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Dáil Éireann debate -
Wednesday, 6 Nov 1963

Vol. 205 No. 7

Private Members' Business. - Disposal of Property by Will: Motion.

I move:

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.

We might shorten this if the Minister would indicate at this stage whether he is prepared to accept the terms of the motion as his colleague did the last.

I have no objection to it in principle.

This motion has been on the Order Paper in the name of Deputy Ryan and myself for quite some time. I think I am correct in saying that since the motion was placed on the Order Paper, the Minister has laid before the House his Programme of Law Reform which carries on the work initiated by the inter-party Government in relation to law reform. I am glad to note that in that programme one of the matters which the Minister indicates it is the intention of the Government to deal with is the problem raised in this motion—the problem of persons who may, perfectly legitimately these days, leave all their property as they will by their will, without making any provision for their widows or other dependants.

The suggestion in this motion is that legislation be introduced forthwith to provide that when a person is making his will, he must, either by his will or by the legislative provisions which will be passed, make provision for his dependants. The Programme of Law Reform on page 9 refers to this problem and points out that it has been dealt with in different ways in different countries. In some countries it is provided by legislation that a particular portion of an estate will automatically go to the widow or other dependants.

I do not know, and I am not particularly concerned about it, what type of provision the Minister has in mind. I hope he will tell us during the discussion on this motion, but I think he will agree—he has in fact indicated his agreement with the motion in principle —that provision of this sort is certainly very desirable, if not absolutely necessary.I do not think it necessary for me to say any more on the motion. I should be glad to find out from the Minister what proposals are in existence. I hope that if he accepts the motion, the implementation of its terms will not be too long delayed. I know it is not possible in Bills of this sort to be too precipitate, but the matter has been obviously under consideration by the Government at least since January 1962, practically two years, so it is time that whatever legislative proposals the Minister has should see the light of day.

Mr. Ryan

I formally second the motion and reserve the right to speak later.

The Government's Programme of Law Reform, published in January, 1962, provides for the introduction of comprehensive legislation to deal with the devolution and administration of property on death, the distribution of property on intestacy and the problem of the inofficious will, that is, a will which disinherits or makes insufficient provision for the testator's dependants. I am happy to be able to inform the House that I have obtained Government approval for the preparation of a comprehensive Bill of this kind which will contain provisions effectively preventing people from making wills which completely disinherit their dependants.The drafting of the Bill is at an advanced stage and I hope that it will be ready very shortly.

Deputies will, of course, have an opportunity of fully considering and debating these provisions when the Bill comes before the House. I may say at this stage, however, that in framing the proposals, I have examined in detail the law of succession as it obtains at present in the North, in England, Scotland, France, Germany, Switzerland and in certain of the States of the American Union. I have considered the appropriate legal provisions in continental countries, particularly those of the French, German and Swiss Civil Codes, and have also consulted some of the world's leading experts in this field of law.

I am satisfied that the proposals in the Bill which I shall bring before the House will be those best adapted to our Irish circumstances. It is certainly my aim—and I hope I shall succeed—to recommend a law of succession that will be among the most enlightened in the world. I feel it would not be altogether appropriate for me at this stage to give an indication in advance of how exactly we propose to deal with this problem of inofficious wills, but I feel sure that, when the proposals come here, they will, by their excellence, have the undoubted approval of most Deputies.

Mr. Ryan

I am glad the Minister is prepared to accept the motion but we hope there will not be as much delay now as there has been since he first promised to consider such a Bill three years ago, or perhaps longer. During those three years, there is no doubt there have been several inofficious wills and society is now maintaining widows and children of people who, if they had lived, would have been under a moral and statutory obligation to maintain those people. As long as we permit these people to make wills depriving widows and children of all property and all support, we are allowing people to do after death what we forbid them to do while living.

We compel a living person to maintain his wife and children. If he fails to maintain his wife and children, he will be prosecuted by the State for wife and child neglect and under the criminal code, will be compelled to pay a sum, which is all too small unfortunately, but a certain statutory amount week after week. Even apart from the criminal code, such a person can be sued by a wife and compelled to contribute out of his own income for the maintenance of the wife and her children, if the children are left in her guardianship. However, we have permitted a person by will to remove all that responsibility from his own shoulders and on to the shoulders of the State and local authorities and we do not think that is a situation which should be considered lightly or should be allowed to continue unduly long.

We are also aware that there are many will disputes in Irish courts which would not come there if we introduced a comprehensive Bill dealing with the rights of succession to property. Particularly from rural Ireland, there is plenty of speculative litigation relating to wills, and executors of wills or beneficiaries under wills, not infrequently, in order to avoid the unpleasantness and publicity of court proceedings, succumb to the pressures of people who have perhaps very questionable claims. I believe that of all the will disputes, only a small percentage of them find their way into an actual court hearing.

These considerations indicate the necessity of ensuring that there is no further delay about introducing a proper Bill to tidy up the law and to see to it that we do not allow people by their wills to fly in the face of the social obligations which are now accepted by our modern society, and so long as we permit the present unsatisfactory position to continue, that is what will happen.

I do not wish to record too many particular instances but I am aware of one case where a husband and wife were separated, where under the separation agreement the husband was obliged to contribute to the support of his separated wife, and in this case I think there can be no doubt that the husband was the party to blame for the unhappy differences. In that case, the husband made a will and died. That terminated his obligations towards his wife and the wife is now relaying as her sole source of income on what she is getting in home assistance.

That lady came from a very comfortable family. She married a wealthy husband who had ample property and who, no matter what unhappy differences might have arisen between them, was surely under some kind of obligation.He having taken unto himself a wife was not entitled to say: "On my death, I will pass my money to my mistress and leave my wife on the shoulders of society." That happened.I am also aware of another case in which the parties are still living but there is a serious possibility that a similar unsatisfactory situation might arise if the husband, who has obligations as long as he lives, were to go to his eternal reward before his wife.

Or before the Bill becomes law.

Mr. Ryan

Or before the Bill is passed in the Dáil. The Minister would probably agree with me that this is a Bill which has really to go to a Select Committee. It is hardly one for a general discussion or exchange of views across the floor of the House. We might not get the best Bill in that way. Along with Deputy O'Higgins, I do not make light of the difficulties the Department have to face in the drafting of this legislation. We are glad to hear an exhaustive search has been made of the laws of succession throughout the world but we have our own peculiarly conservative outlook about property in this country and we appreciate it must be very difficult to try to dovetail the wisdom and experience of the rest of the world into our particular problems. We would like to see a Bill introduced which did not go as far as some of us would want but at least would tidy up the situation and bring certain benefits immediately to the people who are most in need.

There is an inclination, very properly, on the part of many of our people to leave a substantial amount of money to religious and other charities. This is a very laudable thing and one with which we should not lightly interfere, but we feel, somehow or other, that you cannot buy your way into Heaven by leaving all your money to charity, if at the same time you disinherit your children or other close relatives.

We frequently have a situation here where, for instance, apart from a wife or children, there are other relatives who have lived with a person for many years, who have kept home for him and who have been led, not unreasonably, to expect that they would be provided for in the will of that person.This happens particularly in rural Ireland where elderly people live for many years and expect, demand and get the support and comfort which can be given to them by nephews and nieces. Members of this House from their experience must be aware of people of that nature finding themselves, having spent ten, 20 or 30 years looking after an aged relative completely deprived of all benefit from that person's estate, although by the support and comfort which they have given they have maintained that person and his property or estate for many years.

These are obligations which this House must consider when this new Bill is introduced and we earnestly hope that the three years' delay which has taken place will not continue any longer but that a Bill dealing with the urgent problems of these people I have mentioned will be introduced into the House in the very near future.

The Deputy will realise we cannot do everything at the same time.

Mr. Ryan

Some of the Bills introduced were less important than this one.

But more easily prepared.

Such as the turnover tax.

I am very glad to see this motion on the Order Paper and to see it being discussed because, as the Minister is aware, in recent weeks, I have had some experience of this problem in relation to estates and wills and the absence thereof. It propounds a fundamental principle which all Parties in this House will support. One can easily visualise the accidental circumstances which may arise out of family dissension or for any other reasons and which may work to deprive the families of deceased persons of the rights which should accrue to them on the death of parents who own property.

Therefore, the Minister is to be commended, as are the Government, when he says that legislation will be introduced at an early date to provide that a person may not dispose of his property without making adequate provision for a dependent wife and/or children. If I have any fault to find with the motion, it is that it does not go sufficiently far to remedy what are very obvious grievances and difficulties.

The Deputy should wait until he sees my proposals.

I look forward to seeing them and I hope they will meet the many and varied problems which beset this whole matter. It appears to me that the law as it relates to estates, that is, estates in the sense of property, be it small or great, left by deceased persons is defective and the trouble to which ordinary people are put by reason of legal requirements has to be experienced to be believed. While certainly in Dublin every co-operation is to be obtained in the courts and particularly in the Probate Office, from those charged with the responsibility of dealing with this matter as it relates to estates of people who did not have very much to leave, and while the co-operation and advice is excellent, at the same time, it has occurred to me repeatedly that the law makes for as much delay as even the bard himself did not visualise when he referred to the law's delay being one of the great barriers to human progress.

The Minister might expand the proposals to the maximum, with particular emphasis on the matter which has arisen in recent years in relation to the estates of persons who have died in poor circumstances. This is a new development inasmuch as there now exists a Superannuation Act which applies to road workers in almost every county in Ireland. It is not reasonable that the wife or family of such a person would suggest to such a person that he should make a will. Many of us would be loath to make such a suggestion to anyone because it is not the most inviting subject one could bring up for discussion.

The absence of a will raises very serious difficulties in relation to the claim which a widow has as a result of the Local Government (Superannuation) Act for a year's gratuity because the husband was employed by the local authority. It means that the widow must take out what are called letters of administration. To talk to ordinary simple people about letters of administration, and to arrange for taking out letters of administration, is a very difficult job and in some cases a frightening business when you are dealing with a widow. The widow is perplexed enough as to how she is going to carry on without her husband and troubled enough by the ordinary troubles of life—which are multiplied now by the turnover tax—and in this confusion it is really impossible to explain the various aspects and nuances of the law and to explain why such and such needs to be done.

It is my hope that the Minister and the Government in considering this whole question will take that into account. I suppose it does not matter very much to people who are well provided for if they have to endure a long delay before wills are read and so on and before the processes of the law are gone through, because they can fend for themselves, but it does matter a great deal to, say, the mother of a young family whose husband has been a road worker and who is entitled to, as is the case in County Dublin, £450, as representing a year's wages. It matters a great deal to her that there should be these delays and I would urge the Minister to do this utmost to speed up the processes of the law as it relates specifically to persons of that grouping.

At the moment it is possible for such people, if the estate is very small, if it is less than £500, to have letters of administration taken out for 35/-. If they go to a solicitor to do the job, that figure will be multiplied very much. That figure of £500 has little relevance to present day circumstances because in a case such as I have mentioned, of a road worker who dies and whose widow becomes entitled to £450, when the few pieces of furniture in the house are valued and so on, it is found that the estate theoretically and in a very academic way amounts to £600 or £700. This is completely unrealistic but it means that once it is over £500, the widow has to find a sum of £10, £11 or £12 even without the aid of a solicitor.

This has nothing to do with the motion.

This does not seem to arise on the motion.

I am making the point because I hope the Minister will take it into consideration. It is a very important principle.

It may be, but it does not arise on the motion.

Possibly it could be embodied in the legislation which the Minister says he proposes to introduce.

This motion has nothing to do with that aspect of the legislation. I spoke on the motion on its face and now I have no opportunity of replying.

(Interruptions.)

If the Minister wants to intervene to explain, we have no objection.

Certainly.

What is the point of the Minister's observations?

As I say, it is an important principle which I am trying to get the Minister to accept. When he says he has no opportunity of replying, I have given him the opportunity.

What is the principle?

The principle that people who have not got money, the poorest people, should get the benefit of the law without having to pay a great deal of money for it.

The Deputy knows they do.

Only if the estate is less than £500.

The Deputy is not correct.

In that case, the Minister is suggesting that in the case of an estate of £650, it is correct, right and just that the widow should have to pay £10 stamp duty, for an estate which does not in fact really exist.

Might I again point out that this has no relation to the motion and the debate must be confined to the terms of the motion?

I have no wish whatever to transgress the rules of the House but the Minister provoked me into making these comments. I have tried to outline the principles to which I think the Minister should cling in his preparation of these proposals.The Minister mentioned that he will be introducing legislation— that is very welcome news—the primary purpose of which will be to protect wives and children. I am submitting, with the greatest possible civility to the Minister, that the proposals should be extended to the maximum. I am quite certain that the Minister will be the last to suggest that the Bill should be confined to the terms of the motion in the names of Deputy O'Higgins and Deputy Ryan which simply states 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 her children.

The Deputy is right on the motion now.

Who proposed the motion?

It was proposed by Deputy O'Higgins and seconded by Deputy Ryan. Was the Minister not here? The point I want to make is that the Minister intervened and said proposals were being introduced in relation to this matter. In the interests of my constituents and in the interests of many thousands of people in the country I want to suggest to him that in his consideration of these vital matters he should go to the extent I have indicated. I hope that when he does bring the proposals before the House they will be of such a nature that we can give the Minister a complete vote of confidence and can support him to the limit in putting them through the House.

I am glad that the two members of the House who have sponsored this motion are also lawyers because, in my opinion, as lawyers they are throwing something away that was of very great benefit to them. Inevitably, a lawsuit arose where a man made a will disinheriting his wife or family. It was claimed that he was mad or had lost his memory, and so on. I am glad, therefore, that members of the legal profession who are Deputies put their duty as Deputies before their legal advantage.

I support the motion and would suggest that the Minister could introduce a short Bill covering the principles enshrined in the motion without waiting for his comprehensive Bill. We all know that since the State was established a comprehensive Bill has been under consideration in the Department of Justice under every Government. When it does see the light of day and is introduced in this House it will be of such a comprehensive nature that it will have to go to a committee and it will be years before it is enacted. There are cases arising every year—I will not say everyday—in which very grave injustice is done to the widows of persons who have property and who by will, deliberately and with intent, try to inflict some hardship or punishment on those whom they were pledged to defend and support through life. At their death they attempt to do what they could not legally do during life. Therefore, the Minister having agreed to accept the motion in principle, should give practical effect to that agreement by introducing a short Bill. There was a Bill introduced here some time ago providing protection for the widows and families of persons who died intestate.

That is inadequate also. We propose to revise that measure as well.

I know, but that Act is in operation while the other is being prepared. It may not be adequate but at least it is some protection.I submit that if a short Bill were introduced on the lines of the motion, it could be incorporated in the comprehensive measure to be introduced later.

The Minister may say that Parliament is cluttered up with work. There is no member of the House who would not be prepared to give time for such a measure so that at least some of the hardships which arise could be eliminated. The Minister has told us that he has made a survey of the law of other countries relating to this matter. I do not know what the law may be in other countries. I do know that in this country there is the simple straight rule that morally and legally a husband is bound to support his wife and family during his lifetime and that responsibility should continue after his death.

There are several different ways of doing that.

I know there are.

We have to pick the best of them.

As to what would be the best method would be a matter of opinion.

The Deputy could be certain that the one I would pick would be perfect or near perfect.

The Minister could not be wrong every time.

One never knows. I would apply the simple rule of justice that we all know. How critical we can be of the person who is guilty of the offence of disinheriting his wife. I do regard it as an offence for a man to disinherit his wife. I am sorry for such a poor unfortunate creature meeting his Judge. One can only pray for him. Such cases arise. It is a simple matter to draft a short Bill. Even though it might not be adequate, at least it would be an indication and a warning to those who may be thinking of disinheriting their wives or their children. I do not know that there are so many cases of children being disinherited as there are of wives being disinherited. I know of cases where the wife has been disinherited, and that very deliberately. In the case of a motion such as this, when the Minister expresses agreement in principle, it is taken for granted that when that motion is accepted, changes will be made at an early date. The Minister cannot give effect to any such changes unless he introduces a short Bill.

I have said all I wish to say about the matter. I congratulate the two Deputies on moving the motion and I am glad that they have such a strong sense of public duty.

If the motion is accepted by the Minister, we can finish with it now.

Will you agree to introduce the short Bill?

The comprehensive Bill can be introduced sooner than a short Bill.

Question put and agreed to.
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