Proper Provision | Family Law Case

Inheritance Rights of Cohabitating Couples

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INHERITANCE RIGHTS OF CO-HABITING COUPLES
If you are at least 18 years old and of sound mind, you can make a Will. If you later
get married or if you enter a civil partnership, that Will is automatically revoked unless
the Will was made with that marriage or civil partnership in mind. However, if you
co-habit with a partner (that is, move in to live with a partner) that arrangement has no
effect on your pre-existing Will.

Cohabitants and Inheritance Tax:
Even if a cohabiting partner provides for their partner in their Will, the partner will be
treated as a stranger for capital acquisition tax ( inheritance tax) purposes in relation
to their inheritance. Currently cohabiting partners pay tax at 33% tax on any
inheritance over €20,000

In the case of a cohabiting couple where the surviving partner inherits the home, the
surviving partner may be liable for inheritance tax, unless the surviving partner
qualifies for a dwellinghouse tax exemption.

If your cohabiting partner has not made a will or has not provided for you:
A financially dependent cohabitant may be able to apply to the court for provision to
be made for them from the estate of a deceased partner if the relationship ends as a
result of death or otherwise. This is known as the redress scheme for cohabiting
couples. If you get redress from a court under this scheme, you may be exempt from
paying capital acquisition tax.

In order to apply for redress, you must be a “qualified  cohabitant”, that is you must have been:
• Living with the person for at least five years in an intimate and committed
relationship; or
• Living with the person for two years in an intimate and committed relationship
if you have had a dependent child with your partner.

If you do qualify to apply under the redress scheme you still may not be entitled to any
provision or share of your partner’s estate if they die. Much will depend on the
financial relationship between partners, each partner’s financial circumstances and
whether a partner was still married or had children and the size of the estate.

Making a Will:
Making a will can ensure that proper arrangements are made for partners and the
dependents and that your property is distributed according to your wishes, subject to
certain rights of spouses/civil partners and children. Tax advice can help reduce or
minimise the amount of tax your beneficiary must pay.

Donal T Ryan solicitors will help you to prepare a Will that reflects your wishes,

Contact any of our solicitors at 052 744 1244 for our Cahir Office and 062 61288 for our Cashel Office.

dmr

Decision Making Representation under Assisted Decision Making Act

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In Ireland, a Decision-Making Representative is a person appointed by the court under the Assisted Decision-Making (Capacity) Act 2015 to make certain decisions on behalf of an adult who has been found to lack capacity to make those decisions themselves — even with support.
Here’s the key breakdown:
• Purpose:
They act as a last-resort decision-maker when other, less formal supports (like a decision-making assistant or co-decision-maker) are not enough. It is also required where the relevant person have not made an enduring power of attorney.
• Appointment:
An application must be made to the Circuit Court. This is usually done by a family member, or where there is no family member, by the HSE. It is necessary for the next of kin, and immediate family members to be informed of the application, and often the consent of all parties will be required. Depending on the relationship between the family member and the relevant person, a preliminary application to the court for permission to bring the application may also be required.
The paperwork needs to be served on the relevant person, and they must also be advised of the application. This may result in an application being made to the Legal Aid Board for legal representation for the relevant person.
• The Circuit Court appoints the representative after assessing the person’s capacity and deciding that a Decision-Making Representation Order is necessary.
• Scope of decisions:
The order specifies exactly which decisions the representative can make — for example, about medical treatment, property, finances, housing, or personal welfare. They cannot make decisions outside of what the court authorises.
The Court will set a date when the orders must be reviewed.
• Duties:
They DMR must:
o Follow the guiding principles of the 2015 Act (like respecting the person’s will, preferences, and rights as much as possible).
o Keep records of decisions and actions.
o Report to the Decision Support Service (DSS) on a regular basis.
• Safeguards:
The arrangement is regularly reviewed, and the court can change or end it if the person’s circumstances or capacity change.
It’s essentially Ireland’s most formal legal arrangement for substituted decision-making, intended to be used only when all other support options won’t work.

If you would like further information on a decision-making representative or find yourself with a family member who may need to apply for such an order, do not hesitate to contact any Donal T. Ryan Solicitors LLP Cashel and Cahir. Máire McMahon and Gavin McCarthy Partners in the Cahir office have extensive experience of such applications and with their legal assistant Rose Wallace will guide you through the process.

Contact us at Cahir 052 7441244 or Cashel 062 61288 or www.dtryan.ie

EPOA figure

The Benefit of an Enduring Power of Attorney

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the Enduring Power of Attorney (EPA). This is a legal document that allows you to appoint a trusted person (or persons) to make decisions on your behalf if you become unable to do so yourself due to illness or incapacity.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is different from a general power of attorney, which ceases to be valid if you lose mental capacity. Instead, an EPA is specifically designed to take effect in situations where you are no longer able to manage your own affairs, whether due to age, illness, or an accident. In Ireland, an EPA must be created while you are still of sound mind and must be registered with the Decision Support Service before it can be activated. It is a two step approach – you make it when you are hale and hearty and it only comes into effect if and when you lose the capacity to manage your own affairs. Two doctors must certify that you have lost your capacity.
The Key Benefits of an EPA
1. Ensures Your Wishes Are Respected
By setting up an EPA, you are proactively choosing who will manage your personal, financial, and legal affairs if you become incapacitated. This ensures that your preferences and interests are upheld.
2. Prevents Family Disputes
Without an EPA in place, your family may face legal difficulties and disagreements over who should make decisions on your behalf. Having an EPA eliminates uncertainty and reduces the risk of conflict.
3. Avoids the Need for a Decision Making Representative Order If you lose mental capacity without an EPA, your family may have to apply to the Circuit Court to have a Decision Making Representative appointed. This process is time-consuming, costly, and means that a court-appointed individual, rather than a person of your choosing, will make decisions about your life.
4. Provides Peace of Mind
Knowing that a trusted individual will handle your affairs if you become incapacitated offers peace of mind for both you and your loved ones. It ensures that financial matters, property, and healthcare decisions will be managed smoothly.
5. Protects Your Assets and Interests
Without an EPA, there is a risk that your assets may not be managed in your best interests. An attorney appointed under an EPA can take care of bills, investments, and property transactions to protect your financial well-being. If there is no EPA, then your next of kin will have to apply to the Circuit Court for a DMR, and this might not be the person that you wish to manage your affairs.
6. Allows for Personal Welfare Decisions
An EPA can cover personal care decisions, such as where you live, your medical treatment preferences, and other aspects of your daily life. This ensures that your well-being is looked after by someone you trust.
How to Set Up an EPA in Ireland
Setting up an EPA involves the following steps:
• Consulting a solicitor to ensure the document is legally sound
• Choosing one or more trusted attorneys – they can act jointly, or jointly and severally – act together or act separately.
• Outlining the scope of their decision-making powers
• Having the document signed and witnessed – under the new EPA system, the attorneys must sign the EPA in the presence of the same two witnesses at the Donor, and also in the presence of the Donor.
• A Doctor must sign a certificate that the Donor has the capacity to make the EPA at the time it is made . the cost of this certificate is ranging between €75 up to €400 in some doctor’s surgeries
• Notice parties must be informed, there are specified persons, i.e. spouses, all adult children – may be an issue if you have lost contact with the child or do not want one child to know the creation of the EPA
• It is necessary to register the EPA with the Decision Support Service
• A person can within certain time limits revoke or vary a enduring power of attorney.
Conclusion
An Enduring Power of Attorney is a crucial legal tool that protects you, your family, and your assets. It ensures that your affairs are managed according to your wishes if you are no longer able to do so yourself. Planning ahead by setting up an EPA is one of the most responsible steps you can take for your future.

Last Will and Testament

The Role of an Executor in a Will

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Responsibilities and Key Considerations:
When a loved one passes away, the process of administering their estate falls to the executor named in their will. Acting as an executor is both an honour and a serious legal responsibility, requiring careful attention to detail and adherence to Irish probate law. If you have been appointed as an executor or are considering making a will, it’s important to understand what the role entails.
In this blog post, we’ll outline the key duties of an executor and provide guidance on what to expect.

What is an Executor? An executor is the person (or persons) appointed in a will to manage the deceased’s estate, ensuring that their wishes are carried out. The role involves gathering the deceased’s assets, settling any debts, and distributing the estate in line with the will. If there is no will, an administrator is appointed instead, and the estate is dealt with under the rules of intestacy.

Key Responsibilities of an Executor
1. Locating the Will and Confirming Its Validity The first step is to locate the deceased’s original will and ensure it is valid. It may be stored with a solicitor, a financial institution, or among the deceased’s personal papers.
2. Identifying and Valuing Assets The executor must gather a full picture of the deceased’s assets, which may include property, bank accounts, investments, pensions, and personal belongings. Valuations may be required for certain assets, such as real estate or valuable items.
3. Applying for Probate. Probate is the legal process that gives the executor authority to administer the estate. An application must be made to the Probate Office or relevant District Probate Registry, depending on the circumstances. This involves completing detailed paperwork, including a Statement of Affairs (SA.2) for Revenue, confirming the value of the estate.
4. Settling Debts and Liabilities Before distributing the estate, the executor must ensure that all outstanding debts, including funeral expenses, taxes, and any outstanding loans, are paid from the estate’s funds. This can involve corresponding with creditors and Revenue to ensure compliance. The executor must ensure that they have done their due diligence and has obtained clearance from the HSE, Department of Social Protection and the Revenue Commissioners before distributing the estate.
5. Distributing the Estate Once debts and taxes are settled, the executor distributes the remaining assets to the beneficiaries as set out in the will. This may involve transferring property, closing bank accounts, or selling assets. Executors must ensure they act fairly and in accordance with the deceased’s wishes.
6. Handling Disputes or Challenges Sometimes, issues arise where beneficiaries dispute the will, or there are claims against the estate under the Succession Act 1965. Executors must navigate these situations carefully, often with legal guidance.
7. Keeping Records and Acting in Good Faith Executors are legally required to act in the best interests of the estate and its beneficiaries. Keeping detailed records of all transactions, communications, and distributions is essential to demonstrate transparency and accountability.

Can an Executor Refuse or Resign?
Being an executor can be a complex and time-consuming task. If you feel unable to take on the role, you can renounce it before taking any action in the administration of the estate. Once you have begun acting as an executor, however, resigning may require a court application. Seeking Legal Assistance Given the legal and financial complexities of estate administration, many executors choose to seek legal advice. A solicitor can guide you through the probate process, help resolve disputes and ensure that all legal obligations are met.

Final Thoughts Acting as an executor is a significant responsibility, requiring patience, organisation, and legal knowledge. If you are making a will, it’s worth considering whether your chosen executor has the capacity to fulfil the role.

If you have been appointed as an executor and need guidance, seeking legal advice can make the process more manageable. If you require assistance with probate or estate administration, contact Donal T Ryan Solicitors LLP for expert advice and support.

Plan ahead for 2025- make a Will

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Plan ahead for 2025- make a Will

The start of a New Year is the perfect time to make a will. This will give you peace of
mind as to how your possessions will be distributed when you die.

What is a will?

A will is a legal document that outlines how your property, money and other assets (also
known as your estate) should be distributed after your death. This may involve leaving
your assets to family, friends or charities that are important to you. By making a will, you
ensure that your assets are distributed according to your wishes.

Steps to making a will
We will guide you through the process and answer any questions you may have.
A will is only valid if it is made in writing, you are over 18 years and you must be able to
understand and decide what you are doing (this may be referred to as having legal capacity).
The will must also be signed by you in the presence of two witnesses.

Keeping your will up to date
Life can change quickly so keeping your will up to date is important. A will made years
ago may not reflect your life today. For example, you might have gotten married or have
a new life partner, you may have had children since your last will or your children may
have become adults, you may own more property or have other assets to consider.

What happens if I don’t make a Will?
If a person dies without making a will, they will have died ‘intestate’. If this happens,
there are laws that set out how the estate will be divided and this means your estate may
not always go to the people you would have chosen.
Where there is no will, your spouse or civil partner is entitled to either all or two-thirds of
your estate, depending on whether you have children or not. The remaining one-third is
divided between your children.

If you don’t have a spouse, civil partner or children, your estate will be divided among your
living relatives according to a set formula. Cohabiting couples or those in long-term
relationships without legal status may receive nothing. These are important personal
considerations to discuss with your solicitor to avoid future upset or uncertainty.

Talk to us!
Every adult should have a will. We strongly encourage you to make a will or to review
your existing will to make sure it is up to date. Talk to us for advice and support on making
a will.

You can contact any of our solicitors in the Cashel and Cahir offices at 062 61288 or 052 7441244 if you wish to make a will.

What is a digital executor ?

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As solicitors we are always advising our clients to make a will. A will governs what happens your assets after your death. Traditionally assets comprised of bricks and mortar and monies in bank accounts and post offices accounts. However in the 21st century not only are our assets in property and bank accounts but also are assets are held virtually such as cryptocurrency, our data and information on social media sites, and even our google photos.
In a recent case on which our office advised, the deceased died unexpectedly and the legal personal representative was trying to gather details of the assets held by the deceased. As is very common these days, all the deceased’s banking was done online, and he also held some online bank account with the likes of Revolut. His passcode and passwords were not known and it was not possible to assess his phone and laptop to get the details. The legal personal representative was seeking advice from the solicitor on how to proceed.
All this stress and additional work can be avoided if when making a will you appoint a digital executor who will be responsible for closing, memorialising or managing your accounts, along with sharing or deleting digital assets such as photos and videos. This role is an extension of the existing role of a traditional executor. This person can be furnished on your death all user details and passwords for all your accounts. A digital estate plan can be stored with your original last will.
Some practical tips to avoid the difficultly mentioned above is to
a. Start by writing a list that includes your online accounts’ basic details, including the name of the account, website, and your username or account ID.
b. Detail the password for your lap top and phone in a secure place and that your executor is informed of this location. Remember though if you update your password to update the hard copy note too.!
c. You could include a list of your digital accounts and what you would like done with these in a “letter of wishes” to be stored alongside your will.
d. It is worth backing up cherished photos or videos on a hard drive and telling one of your executors where this is located.

Social Media sites – each website has their own way of doing things.
a. Facebook enables you to appoint a Legacy Contact. For example in Facebook by searching for “Memorialization Settings” in the setting section, you can appoint a Legacy contact ( you should inform that person though before selecting them! ) This will allow the contact to close down or access your social media account after your death.

b. Apple allows you to name one or more people as legacy contacts, who are able to access your account after your death. Your chosen contact is able to request access using the access key generated when you added them as a legacy contact and your death certificate. They will then have three years to view photos, messages and any other information and to decide what happens to them.

c. Google has a feature that confirms when an account should be considered inactive (between three and 18 months), after which up to 10 people may be notified and receive your messages and emails.
Cryptocurrency
If you have monies held in Cryptocurrency then it is essential that a letter of consent is held with your will, detailing all relevant website and codes that are necessary to access the said funds.
If you wish to discuss any of the above with us, do not hesitate to contact one of our solicitors in either Cahir or Cashel and we can help you

Last Will and Testament

IS MAKING A WILL SOMETHING THAT YOU KNOW YOU SHOULD DO BUT HAVE NOT YET DONE – THE REASONS WHY YOU SHOULD MAKE A WILL.

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1. You decide how your assets will be distributed on your death
If you don’t make a will, you are deemed to have died intestate and your estate will be distributed according to the rules set out in the Succession Act, 1965. This means that those who will get your estate might not be whom you want.
2. Children – You chose who will look after your children if you die.
If you have children under 18 years of age, they will need guardians – that is someone who steps into your shoes and parent the children until they are 18 and make decisions about their health, religion, education etc. if both you and the other parent are involved in a catastrophic accident and pass away at the same time..
When you make a will you chose the person for this role.
Also, children cannot hold property until they are 18 years of age. You will need to appoint at least two Trustees to look after your children’s assets until they come of age.
3. Smart tax planning – by leaving certain property to certain people you may be able to maximise reliefs under inheritance tax rules and minimise the tax liability for your beneficiaries.
If you die intestate – it is predetermined who gets what and it may not be the most tax efficient way to distributing an estate.
4. You choose who handles your affairs on death rather than having the law decide
The person you choose will be your executor. If you do not make a will the rules of Court will determine who is eligible to administer your estate.
Also, who can administer your estate will be dictated by Court Rules. Again, this may see a situation arise where someone you would not want will be looking after your affairs after your death.
Peace of mind-the peace of mind that comes from knowing that you are not leaving problems behind for your loved ones when you pass away is priceless. Making the first will is often the hardest.

If you want to discuss making a will contact either our Cahir or Cashel office and we would be delighted to schedule a meeting with one of our solicitors. Just do it.

Last Will and Testament

INHERITANCE RIGHTS OF CO-HABITING COUPLES

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If you are at least 18 years old and of sound mind, you can make a Will. If you later get married or if you enter a civil partnership, that Will is automatically revoked unless the Will was made with that marriage or civil partnership in mind.

However, if you co-habit with a partner (that is, move in to live with a partner) that arrangement has no effect on your pre-existing Will.

Cohabitants and Inheritance Tax:

Even if a cohabiting partner provides for their partner in their Will, the partner will be treated as a stranger for capital acquisition tax ( inheritance tax) purposes in relation to their inheritance. Currently cohabiting partners pay tax at 33% tax on any inheritance over €16,250.00.

In the case of a cohabiting couple where the surviving partner inherits the home, the surviving partner may be liable for inheritance tax, unless the surviving partner qualifies for a dwellinghouse tax exemption.

If your cohabiting partner has not made a will or has not provided for you:

A financially dependent cohabitant may be able to apply to the court for provision to be made for them from the estate of a deceased partner if the relationship ends as a result of death or otherwise. This is known as the redress scheme for cohabiting couples. If you get redress from a court under this scheme, you may be exempt from paying capital acquisition tax. In order to apply for redress, you must be a qualified cohabitant, that is you must have been:

• Living with the person for at least five years in an intimate and committed relationship; or
• Living with the person for two years in an intimate and committed relationship if you have had a dependent child with your partner.

If you do qualify to apply under the redress scheme you still may not be entitled to any provision or share of your partner’s estate if they die. Much will depend on the financial relationship between partners, each partner’s financial circumstances and whether a partner was still married or had children and the size of the estate.

Making a Will:

Making a will can ensure that proper arrangements are made for partners and the dependents and that your property is distributed according to your wishes, subject to certain rights of spouses/civil partners and children. Tax advice can help reduce or minimise the amount of tax your beneficiary must pay.

Donal T Ryan solicitors will help you to prepare a Will that reflects your wishes. Contact us at 062 61288 or 052 7441244

A Will is Revoked by Marriage, or is it?

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A Will is Revoked by Marriage, or is it?

The usual position is that a Will is revoked by marriage as the intention of the legislature is that the wife and any children would be the beneficiaries in the ordinary way. We examine the recent decision of Mr. Justice Allen delivered in the High Court in the matter of the Estate of John McPartlan, deceased.

However, a last Will and Testament can be made in contemplation of marriage and the burden of proof is on the person asserting this that the last Will and Testament was made in contemplation of same. The legislation provides that the Will does not have to state on the face of the document that it is made in contemplation of marriage but rather this can be inferred from contemporaneous notes and correspondence but there must be contemplation of marriage to a particular person.

In this case the late Mr. McPartlan, who died on 12th August 2019, was survived by his wife Carol and seven siblings and they had married on 8th August 2019, just days before his death.

The background to the matter relates to a Will made on 18th June 2019 where the late John McPartlan named his sister and brother as his Executors. He left his house at Artane, Co. Dublin, to his seven siblings in equal shares and left the residue of his estate to his wife. The value of the residue is a little more than the value of the house.

The Executors made an application to High Court to prove the Will and the issue the High Court was trying to determine was whether the deceased’s Will was revoked by his subsequent marriage in which case his spouse, Ms. Graham, would be entitled to the entire estate on intestacy.

The parties were in a long-term relationship from 1996 but did not live together because they were each caring for their mothers.

The late John McPartlan and Ms. Graham became engaged in Jersey in July 2011 and there appears to be no discussion for a period of time thereafter in relation to setting a date for the wedding. A date was never set but when the late Mr. McPartlan received a terminal diagnosis with a short prognosis, he indicated that he wished to get married and this took place. The late Mr. McPartlan had written to his solicitor indicating that he hoped and intended to be married next April 2021 and setting out that he was receiving treatment for cancer and he wanted to update his Will. But he did say that Carol’s house should stay in her family’s possession and his property to his family. He also purchased a wedding ring on the same date as the letter to his solicitor, i.e. 13th May 2019. On 24th May he met with his solicitor and a Will was sent out to him and he executed it on 18th June 2019. Ms. Graham said that the deceased, Mr. McPartlan, wished to marry her and he told her afterwards “everything is yours now, I told you I would look after you”.

The High Court reviewed decisions from Ireland, England, Victoria and New Zealand and ultimately it was held that the Will was made in contemplation of marriage and therefore it was not revoked by the subsequent marriage even though it was not expressly or on its face made in contemplation of marriage but that is not a requirement of Irish law. The High Court found that it is quite clear based on the evidence surrounding the circumstances of the making of the Will, that the Will was made in contemplation of marriage and then by virtue of Section 85(1) Succession Act, 1965, it was not revoked by the subsequent marriage. Therefore, the Will was admitted to Probate and the house went to his siblings.

If you have any questions on Probate Litigation, contact Anne Marie O’Donnell Solicitor in the Cashel office at 062 61288

Proper Provision | Family Law Case

Can anyone make a valid will?

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Under Irish law in order to make a valid Will a person must:

a) Be eighteen years of age or be or have been married.
b) Be of sound disposing mind.

Paragraph a) is reasonably clear. Paragraph b) is more interesting.

Over the years the Courts have developed a test for the concept of sound disposing mind and it has three parts:

i) A person must understand that he or she is making a Will, i.e. that it is a document that will dispose of their assets on their death.
ii) The person must be capable of knowing the nature and extent of their estate, i.e. their property. This includes land, houses, shares, bank accounts cash etc.
iii) The person must be able to consider persons who might be expected to benefit from their estate and to decide whether or not to benefit them.

It should be noted that despite the well-worn phrase “being of sound mind and body” there is no requirement regarding physical health when it comes to making a Will.

It should also be noted that the law recognises that a person may have a “lucid interval”. For example a person may have a mental condition affecting their capacity some or even most of the time. However if the condition is such that at times capacity returns, a Will made during one of these periods would be valid.

When a solicitor is making a Will for an elderly or infirm person it would be quite normal to ask the person’s medical practitioner to meet with the person first and give a report as to their mental state. Not having such a report does not invalidate a Will but having such a report is a good way to avoid potential disputes.

Once a person executes a Will in accordance with the legal formalities regarding witnesses etc. set out in the Succession Act it is presumed by law that he or she had capacity. It is therefore up to anyone challenging the Will to offer evidence in Court and prove that the person did not have capacity.

If you have any questions on the above, do not hesitate to contact our solicitors at 062 61288 or 052 7441244