Challenging A Will in Ireland

wills_image In certain circumstances it is possible to go about challenging a will in Ireland. Generally, the law around wills is generally not a contentious area. Sometimes however circumstances arise where a person believes that he/she has not been treated justly in the will or probate process. There are, with the help of their solicitor, options open to such a person. Should the client be a child of the deceased he/she may be entitled to take an action under Section 117 of the Succession Act whereby a child, who believes that proper provision has not been made in the will for him/herself may take an action to remedy the situation. Generally the test which the court will apply is whether the deceased failed in their “moral duty” to provide for the child in the will. When deciding what the “moral duty” is the court may consider several factors including: • The amount left in the will to the child; • The means of the deceased; • The age of the child and financial prospects of that child; • The circumstances of the other children. Probate actions may be brought in either the Circuit Court or High Court. The choice of court depends on the value of the property. The court proceedings are held in camera which means that only those involved in the case are allowed to be in the Court at the time of hearing. This rule is designed to protect their privacy of the parties. Challenging a will can be by the very nature of the action a difficult process. Very often a family member will be on the other side of the challenge. It is therefore advisable to seek legal advice prior to making a decision as to how to proceed. TIP: Time is of the essence- There is a strict 6 month limit for a child of the deceased to issuing proceedings. This 6 month time-limit generally cannot be extended. If you are considering challenging a will or if you have a general legal query; contact us to arrange a consultation.

Employment Appeals Tribunal Award

EAT Logo Full A recent Employment Appeals Tribunal award resulted in a Claimant's compensation being set at €9,300 for unfair dismissal. The Claimant was working in a deli area of a large Retailer. The Retailer had installed covert CCTV as they believed staff were eating food from the deli area. When the Retailer examined the footage, they found that the Claimant had been taking food during her shift and was eating it during the day. The Claimant was called in to a meeting with the management of the Retailer. At that meeting she admitted that she had taken food and was sorry. She was brought in to a further meeting after which she was dismissed. However, the Tribunal was critical of the employer. It was of the view that the investigation and disciplinary process used by the company fell short of good practice. The decision of the Tribunal is not however altogether clear. It was not clear whether the use of covert CCTV was an acceptable method of investigation. Neither was it clear whether the footage should have been used in evidence against the Claimant. This may be clarified at a later date. The decision highlights the importance for employees to be aware of their rights. From an employer's perspective, the decision highlights the importance of legally sound procedures. These are essential when dealing with termination of an employee's contract. TIP: If you believe you have been unfairly dismissed it is advisable to act quickly. There is a time-limit of 6 months generally imposed from the date of the dismissal to take an action against your employer. This time-limit may be increased in some circumstances. If you feel you may have suffered an unfair dismissal or if you have an employment law query contact us to arrange a consultation. Further information on unfair dismissal in plain language may be viewed here

Right to Legal Advice in Custody

Supreme-Court-Ireland A recent decision of the Supreme Court has important implications for the manner in which evidence gathered by Gardaí during questioning and the right to legal advice in custody. In the case of DPP v Gormley and DPP v White, the question arose (amongst others) as to whether statements made by a person in custody to Gardaí after that person had requested legal advice from a solicitor, but before the solicitor had arrived at the Garda station and had given legal advice, could be admissible as evidence against that person. The Supreme Court looked at several international examples as to what is the current norm in criminal trials as to whether such statements would be allowed, or whether a right to legal advice would preclude such statements being admitted as evidence against that person. The Court also looked at the state of Irish law. The Court found that the situation in Irish law was that as long as the Gardaí had made reasonable efforts to contact and obtain a solicitor once a person had requested one they could continue with the questioning of a person. Any statements made by that person before the solicitor arrived and gave advice could be used against that person. The Court looked at the European Convention on Human Rights where the right against self-incrimination was guaranteed unless a person waived that right. The Convention was breached where a person was not allowed the benefit of legal advice when requested prior to questioning. The Court looked at several jurisdictions including the United States (where the Miranda case clarified a person’s right against self incrimination and to legal advice, also to be informed by police of these protections), Canada and New Zealand. In these jurisdictions it was an entitlement not to to be interrogated after legal advice had been requested and before a solicitor/lawyer had give legal advice. If questioning was allowed to continue after it was requested and before legal advice was given, a person’s Constitutional rights would be diluted. A person, the Court stated, was entitled to trial in due course of law according to the Constitution. This may not affect the manner in which Gardaí gather evidence in general. However once a person has been arrested and has liberty denied for the purposes of questioning to gather evidence against that person, it is intimately connected with the trial itself and the person’s Constitutional protections shall apply. Fairness of process must apply from the time of arrest. What the case means for those accused of criminal offences is that once a person requests to see their solicitor while in custody (usually a Garda Station) Gardaí should stop questioning that person and go about providing that person with a solicitor. Should they continue questioning that person before the solicitor gives legal advice, anything said by that person prior to the solicitor’s advice would be inadmissible at a trial. This case moves Ireland further into line with international norms of criminal procedure and the rights of an accused person in custody. It may have an effect on cases which are currently in the Courts. It may also have an effect on convicted persons who had 1.) requested legal advice, 2.) were questioned after requesting a solicitor but prior to the solicitor arriving and 3.) the statements made in that time were used as evidence against that person. This would only apply however if that person objected to the evidence on these grounds during trial. The would also appear to bring the possibility of a right to have a solicitor present at all times during questioning of a person by Gardaí one step closer, as is the norm in many jurisdictions. The full decision is available here

Equality Tribunal Award

Case Study James Watters & Co Solicitors recently secured a substantial Equality Tribunal award for a client in the an employment law and equality law matter. Our client worked in retail. In or about May 2010 it was alleged that a customer was racially abusive towards her. Our client was so upset by the abuse she reported it to the Gardaí. The Gardaí contacted the person who had allegedly abused our client but she denied it. Our client told the Gardaí she did not wish to pursue the matter further. The following morning our client was then called into a meeting by her employer (the ‘Respondent’); he seemed annoyed that the matter had been reported to the Gardaí. Following the meeting she was informed that she was being transferred to another location. Our client explained that this was not convenient for her as she had a small child; however she was told that this was not her employer’s concern and her presence in the shop was affecting business. On the first day in the new location she was told by her manager that a customer had complained about her and that she would be put to do more menial work. Our client decided to leave the job and managed to get alternative employment elsewhere. After two weeks in the new job her new employer asked her if she had been working in the respondents business. She told him that she had. The next day she received a text from her new employer to say there were no hours for her and he would let her go. Our client engaged James Watters & Co Solicitors to help her resolve her employment law and equality law issues. The Equality Officer made a finding against the old employer. The Equality Tribunal found that our client had been discriminated against on the basis of her race, colour, nationality or ethnic or national origins. It was also found that she was the victim of harassment and her treatment following her making the complaint amounted to victimisation. As a result of making these findings the Equality Officer made the following award: • €14,000 in compensation for the distress caused by the discrimination and constructive dismissal; • €20,000 in compensation for the distress caused by victimisation. The full decision is available at: http://www.equalitytribunal.ie/en/Cases/2013/December/DEC-E2013-193.html If you have any employment law or equality law issues call Watters Solicitors at 01-872 4717

Non-EEA Family Reunification

The Department of Justice has recently (Dec '13) published a lengthy policy document on Non-EEA Family Reunification. David O'Neill BL provides a helpful summary of the document's main points: 1. General 1.1 The policy applies at once to any Irish citizen or qualifying resident who wants to bring a partner in from a non-EEA country 1.2 It may apply to an Irish citizen or qualifying resident who wishes to get status for a non-EEA partner already here 1.3 In principle, it should even apply to a non-EEA national with student, worker, or Stamp 4 status who is seeking an upgrade on grounds of partnership with an Irish citizen or qualifying resident, but this service could not then be offered over the counter at GNIB 1.4 The policy does not govern submissions in response to a proposal to deport 1.5 The policy may apply to applications to revoke a Deportation Order, but immigration history will be taken into account anyway 1.6 Departure from the policy should be “rare” and “exceptional” 2. Spouses/Partnerships 2.1 Where the sponsor is an Irish citizen, (s)he must show that (s)he has: • in the 3 years before the application earned not less than €40,000 gross over and above any State benefits received AND • not have been totally or predominantly dependent on State benefits for a continuous period of 2 years 2.2 The migrant’s potential earnings do not count 2.3 There is no exemption for sponsors on carer’s or disability benefit 2.4 Eg an Irish homemaker in the US wholly dependent on his or her US spouse’s income could not reunify under this family policy 2.5 Savings of the sponsor or foreign national may be counted in an unspecified manner 2.6 Green Card holders who are admitted on the basis they will earn a minimum amount can bring their families immediately subject to being able to show that they continue to earn the minimum at renewal 2.7 Ordinary work permit holders must maintain at least the minimum qualifying earnings of €30,000 over two years; maybe more if non-Irish children are to come as well 2.8 Non-visa-required employment permit holders can no longer be joined or accompanied by their spouses or children for their first 12 months in Ireland unless the employment permit is a Green Card 2.9 Certain Stamp 4 holders, such as those given humanitarian leave, may only sponsor after holding the permission for 2 years 2.10 Marriage/partnership of convenience is interpreted so widely that it may become a primary purpose rule ie you won’t be admitted if you can’t show how you would stay together if you were refused 2.11 Immigration by the parents of an Irish child will generally be facilitated unless the family is mainly foreign, especially if it would be a burden on the State 2.12 Persons making fraudulent applications may face residence bans eg you don’t declare your UK visa refusal, you may not apply to rejoin your Irish family for 5/10 years – the length isn’t specified 3. Termination 3.1 In principle, if the sponsoring spouse dies, the former family permit holder may normally remain in Ireland if (s)he has lived (presumably legally) in Ireland for 2 years or more before the death 3.2 If the couple divorce or are legally separated, permission to remain based on the sundered union will only be granted if the union lasted 3 years or more and the couple resided for 2 of those years in Ireland – other criteria may also have to be met 3.3 Once a union that formed the basis of a family permission breaks down each party (presuming that both at that stage qualify as sponsors) must wait 7 years from the date of grant of the previous family permission before either may sponsor a different partner 4. Parents 4.1 The following conditions apply to the immigration of elderly dependent relatives: • There must be “exceptional circumstances” to justify a positive decision • The sponsor must show that there is no practical alternative to the parent’s immigration • The sponsor must have a net income for each of the 3 years prior to the application of €60,000 where the migration of 1 parent is sought, and €75,000 with regard to 2 parents 4.2 “Dependence” must be social and financial and continuous, must predate the application, and must be essential for independent living at a subsistence level. 4.3 Any permission granted will be subject to the following conditions: • Private health insurance equivalent to VHI Plan D • The sponsor’s undertaking to be completely responsible for the parent’s financial needs and to reimburse the State for any State funds availed of by that parent – a bond may be required • Detailed provision for the parent’s accommodation • Annual renewal subject to the conditions still being met • No qualification for long-term residence or naturalization 4.4 Applications under this policy must always be made from outside the State, even though other elements of the family policy say this is impracticable for non-visa-required nationals 4.5 It is not, therefore, clear whether this policy is yet in force
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