The Gazette 1979

MARCH 1979

GAZETTE

BOOK REVIEWS Brighouse, Short Forms of Wills. 10th Edition by Edward F. George and Arthur George, 1978. Sweet & Maxwell, 232 p. £8.75 net. The task of drafting a will is rarely an easy one. It cannot be thought of as an isolated matter because taxation is also an important factor. "Tax planning" has to be considered and this makes the task more difficult as the draftsman must keep up to date with tax legislation. He must, of course, be fully conversant with the Law of Succession in order to be able to illustrate the restrictions placed on a testator's freedom of testamentary disposition and to ensure that the formalities required for making a will are observed. In that way can the 10th Edition of Brighouse make the task easier for Irish lawyers? There is a helpful introduction of approximately 30 pages (15 pages longer than the introduction in the 9th Edition) which gives a summary of legislation (including tax legislation) which must be considered when drafting a will. The remainder of the book follows what is now the familiar pattern in Brighouse: a variety of clauses and precedents of wills with the minimum of explanatory notes and the traditional sections on Wills of Traders and Wills of Farmers. There is in this edition a new section entitled "D i s c l a ime rs and Deeds of Family Arrangement". In the U.K. Finance Act 1978 it is provided that where within two years after a person's death any of the dispositions (whether by will, under intestacy or otherwise) of the property comprised in his estate immediately before his death are varied by an instrument in writing made by the persons (or any of them) who benefit or would benefit under the dispositions, the variation is not a transfer of value and takes effect as if the variation had been effected by the deceased. The parties must within six months of the instrument elect by written notice (which must also be signed by the personal representatives) to the U.K. Capital Taxes Office that the variation shall take effect. The editors, having explained the effect of these provisions in the introduction, comment that "for the purpose of Capital Transfer Tax the notion °f a 'family arrangement' has been abandoned. If a will gives peoperty to the deceased's son he can vary the will and direct it to his mistress, a trade union or any other Person or institution". A variation must, therefore, be contrasted with a disclaimer whereby a legatee refuses a benefit and does nothing more. The legatee cannot by his disclaimer direct the benefit elsewhere. What happens to the benefit is determined by law. Section 13 of our Capital Acquisitions Tax Act 1976 relates to disclaimers and provides that the interest disclaimed in accordance with the terms of the Section does not give rise to any liability to Capital Acquisition Tax. Section 14 (6) of our Capital Gains Tax Act 1975 contains a relieving Provision from Capital Gains Tax concerning deeds of family arrangement or similar instruments but there is no corresponding relief in the Capital Acquisitions Tax Act 1976. The U.K. Capital Transfer Tax provisions (summarised above) according to the editors give "an °Pportunity to beneficiaries to correct the mistakes or overcaution of testators or, if we dare say so, their legal advisers". A beneficiary can, therefore, re-write the testator's will and, by doing so, save tax. A beneficiary in

Ireland (or a lawyer advising him) is in a less fortunate position. A testator here should review his will periodically to enable his legal advisers to take into account amendments to finance legislation and changes in the testator's personal circumstances. If this is not done the consequences could be costly for the beneficiaries. This is one disadvantage which Irish Lawyers have to face concerning the drafting of wills vis-a-vis their English counterparts. Another is that they do not have an up-to- date precedent book of Irish wills to work with which is comparable to Brighouse. Because of the differences in legislation in the two countries the most that Irish lawyers can expect to get from a modern English book of will precedents like Brighouse is a set of clauses or precedents which in most cases will have to be carefully adapted. This is not meant to suggest, however, that there is any lack of merit in their book for English lawyers for whom it clearly is primarily intended. Hugh M. Fitzpatrick Textbook of Criminal Law by Glanville Williams. Stevens & Sons, 1978. 973 pages. Paperback £10.00 net but available in hardback £16.00 net. We have here something new in the criminal law textbook scene. To start with, it is fresh ground for Professor Glanville Williams of Cambridge and is quite a compendium in 973 pages. Its most interesting feature, and one which is immediately apparent, is the question and answer motif throughout the work. The problems posed by the questions make for compulsive refuting for the dedicated inquirer. One wonders if there is not a subtle rationale in this — by being posed questions which one hasn't actually thought of, one is subsconsciously made to feel "why didn't I think of that intelligent question?" and so is impelled onwards. At the end of each chapter is a summary which is concise and to the point — for a student the value of such is obvious. That the book is "unusual in its layout", as the author avers in the preface, is thus no idle boast. To quote the end-note of the book — " a notable feature is the attention paid to the social, philosophical and psychological considerations that underlie the law." This constitutes another unusual feature and something which adds considerably to the readibility. Typical is the insertion in the chapter on involuntary manslaughter of an interesting expose on "killing and die prolongation of life" (p. 233) which concludes with two questions and answers which invoke some relevant social philosophy. Also notable is the critique devoted to many topics — thus for example in the chapter on rape there is a small- print section about different procedures in different jurisdictions and one notes how many of these represent what the Council for the Status of Women are presently demanding. Incidentally there are many of these small- print sections and it is suggested that they can be ignored in the interest of skip-reading. Be that as it may, not a few pertinent matters are to be found there. In the preface the author remarks he has had to omit dealing with offences such as prostitution, possession of drugs, offences against the government, and some others. It is suggested a comprehensive textbook cannot do that. It is interesting to contrast the section on "the justifica- tion of punishment" with its equivalent in O'Siochain's 63