ireland, and indeed England and Wales, for some time. While the Supreme Court in Ireland in 1995 appeared to hold that such arbitration clauses cannot be relied upon where the underlying contract has been deemed void or invalid, subsequent High Court cases and legislation enacted in 2010 appear to have established to the contrary and embedded what is known as the doctrine of separability into Irish law.

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‘Toxic’ survivorship clauses: does your Will contain one?

 

Do you have a survivorship clause in your Will?  Chances are you do, if you leave assets to someone outright in your Will.  The mischief that these clauses are designed to avoid is this.  If A gives a gift to B in his Will and B dies the day after A, B’s estate will get the gift and it will be B’s Will that decides where A’s gift ends up.  However, in these circumstances, A may have wanted someone else to get the gift instead (A may not like B’s choice of heirs!).  Survivorship clauses are meant to solve this problem.  They also prevent the delay associated with the same money being administered through two separate estates and can reduce the total Inheritance Tax bill on both estates. 
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Case update: Thorn v Kelly [2016] NSWSC 1748 (9 December 2016)

Mr Ross Monteleone suffered injuries in a work related incident on 15 March 2014 during his employment with William Andrew, William Richard, and Margaret Kelly (Kelly parties).  At the time, Mr Andrew Thorn and Thorn Transport Pty Ltd (Thorn parties) were contracted to deliver the 800 merino sheep purchased by the Kelly parties to their property at Rugby.

In the course of unloading the sheep, the Thorn parties allegedly released a ramp suspended from the deck above where Mr Monteleone was unloading the sheep, without any warning to Mr Monteleone.  In turn, the ramp struck Mr Monteleone and he suffered a number of physical injuries.

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