Private Client Tax Ireland

 
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  1. NON-TAX ISSUES

    1.1 Domestic law

    1.1.1 Briefly describe your legal system and its origins

    The legal system of the Republic of Ireland is a common law system. In order to ensure consistency, a legal principle developed whereby courts were generally required to follow earlier relevant decisions. This doctrine of precedent established the methodology by which relevant legal principles are extracted from earlier decisions.

    By the 17th century, the common law of England was imported into Ireland when it replaced the Irish system of laws known as the Brehon laws. Given the origin of the Irish legal system and the traditional links between the two jurisdictions, it is not surprising to find UK decisions are the most frequently cited foreign decisions.

    1.1.2 What is the scope of your succession law?

    Statute law including the Administration of Estates Act 1959 and primarily, the Succession Act 1965 govern succession law, together with rules of procedure enshrined in the rules of the Superior Courts. Freedom of testation applies but is subject to two principal exceptions relating to spouses and children.

    Spouses

    Where a person dies wholly or partially testate, the surviving spouse shall be entitled to:

    One-half of the estate where there are no children. One-third of the estate where there are children (section 111 Succession Act 1965). The legal right taken by the spouse in these circumstances is known as the "legal right share".

    Children

    Children do not have a formal right to an entitlement to the estate. At best, their right could be described as a "right to apply". Upon an application to a court, the court has the authority to make proper provision for that child where it believes that the testator has failed in his or her moral duty to make such proper provision for that child in accordance with his means (section 117 Succession Act 1965). Lawfully adopted children and children born outside of marriage are entitled to make an application.

    Civil partners

    Under the Civil Partners and Certain Rights and Obligations of Cohabitants Act 2010 (CROC Act), civil partners have rights almost identical to those of spouses, with one important exception. The legal right share of a surviving spouse cannot be decreased by a successful section 117 application by a child of the deceased. There is no such protection of the legal right share of a surviving civil partner. A referendum on the subject of full marriage equality is planned for 2015.

    There are no other statutory provisions under which disappointed heirs can seek relief save those in favour of the deceased's spouse and children outlined above and general part performance and estoppel principles.

    1.1.3 When are individuals and their property subject to succession rules?

    See 1.1.2 above.

    1.2 Private international law

    1.2.1 What is the jurisdiction of local courts in international disputes?

    Ireland applies the Brussels Regime which consists of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention), Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and the 1988 Lugano Convention and the 2007 Lugano Convention (Lugano Convention). The Brussels Convention determines which member states' courts have jurisdiction and how the judgments of a court of one member state acting under the Convention must be recognised and enforced in another member state. The Brussels Convention also formed the basis of the Lugano Convention which extended the rules on jurisdiction and enforcement of judgments to the European Free Trade Association countries. For all member states except Denmark, the Brussels Convention was replaced from 1 March 2002 by Brussels I. Brussels I is directly applicable and forms part of the body of EU law. Also applicable is Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Matrimonial matters include divorce, annulment and legal separation but do not include, for example, the property consequences of marriage and the grounds for divorce.

    The basic rule of the Brussels regime is that a defendant must be sued in the courts of his domicile. However when attempting to determine which court will have jurisdiction to hear a particular...

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