Dáil Éireann debate -
Friday, 12 Feb 1954

Vol. 144 No. 3

Intestates' Estates Bill, 1953— Committee and Final Stages.

SECTION 1.

Minister for Justice (Mr. Boland)

I move amendment No. 1:—

To delete "January" and substitute "June".

The reason for this is to give people an opportunity of making their wills if they do not wish their property to be divided as provided for in this Bill. On Second Stage, I referred Deputies to the explanatory memorandum circulated by the last Government, when they introduced the first Bill, and that point was made. It is only fair and reasonable that people who do not want their property divided, as provided for in the Bill, should be given fair notice and opportunity to make their will leaving their property to whomsoever they wish.

Amendment put and agreed to.

Section 1, as amended, agreed to.

Amendment No. 2 not moved.

Section 2 agreed to.

SECTION 3.

Mr. Norton

I move amendment No. 3:—

In line 16 to delete "two thousand pounds" and substitute "five thousand pounds."

An Ceann Comhairle

I take it that amendments Nos. 3, 4, 5 and 6 may be discussed together.

Mr. Norton

I think we can discuss them together. This problem of intestates' estates has a very long history. It had its origin in the days when women were regarded as just a chattel and early legislation on the subject put women in a particularly inferior position as far as the disposal of their assets was concerned in relation to men. Until this legislation was introduced, the position was that if a woman died her husband could take over all the assets of his widow but if the husband died the widow was entitled to only £500 and after that the balance was divided between the widow and all or any of the husband's relations, relations whom the husband or wife might never have seen; and if none of those turned up to claim it, I think the balance was divided between the State and the widow.

I agree that this legislation moves somewhat further than that. It says to the widow that if the husband dies she will get the first £2,000 and the balance then will be divided between the widow and the husband's relations, known or unknown, seen or unseen. What we ought to do in regard to this whole matter is to recognise the equality of men and women. If the husband is entitled on the death of the wife to all his wife's estate, then, conversely, if the husband dies, the widow ought to be entitled to the husband's entire estate unless the husband makes a will disposing of his estate otherwise. This Bill, however, does not go that far. It still retains some of the characteristics of early wifely subordination to the husband in the matter of the disposal of property.

While I have asked in this amendment that the widow should be entitled to all the property up to £5,000, I am not terribly enamoured of my own amendment; I prefer to say where the husband dies intestate the widow should be entitled to the entire property unless the husband has disposed of the property otherwise. But I do not know whether the Minister would be prepared to travel that far with me. Giving the widow the first £2,000, having regard to the present value of money, is not doing justice to the widow and I want to give the Minister the opportunity of travelling to the extent of giving the widow the first £5,000. After all, if the husband dies and the widow is left to provide for herself, an investment in these days does not bring in a lot of money; furthermore, the dead man, the State and community generally, owe the widow the obligation of making some provision by law whereby in the event of the husband dying without making a will she would be entitled to at least a sufficiently substantial amount of her husband's property to provide herself with a competence for the rest of her life.

General MacEoin

I want to support this amendment moved by Deputy Norton. It seems inconsistent that on the occasion of marriage the husband endows his wife with all his worldly goods and the State should come in and say: "No, only to the extent of so much." I think it is completely wrong and I ask the Minister to accept the amendment.

Mr. Boland

I thought making provision for £2,000 was pretty good.

General MacEoin

It is an improvement.

Mr. Boland

And also the provision in regard to the residue. If a man wants to leave all his property to his wife he ought to do it, but we all know what conditions are in this country and it might happen that there might be a parent for whom a man, say, if he died young, might like to make some provision. It might be a widowed mother, and under the law as it stood she would be entitled to get some of that money. In most cases in this country £5,000 would represent more than what the average person would have and £2,000 seems to me to be a fair amount. It was previously £500. We have also arranged that the widow gets her share of the residue if there is any. If you go to £5,000 I think you are overdoing it. The husband can leave it all to the widow if he so desires. We all have sympathy for widows but there may be other very deserving dependents of the husband. There might be a sister wanting some help and if he did make his will he might say: "I will not leave my sister without anything at all." As was pointed out in the Seanad it could happen that there would be a very old man who married a young woman —there have been gold diggers sometimes—and he might say: "Why should I give her all my money? We were only married lately."

Mr. S. Collins

If she is a gold digger she is entitled to her mine.

Mr. Boland

Taking everything into consideration, I think that making the amount £2,000 and leaving her with a share of the residue, is fair.

General MacEoin

By making it £2,000 you are only leaving it as it was in 1913.

Mr. Norton

1896.

Mr. Boland

We all know the circumstances that may arise and you should not shut your eyes to the possibility of other deserving relations.

General MacEoin

Let him make a will.

Mr. S. Collins

And starve the lawyers all round the country.

Mr. Boland

This is a non-Party Bill, and I think we have made a big improvement.

Mr. Norton

Would the Minister say, having regard to when the £500 was fixed, what is the value of that £500?

Mr. Boland

That is asking me too much. I suppose about five times that amount.

Mr. Norton

And you are only increasing it by four times.

Mr. Boland

Let us make it five times.

Mr. Norton

Would you make this £4,000 and make an amendment on the Report Stage?

Mr. Boland

If the husband desires to leave everything to the widow, he ought to make his will. We must consider that there might be an invalid sister or an old mother who might be a widow. Are they to be excluded altogether?

Mr. Norton

I can sympathise with the Minister's concern in that respect, but if the old boy who has got the property is concerned about the sister and the mother, no doubt he will make tracks to the nearest lawyer——

Mr. Boland

He knows the law at present.

Mr. Norton

——and he can make a will in which he can ensure they get something, but to leave the widow £2,000 in 1954 is not giving her a proper competence. If this woman undertakes to marry a man at an altar, and if the man there promises to look after his wife for the rest of his life, and if he has got any property, I think she is more entitled to it than the flock of vultures who turn up at the man's wake and funeral, all wanting to make sure that they will get something out of it. In this matter, my sympathies are with the widow.

Mr. Boland

All the time? It all depends on circumstances.

Mr. Norton

If the man wants to give something to his mother or his sister he can easily do so by making a will. Folk who want to do that really do it. Let us take the situation in which a man dies intestate. He leaves a widow. There is a brother who has been in Australia or New Zealand for 30 years. He has some other relatives whom he has never seen. Then it comes to the disposal of his property. Who is to get it? My sympathies and, I think, the sympathy of every reasonably minded person, would be with his wife, that she should have the first claim. These other folk come flying back to pay their tributes to the dead man whom they had not seen for 20 or 30 years—a whole flock of unknown nieces and nephews and other relations —to see how much jam they will get out of it. I am on the side of the widow. Having regard to the depreciation in the value of money, the Minister is not going very far; the original £500 was worth more than the £2,000 is worth to-day. The Minister ought to accept this amendment. If he does he will have the benediction of the whole House. I do not want to make this matter a Party issue.

Major de Valera

There is one angle of this matter which reinforces the case that has been made for extending the limit beyond what is contained in the Bill. There is the difficulty that in cases where a man might be most inclined to make provision for his widow he takes it so much for granted that he may fail to make it. That is one of the most common cases. If a man is thinking about it and if he has any problem in connection with the matter, he nearly always arranges his affairs. Where the difficulty and tragedy arise is where two people are married and the relationship is such that no question enters into it of property; the thought does not arise. Then, because of the way the law is, something happens which leaves the widow practically destitute. Is that not the position very largely? The only answer that may be made to that case is the answer the Minister made, namely, that there might be some dependent relatives of fairly close degree.

Would it be possible, then, to face the thing this way? Would it be possible to put the whole right in the widow and then put in certain savers for, say, a mother, father, sister or brother in a specific close relationship like that, barring the cousins, second succession and all the other people whom Deputy Norton has characterised as "vultures"? Could you approach it in that way—to put the whole right in the widow and saving rights for contingent possibilities in respect of, say, a widowed mother or something like that? The Minister said that this is not a Party issue. Personally, I would advocate raising it to the £5,000 in the case of a widow.

Mr. Boland

What about £3,000?

Mr. Norton

Make it £4,000 and we will withdraw the amendment.

Mr. Boland

Very well, so. I do not want to fight.

Mr. Sweetman

Take up the hammer and strike it at the £4,000.

Mr. Norton

I will change it to £4,000.

An Ceann Comhairle

Amendment altered to read "four thousand pounds" instead of "five thousand pounds."

Amendment, as altered, agreed to.

Section 3, as amended, put and agreed to.

SECTION 4.

Mr. Norton

I move, as agreed, the following amendment instead of amendment No. 4:—

In line 19 to delete "two thousand pounds" and substitute "four thousand pounds."

Amendment agreed to.

Mr. Norton

I move, as agreed, the following amendment instead of amendment No. 5:—

In line 20 to delete "two thousand pounds" and substitute "four thousand pounds".

Amendment agreed to.

Mr. Norton

I move, as agreed, the following amendment instead of amendment No. 6:—

In line 22 to delete "two thousand pounds" and substitute "four thousand pounds".

Amendment agreed to.

Section, as amended, agreed to.

SECTION 5.

Mr. Norton

I move, as agreed, the following amendment instead of amendment No. 7:—

In lines 30 and 31 to delete "two thousand pounds" and substitute "four thousand pounds".

Amendment agreed to.

Section, as amended, agreed to.

Section 6 agreed to.

SECTION 7.

Mr. Boland

I move amendment No. 8:—

Before the section to insert a new section as follows:—

The net value of real estate shall for the purposes of this Act be ascertained in the case of a fee simple by deducting from the gross value thereof the gross amount of any mortgage or other principal sum charged thereon, and the value of any annuity or other periodical payment chargeable thereon, to be valued according to the tables and rules in the Schedule to the Succession Duty Act, 1853, and in the case of an estate for life according to the said tables and rules.

Section 7 of the Bill states—

"The net value of real estate shall for the purposes of this Act be estimated in the case of a fee simple upon the basis of 20 times the rateable valuation at the date of the death...."

We are now proposing to substitute for that the market value of the estate.

Mr. Sweetman

Why do you use the words "gross amount of any mortgage"? What could be the net value?

Mr. Boland

Net value? I suppose that it would be when all the debts and charges would be deducted from the estate.

Mr. Sweetman

The phrase "gross amount of any mortgage" is used. I do not see what it means.

Major de Valera

Nominal value of the mortgage.

Mr. Boland

It is taken from the old Act. There are, therefore, technical reasons. I am not sure of the precise reasons.

Mr. S. Collins

That is a hardy old chestnut—"technical reasons."

Mr. Sweetman

There is a point in it. What is happening in respect of duty? Duty is payable separately. It seems to me that the word "gross" there is either tautology or else has an implication that I do not think we intend.

Mr. Boland

I am afraid I am not competent to explain all that. It is taken from the other Acts——

Mr. Sweetman

It is taken from the Succession Duty Act, 1883?

Mr. Boland

No. The Estate Act of 1890.

Mr. Sweetman

I will have to read it again, so.

Amendment agreed to.

An Ceann Comhairle

Acceptance of that amendment involves the deletion of Section 7 of the Bill.

Section 8 agreed to.

SECTION 9.

Mr. Sweetman

On behalf of Deputy Dillon, I move amendment No. 9:—

Before Section 9 to insert a new section as follows:—

Nothing in this Act or any other enactment shall operate to limit or extinguish the right of an administrator of a deceased person to pay the lawful debts due by the deceased person out of the property of the deceased person.

As I understand the matter, Deputy Dillon is afraid that the effect of this Bill is to take away the power of an executor to pay a debt of the deceased even when that debt is statute-barred. The Minisster appreciates that the statute-barring of a debt does not mean that it is not any longer morally due; it means that it is legally unenforceable. The position has always been up to this that in the case of a deceased an executor has discretion as to whether or not he will pay a debt that is morally due but legally unenforceable. Deputy Dillon was afraid that the wording of this Bill as introduced took away that discretion. I understand that the Minister has an assurance that the Bill does not so do, that the discretion is still left to the executor.

Mr. Boland

That is how I am advised, that it is not necessary.

Mr. Sweetman

In those circumstances, I withdraw the amendment.

Amendment, by leave, withdrawn.

Section 9 agreed to.

Section 10 and Title agreed to.

Bill reported with amendments.

Agreed to take remaining stages now.

Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.

Question proposed: "That the Bill do now pass."

Mr. Boland

I am sure Deputy O'Higgins did not mean exactly what he said about the draftsman's office. He said that there was the dead hand of the draftsman's office. He might not have meant it. They felt it very much. I should like to say that there was no fault on their part whatever. The holding up of this Bill was due to myself more than anyone else. I will take whatever blame is laid. Deputy O'Higgins is not here but I am sure he would agree with me when I say that he did not really mean it. The draftsman's office to do their work very well. I am not trying to dodge my responsibility. I certainly could have brought in this Bill much earlier if I were so inclined. I was not.

Mr. S. Collins

The sensitivity of Departments is becoming very marked.

Mr. Boland

They were quite right.

Major de Valera

The irresponsibility of certain Deputies is also very marked.

Mr. Boland

They felt it should not have been said.

Mr. Norton

In discussing an Intestates' Estates Bill references to dead hands are not wholly appropriate.

Mr. Sweetman

I am completely overwhelmed by the Minister's admission that it was his own dead hand.

Mr. Boland

Not quite dead yet, I can assure you.

Mr. S. Collins

I would not wish that for the Minister too rapidly.

Question put and agreed to.