Archive for the ‘Legal Eagle Column’ Category
I Was Left Out of My Father’s Will !
Q. I am in a state of shock. I have just discovered that my late father – who was a widower – has left me out of his will. I have one other sibling, a brother, to whom everything was left. When I spoke to my brother – the sole executor and beneficiary under the will – he just shrugged his shoulders. I think it is so unfair. Is there anything I can do?
A. Yes there is. Under Section 117 of the Succession Act 1965 an application can be made to the Court by a child of a person who has made a will and if the Court feels that the person who made the will has failed in his/her moral duty to make proper provision for that child in accordance with his/her means, whether by will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.
The matter will be considered from the point of view of a prudent and just parent, taking into account the position of each of the children of the person making the will and any other circumstances which the Court believes to be of assistance.
Not every application under Section 117 will be successful and you cannot bring an application where everything is left to the surviving spouse and that surviving spouse is your mother or father. The duty can also be discharged by gifts or settlements made by the deceased during his/her lifetime to the child in question
In the present circumstances you should consult with a Solicitor sooner rather than later as there is a time limit. The application has to be made within six months of the Grant issuing in your late father’s estate.
Incidentally there is no obligation on your brother as executor to notify you that you can apply to Court in this regard.
LegalEagleStar , Tuesday, 8th February , 2011
I’m so Depressed
Q I AM feeling very depressed at the moment as I am writing this note from my hospital bed.
Last Saturday week I was knocked from my bicycle. I was taken by ambulance here to hospital. I can remember being hit by this car which didn’t stop. There were no witnesses. Is there anything I can do ?
A FORTUNATELY , Yes. A personal injury solicitor can take instructions from you even as you sit in your hospital bed.
He/she will have your accident fully investigated in order to ascertain the facts before proceeding. Presumably the Gardai would also be involved. If the motorist can be found he/she would be the defendant. If would appear unlikely that the hit and run driver will be found, but don’t distress yourself as the Motor Insurance Bureau of Ireland must now deal with such cases.
THE STAR , Friday March 23, 1990
No show from Gynaecologist
Q WHEN I became pregnant last year I employed the services of an eminent Gynaecologist at great expense I might add.
I wanted the expert to deliver my baby, but when the day in question arrived the Gynaecologist was nowhere to be found and the midwife in the Hospital delivered my baby. Fortunately there were no complications but that’s not the point. I have now received a bill from the Gynaecologist which I am reluctant to pay as he didn’t do what I employed him to do. Am I within my rights in refusing to pay this bill?
A YOU are airing a grievance felt by many women. You pick out and retain an eminent Gynaecologist and although you visit him prior to the birth he doesn’t appear at the birth. Subsequently you receive his bill.
Should you pay it? I say Yes. From my experience of Gynaecologists they are tremendous people who spend so many hours working day in day out that I don’t know how they don’t collapse from the strain.
I do not believe that they would deliberately fail to appear when your time to give birth arrived.
More than likely they were attending another birth or dealing with another patients problem.
It is usual practice for them to be informed by the Hospital of your arrival and subsequently of your progress in labour. They are then advised when the birth is eminent and whatever time of day or night that may be they immediately head towards the Labour Ward. How many times have you visited the Clinic to see your Gynaecologist prior to the birth and had to wait several hours because your expert was attending a birth? He must try his best to accommodate all his patients.
Go and talk to him about the bill.
THE STAR , Friday January 26, 1990
Chemist made a mistake
Q I NEARLY had a fatal accident at my home over the Christmas period.
My elderly mother who lives with us fell ill and I called the Doctor who gave me a prescription for her which I got from my Chemist. The Chemist advised me to give my mother ten times the dosage the Doctor prescribed. Fortunately I thought the dosage was a bit high and I checked again with the Chemist who, after having checked the original prescription, advised me of the correct amount. This error could have been fatal. Do you think I should get onto my Solicitor and get him to write to the Chemist on my behalf?
A INDEED if your poor mother had taken the tablets as directed she may well have died.
Your diligence has in fact saved your mother and avoided a real tragedy. I wonder whether in fact the Doctor’s writing was the cause of the Chemist’s mistake as on a regular basis Chemists phone up the Doctors concerned to clarify what in fact he/she has in fact written. As you were suspicious and queried the point with the Chemist I feel that the Chemist did not in fact give due diligence in making up the prescription.
As no harm, thank God, resulted from the chemist’s carelessness you would be wasting your time contacting your Solicitor, as to sustain an action in law you must be able to show that someone, in this case your mother, had in fact suffered as a result of the negligent act.
THE STAR, Friday January 26, 1990
Scalded-and then Fired from my Job
Q I WAS employed on a part-time basis at a large Hospital in the kitchens.
During the month of December I was badly scalded while preparing tea for the patients. My Supervisor took me to the Out-Patients Department for treatment and then later dismissed me from my position. I am devastated not only by the fact of being scalded but also at losing my job which I need badly. Was my Supervisor correct in letting me go in this manner?
A I THINK you have been very badly treated by the Hospital concerned.
A good employer would have done the right thing and made sure that you were properly looked after and when better your job would be waiting for you. You do not say how the accident occurred. Was it your fault?
If so, your employer may well have taken the view that you were careless or incompetent.
If your accident was not caused through your own negligence but due to the negligence of a fellow worker, or an unsafe system, I would advise that you immediately attend a competent Solicitor to check out your rights.
THE STAR, Friday January 26, 1990
The Burglar May Sue You
Q HAVING endured several burglaries at my home over the years, I have now placed broken glass around the walls but am now a little worried as someone told me that if an intruder injured himself on one of my walls he could sue me even though he would be trespassing at the time.
Is this true?
A NO DOUBT you have heard it often said that the Law is an Ass.
Well to answer your question I must regretfully advise you that the law as it stands would leave you liable to the trespasser for injuries received due to your having glass upon your walls.
A long time ago it was permissible for the land owner to shoot trespassers he found on his land.
This was of course barbaric and was subsequently changed. You as an occupier of property must of course protect your property to the best of your ability from burglars but the law does not allow you to put man-traps on your land.
The glass on your garden walls would be considered such a man-trap.
With this knowledge many people still place broken glass on walls in order to deter intruders and I cannot blame them.
Just remember though that if your garden walls are any way low you may be creating a serious man-trap for local children who will climb walls to retrieve footballs etc.
THE STAR , Friday January 25, 1990
Maintenance money stops
Q I AM separated four years from my husband and he has been paying me maintenance for myself and the three children since then until recently. He told me that he heard on good authority that another man had moved in with me and the children and that it was up to him to provide for us. This is untrue. I do have a boyfriend without whom I would be lost but he doesn’t reside with us. Does my husband have any grounds in refusing to pay me?
A FIRST of all, if your husband is paying your maintenance as a result of a Court Order he is in breach of that Order by reducing your payments without first bringing you back to Court. In Court he would have to show that your boyfriend was contributing to your upkeep before the Court would reduce your maintenance. Maintenance is purely a matter of money. The Court in determining what sum of money should be paid by your husband to you for yourself and your children will look at both of your circumstances. All payments in and out will be noted and the Court will provide for proper maintenance to be paid to cover your household and other expenses providing for the proper care of your three children.
THE STAR. Friday January 19, 1990
Doctor wrong now can I sue?
Q OVER the past three years my seven year old daughter has been suffering from throat and ear infections. The doctors eventually decided to take out her tonsils which was a traumatic ordeal for her. About three weeks after the operation her prior symptoms returned as bad as ever. Obviously taking out her tonsils was not the answer to her problem. Would you advise me to pursue a medical negligence claim against the doctor for carrying out this procedure at great financial cost not to mention the pain and suffering to my daughter.
A NO I would not recommend that you pursue the Doctor treating your daughter for medical negligence. Children suffer from many diseases and your doctor is the competent expert to diagnose and treat her correctly. He would not have taken her tonsils out, especially nowadays, unless he decided it was essential and in the child’s best interest. You must rely on the professional expertise of your doctor. In the unlikely event that your doctor misdiagnosed your child’s condition and she suffered as a result of his negligence you may be entitled to sustain an action against him due to his professional negligence. The proofs necessary to sustain such an action are onerous but a good Personal Injury Solicitor would be able to help you should you be the victim of medical negligence.
THE STAR, Friday January 19, 1990
This is a will that won’t do
Q I AM writing to you about a Will. The Estate is being handled by a firm of Solicitors in Cork.
She made a will when she was dying and left the house to my brother. He brought the Solicitor to the Hospital to make the Will. She had the money to pay for the funeral and the house was valued at £15,000
I have a copy of the Will and it states that my brother was the only one in the family. So that’s not right. She was dead a few months when £6,000 came out of her job. There was no Will for that money. It should be divided among her brother and sisters. What should I do?
A YOU do not identify whether the deceased was your mother or your sister as you only refer to her as ‘she’.
In any event from the facts disclosed the Will is Null and Void regardless of what has occurred since. You state that the Will was made in a hospital.
Was she Compus Mentus (of sound mind) at the time? Is it possible that even if she was not, that her condition was so weakened by her impending death that your brother could be held to have exercised undue influence.
They (Cork Solicitors) could only act on the information given by your brother i.e. that he was the only member of the family and that you did not exist. On that count alone the ‘Will’ fails
THE STAR , Friday January 19, 1990
LegalEagleStar 