Month: February 2017

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The Mediation Bill 2017

 Mediation Bill 2017. 

Mediation

Mediation is an Alternative Dispute Resolution (“ADR”) mechanism  already well established in Ireland. It is a valuable tool in resolving disputes. It is cost effective and a speedy mechanism in bringing about a resolution. It allows our clients a direct role with first hand involvement in formulating a resolution agreement, rather than having the terms of resolution imposed by a Third Party, such as a Judge or Arbitrator. Mediated solutions are more likely to stick.

Mediation however is not for everyone. It requires a leap of faith and a deep level of commitment on the part of the client for it to work.

Mediation Bill 2017

The Mediation Bill 2017  http://www.oireachtas.ie/viewd contains long awaited proposals for a statutory framework to promote the resolution of disputes through Mediation as a genuine alternative to the institution of Court Proceedings, or as an option where Court Proceedings have already commenced.

It proposes the establishment of the Mediation Council of Ireland. The Council will be required to report to the Minister for Justice and Equality on the adoption of and operation of Mediation as an ADR Mechanism.

Certain types of legal action or proceedings are excluded from Mediation under the terms of this Bill. For example:

  • proceedings under the Arbitration Act;
  • disputes arising within an employment context where referred to Statutory Disputes-Resolution Processes such as the WorkPlace Relations Commission;
  • matters under Tax and Customs Legislation;
  • proceedings under the Child Care Acts or the Domestic Violence Acts.
  • Judicial Review Proceedings and proceedings against the State in respect of alleged infringements of fundamental rights and freedoms are also excluded.

    How will it affect Legal Actions? 

If the Bill is enacted in its current guise or form, it will allow the following:

  •  A Court may, either on foot of Application by either party to a legal action or proceedings, or of its own volition where it considers it appropriate to do so invite the parties to the legal action or proceedings to consider Mediation as a means of seeking a resolution of the dispute before the Court. If the parties decide to engage in Mediation the Proceedings may be adjourned to facilitate same;
  •  Solicitors will be required to advise clients to consider Mediation as an alternative to Court Proceedings, before Court Proceedings are commenced. We must provide clients with information on Mediation Services, including details of Mediators, and information about the advantages and benefits of Mediation. An Application to institute Court Proceedings will have to be accompanied by a Statutory Declaration  by a Solicitor, confirming that the Client has been so advised in the context  of the proceedings in question. The Court will adjourn  proceedings until the Solicitor proves compliance with these requirements. This simply reflects similar legislative requirements already in place in family law disputes since 1989;
  •  For the purpose of the Statute of Limitations, the period of time during which Mediation has taken place will be disregarded for the purpose of a Limitation Period. Neither party will therefore be prejudiced with respect to time limits by engaging in Mediation. A Court may, where it considers it just to do so, take into account any unreasonable refusal or failure by a party to consider using Mediation or to attend Mediation, when awarding costs in such proceedings. This cannot be ignored, if the Courts do implement this fully, it could have serious consequences for any party unreasonably refusing to engage in Mediation;
  •  In any action for personal injuries, the Court will have the power of its own volition, to direct the parties to meet to discuss and attempt to settle the action by means of Mediation;

Why is this a good thing?

 The publication of this Bill has been long awaited. The Mediator’s Institute of Ireland (M.I.I.) welcomed the publication of the Bill but has already identified challenges in implementing same, particularly those that could impact on the ability of the Mediator to operate as effectively as possible.

When enacted into law Mediation will be more available and deliver better resolutions, at a lower cost, to those involved in disputes. The M.I.I. amongst other bodies, such as the Law Society, will work closely with the Government and opposition parties in order to fine tune the Bill in order to ensure its effectiveness and expedite its passage through both Houses of the Oireachtas.

Mediation is already a reality. It needs a Statutory Framework to enable it deliver its full potential benefit in  dispute resolution. Some will still want, even demand their day in Court. They cannot be denied that right, but they will know that it may turn out to be at their own considerable cost where ADR, particularly Mediation could have delivered a faster cheaper and more personal solution.

Declan O’Toole has been an accredited Mediator and Member of the M.I.I. since 2010.

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Categories
News

The Help to Buy Incentive Scheme: Building Slowly.

The Help to Buy Incentive Scheme: Built Slowly…now Running Fast.

The Help to Buy (HTB) Incentive Scheme is now operational. It is designed to assist first-time buyers with obtaining the deposit needed to purchase or self build a new house or apartment. Any newly built or self built house or apartment purchased since 19 July 2016, up to a maximum value or price of €500,000 qualifies for the scheme.

The basic essentials are: –

  • First-time buyers only, where more than one buying then all must be First Time Buyers;
  • New build/self build since 19 July 2016. Properties which have never been used as a dwelling and are now being converted for  residential use may qualify;
  • Maximum value €500,000 for properties bought after 1st January 2017, €600,000 for properties purchased between 19 July 2016 and 31 December 2016;
  • Maximum benefit 5% value of the property, to a maximum of €20,000;
  • Principal Private Residences only, no investment properties;
  • You must take out a mortgage on the property with a qualifying lender, to be used solely for the purchase or building of the property. The loan should be arranged solely between the first-time buyer and the lender, but a guarantor is allowed on the loan. LTV must be greater than 70%;
  • You must be registered for myAccount (PAYE) or ROS (self assessed).
  • The builder must be registered with Revenue for the Scheme.
  • Subject to a clawback pro rata if you do not retain the property as your principal Private residence for 5 years.

The experience so far:

As of April last of 12,101 applications 11,512 were successful and had been approved, to a value of €168.8m.

The figures quoted for the maximum possible benefit are hypothetical or theoretical only. The scheme is one of rebate or a refund of Income Tax and DIRT paid in the four years prior to the date of application. The applicable tax years for an application made in 2019, are for the tax years 2015 – 2018 inclusive. If you have not paid any Income Tax or DIRT in that period, then no rebate can apply. The maximum rebate available is the total amount of tax that you have paid in that period, but the benefit can never exceed 5% of the price of the property.

You must be fully tax compliant. If you have not submitted annual returns (Form12) for those years, you need to do so now. You will need Annual Balancing Statement’s (Form P21) from the Revenue for each of the 4 years in question. Self assessed Applicants must hold eTax Clearance.

As of May 2019 there are 575 Builders/developers  registered for the Scheme so far. Plenty to choose from and a big increase from the slow uptake when the ~s theme was first introduced.

Builders must also be fully tax compliant in order to register any particular property. They must have up-to-date Tax Clearance Certificates. They must register all properties that qualify for the scheme or are likely to qualify for the scheme during its lifetime. They cannot register individual houses or developments on an ongoing basis.

The benefit will be paid by the Revenue directly to the Builder and never to the Applicant/Purchaser.

How does it Work?

Applications can only be made on line. Firstly, there is the application stage, where you are required to provide your PPSN and a completed declaration. Provided you are tax compliant, you will then be provided with an Application Number and a summary of the maximum relief available to you. You will then be issued with an Access Code separately through “MyEnquiries” in ROS. This information is crucial, your builder or solicitor will require this information to verify your tax relief claim. Keep this information safe.

Secondly, you enter the Claim Stage once you have signed the contract for your home and are ready to make your claim.

Full details can be found on www.revenue.ie.

The Moral of the Story so far:

After a slow start the Scheme is now fully uo and running, there is a lot of hoops to jump through and paperwork for builders/developers to register their properties for the Scheme. Numbers will improve, it’s in the builders interests to sell on their completed properties and there is an increasing demand for the little stock we have of competed properties.

For you, the first time buyer, get your ducks lined up in a row. Register on myAccount(PAYE) or ROS(self assessed).

Submit your Tax Returns for 2015 – 2018 now, get your P21 Balancing Statements and Summary of Maximum Benefit and Good luck in your quest for your New Home.

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Declan O’Toole BCL TEP has been acting for and assisting clients in purchasing and selling property for more than 32 years.

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What should a Will do?

When you go to the bother of making a Will you should at least ensure that it is going to be a valid Will.

Validity:

Your Will, in order to be valid must satisfy a number of basic requirements:

  • It must be in writing;
  • You must be over 18 years of age, or married;
  • You must be of sound disposing mind – you must enjoy the necessary mental capacity to make a will;
  • You must sign your name, make your mark or acknowledge your signature in the presence of two witnesses who must be present together;
  • You must sign the Will at it’s foot or end;
  • The two witnesses must sign their names in your presence.

Format:

Your Will should also follow a certain format:

  • It should include your name and address;
  • Revoke earlier Wills and codicils;
  • Appoint Executors and include their addresses and relationship to you;
  • Dispositive provisions;
  • Residuary Clause;
  • Date;
  • Signature;
  • Attestation clause;
  • Witnesses Signatures.

Ultimately, your Will, when complete should leave you with a sense of satisfaction. Another box ticked.

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Declan O’Toole is a Trust and Estate Practitioner and advises on Wills.

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Lifetime Planning

Lifetime Planning:

 

Traditionally, planning for your future meant making a Will, providing for your loved ones and friends after your passing. A will is essential where you wish to plan for such eventuality. It allows you to ensure that your wishes are followed concerning your property and affairs. It can also be useful in planning for the devolution of your estate in a tax efficient manner. You should have a will, and if you do have a will, you should review it at least once every five years.

We have now however adopted a more holistic approach in future planning, we now refer to it as Lifetime planning. If you are prepared to plan for life after your death, why not plan for life before death?

The “Holy Trinity” of Lifetime Planning up until recently comprised of a Will, an Enduring Power of Attorney and an Advance Health-Care Directive.

A will provides for your property and affairs after your passing.

An Enduring Power of Attorney allows you appoint someone to act as your Attorney to make certain decisions for you at a future date when you no longer have the ability to make those decisions for yourself.

An Advance Health-Care Directive allows you appoint someone to act as your healthcare representative to make healthcare decisions on your behalf when you are unable to make them yourself.

A new system of support has now been introduced for people with intellectual disabilities, older people with diminished capacity or dementia and people whose capacity has been affected by traumatic injury.

The Assisted Decision-Making (Capacity) Act 2015 introduced for the first time Decision-Making Assistance Agreements; Co-Decision Making Agreements; and for the appointment of Decision-Making Representative Orders.

It provided for the first time a Statutory presumption of Capacity and a graduated system of support, support meaning different things to different people depending on their needs.

It empowers people to make their own decisions and respect the right of human beings to make choices for themselves and at all times to be treated with dignity and respect.

For Support services check out http://www.sage.thirdageireland.ie

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Declan O’Toole BCL TEP is a Trust and Estate Practitioner and advises on Lifetime Planning

 

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Categories
News

Intestacy? Whats that?

Intestacy:

Intestacy is the legal description of the situation arising when you don’t leave a valid will. Intestacy can be total, as in no will, or partial, where there is a will but it doesn’t doesn’t cover all property or circumstances.

The Succession Act 1965 governs the actual distribution of estates intestate between those entitled to succeed. There are two starting points in determining who is entitled to inherit and in what shares. The first is establishing the marital status of the deceased as at date of death; the second is establishing the next of kin.

It also determines whom is entitled to act in applying for a Grant of Administration Intestate, as in whom will have access to all your papers, property and affairs.

Next of kin do not hold equal rights to succeed or necessarily equal shares on Intestacy, they are ranked in terms of degrees of kinship, in descending order as follows: Spouse/civil partner; Children or children of a child who predeceased the deceased; Father/mother or in non marital cases, the mother; siblings; nephews/nieces; Grandparents; Uncles/Aunts; Greatgrandparents; other next of kin of nearest degree; nominee of state.

Various  situations arise on Intestacy, such as where  only a spouse/civil partner survives  with no children of the marriage or partnership; a spouse/civil partner survives along  with children; where there are only children surviving; where children and children of a predeceased child survive; where only Parent(s) survive; or where only siblings survive. What of children of the deceased, other than of the marriage or partnership?

Every possible circumstance is provided for under The Succession Act 1965, although its terms may require careful consideration, assisted by the findings in previous Court cases in determining what is to happen in each case.

Sound complicated? It should because it is. Make your life and the lives of your next of kin simpler. Make a Will.

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Declan O’Toole BCL TEP is a Trust and Estate Practitioner and advises on Lifetime Planning

Categories
News

You don’t have to make a will….

I recently had an interesting conversation with a client about his will. We had just completed a complex and long drawn out matter and I asked him about his will. He didn’t have one and whats more, he didn’t plan on making one. Why should he, he asked when the Law will dictate what happens after his death. The law will look after everything!

“So you’re a fan of The Succession Act 1965?” I asked. No as it turns out. He didn’t even know what that meant, but he had an absolute faith in the law looking after his affairs. So I asked him to humour me. I asked him to list 4 things he would like to happen with his affairs after his death. So we looked at his list in the context of The Succession Act 1965. We discovered that he would achieve 1 out of his 4 wishes.

So, we reached a consensus. We agreed that he absolutely did not have to make a will, but that if he wanted to achieve more than 1 in 4, he had to make a will. The ultimate outcome? We carried out a full review. His final wishlist went way beyond 4, but he now has a will that meets his precise requirements and in a tax efficient way.

His next project is an Enduring Power of Attorney.

Happy Days.

Declan O’Toole BCL TEP is a Trust and Estate Practitioner and advises on Lifetime Planning.

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