Regions

Liability of directors for debt of the company in India and the Czech Republic

  1. Introduction.

1.1          Under common law rules and equitable principles, director’s duties are largely derived from the law of agency and trusts. Under the law of agency, duties of skill, care and diligence are imposed on directors. On the other hand, law of trusts imposes fiduciary duties on directors. Accordingly, directors are the trustees of the company’s money and property, and also act as agents in the transaction which they enter into on behalf of the company. 

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The Supreme Court of Russia confirmed the possibility of non-recovery clauses in debts restructuring deals

The Judicial board on economic disputes of the Supreme Court delivered ruling on the case № 305-ЭС16-12298, which has resolved the question of the validity of an agreement on recovery refusal.

According to the facts of the case, the overdue debt restructuring agreement regarding of debt on a contractor agreement (“Agreement”) was sign between the parties of partially performed construction contract.

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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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Sudanese sanctions sailing into the sunset

Effective today, January 17, 2017, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) has announced the conditional lifting of 20 years of U.S. sanctions against Sudan.1 This action is occurring in connection with an Executive Order issued by President Barack Obama on January 13, 2017, “Recognizing Positive Actions by the Government of Sudan and Providing for the Revocation of Certain Sudan-Related Sanctions,” as a result of what the administration has deemed “sustained progress” by the Government of Sudan on a variety of fronts, including: a marked reduction in offensive military activity; a pledge to maintain a cessation of hostilities in conflict areas in Sudan; steps toward improving humanitarian access throughout Sudan; and cooperation with the United States on counterterrorism and addressing regional conflicts.2

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Final rule allows more sharing of substance abuse treatment information

The Substance Abuse and Mental Health Services Administration (SAMHSA) of the Department of Health and Human Services recently issued a final rule that will allow more flexibility for sharing patient records relating to substance use disorders.

The final rule amends Title 42 of the Code of Federal Regulations Part 2 (Part 2 Regulations), which governs the confidentiality of substance use disorder records and sets forth more stringent privacy protections than the HIPAA Privacy Rule. The Part 2 Regulations had not been substantively amended since 1987 and therefore did not reflect changes in health care such as the use of electronic health records and integrated care models involving the sharing of information to coordinate care. SAMHSA stated its goal with this final rule is to ensure patients with substance use disorders can benefit from new integrated health care models without fear of putting themselves at risk.

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Stakeholder Agendas in the Washington Transition: 5 Takeaways for Converting Ideas into Technically Effective Proposals

As the transition in Washington moves into high gear this month, it’s not just the new Administration and Congress that are putting in place plans for policy and legislation; stakeholders are busy creating agendas, too.

Many stakeholder agendas will seek to affect how government addresses such prominent health care issues as the Affordable Care Act, Medicare entitlements, fraud-and-abuse policies, FDA user fees, and drug pricing. There will be a myriad of stakeholder ideas, cutting a variety of directions, all framed with an eye to the new political terrain.

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A Student’s Perspective – Eight Tips for Surviving Your First Summer As A Student at RSS

(1)   Always smile and be kind with each person you cross at RSS. You will be surprised how much every single person in the office plays an integral part in the firm’s extended ecosystem. Whether it is a late-night security guard or a bike messenger in the elevator, every individual you see come in and out of the office merits your respect and energy. This applies especially to the office’s amazing team of secretaries and receptionists!

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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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50 Really Is the New 40

The Age Discrimination in Employment Act (“ADEA”) protects individuals who are at least 40 years of age from discrimination in the workplace. As such, the outcome of disparate-impact claims under the ADEA hinges, ordinarily, on whether or not an employer’s facially neutral-policy has a disparate impact on employees who are 40 years of age or older.  On January 10, 2017, the Third Circuit, in Karlo v. Pittsburgh Glass Works, LLC, 2017 BL 6064 (3d Cir. 2017), issued a precedential ruling, holding that disparate impact claims under the ADEA are not limited to comparisons of the impact an employer’s policy has on employees over 40 with the impact to employees under 40. Rather, the Third Circuit found that claims premised on an allegation that an employer’s policy impacted workers over the age of 50 are cognizable under the ADEA even when the policy had no disparate impact when employees in their forties were considered.

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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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