Legal Aspects of the RTE programme "The Family Silver"

A

ajapale

Moderator
Messages
7,701
I found this documentary facinating and it raises a number of legal issues surrounding inheritance, wills, probate, the role of the solicitor, the executor, the atorney general, charitable beneficiaries etc.
I have split some of the the more interesting posts from another thread RTE: The Family Silver - O'Connells Eyre Sq Galway and copied them here. Please keep this thread for factual discussion of the legal aspects and use the tread in LOS to let off steam and rant against the legal profession etc there.



Lesson #1: Get a solicitor to do up your will.
 
Last edited:
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

Lesson #2: Don't allow a solicitor be an executor of your will. There fees are outrageous.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

ajapale said:
Lesson #1: Get a solicitor to do up your will.
Click to expand...

Too true. I looked at the programme - the signature on the second will was very wobbly as were the signatures of the witnesses. A solicitor would have made sure that they had a medical affidavit confirming the mental health of the Testatrix at the time of the execution of the will.

"Lesson #2: Don't allow a solicitor be an executor of your will. There fees are outrageous. "

The fees in this case had not been ascertained. If you mean, in general do not allow a solicitor to be an executor, that may be true in some but not all cases. In practice, I prefer to advise my clients of all their options when appointing Executors -i.e. should be at least two, preferably younger people that they completely trust. With older people, particularly unmarried, no immediate family, this may not be an option for them. Also, in cases where there will clearly be a huge conflict on death, many Testators prefer to have their Accountant/Solicitor involved as professionals.

In the end, in this case, the will drawn in the solicitors office was the will that stood.

Morals of the story?

1. Everyone should make a will if they have assets and family they wish to provide for.
2. You're better off getting a solicitor to draft and witness it for you.
3. Don't leave it too late.
4. If you are a potential beneficiary, don't count your chickens!

mf
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

Lesson #3: If the legal profession becomes involved in a dispute like this, they'll end up with most of the money.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

The one thing that wasn't clear from the programme last night was if St VdP engaged the solicitors who contested the will or if the solicitors decided to contest the (final) will off there own bat.

That said, if everything had been sorted out at the time of death of the poor lady then there would not have been half as much money to go around. The delay and the drawn out process of deciding who were the legitimate benefactors coincided with the surge in property prices in Ireland generally.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

"Lesson #3: If the legal profession becomes involved in a dispute like this, they'll end up with most of the money."

Excellent(not!), broad, sweeping statement. Clients have disputes and solicitors act for them. I am still astounded at the regularity with which this very basic, simple, concept is forgotten. Clients as well as solicitors can be appallingly difficult. Solicitors will very often do their best to negotiate settlements in these cases but, ya know what, when money comes into it, sense often goes out the window!

As it happens, in this case, the solicitors were the Executors of a Will which was ultimately found to be valid. As Executors, what should they have done? Should they have acted as Judge and Jury and decided that that Will was not valid? Who has the authority to make that decision? There were very serious doubts about the later will. Everything that was said
last night in the programme was screaming dubious/open to question- e.g. it took many years for her to sign the second will, there was no solicitor present, there was no Affidavit of a Medical Practitioner. The family were, at best naive and, at worst, overly persuasive.

And the rules are real simple............make your Will. Make it when you are Compos Mentis. Do not leave the family to pick up the pieces when you're gone.

mf
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

Lesson 4# Choose your exector carefully and discuss it with him/them. Make sure they are happy to do the job and that they don't get an unexpected call from a solicitor after the funeral telling them this duty has been foisted upon them.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

Can somebody explain to me you was the client that instructed the sol to contest the second will?

If, as it seems, the dead person was the client, then what was in it for the sol?

Why bother contesting it? To protect the wishes of your now deceased client?
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

"The one thing that wasn't clear from the programme last night was if St VdP engaged the solicitors who contested the will or if the solicitors decided to contest the (final) will off there own bat. "

I don't think the VdeP would have engaged solicitors at all. Their interests were the same as those of the solicitor-executor, and were further protected by the oversight of the Commissioners for CHaritable donations and bequests.

Unless satisfied that the later 'will' was valid, the solicitor-executor with the valid will had a duty to go ahead and take out a grant of probate of the valid will. The beneficiaries with the later, invalid, will would appear to have contested the solicitor-executor's application for a grant of probate OR perhaps they applied for probate and the solicitor-executor challenged their application - either way, it is much of a much-ness.

If anything, the solicitor-executor would appear to have been overly keen to settle with the family members; I base this on the excerpt where it appears that the brokered settlement was rejected by the AG (acting for the Commissioners for Charitable Donations and Bequests, I assume). This was the only element of the programme to which I paid close attention. Like Clubman, I thought the programme a little turgid

As a solicitor's apprentice in Galway, many years ago, (in an office on Eyre Square as it happens) I well remember the old lady and her eccentrically-run business. It was nice to see some of the Galway people reminisce.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

Hmmm, fair enough.

Though how come the sol didn't appear or speak in the program?

Plus, it seems he has held back 4m of the estate to pay costs, incl. his own fees?

As ever, the only people to win are the sols!!!
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

"Plus, it seems he has held back 4m of the estate to pay costs, incl. his own fees?"

Actually, I saw this bit as well. I seem to recall that the programme makers were specific about how much had been received by the VdeP, but not so specific about how much was actually held by the solicitor (or maybe I missed this).

In probate cases, it is common enough for the court to order costs on all sides to be met out of the estate. If the aggrieved family had to pay their own costs, I imagine that much would have been made of the point that they were left with very little after payment of costs. I don't recall hearing this (though, as I say, I didn't see the whole programme).

I imagine that the solicitor executors held back a large sum to be sure that all costs were well covered. This is prudent and proper conduct by an executor. It would be normal for the executor to make sure he is well covered, so that there would be a final distribution when all costs are in fact discharged. I imagine that the bills will be vetted by the AG's office (or by someone on behalf of the Charitable commissioners), given the high value and profile of the case. Also, it would appear that the pub was sold by the executors (rather than given to the VdeP, to sell themselves) so the Auctioneering costs and legal costs of the sale will also be coming out of the money, not to mention the legal costs associated with the termination of the lease with the man who had run the pub since circa 1989.

That said, I have no doubt that the bill will be very large indeed - as indeed you would expect it to be for a file that was going on for over 10 years, and which included a lot of litigation work.

Legal services are not cheap. While nobody could deny that there are in efficiencies in the legal system, we have seen (with the PRTB fiasco and again with PIAB) what happens when the state attempts to con us into believing that legal services can be delivered on the cheap.

"Though how come the sol didn't appear or speak in the program?"

Were I in the solicitor's position, I certainly wouldn't appear in the programme. The makers of TV programmes are always working an angle and 'solicitor does his best and delivers value for the client' is, frankly, not an angle which puts bums on seats. I am not saying that the solicitor in this case did a great job (I have no idea one way or another) but simply that going on TV is almost always a bad idea for a lawyer.
 
1. Everyone should make a will if they have assets and family they wish to provide for.
Click to expand...

I dont fully agree with this. If it is the case that you intend your assets to go to your next of kin in line with inheritance law, then you are better off not having a will. Remember, if there's no will, it cant be contested. And you dont have to pay legal fees.

In their latter days, my Grandparents were under terrible pressure to get a will. I and some of my siblings advised them strongly against it as their intention was to leave everything to surviving spouse and when survivor passed away, equally amongst their children. Cut out a lot of complications when they did pass away.

Question you should ask yourself is:

Do I intend my estate to follow normal inheritance laws?

If the answer is YES, then dont make a will.

If the answer is NO, then make a will.
 
"Remember, if there's no will, it cant be contested."

This is a little simplistic. The absence of a will certainly is no guarantee of avoiding later litigation over an estate

"And you dont have to pay legal fees."

Of maybe €50-€100 for a simple will. The cost of making a will is not in any way an obstacle.
 
This is a little simplistic. The absence of a will certainly is no guarantee of avoiding later litigation over an estate
Click to expand...

But it significantly reduces the chances as it is not possible to have a dispute over the validity of a will or over the division of the estate (which follows the rules enshrined in primary legislation).

Why complicate things when you dont have to? I've never seen a convincing argument for having a will where the persons intention is to follow basic inheritance laws.
 
Re: RTE: The Family Silver - O'Connells Eyre Sq Galway

mf1 said:
"Lesson #3: If the legal profession becomes involved in a dispute like this, they'll end up with most of the money."

Excellent(not!), broad, sweeping statement. Clients have disputes and solicitors act for them. I am still astounded at the regularity with which this very basic, simple, concept is forgotten. Clients as well as solicitors can be appallingly difficult. Solicitors will very often do their best to negotiate settlements in these cases but, ya know what, when money comes into it, sense often goes out the window!


mf
Click to expand...

I'll rephrase, legal bills can be very very large. Bear this in mind before you resort to law.
 
"I've never seen a convincing argument for having a will where the persons intention is to follow basic inheritance laws. "

I'm always interested at how profoundly complicated so many of my clients' lives are! Sometimes, what is abundantly straightforward on the surface, becomes very murky when you go looking.

I'm not convinced that most lay people have a good basic understanding of the basic inheritance laws at all ( i.e. no common law spousals benefits, no inheritance rights after divorce, "validity" of church versus state "marriages", absolute confidence of offspring that they are entitled to an inheritance). It is absolutely vital for parents of under age children to make a will - the consequences of not doing so can be horrendous ( although less so now that most family homes are held in joint names).

I have one ghastly time bomb ticking over at the moment where father died having failed to make a will and where one of the grown children suffers very badly with an undiagnosed/untreated mental illness. How he could have left the mess he did, when he could so easily have resolved it is beyond me.

mf
 
Almost any solicitor will draft a will for €50 or €100, and will then offer to store the will in his fireproof safe - there is then a good chance that he will be offered the contract for the legal aspects of the estate.
 
"But it significantly reduces the chances as

it is not possible to have a dispute over the validity of a will " True, there being no will

"or over the division of the estate (which follows the rules enshrined in primary legislation)." False. There are numerous ways to have a dispute over the division of the estate, either with or without a will.
 
"I've never seen a convincing argument for having a will where the persons intention is to follow basic inheritance laws. "

I'm always interested at how profoundly complicated so many of my clients' lives are! Sometimes, what is abundantly straightforward on the surface, becomes very murky when you go looking.

I'm not convinced that most lay people have a good basic understanding of the basic inheritance laws at all ( i.e. no common law spousals benefits, no inheritance rights after divorce, "validity" of church versus state "marriages", absolute confidence of offspring that they are entitled to an inheritance). It is absolutely vital for parents of under age children to make a will - the consequences of not doing so can be horrendous ( although less so now that most family homes are held in joint names).

I have one ghastly time bomb ticking over at the moment where father died having failed to make a will and where one of the grown children suffers very badly with an undiagnosed/untreated mental illness. How he could have left the mess he did, when he could so easily have resolved it is beyond me.
Click to expand...

I think you're quoting the exceptions to try and prove your rule.

Take your bog standard elderly pensioner who's children are all adult and financially independent with no exceptional circumstances (as was case with my grandparents). What benefit is a will to them?

False. There are numerous ways to have a dispute over the division of the estate, either with or without a will.
Click to expand...

The actual quantification of the extent and value of an estate is an entirely different matter to who should inherit it. This argument is a red herring.


Also remember that standard inheritance adapts to changing circumstances like individuals being born or dying and assets being acquired and disposed of. A will doesnt. Just think how often you come across wills which were never updated over the years which maybe include people who are dead, exclude people who joined the family, include the willing of assets no longer owned or that have significantly changed in value. The typical example is the parent who, with the intention of dividing his/her estate evenly between 2 children wills one a house and the other some land. But maybe in recent years, the house has risen in value and so one child gets a better deal and the other is resentful and/or challenges on the basis that they believed their parent wanted an even division (which WAS actually the parents intention).

Anyway - this should probably be put on another thread as we've gone off topic.
 
You must log in or register to reply here.
Back
Top