Gilbert Dire

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  • Topic: Contract, Parol evidence rule, Tort
  • Pages : 7 (2126 words )
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  • Published : February 5, 2013
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Agent:Duff & Co Solicitors

Querist:Mr. Gilbert Dire

Re:Michael James O’ Rourkes Will

Opinion

Facts:

On the 10th of March 1997 Michael James O’ Rourke of Big Acre Farm, Ballymona, County Clare made a last will and testament and appointed Querist and Peter Sean O’ Rourke of 22 Station Road, Ballymona, County Clare to be the executors and trustees of his will and trustees for the purposes of Settle Land Acts 1882 to 1890, Conveyancing Acts 1881 and 1911, and Section 57 of the Succession Act 1965.

Michael James O’ Rourke gave and devised to his nephew Peter Sean O’ Rourke the dwelling house, outbuildings and freehold land totalling 346 acres or thereabouts known as Big Acre Farm, Ballymona in the County of Clare together with all farm machinery and stock and all quotas registered in Michael James O’ Rourke’s name at the time of his death.

Michael James O’ Rourke gave the residue of his estate to his Trustees upon trust to sell the same (with power to postpone such sale in whole or in part for such time or times as they think fit) and to hold same or the proceeds of sale thereof on the following trusts: 1) To the said Peter Sean O’ Rourke for his lifetime;

2) Thereafter to such children of Peter Sean O’ Rourke who shall survive him and attain the age of 18 years and, if more than one, in equal shares absolutely but if any child of his dies before the said Peter Sean O’Rourke or before obtaining a vested interest leaving a child or children than such shall upon reaching the age of 18 years take per stirpes the share his or her parent would otherwise have taken, and if more than one, in equal shares absolutely.

In addition to the statutory powers which the above named Trustees may have, they shall have the power to invest and change investments freely as if they were absolute owners beneficially entitled and to invest in unsecured interest free loans or other non – income producing assets including property for occupation or use by any beneficiary.

All income received after Michael James O’Rourke’s death shall be treated as income of his estate regardless of the period to which it relates and the statutory rules concerning apportionment and the rule in Howe v Dartmouth and Allhusen v Whittell shall not be applied.

Any of Michael James O’Rourke’s Trustees who are engaged in a profession shall be entitled to be paid fees for work done by him or his firm on the same basis as if he were not one of his Trustees but employed to work on his behalf of his Trustees.

In the Will it was declared that no Trustee of his Will shall be liable for any loss not attributable to the Trustees own dishonesty or to the wilful commission by the Trustees of any act known to be a breach of trust.

The Will was signed and witnessed in accordance with the provisions of the Succession Act 1965.

On the 21st April 2010 Dr Frank Nightingale wrote to Querist stating that he was authorised by his patient, Michael James O Rourke’, to tell Querist that Mr O’Rourke’s illness is terminal and while Dr Nightingale could not put a precise time limit on Mr O’Rourke’s life expectancy the letter did state that it is a matter of weeks not months. Dr Nightingale stated he was asked to write to Querist by Mr O’Rourke as Mr O’Rourke was most agitated concerning the contents of his will. Dr Nightingale informs Querist that Mr O’Rourke now wishes to change the provisions of his will to benefit his three nephews and nieces equally. Mr O’Rourke is concerned that given his age the contents of any fresh will might be challenged on the basis of a lack of testamentary capacity. Dr Nightingale assures Querist that Mr O’Rourke is mentally very sound although physically weak. Dr Nightingale states in writing in this letter that this is his professional opinion. Dr Nightingale requests that Querist arrange to visit Mr O’Rourke without delay to prepare a fresh will.

On the 5th May 2010 Querist attend Mr O’Rourke at ward 10 General...
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