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Dáil Éireann díospóireacht -
Tuesday, 15 Dec 1964

Vol. 213 No. 7

Succession Bill, 1964: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."
Debate resumed on the following amendment:
To delete all the words after "That" and substitute "while Dáil Éireann is of opinion that the law should require that adequate provision should be made by testators for dependent spouse and children, the Dáil declines to give a Second Reading to the Bill unless Part IX, and the provisions consequential thereon, are deleted because of their utter unsuitability to Irish conditions."—(Michael J. O'Higgins.)

I should like to start this evening where I left off before the debate was adjourned. I was just beginning to comment on section 37 of the Bill, and I should like to deal with it in greater detail now. The Minister said he attached great importance to the need to provide adequate facilities whereby grants of representation might be obtained easily and quickly, particularly in the case of small estates. I think there is a very considerable misapprehension in this regard. It is not an unduly difficult or expensive job to get a grant of representation in the normal way through a solicitor. I feel that the way in which this matter has been approached is in itself indirectly and I hope unintentionally a slur on the legal profession and in particular on the solicitors' profession.

The Minister stated it was desirable on social grounds to ensure that the procedure should be as simple and inexpensive as possible for the ordinary person. In many cases, it is a simple matter but, for all that, even in a small estate, there may be unexpected complications. The suggestion has been made that this section should be amended by increasing the facilities for personal application for grants of probate or administration through local district registries. Figures have been given for the total number of cases where representation is raised. In 1962, the total number of grants issued was about 13,000: probably a very high proportion of the estates involved in those grants was small.

I cannot see how the Minister could set up an economic organisation through district registries which would deal with a large number of grants. Applying for a grant of probate of a will is not a matter of sheer mechanics. There has to be a very detailed interview between the client who is then the executor or administrator and, in normal circumstances, a solicitor and the solicitor must be and usually is a man experienced in such matters, a man who can ask the right questions and make sure that nothing has been overlooked.

The completion of the statement or schedule of assets is not an easy matter and it is all too easy for a lay person to forget to ask a question of the administrator or the next-of-kin as to the total amount of assets available in the estate. There are other matters to be dealt with such as the debts due against the estate, gifts made within the prescribed period before death, and so on.

I cannot feel, for the moment, that this sort of consultation, which is properly carried out at present between a solicitor and his client, can be substituted by a district registrar of probate. Quite apart from anything else, if you set up a man in such a post he will need a considerable staff and already, in the Probate Office, there are delays of two months or more. We have every reason to suspect that, far from this procedure resulting in increased speed, it will do the exact reverse. If the district registrar is to be available at a moment's notice to deal with every executor or administrator who may wish to see him, he will have to employ a very considerable staff and the rate of applications will not be steady. There will be peaks and valleys, as it were, in the rate of application, and we shall find that if the staff is sufficient to give prompt attention to anyone who may come into the office it will be far too great in the valley periods. I am sure, in the general way in which Civil Service staffing problems are tackled, that the staff will not be large enough. It will be slightly on the small side, at the very best, and will very shortly become increasingly in arrear.

Apart from the question of the time delay, I do not feel that people would ever have the same confidence in a court official as they would have in their own solicitor. This very personal cross-examination of an executor or the next-of-kin is something which can be very trying especially after a bereavement. It is a job in which a solicitor is well experienced and is able to be of maximum help. It is not that I have any particular grudge against civil servants. There are jobs which they can do far better than anyone else—the routine administration of the law, the routine interpretation of what the law means. All these matters are very proper to be dealt with by civil servants and right well they do them but where questions of discretion come in, where questions of confidence arise, I do not feel that any person, especially in a country area, would ever have that same confidence in someone who is merely an official of the court, however kindly he might be or however well qualified.

In his speech, too, the Minister stated that if people showed themselves unable or unwilling to comply with the law, that is, the law about taking out representation, it is the clear duty of the State to come to their assistance by providing the requisite facilities. I do not agree for a moment. I think it is laziness that stops people from taking out grants of representation. I do not think this proposal would alter that in the very slightest. If people are unable or unwilling to do what they should do, I do not think it is the clear duty of the State to come to their assistance in this way. I think it is a grandmotherly approach which I should like to resist to the very limit. People must be allowed to stand on their own feet and to carry out their responsibilities in their own way without having State officials taking them by the hand all the time.

There is a delay at present of eight weeks in the Probate Office and there is no sign, that I know of, of the arrears being overtaken. I was speaking to a solicitor only last night. He told me that this is the latest position. He told me, further, that he had been asked to act for an administrator in an estate of a total value of just over £500. He said to the administrator that he should make a personal application for a grant. When he found that it would be eight weeks before he could have any hope of getting an interview, he came back to the solicitor and said: "I shall have to get you to act for me or I shall never make any progress." The total fees in that case, as far as the solicitor is concerned, would probably be about 10 to 12 guineas. I realise that 10 or 12 guineas, out of £400 or so, is a fairly high percentage but the alternative would be an almost indefinite delay which could be a very great burden on the possible beneficiaries from the estate, particularly a widow who is urgently in need of funds and who could not get at the money in the estate until a grant is taken out. In a case like that when a solicitor takes over, he is in an entirely different position from that of a civil servant. A solicitor can go down to his own bank and say: "I wish to open an executor's account—or an administrator's account—in the name of the estate of AB. I have checked the assets and the total assets will be approximately £400. I should like immediate overdraft accommodation for the benefit of the widow up to, say, £150." No banker would refuse such an overdraft as long as the application is made properly by a solicitor with full knowledge of the facts, but you could not expect the District Probate Registrar to go down and raise overdrafts on that basis.

Another case which came to my notice recently was where an estate was being wound up with the assistance of a solicitor. The estate was not very large. The deceased had been an old age pensioner, but the solicitor was an experienced man and, as most solicitors do, he had retained custody of the executor's cheque book. As matters arose for payment, the solicitor drew the cheque and then handed it over to the executor with the advice that it should be signed. The amount of available assets was being reduced as the distribution continued, but the solicitor, by reason of his experience, had a sort of suspicion that somehow some debt might have been overlooked and he advised the executor not to distribute any further funds at the moment. He had almost decided that everything was in the clear when suddenly an inspector from the Department of Social Welfare arrived with a claim for £250 for overpayment of old age pension. Now, that is the sort of thing which a solicitor with his long experience can get a suspicion of in good time before an executor has disposed of the assets and created an almost intolerable position by having to try to get some money back to pay a just debt which has been overlooked.

There are many matters which can arise in a case of administration where a solicitor is obviously a better person to act than a registrar. Apart from anything else, the solicitor has many other jobs upon his hands apart from the administration of estates and consequently he can keep his office going on an economic basis during the valley periods when there are no estates for him to work on. That, however, is not the position with the District Probate Registrar. He will have times when he will not have half enough to do and other times when he will have far too much. A solicitor can and will give immediate attention to the estate of someone immediately death has been notified. A solicitor can step in at that stage and be of inestimable help to the family of the deceased and to the administrator or executor, as the case may be.

I should like to make a very strong appeal to people not to be afraid of going to solicitors. They are not the sharks they are made out to be. They are the butt of many jokes, but so are dentists and mothers-in-law, but people are very glad to have a dentist when they have a sore tooth and people are very glad to have a solicitor when they are out of their depth in legal technicalities of one sort or another. I appeal to them to leave their estates in the hands of qualified, responsible solicitors who will do the job properly for them.

Quite apart from anything else I have said so far, there is a great danger in the issue of grants direct to an individual. Granted, he may have bondsmen who are standing surety for him, but they may turn out to be men of straw, if the executor misappropriates the funds. There are numerous cases on record where people have realised the assets of the estate of a deceased person and disappeared. If a solicitor is engaged in this matter and if he defaults, there is an indemnity fund set up by the Incorporated Law Society which will indemnify the beneficiaries. If a man is acting on his own and defaults, there is no remedy. There is a tremendous temptation to a man if he is executor of an estate and finds his is the sole name in a bank account which has swollen to £800 and he suddenly thinks: "I could do a lot with that £800", and he cashes a cheque and is gone. We must protect the beneficiaries, the widows, the dependent children and so forth, and I would strongly recommend that we re-consider this whole question of facilitating the personal applicant for grants of probate or administration.

We should do everything we can to encourage people to do that through the legal profession in the normal way. The legal profession, through the Incorporated Law Society, should try to give better publicity to the fact that their fees are reasonable and people should always remember that solicitors' fees have to be agreed on by this House. They are scale fees and any increase in scale fees must come before us for approval, so there is no question of exploitation.

The Minister did try to differentiate between the machinery of applying for grants of representation and the subsequent administration of the estate. He pointed out that in his view the District Probate Registrar would simply prepare the papers necessary to obtain the grant of the will but he would not, of course, be able to give applicants legal advice. I feel that as so much of the work is done by the Registrar, people will be even more reluctant to go to a solicitor at that stage.

Another point that was made by the Minister is one with which I disagree. He says that it is important that the right of personal application should be preserved, on the general principle that every citizen should be free to conduct his own legal business and be facilitated in doing so, but the executor of an estate of a deceased is not conducting his own legal business at all; he is conducting the legal business of the deceased and in that capacity should be independently advised by a professional person. Therefore I would ask the Minister to reconsider this whole question. It may be that in the case of very small estates, some small extension of the rights of personal application might be advisable, but, in my view, any move in that direction is suspect, reflects on the legal profession and is something which I rather resent and which I hope will not go further.

On the question of intestate succession, and generally throughout the Bill, there is a very important matter which I feel is not being given quite sufficient attention. It is that these new rules as laid down in Part VI will remove the discrimination that previously existed between the husband and his wife. There has always been a tendency to regard the wife only as a member of staff with a very limited right and this Bill has gone a long way to putting the wife in her proper place as a joint manager with her husband of the family's affairs. The insertion of new rights of inheritance equally between husband and wife is an excellent move in the right direction.

Section 77 makes provision in regard to the execution of wills. The Minister has stated he will be interested to hear what Deputies might have to say on the matter. It is difficult enough to get a man to give instructions in the first place for the drawing up of a will and then to steel himself at the appropriate time to sign it. Somehow it often seemed a little difficult to have two independent witnesses, who would not be beneficiaries under the will, present while he signed it so that they could append their names as witnesses in his presence and in the presence of each other.

I should like to know how it has been suggested "while it is supposed to prevent fraud, it probably facilitates far more fraud than it prevents"? That is a quotation made by the Minister from a work entitled Reform of the Law. I cannot see how it possibly can facilitate fraud to ensure there can be two witnesses present at the same time as the will is being executed. I feel it is a generally accepted rule, one which is a protection to the testator, and something which makes the execution of a will something rather more solemn than the execution of a contract in the ordinary form. I would be sorry to see this go.

I would be very sorry, indeed, if we agreed to the new suggestion about the revocation of a will. It is always possible that a man in a fit of temper may write "revoked" across a will; but he may well have, and probably has, at the back of his mind that he is going to rub out that word very shortly as soon as his wife has been nicer to him or his son more dutiful. Just as the execution of a will is something very solemn and formal, the revocation should be equally formal. Apart from anything else, it could give rise to endless litigation to try to see whether the writing "revoked" was, in fact, the deceased's writing, whether the signature was his and so on. There are only two ways of revoking a will. One is by destroying it utterly, preferably in the presence of witnesses, and the second is by a completely new will. That has always been our tradition and law up to now, and it is far better that it should remain that way.

Now we come to the contentious part of the Bill, Parts IX and X. This is the part to which Deputy John A. Costello confined most of a very able speech indeed. It has been stated there was no demand for such a new breakthrough in the law reform. Deputy J. A. Costello was quite categorical about it. At column 480, volume 213, No. 4 of the Dáil Debates he stated:

I do not agree that this problem is a small one; I think it is a sizeable problem and it is a problem that does call for some remedy.

At column 481, he went on:

There are wills made and a considerable number of inofficious wills, as they are called, that is, they do not carry out the obligations to the family.

There has been no public demand for it because the public has been unaware of the situation. But when you get a man of the experience of Deputy J.A. Costello stating this quite categorically —that there is a problem here, that it is a sizeable one and that there is a considerable number of inofficious wills—that ought to satisfy everybody, both Government and Opposition, that some legislation on these lines is absolutely essential.

Deputy J.A. Costello said he did not think our people were yet ready for such legislation. I would agree with him there. But unless we introduce legislation along these lines, they never will be ready either. We have gone along in the same old way far too long already. This is the time when we have got to try to snap out of it and make sure our law is made really just, so that people cannot be left destitute owing to the prejudice of a father of a family.

I feel, however, that this is a very difficult problem to solve. There are two schools of thought. One favours a very strict code, which lays down fixed proportions which must be distributed among the various members of the deceased's family. I am not in favour of that. Then there is the suggestion that it should all be left for final decision by the courts—that a man should be free to make any will he likes on the strict understanding that his behaviour may be questioned subsequently in the courts, without giving the courts any definite yardstick by which they can decide whether the will is officious or inofficious, just or unjust.

These are matters which have already received a tremendous amount of consideration in other countries. The Minister in his opening speech referred to a lot of the history of the developments in other countries. I feel we have not had nearly enough time to consider this matter. When we pass the Second Reading I would hope the Minister would still feel free to reconsider Parts IX and X altogether. I am not satisfied that the proposed amendments are by any means the best. I feel it might be as well, if we cannot make further progress during the recess, if he would consider on Report Stage deferring the succession provisions dealt with in Parts IX and X—excluding them from this Bill and including them in a subsequent Bill, which would deal with succession only, leaving this present Bill deal much more with wills, grants of administration and so forth.

That might be the best solution. I know such a decision on the part of the Minister could be misinterpreted, but he has shown himself so willing to consider any reasonable suggestion I hope he might be willing to consider this under that heading. I personally would feel much happier if we were not thrust into the Committee Stage without further very careful consideration of the possible alternatives which may still be open to us. I do not know whether the Minister feels he has already committed himself too far, but I do not think he does.

If we decide at this stage we will defer consideration of Parts IX and X, it can only be on the strict understanding that it is a temporary deferment and that some legislation along these lines will have to be introduced at a very early date. There should be no question of this going into cold storage. This matter must be kept constantly under review and all possible sources of information must be tapped to get the very best suggestions possible.

There is a lot to be said for Deputy J.A. Costello's suggestion of a marriage between the two systems. How far we should go towards granting increased judicial interference is something which needs very careful consideration. If this were a matter to be bandied across the House in a Committee Stage, the chances of our getting a real solution would be greatly reduced. Therefore, if he sees it possible, the Minister in his closing address on this Stage of the Bill could state that he would feel free to reconsider Parts IX and X altogether and, if we cannot easily achieve agreement on or before the Committee Stage, that he would consider deferring them and deleting them from this Bill on the strict understanding that he would get down to it and introduce a separate Bill dealing with these Parts only at a very early date.

Generally speaking, the Minister has made a very good job of a very difficult Bill. I still feel that the Bill was introduced in a very hamhanded manner and that some of its provisions were quite clearly out of sympathy with general public opinion, but I have every confidence that the Minister will be able to overcome the initial difficulties and steer this Bill through so as to make it something which will be a real addition to our legal system. I wish him the best of good luck in his work and I am sure he will receive all possible co-operation on both sides of the House, such as he has already received from Deputy John A. Costello in particular.

The Minister has had the advantage of a very good discussion on this matter. He has had the advantage of the help of many Deputies on all sides of the House, a number of them Deputies who are practising lawyers in both branches of the profession. He has also had the advantage of having practised himself and having some colleagues who have practised the profession of law. He has had the advantage, also, of considerable research and much study by able and energetic officials who have prepared the framework and have done a great deal of the background work necessary to produce the measure.

So far as we are concerned, we have adopted what is, I believe, a most constructive and reasonable approach to this measure but as at present drafted and presented both with the Minister's proposed amendments and the additions made by his speech, including the proposed additions announced by him at a press conference, and the insertions made by way of interjection during the course of the discussion, the Bill as at present before us is not acceptable.

I believe the Minister should adopt the suggestions and recommendations which were made during the course of the discussion here, that he should hold consultations with interested bodies such as the Bar Council, the Incorporated Law Society, the NFA, the ICA and other similar bodies and, also, give close attention to the comments in the Dáil as well as the various comments which have been made in the newspapers by many people who are informed on the various facets of this aspect of law and who have expressed views and should then introduce after the Recess either one Bill or two or more Bills containing those provisions which are acceptable and leaving to a separate measure those matters which have aroused so much comment and, indeed, so much concern.

As I have said, we are anxious to be co-operative and reasonable but that attitude is a two-way business. The present situation is confusing and unsatisfactory. We have at the moment the original Bill and the explanatory memorandum with it. We have then what may be described as Document No. 2, the Minister's announcement at a press conference. We have his subsequent introductory speech. We have a supplementary memorandum, if I may so describe it, indicating the changes that were proposed and, in addition, we have had comments by way of interjection by the Minister on still further alterations that are contemplated. Anyone who examines that situation will agree that it is confusing from the point of view of useful discussion here as well as from the point of view of those people outside who are interested and who have already given this matter their attention.

A great deal more thought is required before an acceptable and agreed measure can be introduced. This Bill has evoked much interest in the country and much informed comment, not merely by newspapers but by people many of whom are well qualified to express an opinion on the terms of the Bill.

The public discussion as well as the discussion here and the suggestions made can all help in having desirable and necessary changes made in order to produce an acceptable measure. After all the discussion, both here and between interested bodies and availing of the comments and opinions expressed by persons outside—lay people as well as lawyers, because this is a matter that vitally affects a great many people—we want to fashion a measure that will be suitable to our conditions and circumstances. The Bill as it finally emerges from this House should be one which is suitable to Irish needs and requirements.

I welcome the belated recognition by Fianna Fáil of the great skill and ability of Deputy J.A. Costello. His contribution to this debate has been of outstanding merit and has so been recognised. It is on a par with many contributions that he has made over the years on other matters.

So far as we are concerned, as I think was made clear by Deputy J.A. Costello in the course of his speech, we make no point about the Bill being withdrawn or an altered measure being introduced, but, as I said initially, co-operation is a two-way business and if the Opposition is offering that co-operation, then co-operation must be forthcoming from the Government side. Unfortunately, there is often evidence that when Fianna Fáil want to put a matter above Party, it is because the going is difficult but if there is advantage, they plough the furrow alone. I suppose that is politics, but we are anxious in this matter to put the country first and Party and political interests second.

The suggestions which have been made by Deputy J.A. Costello, if implemented, can achieve what I believe to be the aim of all who are interested in this matter, that is, to implement the non-contentious matters, reforms which are desirable and necessary, and then to leave to more exhaustive examination and consideration those matters which are and have been the subject of so much concern to Deputies and to the country at large. Few measures have been considered at any time which have evoked so much interest and have succeeded in attracting so much public attention. Many reforms are necessary and many changes included in the Bill are desirable but it is well to say that reform for the sake of reform should not be pursued either in this or in any other measure.

I appreciate the desire in this measure to secure as far as possible some of the improvements and advantages which have been adopted in other countries. In the course of this discussion attention has already been directed to the fact that we have gone, if not all the way around the globe, certainly a good portion of the globe in our anxiety to adopt a European attitude. In recent years one of the matters that have received attention is bringing our laws into conformity with the conditions and the state of the law in a number of European countries. I believe that is appropriate if it suits our conditions. It does not matter where we get the precedent from even if it is a combination of the laws applicable in Europe and in other countries outside Europe. What we want to get is a measure suitable to our own conditions.

While some eminently desirable reforms, which it is not necessary at this late hour tonight to go into, have been adopted from legislation in certain European countries to which reference was made by the Minister and other Deputies who spoke on this matter, we ought to be careful to ensure that the paramount consideration is to fashion, certainly so far as the wills provisions are concerned, Parts IX and X, a measure that is suitable to our conditions.

Anyone with a remote knowledge of conditions in this country recognises that the original proposals in the Bill were quite unsuitable. This country is primarily a country with small farms or small businesses and any suggestion that these should be divided in a fixed ratio obviously would involve and bring in its train probably greater problems than it set out to cure. In that connection it is well to recall a terse phrase of the late Kevin O'Higgins applied to other circumstances; he did one time say that the eyes of the fool are on the ends of the earth. While in this matter it is essential that we should study carefully, as the officers who have assisted the Minister in the preparation of this measure have done, legislation, law and practice elsewhere, it is important finally to adopt here what we hope will emerge from this discussion, a Succession Act which is suitable and which, so far as human knowledge, ingenuity, discussion and consultation with the various interested bodies can make it so, will be generally acceptable.

If the Minister adopts either entirely or with variations the suggestions made by Deputy J.A. Costello and by others who have spoken from this side of the House, we shall secure a measure which will go a long way towards improving the law and making the necessary reforms without at the same time enacting legislation which would be contrary to the interests of our people and contrary to the conditions which exist here.

I do not intend at this stage to go into a detailed discussion—many of these sections have already been adverted to—but we are anxious to be co-operative and constructive in this matter. I believe we have always been statesmen before we have been politicians and we are anxious to assist in the necessary steps to secure proper law reform. As at present presented, it is in the confused stage before the House in which it is unacceptable. I believe the Minister has an opportunity, with considerable goodwill, to take the necessary action which will enable him to have a much easier passage for the Bill through the House and to enable the Bill to get that consideration which a measure of this sort deserves.

I should like to commend the speakers here for their approach to the Bill, not all of them, no matter what Deputy Cosgrave says about his Party, but fortunately most of them. I do not wish to say anything about the strictures that Deputy Cosgrave has cast upon Fianna Fáil beyond saying that, in my humble view, his Party, in connection with the Bill immediately preceding this, took great care to put Party and political interest before the country.

I am sorry he found it necessary to say that we here have given belated recognition to Deputy John A. Costello. I happened to be Chairman of the Special Committee which examined the Civil Liability Bill in 1960. I have great pleasure now in saying in public what I said to Deputy Costello then, that is, that he is a kindly, magnanimous and altogether brilliant man and that without him we could not have achieved the success we did achieve on the Civil Liability Bill. Deputy de Valera and Deputy Booth have also made altogether admirable contributions to this debate.

I may say that for the first time ever, perhaps, in this House, I speak with great fear and trepidation. What I am about to say on this Bill has literally kept me awake at night. I only hope what I say will be of help to the Minister whose approach to this since he took office has also been altogether admirable. He has indicated that he is prepared to be flexible in regard to all the Bill, not merely Parts IX and X which are so objectionable to the country.

The Bill, as originally introduced, contained a section which has already been mentioned by Deputy Booth and I am glad he did so because he is not a practising lawyer. The fact that I am a practising solicitor may be taken by some people as clouding my motives. I only hope they will not take that attitude. It is quite true that I do not like the prospect of 40 per cent of my business being taken away by legislative action. I am prepared to accept the loss of more than half my business through legislative action if I am satisfied that it is for the common good. I am not so satisfied and I only ask the House to accept that my arguments are made dispassionately and not from any material, mercenary motives.

I do not like saying what I am about to say, but I feel obliged to say it, and it is that the people who were clever enough to draft this Bill were also clever enough to know that what was stated in the original explanatory memorandum was untrue and that what was not stated made the memorandum even more contemptible.

The solicitor is in a trustee relationship with his clients and I do not mean any disrespect to civil servants when I say they are not, and cannot be, in a trustee relationship with a member of the public. I like and admire the work civil servants do but their function is to serve a civil authority of the State who is their master, and when some individual comes in off the street, they owe that person no loyalty and, of course, the person who comes in is not paying them. They cannot, as Deputy Booth and others have said, advise that individual as to what would be the wise and correct thing to do. They have no right to do so, nor are they qualified to do so, and if they attempt to do it, they are living a contradiction between their real function and the function of a qualified lawyer.

The amendments suggested by the Minister in respect of section 27 do not, I think, go far enough, and in this regard I should like to give an example of something that happened here and in which I was involved some years ago. The Department of Posts and Telegraphs and other State Departments paid out up to £100 to a relative without production of a grant of letters of administration. A few years ago it was decided that on account of the drop in the value of money, this figure should be increased to £500. One day a man arrived in my office and told me his brother had got £300 out of the Post Office and had made off with it to England. I told him I did not believe that could be true because I was not then aware that this administrative change had been made. I immediately telephoned the Department and discovered it was true, whereupon I put down a Parliamentary Question and had the procedure restored. The amount that man lost was only £70 but that is a lot of money to a poor person and there was nothing in practice he could do.

Deputy Booth has pointed out that the real security the executor or administrator has is the fact that the funds are in the control of the solicitor. Does anybody even pretend that the sureties, who gaily swear that the real worth of their estate is £2,000 or £3,000, are really worth that amount? There is no need for them to be worth 2,000 or 3,000 halfpennies, since the solicitor sees to it that the estate is administered in accordance with law, thereby protecting the administrator and the next-of-kin or beneficiaries under the will, as the case may be.

To disturb that situation except in respect of genuinely small estates—not £50 valuation estates which were included in the original section—and to take that away from solicitors and give it to civil servants would in the long run be contrary to the public interest and contrary to the benefit of individual citizens.

The procedure in the principal Probate Office has been mentioned already and the Minister's advisers are well aware of the situation that has obtained in that Office for a very long time. Quite recently I sent copies of certain papers in respect of an estate in which I was involved to the Minister's Department for their consideration and for an answer to the question as to whether they thought my approach was unreasonable. I regret to say I did not get a great deal of satisfaction. The fact is that the language used in the obligatory affidavits is Victorian, to put it at its best——

——and the requirements of the Office, the niggling little queries which they insist on making, do everything to render life intolerable for the solicitor and the unfortunate people he tries to serve. I have considerable experience also of the British Probate Office and in all my time as a practising solicitor, I have only once had an affidavit rejected, for the very good reason that a sentence had been left out that I had not adverted to. I gave that evidence in plain language. That is not good enough. You must sign at the foot thereof "in the presence of." You subscribe the witnesses' names "thereto", blah, blah.

The Deputy is quite right regarding the form of affidavits. In some affidavits, one refers to the will as being "hereto annexed" but is, in fact, not allowed to annex it.

Before I leave this section 37, I should like to advert to a section which, as far as I know, has not been mentioned by any previous speaker, section 30, which refers to the power to grant representation to a trust corporation. In connection with that, it is relevant to mention that a trust corporation was floated in the month of September of this year. It was one that would fulfil the requirements of this section. I shall have to get very clear assurance, on the Committee Stage, about the real purpose of this section to be satisfied that what was referred to in section 37 was not being violated by section 30. We can discuss that in more detail later on.

Section 36 is an encroachment on the solicitors' profession. There are several matters in the early Part of the Bill, that is, the Part other than Parts IX and X, which, I think, could be more appropriately dealt with on Committee Stage. The Minister asked for views, for instance, on the matter of two witnesses to the will. As far as that is concerned, if he combines sections 77 and 80, it will be quite clear that it will be dangerous to change the existing system. If we are to have section 80, that is, if a person who attests the execution of a will, is, at the time of the execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid. If you have only one incompetent witness, where are you? In any event, I have not found any practical difficulty whatsoever in obtaining two witnesses, even in the depth of the country. The thing that is important here is that it is not necessary for the witness to be present during the preparation of the will. It is only necessary that he should be present during its actual execution. He does not even need to see the will.

There is another matter about which I have always had misgivings as a result of my practical experience, that is, the doctrine of the chain of executorship. The practical application of that can, in some instances, become a joke. If the person who is appointed an executor dies, he appoints an executor. That person has no interest in the original family whatsoever. He may in fact be inimical. Yet the family are forced to take somebody who does not want them and whom they do not want. On the other hand, I see the usefulness of the system of the chain of executorship. I recall some years ago when I went to have some diocesan property in the diocese of Tuam transferred, the only person surviving who could transfer was the third executor of the will which was made about 40 years ago. There was only one person. The transfer could not have been made unless a new trustee was appointed. I think, on balance, there should be a choice that the system could be preserved and at the same time there could be an alternative to it for use on application and on satisfying the Probate Registrar that the circumstances were proper. In other words, it could be applied where desirable and an alternative could be substituted in other circumstances.

I come now to Parts IX and X. I fully support the proposal made by Deputy J.A. Costello, and supported by others, that we should concentrate on the wills portion of this Bill and defer, for further long consideration, the succession sections. As Deputy de Valera said, hard cases make bad law, and if we are to try to hammer the existing sections into manageable shape by amendments, exceptions and wholesale revision, we will simply get ourselves completely and utterly confused. It would be better if those sections were deferred. I can only hope, if that should happen, that the undertaking given by Deputy Cosgrave, on behalf of his Party, will be honoured.

The fact is this Bill was introduced in a hamhanded fashion. If some of us had had an opportunity of looking at it, it would never have appeared in a way which would oblige a man to cancel his will because he would be better off intestate than testate. Some of my clients, when this Bill was introduced, solemnly came to the conclusion, if they died intestate, they would be better off so they gave me instructions to tear up their wills. I told them I did not believe that was necessary, that this House would not be foolish enough to tear the fabric of our society to pieces.

I, if I have to, will vote for the passing of this Second Reading but I shall do so only on the clear understanding, which I have from the Minister, and which I thank him for, that he will preserve complete flexibility in regard to the stand he may ultimately take on the succession part of this Bill, that is, that he will be open to suggestions from every individual in every part of the House with regard to the final Succession Act that will emerge. Quite clearly, the State must do something about the bad and unfair will.

While it is true that the vast majority of wills are fair, I have in my small practice come across at least two totally unfair wills. I have come across others which were, to say the least of it, dicey. As I say, I have come across two totally unfair wills and it is in regard to wills such as these that something must be done to protect the family; but that something must be something suitable to our society and suitable especially to the rural areas because we are basically a rural people and special consideration should be given to the problems that confront the western counties, especially in this matter of wills.

The Minister has gone a long way to meet the objections raised from his own part of the country. It will, however, take a good deal of time to hammer out a system which will be at one and the same time fair to the family and not unduly interfere with the rights of the individual. In that connection I do not see how we can devise a satisfactory system on the rigid basis envisaged in the Bill as introduced I believe some form of judicial process will have to be retained. In regard to the rights of a widow and dependent children, it could, for instance, be open to them for a period of 12 months, or so, to apply in chambers to the judge to have the will declared inofficious—I hate that word —and the judge should have a discretionary power to decide what, in all the circumstances, the testator should have done.

Now I have said quite a number of things here that may, perhaps, have seemed rather harsh. I did not mean them to be. They were certainly not said in bitterness because I am not one of those who draw bitterness from the past. I draw faith and courage and, if I have had to say things that may have seemed rather harsh, I hope it will be accepted that they were said honestly in an attempt to help. I am sure the Minister will gather the wheat of Deputy de Valera, Deputy J.A. Costello, and others, rather than the chaff that some Opposition speakers have distributed, chaff of which they made very telling use in the western part of this country in recent weeks. When Deputy Cosgrave says that we do not put country before Party in politics, might I remind him that the members of his Party who went around south and east Galway making certain allegations about Fianna Fáil's object in this Succession Bill, were perfectly well aware that the Minister had already announced his amendments and the original proposals were, therefore, no longer operative.

I should like now to say a word about my own profession. I think it is regrettable that some people, who ought to know better, find it necessary to sneer at solicitors. I should like to remind the Deputy who said he did not care much for solicitors that we have to spend a number of years becoming qualified. I was a graduate before I started doing law, with the result that I was not qualified until I was 24. I thought I was not fit to be launched on the public at that stage and I spent a couple of years at from £3 to £8 per week—yes, £3 to £8 per week—trying to learn the practical work involved. I set up then with a cheque for £50 and overdraft accommodation of £70 and I can assure the House I had quite a struggle to establish myself. I should like to take this opportunity now of thanking the solicitors who practise in the area which I entered, and in which I knew nobody, for the way in which they received me then and have worked with me ever since.

We try hard. Something over 50 per cent of the work we do is not paid for at all. We give advice to people who are our friends. Often they spend an hour or two hours discussing what they ought to do in their wills. We are only too glad to include that hour or two in the service we provide for them. We provide a staff, which we pay, and we provide telephone and paper and stamps as part of the service. When we extract a grant of administration for a net profit cost to us of eight to ten guineas, I do not for a moment accept that the public are not very well served indeed.

There is one final aspect I must mention. It is an aspect which may not have occurred to those who would like to take our business away from us and give it to people who have never qualified to do it. It is this: every rural solicitor employs almost exclusively female staff. These girls live in the hinterland and they are very often the only persons in the family who are staying at home with their fathers and mothers. If, as a result of the action of the Legislature, these girls have to be sacked, and sacked they will have to be, out of my office and out of other offices all over the west of Ireland, it will be very little consolation to the fathers and mothers, sitting, looking at each other across the hob, to know that their daughters have got a job in a regional office 50 or 60 miles away; and, if they are not able to get in there, then they can go to Dublin, or England, or elsewhere. I wonder is it realised that we give employment which ensures that quite a number of parents have somebody in their later years to be kind to them and look after them.

Taking one thing with another, the vast majority of solicitors do an honourable job. They play a vital part in the community. We are a very small section numerically and we can be laughed at and sneered at without the risk of losing votes, but that is no justification for people who are reckoned intelligent enough to be elected to Parliament to sneer at us and run us down. That will be done by ignorant people anyway. Because the law is so complex, it is capable of almost infinite interpretation. The fact that sometimes one loses a case one felt one should win does not mean that there has been neglect or dereliction on the part of the solicitor or counsel involved.

I hope we have heard the last either from Fine Gael or from Deputy Corry of sneering at solicitors. I am proud of the profession I practise and the modest living—and it is a very modest living—I get out of it. I would not change it for another in which I would be very much better rewarded, such as, for instance, driving a bulldozer. The fact that we now defend ourselves not merely for the nature of the work we do, but fighting for the abolition of what was originally a frontal attack on our profession will not, I hope, be taken as being done for mercenary or material motives. Our defence is based on a much more solid principle, and ultimately on the common good and the safeguarding and protection of the rights of individual citizens.

This Bill deeply concerns Deputies on all sides of the House. The Fine Gael Party have approached it in a very constructive manner. The amendment which is being debated with the Second Reading of the Bill draws the attention of the House to Part IX and asks the House to decline to give a Second Reading to the Bill "unless Part IX and the provisions consequential thereon are deleted because of their utter unsuitability to Irish conditions."

I should like to remind the House that, following the tabling of that amendment, the general public began to understand what was involved in the proposed changes in the Bill. I think it is true to say that generally throughout the country people became very concerned indeed lest we should have a situation in which the Government would make people's wills for them. Deputies are mostly concerned in this debate with Part IX of the Bill. I agree entirely with what Deputy J.A. Costello said earlier. Some 80 per cent of the Bill represents desirable and worthwhile changes in the law. Largely speaking, the Bill itself brings about changes which are desirable and much needed, but I think the majority of Deputies must have considerable doubts about Part IX. I would agree that some problem does exist in relation to unfair wills but I do not think the problem which exists justifies the very drastic proposals contained in Part IX.

I was not here when Deputy J.A. Costello was speaking but I read his speech, and I read with interest his reference to his experience of wills. I think it is correct to say that so far as barristers like Deputy Costello and myself are concerned, our experience of difficult wills is confined to that and that alone. Normally speaking, we learn of a will that is causing difficulties because it is a will that is causing difficulties. With regard to the percentage of such cases, in my view, the experience of a solicitor is far sounder as giving an indication of the extent of the problem.

So far as one can judge, the general view expressed by solicitors is that only in a very limited degree do you find cases in which a testator for some perverse or peculiar reason proceeds to act in a way which ordinary people would regard as unfair. Even in such cases, the experience at the moment, or up to this, in relation to what happens in court is quite clear. I have not known of any clearly inofficious or unfair will that has stood the test before a jury. If a man proceeds to disinherit his wife without reason, it does not matter how many people swear he was sane and knew what he was doing, the jury will say he was mad.

In fact, what happens is that the will is condemned and the estate goes on the basis that there was intestacy. If, as sometimes happens, the disinheriting was done for some reason which would have appeared substantial to the testator, juries balance it up and, if they feel there were proper and substantial grounds for the testator doing what he did, they allow the will to stand. Therefore, while I concede that you will find—I believe it to be a very rare occurrence—cases in which a testator acts in a way which appears unreasonable and unjust to most people, they are very limited indeed. Even where they occur, it is most improbable that what the testator did would be regarded as having been done while he was in possession of his senses.

I mention that because I think there is really not very much need for a provision of this kind. However, if it is felt there should be some intervention by the Oireachtas in relation to wills, in my view it should not take the line indicated in Part IX of the Bill. The proposals we are discussing on Second Reading must necessarily be the proposals in the Bill as circulated, and I should very much like to know how these proposals came to be put together.

The Minister's predecessor, in his news conference—he was always very concerned with publicity, with news conferences—said in relation to this succession provision in the Bill that he had studied every system we know of in the world and that the provision contained in Part IX represented the Government's proposals to deal with the situation. I should like to know what consideration was given to the proposals contained in Part IX, and to suggest the likely position to have been that these proposals came to the Minister's predecessor, that he did not understand or study them, that they came before the Government and were passed by the Government without any one member of the Government taking time off to consider what was involved.

It was because of that that a drastic provision of this kind was circulated as a Bill and it was only when a whole lot of people started asking questions and directing public attention to what was involved that the first signs of a problem began to emerge. It is in my view very dangerous that Bills of this kind, affecting in a very fundamental way the lives of ordinary people and the entire economy of the country, could be passed by a Government and tossed to Parliament. It might even have been passed by Parliament were it not for the fact that in this Parliament at least there is a vigilant and careful Opposition.

Deputy Seán Flanagan, a Fianna Fáil Deputy, was correct in describing what is in the Bill as it stands at the moment as being something that could cause untold damage to the economic fabric of the country. It could cause the most serious upheaval with the manner in which our people have been accustomed to deal with their affairs. The former Minister for Justice, the present Minister for Agriculture, said he had studied these matters in other countries. I accept that may be so. It appears to me that somebody, having been impressed by what was done in different countries, decided without much examination: "It is a good thing these other countries are doing: let us do it here." Once a Government begin to do things in that fashion they inevitably end in trouble.

I appreciate that something had to go in relation to the Succession Bill. Perhaps it was fortuitous in the circumstances that a Ministerial resignation led to a Ministerial reshuffling; it made it possible to have some break in the stalemate likely to have arisen in relation to the Bill. The present Minister, having been appointed, indicated that on Committee Stage he would put forward certain amendments to Part IX and other provisions in the Bill.

I think most of us appreciate that what the Minister has told us here is a step back to sanity but I do not think it is enough. As long as Part IX stays in this Bill, the Minister will not have sufficient room to manoeuvre: he is in a straitjacket, and whatever he proposes to do can only slightly improve the situation. It will still leave the fact that the Government, the State, the law, are proceeding to do will-making for the individual.

It still leaves the position that there is something strange being introduced into our social law, something we never had before, in relation to which the need is not apparent. Generally speaking, our people are deeply conscious of the ties of family, deeply conscious of the obligation to provide for dependants. We do not have much infidelity in married life or many of the problems which face other countries, other peoples.

Generally speaking, in so far as inheritance is concerned it has been best left to the good sense of the testator and the traditions he lives by. It is because of the fact that Part IX is in the Bill that I believe the Minister will be unable to correct the Bill. The rigidity that Deputy Seán Flanagan talked about will still remain, and no matter what amendments are introduced, so long as Part IX remains, this Bill will continue to be a very bad one indeed.

It is for that reason I join with other Deputies in asking the Minister to take a firm decision now. Part IX was a mistake. The Government realise it now as, I feel sure, do most Deputies supporting the Government. It is in it. It is not necessary now to face the Minister for Agriculture: he has gone to the Department of Agriculture. His connection with the Bill is finished and done with. The only thing the situation now requires is a clear, frank decision by the Minister for Justice to cut out Part IX. If he does that he will be in a position to stand back, to size up the problem clearly and with the advice available in the House from his own Party and elsewhere, to put forward in a subsequent Bill proposals of his own to deal with the problem. If he does that I think he will be meeting a situation which was not of his own creation in a very proper way.

Personally, I feel that one of the mistakes made by those who suggested the provisions of Part IX is that they did not sufficiently trust the courts. That is the bureaucratic approach to this problem. It never succeeds. It is far better for people to realise the courts are there. They are available and can operate without rigidity. They are flexible and are in a position to judge each case on its merits and to understand the particular problems that affect each individual. It would be far wiser and far better if the succession proposal in Part IX were a proposal giving the right to a person who felt that he/she had been unfairly treated to go to a court and, if unfairness were established, to enable the court to do what was necessary to adjust the situation. A simple proposal along those lines would meet whatever injustice may exist and certainly would be far better than the rigid or cumbersome proposals contained in Part XI.

I would, therefore, feel that the Bill itself and the vast majority of its proposals are sound and necessary. There will of course be points of view in relation to many of them which will be discussed on Committee Stage. It is necessary that some reform and alterations should be made in the law relating to wills. All that is good in the Bill should proceed and be discussed later in detail and the Minister, by dropping Part IX, could bring in his substantive Bill at a later stage which, I am sure would benefit from the experience this Bill has had.

We have had a very interesting and what I would like to describe as constructive debate on this Bill. I should like to say straightaway that we feel we can continue to have a constructive debate during Committee Stage of the Bill as a whole. Involved in Part IX are ten sections. These are, of course, the controversial sections. What I propose to do before Committee Stage is to merge the existing sections in Parts IX and X with the proposed amendments and with any other amendments that I may propose as a result of the constructive debate here in this House. I would hope that a clear picture would emerge on the Committee Stage and that we would have a sensible debate.

I hope to have on the Committee Stage a single sheet setting out the exact sections as I would propose to put them to the House, not two separate documents. I propose between now and Committee Stage to marry the existing amendments with Parts IX and X, plus any other amendments which have occurred to me by reason of the suggestions put forward in the House. There has been some criticism of the fact that we had a number of amendments which I announced before the House sat and also amendments which I mentioned in my opening speech. I would tend to regard the matter of taking up amendments and mentioning them here in the House as an example of the parliamentary process at work. The very fact that we have here a Bill which is being debated constructively, and I have repeatedly said that I am open to constructive suggestions, in this Parliament shows that we are working the process of Parliament to the fullest possible degree in this respect. I do not see anything wrong with that.

I should like to clear some of the details before getting on to a fuller discussion on Parts IX and X. To recapitulate what I said on the last day, I propose to re-consider section 27 (3) and section 100 which give the President of the High Court certain powers in regard to making regulations.

You have agreed to take them out?

Yes, to take out section 27 (3) and section 100, to which objection was taken by Deputies on the other side of the House. On section 37, I have already said that the section would be deleted altogether and a new section introduced embodying the principle of personal applications. I also propose to enlarge the number of district probate registries.

In regard to section 77, rule 2, I have an open mind. This is the rule which seeks a change in the law as to the execution of wills requiring two witnesses to be present at the same time as the testator makes his will. I was very interested in the concensus of views in the House, which were unanimous that this represented a dangerous departure. I concur, and I propose to restore the present rule. Before passing, I might mention that the Bar Council submitted a memorandum to me on the Bill in which they endorsed the particular innovation in section 77. The unanimous view of the Dáil is that the innovation should go, and it will go.

The same strong view has been expressed in regard to section 84, which proposes to allow for the revocation of a will by a simple writing across it expressing intention to revoke. It was mentioned here, and argued forcibly, that this was a dangerous departure in regard to will-making. I accept that, and it will go too. These are the main points raised outside Parts IX and X, that is, outside the contentious sections 109 to 119.

We are seeking to bring in a new principle to deal with the social problem of disinheritance. I want to point out that this has been no rash decision. A Programme of Law Reform was laid before each House of the Oireachtas by the Minister for Justice in January, 1962. The White Paper specifically states on page 9 that the proposed Bill would deal with the problem of the inofficious will. It goes on to deal with the system obtaining in Scotland and in other countries throughout the world. This White Paper was followed in November, 1963, by a motion put down by Deputy M.J. O'Higgins in which he moved:

That Dáil Éireann is of opinion that legislation should be introduced at an early date to provide that a person may not dispose by will of his property without making adequate provision for a dependent wife and/ or children.

This motion was heartily supported by Deputy MacEoin in language which showed that he, like Deputy J.A. Costello on the Second Stage of this Bill, was very much of the view that something needed to be done, that we had a sizeable problem, to quote the words used by Deputy J.A. Costello. The motion was passed unanimously by this House. Everybody was then in agreement that disinheritance of wives and dependent children represented a sizeable problem. Some people have sought to say it does not represent a sizeable problem. I agree with Deputy J.A. Costello in this matter. From my experience as a politician and lawyer, there is a number of these cases which never get near the court. Deputy T.F. O'Higgins may think they do. I know of unheard and unsung cases of wives and children cut off by testators. These cases have stayed unheard and unsung and nothing has ever happened about them. It is a social injustice of a sizeable proportion, and I feel we should be unanimous in agreeing on that. I think there is no doubt that we do.

Deputy MacEoin asked if there was any consultation with Catholic social and moral thinkers. He raised the question in my absence from the House at the last hearing. We have taken the very best moral and Canon Law advice available in this country on this particular measure. That advice fully endorses the principles enshrined in the provisions of this Bill. I have personally discussed this matter in my Department with the top clerical people here on moral and Canon Law.

I did not think you had any of those in the Department.

They fully endorse the view that this Bill represents Catholic social thinking in that the essential importance of the family is emphasised in the relevant provisions. The influence of Canon law on the law of succession has always been very great. Provisions providing for legal rights to specific shares for a widow and children are to be found in all countries in the Catholic tradition— Italy, France, Spain and other European countries, South America and a number of the States of the United States. The law of succession in these countries is rooted in Canon law and emphasises the importance of the family. Article 41 of our Constitution recognises the family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. There is an endorsement of the essential rights of the family in this Bill.

Does Article 43 not say something as well?

We have a problem and the question is how to deal with it. This problem has been met in the way suggested in the Bill in the major Catholic countries of the world.

On the question of how to deal with the problem here, we have had no absolute endorsement by any speaker in this House of the system which would appear to be the only alternative to this one, that is, the judicial discretion system in its entirety. Deputy J.A. Costello said his predilection was towards a fixed share system; but he felt that perhaps we in Ireland were not fully ready for that system yet and he suggested some marriage between the fixed share system and the judicial discretion system. There may be something in this. I intend to follow it up further between now and the Committee Stage.

I thought it very indicative that at no stage did any Deputy come out fully for the system obtaining in Britain, New Zealand and certain states of Canada. That system has not worked adequately in those countries. There are certain basic defects in that system as it has operated in Britain since 1938. Firstly, the widow or dependant must go into court. She has no absolute rights whatever Secondly, she can get only maintenance; and, in the interpretation of the 1938 legislation awards have been niggardly. Thirdly, in the course of an application, evidence can be adduced in regard to family history, family background, and family disturbances and squabbles. Decisions are not based on the moral claims of the widow or on the nature of the estate. The whole of the family history can be raked up in a court hearing and the widow may in fact get only a mere pittance out of the estate by way of maintenance. That is the system as it works in Britain. I thought it rather significant that, although it would appear to be the only logical alternative, if you look at things in black and white, nobody came out here in favour of that particular system. I do not think we should copy it either.

That is in the Bill we have before us.

I am afraid the Deputy is misinterpreting it.

I am not. You talk about the family differences being brought out in court. It could be brought out in this Bill.

The Minister is dropping that.

It is possible to have an extension of that or, as I think I suggested in the case of a will that is inofficious, you could give discretion to the court to have fixed sums then.

The Minister will examine that.

Between now and the Committee Stage, I shall consider closely the views that were put forward. In its entirety, as it operates at the moment, the British system is not suitable.

The Minister is assuming that that is the only alternative. It is not.

The Minister said he would consider it.

We can discuss only what is before the House.

We are discussing everything else but what is before the House.

Deputy J.A. Costello spoke about the importance of having further authorities to bear out what I have said on my Second Reading speech. I have a number of them here. I quoted one in my speech. I could quote a number of others which I have here. Let me take two English authorities who rely on Maitland. I quote from an article by Professors George W. Keeton and L.B. Gower published in 1935 in the Iowa Law Review:

As Maitland so truly says: "To the modern Englishman our modern law, which allows the father to leave his children penniless, may seem so obvious that he will be apt to think it deep-rooted in our national character. But national character and national law react upon each other and law is sometimes the outcome of what we must call accidents. Had our temporal lawyers of the thirteenth century cared more than they did about the law of chattels, wife's part, bairns' part and dead's part, might have been known south of the Tweed." If, as has recently been suggested, the solution to our present difficulties is found in the extension of this scheme to England, it will prove an interesting example of the thesis that law and history sometimes repeat themselves, and would also carry one stage further the introduction of principles well known in Roman law into modern English statutes, of which two excellent examples are afforded by the Adoption Act, 1926, and the Legitimacy Act, 1926.

I have a number of other authorities. These are people of very high stature in the legal world. They include the Haldane Society in England. They are all critical of the system which at the moment in Britain drives a widow or a dependant into court in order to obtain what is no more than a maintenance allowance. However, I am not one of the people who believe that within the framework of the present measure—Parts IX and X—we cannot find a good solution: I believe we can. I feel very strongly about this.

The amendments I have already proposed go a long way towards meeting the objections that have been made to the Bill in its present form. On further study of the contributions that have been made in this House, I may be able to introduce an even greater degree of flexibility into the system of legal rights. I wish to emphasise one thing. It has been suggested that I am seeking to bring in a fixed or rigid share system. That is not the case. My proposal is a variation of the fixed share system which obtains in Scotland, France, Germany and a number of other countries.

What we are seeking to do here is to adapt the Scottish system which gives the spouse or child a legal right if he or she wishes to exercise it. What I propose is not a fixed share that will be automatically extracted from the estate on the death of the testator. It is a legal right to a share and, in fact, as it operates in Scotland, this legal right of one-third for the widow has seldom to be enforced. Anyone who knows Irish conditions must realise that 50 per cent of cases at the moment are, in fact, cases of intestacy where there is in existence already a system of, if you like, fixed shares where the widow gets one-third and the children two-thirds. That in fact is a fixed share system and it arises in 50 per cent of Irish successions. How often is the right to the fixed share exercised?

The Minister is talking about intestacy; Part IX deals with wills.

I am talking about the analogy that exists between what we propose in the way of a legal right share and the present system that arises on intestacy where the fixed shares are often not enforced. In Scotland the legal rights system has operated over a number of years both in the case of testacies and intestacies. In fact the widow does not in practice elect for her right, but she has the security and protection of having a legal right to one-third if the testator disinherits her.

I should like to refer to one section in the Bill which got surprisingly little mention and which I regard as a key section in Part IX. The section is section 115 which provides for an election on the part of the widow and the dependants between legal rights and rights which may have been given to the widow and the dependants under the will. In practice, what should happen is that a man will discuss with his wife and family the nature of his will and the shares he will give to the members of his family. Agreement will be reached. The widow may be given a life estate and perhaps various provisions—effected by way of charges or otherwise—may be made for the children. Under section 115, the widow must elect for her legal right share within 12 months of the death. If she does nothing, the legal right goes by the board and she and the children take what is provided under the will. Section 113 is another important section. This section provides for a renunciation on the part of the widow of her legal right share. I do not think that section 113 or section 115 were fully considered by Deputies.

There is a great measure of flexibility introduced under the amendments. The situation now will be that a man may give all to his wife, if he wishes. This is a very important amendment, which I shall be introducing on the Committee Stage. There will be another important amendment whereby, with the consent of the wife, a man may make a deed of settlement on whatever particular child he may choose and may transfer his property in its entirety to that particular child. This, of course, will be of tremendous benefit in the case of small farms, small businesses or enterprises where a particular son emerges as the person who should take responsibility for the farm or business. We will provide that an agreement transferring a business or farm to the son, with the consent of the wife, will be perfectly valid. Deputy M.J. O'Higgins suggested that an anomaly exists in that something could be done by deed but not done by will. I feel that there is no anomaly. The wife may renounce her legal right or elect not to take against the will. However, this is a matter I will examine again with a view to seeing whether something further does not require to be done.

Another important amendment which I shall bring in will introduce dependency in the case of children. As the Bill stands, the children who leave the home and make their way in the world, are entitled to a legal right share, unless, of course, there has been an advancement made to them. That is the situation that led to the introduction of Part X of subsections (4) and (5) of section 119. We have decided to delete these subsections because absolute entitlement to legal rights will be confined to dependent children.

The Minister will appreciate that our motion referred to dependants and to that extent he is coming closer to our views.

We now propose to have three categories of dependants. I should like if attention was paid to this on Committee Stage so as to ensure that we get the best possible definition. I propose that dependants shall be children under 21, children of any age suffering from mental or physical disability, an unmarried girl over 21 who resides on in the testator's household or is dependent on him. This is the girl who stays at home to mind the parents.

I think that definition is taken from the British, more or less.

There are variations on it. Do your homework now.

You have to do a lot of thinking about that definition.

(Interruptions.)

Order; the Minister, to conclude.

This principle of dependency is a very valid one and ensures that people who should be looked after are looked after. It is merely extending the right that existed during the lifetime of the testator after his death. Provided we keep in mind the importance of having the greatest possible degree of flexibility within the framework of the family, we should be able to agree. I am open to further suggestions as to how we can get that flexibility. We have come down on the side of a scheme which will entitle a person, who may be deprived of inheritance, to basic rights without driving him or her into court to secure these rights. There may be scope for further marrying this system with the judicial discretion system, as suggested by Deputy J.A. Costello. Fundamentally, the widow or dependent child should have a legal right share behind his or her back. We must have this ultimate protection which the legal right gives to a widow or dependant. As I mentioned, the system of election under section 115, which enables a widow or dependant to take under the will or to take the legal right, gives flexibility in the legal right system. As I mentioned already, in Scotland legal rights are seldom exercised. The right is possessed by the widow and is a great protection to her if her husband is tempted to exclude her from his will. I would like to get rid of this idea of the fixed share that automatically comes into operation in every case on the death of the testator. Where the widow has a legal right to a third and the dependants have a right to their share of the children's third, this right may or may not be exercised depending on the family circumstances and the particular situation under the will.

Some point was made about the question of introducing foreign systems into Irish law. I wish to emphasise that this particular system we are now proposing is world wide. The idea of absolute freedom of testamentary disposition is a peculiarly English idea. It has no historical basis other than as an invention of English law. It is not in Scottish law. It has been exported from England to certain Commonwealth countries and does not arise as a principle in the code of any other system of law in the world. That is the plain fact of the matter. As it stands at present, we are unique. At least the British made some attempt in the 1938 Act to bring in this niggardly system of maintenance, for which the widow must apply to the courts. But we are practically the only country in the world where there is absolute freedom of testamentary disposition, where a man can do what he likes irrespective of his responsibilities to his wife and children.

That is a situation which will have to be rectified. There is general agreement on that in the House. Deputy John A. Costello in particular has put this matter into perspective for all of us. As I see it, between now and the Committee Stage it will be a question of assessing the debate that has taken place in the House and making a decision as to what greater degree of flexibility we can introduce within the framework of a legal rights system. I see nothing impossible in that task. What I see are 11 sections of the Bill in Parts IX and X which we can amend and improve, as we have attempted to do already in the amendments I have put before the House. We can attempt to amend and improve within that framework and have the greatest degree of flexibility possible, so that a man's essential family obligations are met without forcing his widow and children into court. The latter system is wrong in principle. We may have some system of judicial discretion as an ultimate, but to suggest that before the widow and children can get any rights they must go into court and establish their claims is the wrong approach. There may be some future in pursuing an approach where ultimate judicial discretion may be written in, but essentially we must recognise that the legal right to a particular share is the greatest protection the widow and dependent children can have in the event of their being victimised or wronged in any way by the testator.

I should like to thank the House for the constructive approach which, on the whole, has been made in regard to this measure. We have cleared the air in regard to the sections outside Parts IX and X. We have certain decisions yet to make in regard to Parts IX and X on the Committee Stage. I look forward to a constructive Committee Stage debate, where we can discuss sensible amendments within the framework of legal rights, which I believe to be fundamental to this measure and fundamental to the solution of this whole problem.

Before the Minister concludes, would he consider the suggestion of taking out Parts IX and X and dealing with them separately?

I mentioned at the outset that if I saw any great need of doing that, I might agree with the proposal. There has been a lot of talk about difficulty in dealing with this matter. If we take the 11 sections, from section 109 to section 119, only in regard to three—in fact two—of them are there going to be any important amendments. Surely we can get down to discussing these amendments on Committee Stage without the necessity of taking them out and grouping them in some new Bill? We will have them before us. We can discuss the amendments when we reach the relevant sections on the Committee Stage. If there were something more involved I would agree with the Deputy. If it were a question of over 100 amendments, such as were introduced by the Coalition Government in 1956 on the Statute of Limitations Bill——

And it is a first-class Bill.

I agree. I would regard this Bill as being better by reason of the amendments I have set out and those which I hope to introduce as a result of suggestions from all sides of the House. This is the way these matters should be discussed in Parliament. This is part of the Parliamentary process. If 100 amendments were involved in Parts IX and X, there might be some merit in the Deputy's suggestion.

Does the Minister not see some merit in separating the wheat from the chaff—the good parts and the controversial parts? Let us have a Bill—it can be done if that suggestion is carried out—which will not be controversial.

Surely the whole thing is the one kind of subject?

If I may be allowed to intervene, the trouble about not carrying out the suggestion I made to divide the Bill into two parts is this. The Minister's proposition, as I understand it tonight, still puts the onus on those people who do not like the principle involved in Parts IX and X to either vote for it or go into the Lobby against it. The whole point of our deliberation in the House was to try and get an agreed measure. If sections IX and X remain in the Bill it will make people feel they are in some way tied to the rigid principle as against the discretionary Bill. The Minister will secure greater satisfaction and, I think, a more equitable and agreeable atmosphere, which is the effort everybody appears to wish to make, by hammering out the thing in discussion so that all points for and against each system will eventually be ventilated in this House. If you carry this by a vote on the Second Reading there is no doubt there will be bitterness by certain people who hold strong views against the rigid system that we have in some way on the Second Reading passed the principle involved.

I appreciate the point of view Deputy J.A. Costello is offering. My view is this. On the Committee Stage debate we may arrive at a stage where there is a definite disagreement, a conflict or a clash over some particular section. You have certain people with a certain viewpoint. If we arrive at that stage on a particular section in Parts IX or X, we can have a division on it but I do not see why we cannot have a practical discussion.

You are forcing people to agree to the principle of Parts IX and X.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 62; Níl, 45.

Tá.

  • Aiken, Frank.
  • Allen, Lorcan.
  • Bartley, Gerald.
  • Boland, Kevin.
  • Booth, Lionel.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brady, Seán.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Crowley, Honor M.
  • Cummins, Patrick J.
  • de Valera, Vivion.
  • Dolan, Séamus.
  • Dooley, Patrick.
  • Egan, Kieran P.
  • Egan, Nicholas.
  • Fanning, John.
  • Faulkner, Padraig.
  • Flanagan, Seán.
  • Galvin, Sheila.
  • Geoghegan, John.
  • Gibbons, James M.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Hillery, Patrick.
  • Hilliard, Michael.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Calleary, Phelim A.
  • Carter, Frank.
  • Carty, Michael.
  • Clohessy, Patrick.
  • Colley, George.
  • Corry, Martin J.
  • Cotter, Edward.
  • Crinion, Brendan.
  • Lemass, Seán.
  • Leneghan, Joseph R.
  • Lenihan, Brian.
  • Lynch Celia.
  • Lynch, Jack.
  • MacCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Meaney, Con.
  • Medlar, Martin.
  • Millar, Anthony G.
  • Moher, John W.
  • Mooney, Patrick.
  • Moran, Michael.
  • Ó Briain, Donnchadh.
  • Ó Ceallaigh, Seán.
  • O'Connor, Timothy.
  • Ormonde, John.
  • Ryan, James.
  • Sherwin, Frank.
  • Timmons, Eugene.

Níl.

  • Barrett, Stephen D.
  • Barry, Richard.
  • Belton, Paddy.
  • Browne, Michael.
  • Browne, Noel C.
  • Burke, Joan T.
  • Burton, Philip.
  • Byrne, Patrick.
  • Casey, Seán.
  • Clinton, Mark A.
  • Collins, Seán.
  • Coogan, Fintan.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan D.
  • Costello John A.
  • Crotty, Patrick J.
  • Dillon, James M.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donegan, Patrick S.
  • Dunne, Thomas.
  • Esmonde, Sir Anthony C.
  • Farrelly, Denis.
  • Flanagan, Oliver J.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hogan, Patrick (South Tipperary).
  • Jones, Denis F.
  • Kenny, Henry.
  • Lynch, Thaddeus.
  • MacEoin, Seán.
  • McGilligan, Patrick.
  • McLaughlin, Joseph.
  • Murphy, William.
  • O'Donnell, Patrick.
  • O'Donnell, Thomas G.
  • O'Higgins, Michael J.
  • O'Higgins, Thomas F.K.
  • O'Keeffe, James.
  • O'Sullivan, Denis J.
  • Reynolds, Patrick J.
  • Ryan, Richie.
  • Sweetman, Gerard.
  • Tully, James.
Tellers: Tá, Deputies J. Brennan and Geoghegan; Níl, Deputies O'Sullivan and Crotty.
Question declared carried.
Amendment declared lost.
Question—"That the Bill be now read a Second Time"—put and declared carried.

Committee Stage?

10th February.

Will the Minister leave a few months——

Are we going to get a chance at you in the country? Is the Dáil coming back?

We can order it for that day.

Give us a chance in the country. You are on the way out.

Committee Stage ordered for 10th February, 1965.
Barr
Roinn