This Bill was introduced a long time ago. The Second Reading was taken at the end of May or the beginning of June. At that time, assuming that the Bill passed in the ordinary way, the question of its coming into operation on 1st January, 1959, so far as Parts II and III and portion of Part IV are concerned, was a reasonable possibility. It is quite clear that that is not the case now. After the Bill has passed, there must be a period in which people may become acclimatised to the changes in the law. Apart from anything else, therefore, I think the Minister will have to appreciate that the changed devolution requires sufficient time for people to amend their existing testamentary documents, if they desire to do so, and their existing plans in relation to what is going to happen. I would urge the Minister, therefore, to extend the date from 1st January, 1959, in the circumstances, to, perhaps, 1st July, 1959.
Administration of Estates Bill, 1957—Committee Stage.
The Deputy is suggesting that we should change the date to a later date?
There will not be enough time between the passing of the Bill and the operative date for people to realise its effect.
Is it the suggestion that we will not be able to get the Bill through in time?
It has to go through this House and through the other House. After it has gone through, I suggest that it is necessary for the members of the Bar, the members of the solicitors' profession and for members of the public generally to appreciate the change in the law, before it should become operative.
The Bill does not seem to me to be of such a complicated nature that we could not deal with it here in the time at our disposal and still have time to bring it through the Seanad before the 1st January next. However, that is a matter we can consider.
I would have agreed that the Bill did not appear to be very complicated in the beginning, but in the last ten days we have had eight pages of amendments, which indicates that either there was not a great degree of preparedness about this before it was introduced or it has since been found to be complicated. May I make a suggestion which I was going to make at a later date? It was my intention here to listen to whatever the Minister had to say on various amendments and leave these over for consideration without debate —or, at any rate, without very much debate. I was hoping the Minister would allow at least a fortnight between to-day and the Report Stage, as it may be that these amendments will require countering amendments. I myself, on my reading of the Bill and the amendments so far, do not feel that any great counter amendments will be required. However, there are certain other people interested in this. I asked certain colleagues of mine in another area to give their consideration to this legislation. They did so to the original Bill, but they have not been able to consider both the original Bill and the eight pages of amendments.
We can consider that between now and the Report Stage.
I move amendment No. 1:—
In page 2, to delete sub-section (1) and substitute the following sub-section:—
"( ) In this Act—
‘the Act of 1891' means the Registration of Title Act, 1891; ‘the Court' means the High Court and includes, in the case of the estate of a deceased person where the Circuit Court has jurisdiction to hear and determine a suit for the administration of the estate, the Circuit Court;
‘personal representative' means the executor, original or by representation, or the administrator for the time being of a deceased person;
‘real estate' does not include money to arise upon a trust for sale of land or money secured or charged on land;
‘registered land' means land the title to which is registered under the Act of 1891; ‘the Registry of Deeds' means the registry maintained under the Registration of Deeds Act, 1707;
‘the Registration of Deeds Act, 1707' means the pre-union Irish statute (6 Anne c. 2 (Ir.)) passed in the year 1707 and entitled ‘An Act for the Public Registering of all Deeds, Conveyances and Wills that shall be made of any Honors, Lands, Tenements or Hereditaments';
‘unregistered land' means land the title to which is not registered under the Act of 1891;
‘will' includes codicil."
This is a drafting amendment which proposes to substitute new interpretation provisions for those contained in sub-section (1). It is proposed to define "registered land,""the Registry of Deeds,""the Registration of Deeds Act, 1707" and "unregistered land." These new definitions are necessary in view of the later amendments being proposed.
There is a new phraseology appearing here in the definition of "personal representative". It says that "personal representative" means the executor, original or by representation, for the time being of a deceased person. I accept that, but I never heard anybody being described as the "administrator" of a deceased person. One is always described as being the administrator "of the estate of a deceased person." It is a technical point which the Minister might look into between now and the Report Stage.
My information is that people are described as administrators of deceased persons as well as administrators of estates.
You never have an administrator of a person: you have an executor of a person, but an administrator of the estate of a person.
We can reconsider the matter between now and the Report Stage.
The long Title refers to the "administration of estates".
That is not the same question.
I think that is in line with what Deputy Sweetman is saying.
I have my doubts about Deputy Sweetman's point.
Is amendment No. 1 agreed to?
Well, there are suggestions that it be looked at. Actually, that phrase is in the original Bill, of course. The amendment does not apply to that.
It is carried in from the original Bill into the amendment.
I move amendment No. 2:—
In page 3, line 2, delete "the operative date" and substitute "the 1st day of January, 1959".
This is a drafting amendment. Parts II and III of the Bill will, by reason of sub-section (2) (b) of Section 1, come into operation on 1st day of January, 1959. We shall look into the question of postponing the date.
That date would change if the other date changes.
Before we pass from Section 5, it is possible that date in the section might also have to be changed.
We want to keep our flanks open for the Report Stage.
I move amendment No. 3:—
In sub-section (1), page 3, line 16, before "interest" to insert "estate or".
We have the same type of amendment right down to amendment No. 13, and with your permission, Sir, and the agreement of the House, I propose to move those amendments together. They are purely drafting amendments.
Why, what is the point in adding "estate" before the word "interest" in all these numerous places?
I am advised that a person has an estate or an interest in property.
Yes, and the word "interest" might not cover both?
Yes.
I move amendment No. 4:—
In sub-section (1), page 3, line 23, before "interest" to insert "estate or".
I move amendment No. 5:—
In sub-section (1), page 3, line 27, before "interest" to insert "estate or".
I move amendment No. 6:—
In sub-section (1), page 3, line 29, before "interest" to insert "estate or".
I move amendment No. 7:—
In sub-section (1), page 3, line 31, before "interest" to insert "estate or".
I move amendment No. 8:—
In sub-section (1), page 3, line 32 before "interest" to insert "estate or".
I move amendment No. 9:—
In sub-section (1), page 3, line 35, before "interest" to insert "estate or".
I move amendment No. 10:—
In sub-section (1), page 3, line 36, before "interest" to insert "estate or".
I move amendment No. 11:—
In sub-section (1), page 3, line 38, before "interest" to insert "estate or".
I move amendment No. 12:—
In sub-section (1), page 3, line 40, before "interest" to insert "estate or".
I move amendment No. 13:—
In sub-section (1), page 3, line 42, before "interest" to insert "estate or".
I move amendment No. 14:—
In sub-section (1), page 3, line 48, to delete "Part of this".
Amendments Nos. 14 and 16 are similar and again I would suggest we take these together. They are drafting amendments. The powers of personal representatives are being dealt with not only in this part (Part II) but in Part III and in the amendments which will be proposed later for insertion in Part III.
I move amendment No. 15:—
In sub-section (1), page 3, line 50, to delete "beneficially".
This is a different type of amendment. It is cutting out the word "beneficially".
Amendments Nos. 15 and 17 are purely drafting amendments. The word "beneficially" should be deleted in order to cover the case where it is provided in a will that real property is to be vested in certain trustees and these trustees are other than executors. The executors must transfer the property to the trustees to hold it for the beneficiaries. "Beneficially entitled" in the section would not cover trustees under a will. Trustees are not persons beneficially entitled, although they are persons entitled.
Would the Minister repeat what he said towards the end of his remarks, as to trustees not being beneficially entitled? I want to point out that the section we are dealing with does not speak of trustees beneficially entitled; it speaks of trustees for people who are by law beneficially entitled, which is a good deal different.
I have stated that the words "beneficially entitled" would not cover trustees. They are not persons beneficially entitled, though they are persons entitled.
But the phraseology in lines 49 to 51 is: "As trustees for the persons by law beneficially entitled." It is not as trustees beneficially entitled; it is as trustees for the persons beneficially entitled. That is what trustees are.
Surely the reference to trustees is to the personal representatives who are trustees, "the personal representatives of a deceased person shall hold as trustees"— they might hold as trustees for trustees. Is that not the point?
That is not the Minister's point.
I think that is the explanation but it is not the one we got.
Would the Minister say if the explanation given by Deputy Booth is the correct one?
It is the correct one and it is the one I gave.
And the Minister is satisfied that the word——
I am satisfied that I am being properly advised.
I move amendment No. 16:—
In sub-section (1), page 3, line 51, to delete "Part of this".
I move amendment No. 17:—
In sub-section (1), page 3, line 52 and 53, to delete "beneficially".
I move amendment No. 18:—
In sub-section (2), page 4, line 1, to delete "sub-section (3) of this section" and substitute "the provisions of this Act".
This is a consequential drafting amendment to amendment No. 19.
I move amendment No. 19:—
To delete sub-section (3).
Why is sub-section (3) being deleted?
It is proposed to delete sub-section (3) from Section 7 as its provisions are contained in sub-section (7) of the section it is proposed to insert by amendment No. 24. It is proposed that the provisions in amendment No. 24 will apply to all personal representatives whereas sub-section (3) in Section 7 applies only to personal representatives of real estate. In amendments Nos. 22 to 26 we are seeking to consolidate existing law as to personal representatives as regards personal property and compulsorily registered land, and to extend the law, where appropriate, to real property.
First in regard to sub-section (1) of this section, is it clear that the effect of it in future will be to require a positive transfer organ in all cases? If says "requiring a transfer of real estate", and whether that means a transfer only of unregistered land or whether it means a conveyance of registered land as well, I do not know. Quite apart from the expense such a transfer or conveyance would involve, I should like to know exactly where the effect of it will arise as regards stamp duty. Secondly, I am completely unable to understand sub-section (4). As I see it, it says in paragraph (a) that where a person dies after the 1st January, until whatever date we shall decide is the operative date for the coming into operation of the Bill, and dies possessed of real estate, his real estate will be administered in the same manner as if it were personal estate. That I can understand. Then we come to paragraph (b) and it says that nothing in paragraph (a) of the sub-section is to alter the position, the relative position, between real and personal estate as it was before 1st January.
I thought by clause (a) of sub-section (4) we were altering it and then we find according to clause (b) we are not. I presume clause (b) is intended to refer to the marshalling of assets for the purpose of ascertaining primary liability, but I am afraid the comparative wording of these two clauses of sub-section (4) will lead to some considerable confusion and doubt in people's minds.
Apparently, the Incorporated Law Society sought something like that also——
Great minds think alike.
They thought there was some ambiguity in it and because of that we had it carefully examined. As a result we are quite satisfied that there is no question of ambiguity. Paragraph (a) is to be read subject to paragraph (b). If there is ambiguity there, there is also ambiguity in Section 86 of the Registration of Titles Act, 1891. These clauses have been taken practically verbatim from that section.
I am obliged to the Minister for giving the reference which I shall check between now and the Report Stage, but when the Intestate Estates Act of 1954 was going through this House we were assured categorically and positively that one particular section was perfectly clear. It is now an Act for the last four years and it has defied people to deal with it in such a way that there is not a contest about every case that comes under it that is a borderline case.
I can only say that lawyers differ——
But the patients do not die.
——and the clients suffer.
Is not this the place to clear up doubts before it goes through?
Why is Section 8 being deleted?
Is the reason for the deletion of Section 8 the point I raised on sub-section (1) of Section 7? That it would require a transfer of conveyance?
We propose in amendment No. 24 to make comprehensive general provisions as to assents and transfers of land. Special provisions for unregistered land are being proposed in amendment No. 25 and for registered land in amendment No. 26. Section 8 of the Bill applies only to real property and there will be no need for it if amendments Nos. 24 and 26 are accepted.
We can discuss it on those sections.
Section 8 deleted.
I move amendment No. 20:—
In page 5, before Section 10, to insert the following new section:—
Nothing in this Part of this Act shall apply to—
(a) land to which Part IV of the Act of 1891 applies, or
(b) an interest in a parcel of untenanted land which, under Section 5 of the Land Act, 1946 (No. 12 of 1946), is, for the purposes of devolution on death, to be deemed to be a chattel real.
This is a drafting amendment. We want to exclude from Part II not alone compulsorily registered land which is dealt with in Part IV of the Registration of Title Act, 1891, but also an interest in a parcel of untenanted land which devolves as personalty by reason of Section 5 of the Land Act, 1946. Where a person agrees or undertakes to purchase from the Land Commission the fee simple of a parcel of untenanted land which was not at the time of the agreement subject to Part IV of the 1891 Act, Section 5 of the 1946 Act makes the interest in that parcel of land created by the agreement devolve on death as a chattel real. In other words it devolves as personal property notwithstanding the fact that but for the section it might be held to be real property.
It is still real property — is that the effect of the section? It says it is not to apply to it any more?
It devolves as personal property.
Does the Minister think it necessary to insert in (b) of this amendment the same phrases as were used earlier, "estate or interest" or just "interest"?
I shall consider that.
I am not so happy about this from another angle. Take the case of a person who held land under a fee farm grant. That is real property, the grantee's interest. He came in there having made an application under Section 44 of the Land Act of 1931 and the application was granted by the Land Commission. Between the date of the application being granted and thereafter, until the actual registration in the Land Registry, under the provisions of the 1891 Act, that still remains real estate and now I do not know what the intention is. As regards this section, is it intended that it will still remain real estate or is it intended that it will now be chattel real or will it devolve as personal estate?
As far as we know, this type of case is dealt with by the Land Act of 1946. I mentioned that a moment ago.
I do not think — I am not prepared to say this categorically — that the type of case I mention is dealt with. Will the Minister look it up between this and the Report Stage?
The Minister has differentiated between estate and interest in an earlier section. The Minister will recollect that the amendment to Section 6 was provided for the purpose of inserting the phrase "estate or interest". I should like the Minister to examine the position to see if it is necessary to make a similar amendment here.
I shall look into that.
I am not too clear as to what is intended by this vesting in the President of the High Court. What powers will the President have pending administration? What responsibilities will he have? I always understood that there was in fact no such duty on the President but that, in the case of an intestacy, the administrator of the estate of the deceased person acquired no title until title had been granted by the President of the High Court. Does Section 14 merely intend that that will be the position? Earlier we decided that "personal representative" means the executor or the administrator for the time being in the estate of the deceased person. I take it, therefore, that by "administrator" we mean the person to whom administration has been granted and not merely a person who is filing an application to be an administrator. There is a difference. The executor at present takes his powers immediately from the date of death. The administrator takes his powers from the date on which he extracts his grant. It is given to him by the President of the High Court.
The Deputy will find the explanation in the Explanatory Memorandum.
What is the point in bringing the particular matters in sub-section (3) in? Is it just that the Revenue Commissioners, efficient body of tax gatherers that they are, could not bear to see a Bill going through without their collecting more power?
This matter was raised by the Incorporated Law Society and by the Dublin Solicitors' Bar Association and it has been carefully considered. The administration bond is the bond entered into by the administrators that they will duly administer the estate. In administering the estate they must pay the debts due from the estate. The Law Society say there is no necessity for the provision in regard to these revenue debts as the personal representative is liable to see that they are discharged, as in the case of other debts. We are, however, advised otherwise.
The administration bond at present in use seems to provide only for payment of debts "which the deceased did owe at his decease". This does not appear clearly to cover death duties which do not become due until after the death. Further, it does not clearly cover income-tax or surtax in respect of income arising after the date of death. The purpose of the provision to which objection is being made is to cover these defects. Income-tax and surtax up to the date of death are clearly covered in the present form of bond and the proposed amendment of the law will make little difference as far as these taxes are concerned. It seems only fair that where an administrator is given control over property by the court he should be made to pay all debts, no matter to whom due. We cannot, therefore, agree to the deletion of the provision in sub-section (3) of Section 15.
It is perfectly clear that in relation to all debts up to the date of death, whether income-tax, surtax, or any other type of tax, the form of bond covers the position. As I understand it, after the date of death the position is that you do not get your grant unless you have paid your estate duty to begin with. You may have additional estate duty to pay and additional legacy duty and succession duty subsequently. You may have additional estate duty if the valuation is increased by the valuation office from the provisional value accepted for the grant. But I think it has always been understood that the administrator is personally bound to apply the assets to that and, if he applies the assets to any other purpose, it is just too bad for him; he must make up the amount out of his own pocket.
Similarly, income arising to an administrator, which is taxable to income-tax or surtax, is income which he receives and it is a new principle of law to suggest that where a trustee receives income, even though he does not receive it for himself, he is not personally liable to ensure that the tax on that is paid. I can assure the Minister that if the basis for the insertion of sub-section (3) is that an administrator, who is expressed to be a trustee in this case, is not liable to pay tax on income he receives the Revenue Commissioners will find that very many trustees will hold off making the returns that they are bound to make at the present moment and the Revenue Commissioners will lose for more than they will gain.
The bond does not clearly cover death duty and income-tax in respect of income arising after death.
A much greater bond covers it. This is entirely misconceived from the practicability of the situation. Let us assume, for the sake of argument, that a person dies worth £10,000 gross. I am not interested in the net end of it at all. The bond to the President of the High Court then will be on £20,000, double the gross assets. Now the bond has got to be for an entirely different figure. The bond has to be for double the gross assets plus whatever estimated amount will arise after the date of death for death duties, for income-tax, for surtax, before the administration is completed because the bond must take regard of those things as well as of the assets and this will throw the whole thing in the melting pot and we will never have certainty. Frankly, I do not understand at all how it will be operative. The bond clearly covers all debts due at the date of death. That is easily ascertainable, easily fixed, but, if it is going to cover further debts that might possibly arise after death, I cannot see how any insurance company, for example, will ever be able to assess what the bond should be and what the premium on that bond should be.
There is just one small point that I should like to mention in case there should be any confusion. With regard to sub-section (2) of Section 15, the phrase is used there:
"An administration bond shall be in a penalty of double the amount under which the estate of the deceased is sworn."
I do not quite understand the phrase, "under which the estate is sworn". I take it that what is intended there is that it shall be in double the amount at which the estate is sworn.
That is another matter that we can look into between now and Report Stage.
Is this power not there already, for a trustee, for example?
We would not be inserting it here if it was.
I thought there was that power already. I saw this in the White Paper originally. I understand the position to be that if a person is a trustee of property in Ireland but has himself no estate in Ireland there is already power to extract a grant. If it is meant to cover a case where there is something different from that —and it is not quite clear from the White Paper — then I could appreciate it but the present situation undoubtedly is — because I have extracted a grant — that a trustee who has no estate in Ireland himself still can extract a grant to somebody else, to a bare legal estate which is vested in him. May I put it another way? As long as I am satisfied that the section will not prevent the existing practice being carried on I do not mind what additional power is given but I want to be quite clear that a trustee who himself has no estate in Ireland still can extract a grant for the purpose of conveying or transferring the trust estate of which he is the last trustee.
This section will not interfere with any existing provisions, if there are such. That is the advice that I have been given.
It is a power surplus to the existing power.
I move amendment No. 21:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) The President of the High Court shall from time to time cause to be prepared in the Probate Office calendars of the grants of probate and administration made in the Probate Office and in the several district probate registries for such periods as the President of the High Court may direct.
(2) Every such calendar shall contain a note of every probate or administration with the will annexed and of every other administration granted within the period specified in the calendar, setting forth—
(a) the date of the grant,
(b) the place (being the Probate Office or a district probate registry) in which the grant was made,
(c) the name and the place and time of death of the testator or intestate,
(d) the names and descriptions of the executors or administrators, and
(e) the value of the estate, if any.
(3) A copy of every calendar so prepared shall be sent by post or otherwise to every district probate registry, and every copy so sent shall be kept in the district probate registry to which it is sent.
This amendment proposes to consolidate and bring up to date the law as to the preparation of calendars of grants of probate and administration made in Probate Office and in the six district probate registries. The existing law is contained in Sections 72 and 73 of the Probates and Letters of Administration Act (Ireland) 1857. Under Section 73 of the 1857 Act it is provided that the calendars are to be sent to the probate office or registry in London and Edinburgh. This was done in the old days but has not now been done for years. As is explained in paragraph 6 of the Explanatory Memorandum circulated with the Bill, resealing of probates and administration between here and Britain has been suspended since 1923.
Acceptance of the amendment involves the repeal of Section 72 of the 1857 Act and this is provided for in amendment No. 29. Section 73 of the 1875 Act is already proposed for repeal in Part II of the Schedule.
Where is the 1875 Act? I cannot find any reference to it. Is it a transposition of 1857? There is a reference to 1876 and a reference to 1857 but I cannot find any reference in the White Paper to 1875.
I meant the 1857 Act.
That is what I thought. What are the calendars used for?
Is it for inspection?
Is it for a handy index for searching?
They are used for record purposes and for inspection.
There is no reference to making these documents available for inspection. It simply says they shall be sent to these places and kept there. I presume there is some other provision which permits inspection.
You mean inspection of the calendars of grants?
Yes. I presume there are inspection rights?
Yes.
I move amendment No. 22:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) The personal representatives may sell the whole or any part of the real or personal estate of a deceased person for the purpose not only of paying debts, but also (whether there are or are not debts) of distributing the estate among the persons beneficially entitled thereto, and before selling for the purposes of distribution the personal representatives shall, so far as practicable, give effect to the wishes of the persons of full age beneficially entitled to the property proposed to be sold or, in the case of dispute, of the majority (according to the value of their combined interests) of such persons so, however, that—
(a) a purchaser shall not be concerned to see that the personal representatives have complied with such wishes; and
(b) it shall not be necessary for any person beneficially entitled to concur in any such sale.
(2) (a) It shall not be lawful for some or one only of several joint personal representatives, without leave of the court, to exercise any power conferred by sub-section (1) of this section to sell any land, save that where probate is granted to one or several persons named as executors, whether or not power is reserved to the other or others to prove, the sale of the land may, notwithstanding any other provision or rule of law to the contrary, be made by the proving executor or executors, without leave of the court, as fully and effectually as if all the persons named as executors had concurred therein.
(b) Where a sale of land is made under paragraph (a) of this sub-section by the proving executor or executors, sub-section (1) of this section shall have effect as if the references therein to personal representatives were referrences to the proving executor or executors.
(3) Where one of two or more proving executors has died, references in sub-section (2) of this section to a proving executor or executors shall be construed as references to the survivor or survivors (as the case may be) of the proving executors.
(4) Where land is settled by will and there are no trustees of the settlement, the personal representatives proving the will shall for all purposes be deemed to be trustees of the settlement until trustees of the settlement are appointed, but a sole personal representative shall not be deemed to be a trustee for the purposes of the Settled Land Acts, 1882 to 1890, until at least one other trustee is appointed.
The amendment proposes a new section to consolidate the existing law as to the powers of personal representatives to sell property and act as trustees. The section will extend that law to all property. Although sub-section (2) (c) of Section 7 of the Bill proposes to give personal representatives the same powers, rights, duties and liabilities over real estate as they have over personal estate, we think, on reconsideration, that it is desirable to set out clearly the powers of sale of personal representatives, as is proposed in this amendment, the law as to the position of purchasers from them, as is proposed in amendment No. 23, and also the law as to transfers and assents by personal representatives, as is proposed in amendments Nos. 24, 25 and 26.
Sub-section (1) of the proposed new section contained in this amendment applies the former law, as to the powers of personal representatives to sell personal property, to all property However, it expressly requires them to take into account, so far as practicable, the wishes of the beneficiaries. Personal representatives have always had an absolute power of sale over personal estate in order to pay the debts and distribute the estate amongst those entitled to it. It is for the purchaser to see to it that the wishes of the beneficiaries have been complied with but the law is that he must act in good faith.
Sub-section (2) (a) deals with the power of sale of land by some or one only of several joint personal representatives. The sub-section extends the existing provisions of the law as to compulsorily registered land to all land. These provisions are contained in Section 86 (2) of the Registration of Title Act, 1891, as amended by Section 20 of the Registration of Title Act, 1942. If the amendment is accepted the provisions in these Acts will no longer be necessary and their repeal is proposed in amendments Nos. 30 and 31.
Sub-section (3) is an interpretation provision.
Sub-section (4) extends to all land the existing provisions of the Registration of Title Acts, 1891 and 1942, as the powers of personal representatives to act as trustees of a settlement created by a will which does not appoint trustees. It is proposed to repeal these provisions in amendments Nos. 30 and 31. The law as proposed in sub-section (4) of the proposed new section will apply to all personal representatives proving the will and will make them trustees for all purposes. At present as regards compulsorily registered land only proving executors are trustees and they are trustees only for the purposes of the Registration of Title Act, 1891 or the Settled Land Acts, 1882 to 1890. Accordingly, if the will appoints no executors, persons who take out administration with the will annexed are not trustees of any settlement contained in the will. Furthermore, even if there are executors, such executors are not trustees for all purposes. Sub-section (4) of the proposed new section cures these defects.
Whether he meant it or not, the Minister, when he was reading said: "It is for the purchaser to see these things carried out." Did he mean that?
No.
I suggest the Minister go back and read it again.
I left out the word "not".
I thought the Bill was proposing a very revolutionary doctrine.
I did not notice myself making that mistake.
The word "not" in that context is of some significance.
I am glad to have had my attention drawn to it.
I have endeavoured to listen to the Minister as attentively as I could, and I hope he will not be offended if I say I thought his explanation was as clear as mud.
I am not offended at all.
We will have to try and stir the muddy water between now and the Report Stage. Before we do that, I want to ask a specific question. I want to make my will to-day and I want to appoint executors to do a certain part of the task, and I want to appoint trustees to do another part of the task. As far as I could gather from the Minister's explanation, my executors will have power to deal with my property in relation to what this section empowers them to do, without having any reference to the separate people who are to be the trustees.
In other words, this section, as I read it, overrides my direction contained in the will, and is not subservient to the direction contained in the will. I thought these would be powers that would cover the case of intestacy, but, as I understand the definition of the words "personal representatives", it also covers executors, and it means executors are given powers by statute which I, as testator, do not wish to give them. To me, that seems to entirely contrary to the whole doctrine of testamentary capacity, and I must confess I found it difficult to believe that such should be intended.
There are other cases that arise. There is a case where, say, three executors are appointed. Only two extract the grant. There is a trust for life of lands, and the present practice is clear that when the ordinary executorship terminates, the trust begins to operate and, though the executor who has received and not extracted his grant is not an executor, he is a trustee from the moment the administration itself operates. As far as I understand it by this section, he is no longer going to be a trustee for the purpose of the Settled Land Acts. The other two executors alone are so declared. That, again, is an entirely new principle in relation to the construction of testamentary documents.
I should like also to know whether I am right in thinking whether the effect of this section will be that in future the court will be deprived of the jurisdiction it has at the present time of deciding whether people are or are not, fit and proper persons to be trustees for the purposes of the Settled Land Acts.
As I understand this section, it means that in future, automatically, any personal representative is a fit and proper person to be a trustee for the purpose of the Settled Land Acts. The court has always taken a very clear view that that is not so—that a person might be quite proper to be an executor or might be quite proper to be an administrator but might be not, ipso facto, necessarily be the person to be a trustee for the purposes of the Settled Land Acts. I do not think we should lightly throw overboard that jurisdiction of the court by a statute. As I read this amendment, we are doing so.
Quite frankly, my reading of these amendments, before we discussed them to-day, led me to the conclusion that they were being brought in for the purpose of an alleged streamlining of administration of estates which, in fact, will not be a streamlining and which will cause more confusion and do away with many safeguards that were there before. I do not think it is right that we should do it in this side-issue way of an amendment to this Bill.
That is the Deputy's opinion. The Deputy is a lawyer. I do not intend to dispute his view. My advisers gave me the advice I have imparted to the House. I have to presume, equally, that they also are right.
Of course, I can understand that.
We shall look into the matter in the meantime to see if there is anything in the point the Deputy has made.
Without casting any aspersions whatever on the Minister or on his officials, I think he will agree with me that his advisers must, because of their positions, be looking at this from theoretical aspect. We, who are dealing with this every day, must, from our end, be dealing with it from the practical aspect.
We are not making any real change in the law at all.
Then I do not understand the drafting.
If the Deputy will read the side notes, it might held. However, I shall have the matter looked into between now and the Report Stage.
One of the side notes I see is that the word "New" is written in. That is amendment No. 22 (1). In the next one, I see "...extended to all land." The next one, too, says "... extended to all land."
My information is that it is new to the statutory law.
We shall consider that between now and the Report Stage.
I move amendment No. 23:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) A purchaser, in good faith and for value, from the personal representatives of a deceased person, of any property, being the whole or any part of the real or personal estate of the deceased person, shall be entitled to hold that property freed and discharged from any debts or liabilities of the deceased person, except such as are charged otherwise than by the will of the deceased person, and from all claims of the persons beneficially entitled thereto, and shall not be concerned to see to the application of the purchase money.
(2) (a) This sub-section applies to all property other than registered land.
(b) A purchaser in good faith and for value of any property to which this sub-section applies, being the whole or any part of the real or personal estate of a deceased person, which has been transferred by the personal representatives to the person entitled thereto or to the vesting of which in the person entitled thereto the personal representatives have assented, shall be entitled to hold that property freed and discharged from the claims of creditors of the deceased person except claims of which the purchaser had actual or constructive notice at the time of his purchase.
The proposed section consolidates the existing ordinary or non-statutory law as to bona fide purchasers from personal representatives of personal property and extends it to all property. The law always favours a purchaser who buys in good faith and for value. A purchaser cannot be expected to satisfy himself that a sale by a personal representative is being made in the ordinary course of administering the property.
This amendment is a corollary to amendment No. 22 which deals with the power of personal representatives to sell.
I do not want to score petty points by cross-examining the Minister on legal points. I could not expect him to know them without seeking advice. I always understood that, when you sold as a personal representative, the purchaser was not concerned. That is why you convey or assign as a personal representative. That is the existing law. I see, at the side of this amendment, the word "New". That is what puzzles me—amendment No. 23 (1). I understood that was the law. I can assure the Minister that, in relation, shall we say, to the assignment of leasehold estates, it is the law. Why the word "New" is there at the side, beats me. I am a suspicious person, as the Minister knows. It makes me think that there is something more at the back of it than I can spot.
It is new to the statutory law.
On the Report Stage, I shall have great pleasure in showing the Minister where it is. It is not new. I should not like to quote the statute it is in, but it is not new.
In that event, I must be wrongly advised.
I think the Minister is, unless the section means something more—unless something new is put into the section. I am sorry Deputy Booth is not here. If the Minister asks any solicitor in his own Party—the Minister for the Gaeltacht, Deputy Moran, Deputy Booth or Deputy S. Flanagan—they will tell him that when a person sells, as personal representative, a leasehold interest, the purchaser is not concerned with anything further in relation to such a sale. One does that every day. One assigns, as personal representative, and, when you assign as personal representative of a leasehold estate, the purchaser is not concerned with the course of the administration.
I am assured it is new to the statute law. The Deputy should produce the reference to the existing statute.
The Vendor and Purchaser Act, 1874. There is no difficulty at all about it. I think this is a re-enactment and that it is the note at the side that is wrong. I do not think it is new except as regards real estate. The section itself is all right but the note at the side is misleading.
Is the Deputy arguing that it is not new to the statute law?
Yes.
Will the Deputy look into that and, on the Report Stage, he can tell me whether he was successful or not in finding the exact statutory provision?
I shall give the Minister the opportunity of checking my information by sending him a letter beforehand.
Very good.
I move amendment No. 24:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) In this section and in section * of this Act—
(a) references to the land of a testator are references to land to which the testator or intestate was entitled or over which he exercised a general power of appointment by will;
(b) "person entitled" includes, in relation to any estate or interest in the land of a testator or intestate—
(i) the person or persons (including the personal representatives of the testator or intestate or any of them) who (whether by devise, bequest, devolution or otherwise) may be beneficially entitled to that estate or interest, and (ii) the trustee or trustees or the personal representatives or representative of any such person or persons.
(2) Without prejudice to any other power conferred by this Act on personal representatives with respect to any land of a testator or intestate, the personal representatives may at any time after the death of the testator or intestate execute an assent vesting any estate or interest in any such land in the person entitled thereto or may transfer any such estate or interest to the person entitled thereto, and may make the assent or transfer either subject to or free from a charge for the payment of any money which the personal representatives are liable to pay.
(3) Where an assent or transfer under sub-section (2) of this section is made subject to a charge for all moneys, if any, which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before the assent or transfer.
(4) At any time after the expiration of one year from the death of an owner of land, if the personal representatives have failed on the request of the person entitled to transfer, by assent or otherwise, the land to the person entitled, the court may, if it thinks fit, on the application of the person entitled and after notice to the personal representatives, order that the transfer be made, and in default of compliance with that order within the time specified therein by the court, may make an order vesting the land in the person entitled as fully and effectually as might have been done by a transfer thereof by the personal representatives.
(5) An assent not in writing shall not be effectual to pass any estate or interest in land.
(6) The statutory covenants implied by a person being expressed in a deed to convey as personal representative shall also be implied in any assent signed by a personal representative unless the assent otherwise provides.
(7) It shall not be lawful for some or one only of several joint personal representatives, without leave of the court, to make an assent or transfer under this section, save that—
(a) where probate is granted to one or some of several persons named as executors, whether or not power is reserved to the others or other to prove, such assent or transfer may, notwithstanding any other provision or rule of law to the contrary, be made by the proving executor or executors, without leave of the court as fully and effectually as if all the persons named as executors had concurred therein;
(b) when the proving executor or executors exercise any power conferred by paragraph (a) of this sub-section, this section and sections ** and ** shall have effect as if references therein to personal representatives were references to the proving executor or executors.
(8) Where one of two or more proving executors has died, references in sub-section (7) of this section to a proving executor or executors shall be construed as references to the survivor or survivors (as the case may be) of the proving executors.
(9) This section shall not operate to impose any stamp duty in respect of an assent.
This amendment proposes to set out clearly the general law as to assents or transfers by personal representatives. Assents or transfers are necessary in order to convey the land to the persons entitled to it under the will or on intestacy. These persons may be entitled as trustees appointed by the will or as ordinary beneficiaries under the will or on an intestacy. Special provisions as to assents or transfers in the case of unregistered land and in the case of registered land are proposed in amendments Nos. 25 and 26.
Sub-section (1) of the proposed amendment contains an interpretation provision.
Sub-sections (2), (3) and (4) propose to consolidate the provisions of Section 87 of the Registration of Title Act, 1891, which applies to compulsorily registered land only, and to extend these provisions to all land. It is proposed to repeal Section 87 of the 1891 Act in amendment No. 30.
Sub-section (5) provides that all assents shall be in writing and this sub-section will extend the existing law as to compulsorily registered land to all land.
Sub-section (6) provides that the statutory covenants implied in a deed of conveyance by a personal representtative shall also be implied in any assent. Section 7 of the Conveyancing Act, 1881, provides that, where a person conveys land as personal representative, there shall be implied in the conveyance a covenant against incumbrances, which covenant shall be deemed to extend to every such person's own acts. The implied covenant is to the effect that the person conveying has not done any act whereby the conveyance may be impeached or the person who conveys hindered from conveying in the manner in which the property is expressed to be conveyed. It is only reasonable that a similar covenant should be implied where a personal representative executes an assent.
Sub-sections (7) and (8) correspond with sub-section (2) of the section contained in amendment No. 22. It is proposed to consolidate and extend to all land the provisions of Section 86 (2) of the Registration of Title Act, 1891, as amended by Section 20 of the Registration of Title Act, 1942. Under amendments Nos. 30 and 31, these provisions will be repealed.
Does the Minister give any consideration to the desirability of providing that assent in question be registered in the Registry of Deeds?
That is provided for in the amendment which follows.
The next amendment? I beg the Minister's pardon. He is quite right.
I move amendment No. 25:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) An assent to the vesting of any estate or interest in unregistered land of a testator or intestate in favour of the person entitled thereto shall—
(a) be in writing.
(b) be signed by the personal representatives,
(c) be deemed, for the purposes of the Registration of Deeds Act, 1707, to be a conveyance of that estate or interest from the personal representatives to the person entitled,
(d) operate, subject to the provisions of the Registration of Deeds Act, 1707, with respect to priorities, to vest that estate or interest in the person entitled subject to such charges and incumbrances, if any, as may be specified in the assent and as may otherwise affect that estate or interest.
(e) subject to the provisions of the Registration of Deeds Act, 1707, be deemed (unless a contrary intention appears therein) for all purposes necessary to establish the title of the person entitled to intervening rents and profits to relate back to the death of the deceased person so, however, that nothing in this paragraph shall operate to enable any person to establish a title inconsistent with the will of the deceased person.
(2) Any person in whose favour as assent or conveyance of any unregistered land is made by personal representatives may at his own expense require the personal representatives to register that assent or conveyance in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.
The proposed section contains the special provisions applicable to assents by personal representatives in the case of unregistered land.
Sub-section (1) contains detailed provisions in regard to assents. An assent must be in writing, it is being deemed for the purposes of the Registration of Deeds Act to be a conveyance, and, for the purposes of rents and profits, it will relate back to death. The advantages of writing are obvious. A beneficiary is more easily protected against a later conveyance by the personal representatives to some other person, as he can have the assent registered in the Registry of Deeds and so obtain priority against a later conveyance affecting the land. Paragraphs (c) and (d) do not make registration in the Registry of Deeds compulsory, but it would be foolish for a beneficiary not to have the assent registered. In the case of compulsorily registered land, an assent or transfer by the personal representative must be in the prescribed form and must be registered. Otherwise, the beneficiaries could not deal with the land. The folio is conclusive as to the title to such land, and the ownership of the land and charges thereon have to be set out in the folio. Special provisions as to registered land are proposed in amendment No. 26. Dealings with unregistered land are registered in the Registry of Deeds, but registration of deeds is not compulsory. However, conveyances affecting unregistered land are always registered because registration gives priority as from the date of registration.
Sub-section (2) enables the beneficiary to require the personal representatives to register in the Registry of Deeds an assent or conveyance. The registration is at the expense of the beneficiary and this is considered to be a fairer provision than one which would put the expense on the estate. The proposed provision will bring the law as to registration in the Registry of Deeds into conformity with what appears to be the law as to registration of assents or transfers in the Land Registry.
I think that is a good provision.
I move amendment No. 26:—
In page 7, before Section 18, but in Part III, to insert the following new section:—
(1) For sub-section (2) of Section 37 of the Act of 1891, as amended by Section 27 of and the Second Schedule to the Registration of Title Act, 1942 (No. 26 of 1942), in its application to the estates of persons dying on or after the 1st day of January, 1959, there shall be substituted the following sub-sections:—
(2) On the death of a sole registered full owner of land, or of the survivor of several registered full owners of land, not being registered as tenants in common (which owner or survivor is in the succeeding provisions of this section referred to as the deceased owner), the personal representatives of the deceased owner shall alone be recognised by the registering authority as having any rights in respect of the land, and any registered dispositions by them shall have the same effect, as if they were the registered owners of the land.
(3) The production of an assent or transfer from the personal representatives in the prescribed form shall authorise the registering authority to register the person named in such assent or transfer as the full owner or limited owner of the land, as the case may be.
(4) Where the High Court or the Circuit Court makes an order under sub-section (4) of section * of the Administration of Estates Act, 1958, vesting registered land in any person, it may also order that that person be registered as owner of that land either solely or jointly with the personal representatives.
(5) Save as provided by sub-section (4) of this section, nothing in the Administration of Estates Act, 1958, shall operate to require the registering authority to register as the owner of land a person in his capacity as personal representative.
(6) In this section "land" includes a leasehold estate, within the meaning of Section 53 of this Act, and any right referred to in sub-section (1) of Section 54 of this Act.
(2) Where, on the application of any person claiming to be registered under the Act, of 1891 as owner of registered land, in succession to a deceased full owner of such lands, the court is satisfied—
(a) that at least six years have elapsed since the death of the deceased full owner, and
(b) that the personal representatives of such owner are dead or out of jurisdiction,
the court may, if it thinks fit, notwithstanding anything in the Act of 1891 of this Act, dispense the applicant from the necessity of raising representation to the deceased full owner or of giving notice to his personal representatives, and may order that the applicant be registered as owner of the land.
This amendment deals with special provisions as to registered land.
It is proposed in sub-section (1) to extend to all registered land the existing provisions of the Registration of Title Acts, 1891 and 1942, as to compulsorily registered land. Sub-section (37) (2) of the 1891 Act is concerned with pure realty only, and it does not apply to personal property or to compulsorily registered land. The provisions proposed to be substituted for Section 37 (2) of the 1891 Act will apply to all registered land, whether compulsorily registered or not.
Sub-section (2) of the proposed new section allows the court after a lapse of six years from the death of a registered owner to order that an applicant for registration be registered as full owner. The order will be made if the court is satisfied that the personal representatives of the deceased owner are dead or out of the jurisdiction. The sub-section will extend to all registered land the provisions of Section 21 of the Registration of Title Act, 1942. This section now applies only to compulsorily registered land.
I move amendment No. 27:—
PART IV.
In page 7, before Section 18, but in Part IV, to insert the following new section:—
(1) (a) In this sub-section, "the Act of 1936" means the Courts of Justice Act, 1936 (No. 48 of 1936).
(b) For the purposes of Section 65 (which empowers the Minister for Justice to prescribe court fees) of the Act of 1936, every district probate registry shall be deemed to be an office established by the Court Officers Act, 1926 (No. 27 of 1926).
(c) The Supreme Court and High Court (Fees) Order, 1956 (S.I. No. 251 of 1956), which said Order was made under Section 65 of the Act of 1936, shall apply in respect of each district probate registry and each district probate registrar as it applies to the Probate Office and the Probate Officer respectively subject to the following modifications:—
(i) the references to offices of the Supreme Court and High Court shall include references to a district probate registry,
(ii) the reference to an officer of the Supreme Court or the High Court shall include a reference to a district probate registrar,
(iii) the references to the Probate Office and the Probate Officer shall include references to a district probate registry and a district probate registrar respectively.
(2) (a) Where a person (in this sub-section referred to as the acting district probate registrar) is for the time being required and authorised, by the Minister for Justice under Section 9 of the Court Officers Act, 1945 (No. 25 of 1945), as amended by Section 5 of the Court Officers Act, 1951 (No. 8 of 1951), to perform the duties of district probate registrar for the district served by a particular district probate registry, the said Minister may authorise a specified officer serving in that district probate registry or in the Circuit Court Office which serves the area within which such district probate registry is located to execute, during the temporary absence or temporary incapacity through illness of the acting district probate registrar, the office of district probate registrar for that district and, if the said Minister does so, then such officer shall, during any such temporary absence or temporary incapacity, have and exercise all the powers and fulfill all the duties of the district probate registrar for that district unless and until the said Minister otherwise directs.
(b) Paragraph (a) of this sub-section shall be deemed to have come into operation on the commencement of Section 9 of the Court Officers Act, 1945.
This amendment proposes to replace Section 18 of the Bill by a new section.
Sub-section (1) will allow the Minister for Justice to prescribe fees for the district probate registries. It is not possible to do this under the existing law, because these registries are not offices established by the Court Officers Act, 1926. At present the fees in the Probate Office in Dublin are double those in the district registries. The sub-section will remedy this anomaly by providing that the 1956 Fees Order dealing with Supreme and High Court offices will apply to the district registries in the same way as it applies to the Probate Office.
Sub-section (2) proposes to allow the Minister for Justice to appoint an officer to perform the duties of an acting district probate registrar, where such acting registrar is temporarily absent or incapacitated. There is no power to do this at the moment. The county registrar acts as district probate registrar in each of the local registries. There is, however, no statutory provision to enable an officer in the Circuit Court office to carry out the duties of district probate registries when the county registrar is on leave. Paragraph (b) of the sub-section seeks to validate any acts done by an officer who has performed the duties of the acting district probate registrar.
Acceptance of this amendment involves the deletion of Section 18 of the Bill.
I find it hard to understand what is the necessity for Section 20. I understood that by the Statute of Limitations Act, 1957, we had definitely come to certain conclusions about express trustees and constructive trustees. As I understood it, the position is that anything tainted with fraud prevents the title being secured by anybody, express or constructive trustees. I understood the position was complicated in regard to trustees of a constructive type who hold some part of the property, but I thought the Statute of Limitations Act, 1957, agreed that the statute could run in that person's favour so that they could obtain title after a certain number of years. What is added by this? The explanatory memorandum says this is an extension. It says that Section 20 "will re-enact in an extended form ..." What is the extension?
It will be necessary because we will have under the Bill a new type of personal representative in respect of real property.
I see. It is to make the statute run in that person's favour except in cases of fraud?
Yes.
That is all right.
When does the period start?
The limitation period?
That is provided for in the Statute of Limitations itself. Section 20 simply proposes to insert a new provision, which will be read subject to the other provisions in the Statute of Limitations.
Has the Law Society not asked a question about the period?
The Law Society raised a question about the applicability of the Statute of Limitations, 1957, as respects periods before the coming into operation of that Statute on the 1st January.
The Statute of Limitations Act is law but not yet operative. It does not operate until next January. The point at doubt is: would possession before the Statute operate as part of the period provided for in the Statute? Apparently it does?
Yes, it does.
I think it does.
I move amendment No. 28:—
In the First Schedule, page 8, to delete in column (3) the entry relating to Section 72 of the Probates and Letters of Administration Act (Ireland), 1857.
This amendment proposes to remove from the First Schedule the reference to Section 72 of the Probates and Letters of Administration Act (Ireland), 1857. It is proposed in amendment No. 29 to repeal this section which deals with calendars of grants of probate and administration. The provisions of the section are consolidated in the section contained in amendment No. 21.
These are all consequential, I presume?
Yes.
I move amendment No. 29:—
In Part II, page 9, in the entry relating to the Probates and Letters of Administration Act (Ireland), 1857, in column (3) before "73" to insert "72".
This amendment proposes the repeal of Section 72 of the Probates and Letters of Administration Act (Ireland), 1857. The provisions of the section and of Section 73 of that Act are consolidated in the section contained in amendment No. 21.
I move amendment No. 30:—
In Part II, page 9, after the entries relating to The Sheriff Courts (Scotland) Act, 1876, to insert the following:—
"
|
54 & 55 Vic. c. 66. |
The Registration of Title Act, 1891. |
Sub-sections (3) and (4) of Section 84; in sub-section (2) of section 86, all words from “save that it shall not be lawful” to the end of the sub-section; Section 87. |
"
These amendments propose to repeal various provisions contained in Part IV of the Registration of Title Act, 1891 and in the Registration of Title Act, 1942. These provisions apply to compulsorily registered land and they are as I have indicated earlier being consolidated and extended to all land or to all registered land in the amendments dealing with assents and transfers.
I move amendment No. 31:—
To add at the end of the Schedule the following:—
PART IV.
Act of the Oireachtas.
|
Number and Year |
Short Title |
Extent of Repeal |
|
(1) |
(2) |
(3) |
|
No. 26 of 1942. |
The Registration of Title Act, 1942. |
Sections 20, 21 and 26. |
Next stage?
This day fortnight.
I should like a longer period. As far as I am concerned, it will not be possible to consider what has happened to-day until I get the text of this Bill as amended and the text of the debates with the Minister's explanations. The Dáil Report will not be in my hands until Saturday and I shall not be able to do any work on it over the week-end. It will be necessary to have consultations with various people; at least, I propose to do that. I do not say it is at all likely that amendments will require to be put in, but we ought to be given time for proper consideration. If the Minister says three weeks and there are no amendments. I am sure there would be no difficulty in having the Fourth and Fifth Stages taken the same day. The Minister will be given the Bill as quickly as possible.
Is the Deputy suggesting three weeks?
Yes, instead of a fortnight.
I agreed to that.