My Late Mother’s Original Will is Missing. Should I be worried ?

Question from a recent caller.

My mother has recently passed away. I know that she made a will as I have been given a copy of same by the Solicitor who made the will. That Solicitor said that my mother took up the original will but I do not know where it is. What can be done?

In the first instance a thorough search should be made among her papers to see if the original will can be located. You should also check with her bank and with any other Solicitor whom she may have used.

If the will still cannot be located,then it would be as well to consult a Solicitor as an application to the Probate Court for a determination may be required.

That Solicitor will make further and extensive enquiries and may put a notice in the Law Society Gazette to see if any other firm of Solicitors has the original will where it may have been subsequently deposited or knowledge as to its whereabouts.

If the original will cannot be traced,then the question will arise as to whether or not the original will was destroyed by your late mother with the intention of revoking same. If it  was held by her and no one can confirm that it was still in existence after her death ,then there is a presumption that she intended to destroy same – animo revocandi – unless evidence to the contrary can be produced, although the presumption may be difficult to overcome. If for example, it could be shown that the will was destroyed by accident or if it could be established that your mother did not have the capacity to revoke it during the period when it was in her custody, it may be possible to prove the will on foot of a copy thereof.

Incidentally the presumption of destruction  animo revocandi  does not apply where a will goes missing in a Solicitors office where evidence can be adduced to explain the situation.

If the presumption of revocation cannot be rebutted and she did not make a previous will, she may be deemed to have died intestate or alternatively a previous will made by her may come into effect. It would be as well to get a determination from the Probate Court as to whether or not the will can be proved on foot of the copy and if not as to what is to happen.

I’d like to acknowledge the contribution of Michael O’Dwyer, Solicitor with Early & Baldwin Law Firm for his contribution to this article.

LegalEagleStar , Thursday , 26th. July , 2012 .

The Morality of Lawyers acting for Banks

Eviction in Ireland around 1879 (“Land War”) (Photo credit: Wikipedia)

I qualified over thirty years ago. During that time I’ve had the pleasure of meeting with and acting against some great lawyers, both solicitors and barristers. They fight tooth and nail for their clients and after an exhausting battle, we retire for coffee, or stronger and engage with each other as colleagues. I have great memories over those years and sadly some of these people have died and moved on to greener pastures. They epitomised what the law was about. The battle was by and large, a clean one. You didn’t have to watch your back, just concentrate on the job in hand. Your clients interests were what it was about. There was always a great satisfaction when the job was done and your client went off happy. As I am not in the habit of losing cases, I can say that this was nearly always the case. That might sound smug. It’s not meant to be. I have always surrounded myself with the best team available and this has been the recipe for success.

Unfortunately, all encounters have not been as described above. When dealing with the Irish Nationwide on behalf of a client who was in financial difficulties, I encountered a somewhat different story. The client was clearly in arrears but upon investigation I couldn’t make head nor tail of the figures. No matter how I read them, they didn’t add up. The Nationwide’s solicitors just wanted an Order for Possession and were not prepared to engage in any manner so the matter proceeded in the Circuit Court. Judge Frank Roe, then President of the Circuit Court had the same difficulty with the case as I had and decided to strike out their case and awarded costs to my client. Some days later I received a phone call from the Solicitor for the Building Society. It took me aback somewhat. He told me that he was phoning me on the instructions of his client. He named his instructing Arrears Manager and said he had instructions to call me  ‘a Liar’. I asked him to repeat what he had just said and indeed he did. I asked him did he do everything his client told him to do? He replied Yes, of course. I hung up on him after a few brief words which I will not repeat.

When I was qualified a couple of years I was asked by my local friendly Bank if I would take a look at something for them. As I knew the Assistant Manager, I said ‘No problem’. I was expecting something of a personal nature as I do get the odd call from them when they encounter matrimonial difficulties and such like. What I was presented with was a list of debts outstanding at the branch. I browsed through the list and was horrified as it was like reading a list of old age pensioners in the area. The amounts varied from Fifteen to One Thousand pounds. I stormed into the Bank and informed them that under no circumstances would I take action on their behalf against these pensioners and in fact if they pursued them I would act for free for them against the Bank. I think about three of the pensioners came into me and happily all arrears were written off. It opened my eyes as to how the Banks treat weak and vulnerable people and I made a decision that day that I would never act on behalf of a Bank or Building Society ever, as a matter of principle.

Some months ago I was disgusted, while listened to the Morning Show on Newstalk, to hear a Solicitor talking about how he was really doing well acting in repossessions for the local Banks. He had no qualms about so acting. He went on to say that since the recession had taken a grip that he was now dealing with ‘a better class of client’.  I sometimes wonder about the morality of acting on behalf of some people. If solicitors really valued their clients and by clients I mean people, the citizens of this country, would they not think twice and look beyond the professional fee. How can you in all honesty act for such institutions as the Banks and the cohorts in having someone evicted from their family home ?  Do they have a conscience?  While in other countries lawyers are to the forefront of social reform and indeed put their lives on the line for their principles, it would seem that in Ireland today the lure of manna is all that excites some people who I would once have expected to be men and women of integrity.

LegalEagleStar , Wednesday , 25th. April , 2012 .

The End of The World is Nigh, or so it seemed yesterday !

Image via Wikipedia

I spent the early part of the day with my Accountants. That time of the year again when we sign off on the Accounts. Kate told me that the Bank will be happy. I replied that I was not in business to make the Bank happy. It seems our politicians sole concern of late would appear to be to ensure we have Healthy Banks with little or no regard to the health or otherwise of the Citizen. Austerity rules while our Banks are designated as our sole concern. So, leaving Ballsbridge with Kate’s words ringing in my head, didn’t exactly put me in the best of form for the rest of the day. Bloody Banks ! And I’m making them Happy ?

I decided I’d use the Toll Bridge to get back to the north side of Dublin but as I approached the Toll Booth, I was faced with a terrible vision. No, not an accident but a sky which reminded me of a scene from a disaster movie. The clouds were black and swooping down over Dublin. It was a vision which I’d imaged would be what we would see at the final chapter when our little world was coming to an abrupt end. Then on approaching the Toll Booth itself, a lovely girl was huddled behind the window which she opened a matter of inches to take my money. She looked terrified. I said something like, ‘what terrible weather’ and she replied something in return before quickly closing her window again in order to survive for a few minutes longer before the inevitable disaster would strike. If I was in Texas now, I’d be running for shelter as no doubt I was heading directly into the path of an oncoming tornado.

My drive across the bridge was no better and I felt my heavy 4×4 practically take off. Frightening, although I was lucky to be viewing this horror from inside a vehicle, not having to be actually out in it and being blown from Billy to Jack and being drenched in the process. Then it struck me. It was obviously Kate’s words about the Banks being Happy. This weather was, I felt, a reflection of the mood of the people. Well, maybe it was just my mood?

Back home, safe and sound, I caught up on some work. Later, my daughter reminded me that Alan Shatter, our esteemed Fine Gael Minister for Justice, would be on The FrontLine with Pat Kenny on RTE. After a few minutes watching, I felt it was very anti-Solicitor, populist and really not getting to grips with the real issues. Minister Shatter is an arrogant individual who is using the IMF imposed changes to suit himself. He is out to humble The Bar and is taking pleasure in so doing. He doesn’t represent solicitors, although one himself, nor indeed the Citizen as he lorded over the rest of the legal profession as a self-proclaimed Mr Family Law for years. Not someone who would be known for a cheapie divorce, mind you !  I was delighted when Dearbhal McDonald – legal affairs correspondent for The Irish Independent called him out for responding to Paul O’Higgins of the Bar Council comments as ‘bullshit’.  Minister Shatter has only his own interests to the fore in his ‘interpretation’ of IMF demands. There we go again IMF, the Bankers demands! Maybe us lawyers should follow Mr Shatter in his visions for us and listen to his views and presumably those of his Law Firm in how we should charge the Citizen for the work we do. It would certainly be enlightening, but I for one am not sure I could follow suite.

Later I decided to watch Vincent Browne’s  Show to wrap up my evening. Maybe this would not be a good idea as at times, Vincent can be very argumentative and not the best viewing if one anticipates a good nights sleep. As it turned out, Vincent was in a very placid mood and the debate on our Economy was indeed enlightening. In particular the contributions by Stephen Donnelly and ‘Banker’ Matthews were excellent. I wonder how Matthews reconciles himself with Fine Gael or is it just a vehicle of convenience for him ?  Then, when Stephen Donnelly was of opinion that all the austerity we were suffering was in vain because it was a policy leading us nowhere, I again cursed the Banks, the parasites living on the backs of us all.

So, to bed. Was it Kate’s words to me; the Weather; Alan Shatter or Tonight with Vincent Browne that had me in Foul Humour? I decided to turn over and say a Prayer… then Cursed the Bankers!

LegalEagleStar,  Tuesday , 18th. October , 2011.

Waiting for a Phone Call, Listening to Enda, my Grandson Toes and a Red HairDryer

Image by Tom Szustek via Flickr

Today has been a frustrating day. Started off fairly well, as well as could be expected. Yet another sleepless night worrying about the kids, the dog, my mother and a couple of clients who I feel really sorry for. Then the phone call I’m awaiting, well hoping for really.

The day started with me listening to Newstalk Morning News. Maybe it was just the sound of Enda Kenny’s voice declaring that he hadn’t lied to the electorate when he said he was going to protect and maintain the services of a Hospital prior to the General Election. He hasn’t, and has now ‘seen the light’ and realised he can’t fulfil his election promises. Nothing new there you might say. Well, what was the purpose of the original statement? If it was to ensure that he and his Party got elected then things would make sense. Because now, we’re told that Hospitals are unsafe and we need to go to the Major Hospitals for care. The problem is compounded as we’re now told by the Doctors that the major hospitals are unsafe. I’m sure, like me, you are fed up with Spin and the absolute nonsense we’re expected to believe. On the facts today it seems that all the Medical Negligence cases we have Must Succeed as quite clearly today… all hospitals are unsafe, according to Enda Kenny, our Fine Gael Taoiseach. If only life was as straight forward as that. Listen, Enda lied to get elected. That’s the story. No more, no less.

So, angry and frustrated I head into the shower. Lovely moments alone, with the sound of the water caressing you for those few minutes. Maybe after Enda’s Government start rationing water, charging us enormous amounts to actually use the water.. I’ll have to take a quick shower. To think that we’re a small island surrounded by water ! The loss of my only morning pleasure will be a sad day. Maybe I could give the dogs half a bowl of water instead of two. That would conserve some water… or maybe that would be cruel. Will the Minister make a Doggies allowance for us? Will he hell.

It’s now mid morning. All my calls, bar one, have rung out. I’ve left message after message but so far, nobody has phoned me back. No, after checking, it is indeed A.M. not P.M. and it is a weekday, not the weekend or indeed a Public Holiday. What to do. Sure maybe I’ll write this weeks Blog. Yes I’ll do that.. Wait, a phone call for me. Great, ‘Hello Tom Baldwin, who am I speaking to?’ Oh no, ‘I don’t want to talk to you ! No, my computer is fine. No, no …’ While I try to be civil to this foreign gentleman, I end up telling him to ‘Feck Off’ and slam the phone down. Maybe that will have the effect of me being deleted from their database. Wait, was that the guy or was that in fact my Bank? Now, I’m not sure. After some moments I decide that it could have been the Bank. Well, if so, I gave them the right answer.

Nearing lunchtime, I’m home and sitting down working on research for my Blog. Then, at the door I hear a shriek.., ‘Aarsse’. I know that sound. It’s Toes, my grandson, coming to visit me. So, off to play then. After lunch it’s clear said Grandson is getting narky. I ask him if he wants to go to bed? Shake of the head indicates No. I’m not convinced. Are you sure I ask him. Same response. After some time playing with the Dogs and the Parrots I ask again, as I’m unconvinced that he is sufficiently alert to last the afternoon. So, upstairs to bed, turn on Daughter No.2’s Red Hairdryer and put Toes to bed. As I lay on the single bed beside him I start to feel guilty as I wave to him. Hold on, he’s dropping off. Yes, result ! Problem is that I’m doing the same. OK, back to the computer. I wonder will any of those gentlemen and ladies of my esteemed profession actually return any of my calls ??  Well, I suppose, I can only live in hope…..

LegalEagleStar  Tuesday , 12th. July , 2011.

Solicitors Mutual Defence Fund Debacle

Image by saxarocks via Flickr

Many years ago when I heard about the formation of the SMDF,  I was excited because I felt this was a great idea that my Professional Body was endorsing something by Solicitors for the benefit of Solicitors. Great idea. I immediately joined and remained with the SMDF until I observed practises which I disliked. I aired my views and this resulted in one of their senior Solicitors telling me that if the SMDF didn’t cover me then nobody would. I took exception to these remarks and immediately contacted the late Padraic Smith, Insurance Broker who arranged an Insurance Policy for me, at a fraction of what I was paying in Premiums to the SMDF. Remember it is a Defence Fund, not a Policy of Insurance. At the end of the following January I had a visit from The Law Society. This was not a problem and a very nice gentleman carried out an inspection of my Accounts. Upon completion I asked if this was a random visit or were they looking for something in particular. I was horrified to be told that The Law Society had been advised that I was practising without Insurance and I was told (He said “Don’t quote me”) who had reported me. I was horrified, no I was disgusted.

This year, all solicitors, bar the Elite, have had horrendous problems renewing their Insurance Policies. No help was forthcoming from the Law Society. In fact a colleague told me the Society had referred him to the SMDF as a Fund of last resort but had heard nothing back from them. Thankfully he finally got Insurance. There is talk of a New Policy to cover the profession but now I am told this will not take place this coming year because of one reason or another.

We are now being asked, like the Irish People were by Brian Lenihan to trust in him. That the Banks needed saving and we must Guarantee them. We now as a profession are being asked something similar by those who may well have advised Mr Lenihan on his course of action. Instead of the use of the word ‘collegiality’, Lenihan used the word ‘patriotism’.

We have heard both arguments as to why we should or should not Vote for the present Proposal. To ‘save our colleagues’ or not, some say. That is not my reading of the situation. It would appear to me, from a perusal of the very limited information now to hand that some questionable decisions were made by the SMDF as to investment of Funds etc. Maybe the SMDF Members should be investigating the operation of the fund and demanding to know what questions were put to Counsel and what they received by way of Advice. There are too many unanswered questions. To now ask the profession as a whole to Vote Yea or Nay without a full Brief is, I feel erroneous. A lot of Firms have made a hell of a lot of money in Legal Fees as a result of their acting in many Court actions for the SMDF. To now expect the average solicitor, who has been put to the pin of his/her collar in recent times to pay up is quite extraordinary. A lot of solicitors have lost their jobs and many of those who did succeed in getting Insurance Cover have had to dig deep into their own pockets to pay the premiums as many Banks have refused to fund the cost of this Insurance. Where was the leadership of The Law Society when we all needed help then? From the Memorandum of Vincent Crowley provided to us, it shows clearly that The Law Society want to ensure a Yes Vote at all costs. They cannot afford to lose face. They are telling the profession how to Vote not asking them for a Direction. Don’t get me wrong. I admire the majority of the people working in Blackhall Place. They are good people. My grievance is with the Elite, the politicians who want to control us and these people have great power. The majority should be represented not the powerful minority.

Remember when PIAB was proposed by Dorothea Dowling on the instructions of Mary Harney T.D., there were a lot of Conferences convened to discuss the Proposal. I attended one in Trinity College where Ms Dowling clearly set out the proposals and referred to PIAB as a ‘solicitor free zone’. Ken Murphy attended and spoke at this conference on behalf on the Law Society. He said that the Law Society had reservations about PIAB but were not simply against it. At the luncheon recess I was in the company of Ms Dowling and I spoke with Mr Murphy who responded to me that he and the Law Society didn’t agree with my views on PIAB. My views were to fight for the right of the citizen to bring their case before a Court instead of having to have it first submitted to a Government Agency. The introduction of PIAB has contributed greatly to the loss of jobs in the profession. Clearly, The Law Society showed no concern for them as they were “solicitors who advertised” and suchlike. As regards the change in procedure where Solicitors must now give a Certificate of Title to The Financial Institutions instead of the previous system where you closed the purchase at the Offices of the Solicitor for the said Institution, who will stand up and take credit for that disaster? That decision alone has been detrimental to the legal profession. How many jobs lost to the profession by that stroke of genius ? Hasn’t the Profession been brought into disrepute by the actions of some of its members who used this daft change in procedures to enrich themselves? A lot of us spoke about such a thing being possible many years ago but the Law Society was unconcerned.

Please use your Vote, make up your own mind and don’t be taken in by the argument that there are no other options. We are lawyers and deserve better than being told that we must Vote without full disclosure of all the facts. How would you advise your own clients if they sought your advice on such a Vote?

LegalEagleStar , Tuesday , 7th. June 2011.

Why are the Banks allowed repossess Your Home ??

Image via Wikipedia

Over the past number of months it has become a common occurrence for Banks to take a strong stance against customers who default on their debts and in particular against those it sees as the most vulnerable i.e. those who are having difficulty in making the repayments on their mortgages. Make no mistake about it, it is because of the ‘security’ the Banks hold i.e. the title deeds to your Home that has spurred them on to take such actions.

The consequences of the Banks actions have devastating effects. Not only is the loss or threatened loss of your Home devastating by itself but the consequences of  same can be far-reaching. Daily, we are reading in the newspapers and other media of families being tossed out onto the streets and needing rehousing which in itself is dreadful but the number of family breakups, children having their lives devastated and the mental and physical illness associated with this are numerous and tragic. I have personally seen one or other of the parents desert the family as they feel useless and unable to cope, as well as one parent tragically, taking their own life as they felt demoralised and a ‘failure’. Society is finding it very difficult to cope with the Banks and the consequences of their actions.

There are always those in our society who for one reason or another default on their mortgages. Tragic they all are, but some have been understandable. I am talking about Family Homes here not the repossession of holiday or second homes, property investments and such like. The loss of their job by the sole provider to the family, can and does have consequences. In the past an arrangement could be made with the Bank to get people over short-term problems. Today the problems experienced by the majority are long-term and need another solution. Many engage and talk with their Bank and come to some sort of arrangement but without the prospect of reemployment at some stage in the near future, such arrangements are of no use and are certain to fail.

Let’s look at the actions of the Banks in the context of Ireland 2011 where the State have taken over the liabilities of the Banks. That’s right, we the tax payer are now, as a result of the actions of our elected Government, liable for the debts of the Banks. Not only that but we are being told, not asked, to pay further sums as necessary into these Banks in order that they can continue to operate. So the citizens of this country who are being thrown out of their homes, are at the same time subsidising these self-same Banks. Is there not something immoral about all this? Our Judges see this immorality in action in the Courts on a daily basis and are clearly frustrated. They call on people in such cases to come before the Courts and do everything within their power to help them. It is unfortunately just putting off the inevitable as today people are losing hope and the ability to deal with their financial responsibilities in a realistic manner.

It always amazes me how quick our politicians are in funding the Banks to whatever level is required while at the same time are unwilling to support those in our society who are suffering the most hardship. In the latter case a little goes a long way while for the former it seems a black bottomless pit. In our system of justice, when a business is in trouble it is prudent to have the Courts appoint a Receiver or Examiner who takes control of the business to see if it is sustainable and then reorganise the business , under the protection of the Court, and gives it time to reorganise itself. Then decisions are made to come out of receivership/administration to continue to trade or else the business is sold to willing buyers. The last scenario is where the company is wound up. Why the Banks have not been dealt with in a similar manner but instead are being handed a taxpayer bailout is beyond me.  One law for Irish businesses while another, taxpayer bailout, seems exclusive for dealing with the Banks. We are told that Society as we know it, will collapse if we cannot get money out of the ATM machines. Well, I remember a sustained Bank Strike in the 1970’s/ 80’s when the Banks remained closed for several months and society just got on with their businesses while suffering the consequences of the disruption. Society did not fall apart !

I know that we lawyers will always give the underdog a defence and not see injustice done for lack of legal representation but we have to seriously question our actions in representing the interests of the Banks while causing indeterminable suffering to the citizens of the State. Of course we cannot refer to the banks as the underdog in any fashion as they clearly have acted and continue to act as though Society owes them a living. What other business today in Ireland would receive such unconditional support from the State? Why do we not have  leaders who put the interests of the citizen first and foremost and deal with the Banks and other such institutions in a way that reflects the true values of our Society? We should look to our Constitution and the equality of all. Something has gone seriously wrong with our Society for us to find ourselves in such an outrageous position.

So saving the Banks at all costs to enable society to function is in itself destabilising the same society it is claimed to support. Legally the banks are quite entitled to seek repossession of customers homes when the Mortgage is in default but such actions are in themselves causing the breakup of society as we know it. Something needs to change and to change immediately. Politicians of all Parties and Independents need to step in and cure this blight on our society before it is too late and the fabric of society as we know it no longer exists.

 

LegalEagleStar , Wednesday , 16th March, 2011