Skip to main content
Normal View

Dáil Éireann debate -
Wednesday, 2 Dec 1964

Vol. 213 No. 3

Succession Bill, 1964: Second Stage.

I move that the Bill be now read a Second Time.

This is a Bill to amend and consolidate the law relating to the devolution, administration, testamentary disposition and distribution on intestacy of the property of deceased persons. It is proposed to assimilate the law respecting real and personal estate so that realty will devolve and be distributed in the same way as personalty. The existing rules of intestate succession, which provide for the descent of realty to the heir-at-law and the distribution of personalty to the surviving spouse, issue and next-of-kin, will be abolished and replaced by new, simple and uniform rules which will be applicable to all property. The Bill includes important new provisions designed to prevent a testator from disinheriting a spouse and children.

The existing statutory law governing succession to property on death is contained in a large number of enactments, the earliest of which dates back to 1226. These enactments are being repealed or amended in consolidated form. When the Bill is enacted, the whole of the statutory law of succession, both testate and intestate, will be contained in one Act of the Oireachtas. Thus, apart from anything else, the Bill represents an important step in the task of statute law consolidation.

The proposed Act will apply to the estates of all persons dying after the commencement date specified in section 2. The original idea was that this commencement date would be the 1st January, 1965, but, of course, it is now clear that a later date will have to be provided. My present feeling, subject to whatever views Deputies may have on the subject, is that the new commencement date might be the 1st of January, 1966. However, this is a matter we can discuss at a later stage. It will be necessary to allow a fairly long period to elapse after the Bill passes both Houses of the Oireachtas in order to give people plenty of time to become familiar with the new law.

The Bill intimately concerns every member of the community, and I think I can say that it is one of the most important measures of law reform ever to be brought before this House. Because of the important nature of the proposals which it contains, the text of the Bill was circulated at the beginning of the Summer Recess so that everybody would have ample opportunity to study its provisions before it came to be discussed by the Oireachtas. At the time, it was clearly indicated that the Government would welcome comments on the Bill, that they would be quite prepared to consider criticisms and that they would examine any amendments that were shown to be desirable. It has been gratifying to find that widespread public interest in the Bill has been evoked and that a great deal of helpful and constructive criticism has been forthcoming.

Since I became Minister for Justice, I have carefully considered all the suggestions and proposals that have been put forward. I have had discussions with such bodies as the Incorporated Law Society and the National Farmers' Association, and I have studied in detail the various comments made in the columns of the newspapers and in correspondence received in my Department. I have also consulted a number of independent experts on the law of succession in this country.

The provisions of the Bill that have attracted most attention are those in Parts IX and X purporting to give the spouse and issue of a testator "legal rights" to fixed shares of his estate. As I have already announced publicly and as will be seen from the supplementary explanatory memorandum recently circulated to Deputies, I have obtained the approval of the Government for the preparation of a number of amendments which are designed to meet the objections and criticisms directed at these particular provisions of the Bill. I shall be dealing with the proposed amendments in greater detail when I come to talk about the relevant Parts of the Bill.

The Bill is a highly technical one and for that reason it was accompanied by a full explanatory memorandum, which I trust Deputies have found helpful. Explanatory sidenotes have been inserted in the Bill itself showing the provisions which are new to the law and the existing statutory enactments which are being amended or consolidated. In the circumstances, I do not think it is necessary for me to go into any great detail on the individual provisions of the Bill, and I propose, therefore, to confine myself to a general elaboration of the principles involved.

Part I is the preliminary and general Part and deals with such matters as commencement, interpretation, jurisdiction of the courts and repeals. Section 5 deals with the problem which arises where two or more persons die in circumstances making it uncertain which of them survived the other or others. In such a case there is at present no legal presumption as to the order in which the deaths took place. This lacuna in the law gives rise to inconvenience and uncertainty when it comes to determining rights of succession to the property of the deceased, particularly where the deceased were husband and wife.

In England, in the Law of Property Act, 1925, an effort was made to solve the problem by providing that the younger of the persons should be deemed to have survived the elder. This rule has proved unsatisfactory in practice and has led to undesirable results. For example, during the last war a childless married couple were killed by a bomb. Neither left a will. The estate of the husband, who was the elder of the two, consisted of a sum of money and personal chattels. By the legal fiction created under the 1925 Act the husband was deemed to have died before the wife, so that all his property passed on intestacy to the wife and then, by virtue of her intestacy, to her relatives. The parents of the husband received nothing.

In a recent case two testators, a man and his wife, provided for the situation in which their deaths should coincide, both indicating that, in such circumstances, their property should go to their respective next-of-kin. In fact they both died in a common disaster, but because the order in which they died was uncertain, the statutory rule laid down in the 1925 Act applied and operated to stultify the husband's expressed wishes, all his property going to his wife's relatives. In 1952 the English rule was altered in so far as it applied to the deaths of a husband and wife where the elder of the two was intestate. In such circumstances the younger is now deemed not to have survived the intestate.

After a careful study of all the possibilities, we have decided that the best solution for the problem is to provide that, in cases of uncertainty, the persons concerned shall be deemed to have died simultaneously. Section 5 of the Bill so provides. This is the rule adopted in the German civil code and it has been operating satisfactorily since 1900. There is a similar rule in the Swiss civil code. In the first of the two English examples which I have just mentioned, the rule would have operated in such a way as to make the property of the deceased husband pass to his own instead of to his wife's relatives. In the second example it would have operated to give effect to the testamentary wishes of the deceased husband and wife.

Section 6 of the Bill states the existing jurisdiction of the High Court and Circuit Court. I am satisfied that the jurisdiction of the Circuit Court should be substantially increased. The figures I propose are £5,000 in the case of personalty and £100 rateable valuation in the case of land. The necessary amendment can be moved on Committee Stage.

Part II of the Bill deals with the devolution of real and personal estate on death. Devolution is the legal term applied to the system under which the property of a deceased person vests in his personal representatives, that is to say, in the executors whom he has appointed in his will or, if he has not appointed executors, the persons whom the court appoints to act as administrators of his estate. Up to 1959, only personal property, including compulsorily registered land, devolved on the personal representatives. Real property, that is to say, unregistered freehold land, passed immediately to the heir-at-law or devisee as the case might be. The Administration of Estates Act, 1959, provided that, in the case of estates of persons dying after 1st June, 1959, all property whether real or personal, should devolve on the personal representatives of the deceased.

The duties of personal representatives are to pay the debts and funeral expenses of the deceased and to distribute the balance of the estate to those persons who are entitled thereto. The advantages of the system of devolution are threefold. Firstly, it facilitates the protection and preservation of the deceased's property pending its distribution. Secondly, it affords an opportunity to creditors and debtors of the deceased to have their respective rights and obligations properly adjusted. Thirdly, it provides effective machinery for the distribution of the balance of the deceased's estate.

Section 10 of the Bill re-enacts the existing law and provides that all property both real and personal of a deceased person shall devolve on his personal representatives. Section 13 provides that, where a person dies without having made a will, or where, having made a will, he dies leaving no executor surviving him, his property shall, until the grant of letters of administration in respect thereof, vest in the President of the High Court. This is a clarification of the present law. It is a fundamental principle that the ownership of property should at all times vest in somebody and not lie in vacuo.

Section 11 provides for the abolition of all surviving feudal rules and canons of descent applicable to real estate. This change will chiefly affect unregistered freehold land in urban areas. Since 1891, freehold registered land, that is to say, the bulk of rural land in Ireland is distributed in the same way as personalty. In so far as urban freehold property is concerned, the present law of succession belongs to the Middle Ages. Rules of primogeniture and male preference were designed for the feudal conditions of English society, but these rules are quite unsuited to the state of society in which the overwhelming majority of Irish people now live. Rules that were intended for the preservation of feudal estates are inappropriate in a world in which the feudal obligation is no longer a factor and in which freehold property in urban areas more often than not consists of a bungalow, a flat or a semi-detached house.

The removal of all remaining distinctions between real and personal property for the purposes of devolution, descent and distribution continues the process of assimilation of the law respecting the two types of property. The change will mean a great simplification in the rules of law and practice governing succession. So far as the existing rules distinguish between real and personal estate, they no longer serve any useful purpose but they do make the law more confused than it need be.

Part III of the Bill deals with executors and administrators and, in the main, provides for the re-enactment of the existing law.

Part IV provides for the consolidation, with amendments of the existing law relating to the issue of grants of representation. Section 27 provides for alterations in the existing law as to the persons who shall be entitled to a grant of administration. The High Court has always exercised a wide discretion in this matter, the overall principle adopted being that "the grant follows the interest". However, for the purpose of achieving greater flexibility, it is proposed that the order in which persons are to be entitled to a grant of administration shall be regulated by rules to be made by the President of the High Court. In granting administration, the Court will ordinarily be bound by these rules, but it will have a discretion to depart from the rules where special circumstances so warrant. Provision is made in section 30 for the issue of grants of representation to trust corporations.

I come now to a matter to which I attach the greatest importance, namely, the need to provide adequate facilities whereby grants of representation may be obtained easily and cheaply, particularly in the case of small estates. It is desirable on social grounds as well as from the point of view of economic policy that the transmission of property on death should be a simple and inexpensive process for the ordinary person. In the case of rural property, it is essential to the success of the Government's efforts to promote farming progress and efficiency that the titles to land should be clear and certain.

At the present time, representation is taken out in only four cases out of every ten deaths of persons over 21 years of age. Even allowing for instances in which people die leaving estates which are so small or of such a nature that the taking out of grants would not be warranted, it is clear that there is a considerable number of cases in which representation ought to be, but is not, taken out. Such cases turn up regularly in the Land Registry, and difficulty and inconvenience are often caused to the parties to a transaction because representation has not been taken out promptly following a death.

It must, I think, be assumed that the failure to take out representation is in very many cases due to the difficulty and inconvenience involved. There is also the general feeling that the process is an expensive one. If it were made easier to take out representation, many people who are not at present prepared to put their affairs in order would do so. In this connection, it ought to be borne in mind that the law in regard to the devolution and administration of the property of deceased persons is in the interests of the community as a whole. Nevertheless, if people show themselves unable or unwilling to comply with the law, it is the clear duty of the State to come to their assistance by providing the requisite facilities.

In order to meet the situation, section 37 of the Bill proposed to provide for an extension of the existing facilities whereby grants of representation may be obtained in a relatively cheap manner in the case of small estates by applying to the local Customs and Excise officer under section 33 of the Customs and Inland Revenue Act, 1881. These facilities are not at present being availed of to any appreciable extent. In 1962, for example, there were only 156 such applications, whereas the total number of grants issued was almost 13,000. The reasons that the facilities are not being used appear to be threefold. Firstly, the ceiling of £500 is too low having regard to the present value of money. Secondly, the number of Customs and Excise stations in declining and they are now too few and far between to provide an adequate service. Thirdly, the existence of the facilities does not appear to be generally known to members of the public.

To remedy the position, section 37 of the Bill proposed to increase the limit of £500 to £2,000 and to substitute arrangements whereby applications would be made either directly to the County Registrar for the area in which the deceased resided or to some other officer to be appointed for the purpose by the Minister for Justice. Since I took office I have had discussions about section 37 with various interested groups, including the Incorporated Law Society and the National Farmers' Association. In the light of those discussions, I have come to the conclusion that the object of the section can better be achieved in another way. My proposal is to delete the section and to establish district probate registries on a regional basis throughout the country. In addition, I propose to have stated clearly in the Bill the existing law whereby anybody seeking to obtain a grant of representation may make a personal application for the grant either to the Probate Office in Dublin or to a district probate registry. There are at present only six district registries, which are situated in Castlebar, Cavan, Cork, Kilkenny, Limerick and Waterford. New registries will be set up in other centres so as to give a countrywide service. Each new registry will be located in a specified Circuit Court office. The County Registrar designated will be the district probate registrar for the region and he will deal with personal applications for grants of representation, irrespective of the value of the estate. He will prepare the papers necessary to obtain the grant and will, as far as practicable, assist applicants by giving them information and directions as to the course which they are to pursue. He will not, of course, be able to give applicants legal advice. Where a grant involves difficult questions of law or needs a direction of the court, or where the distribution of the property of the deceased is a very complicated matter, the applicant will have to consult a solicitor in the ordinary way. The existing special probate fees for personal applications will be reexamined, and I envisage that in the case of small estates the fees will be not much more than nominal.

The present right to make personal application for a grant of representation is contained in Rules of Court. The right was first granted in Probate Rules made in 1879. Over the years the tendency has been to limit the number of local district registries and this has restricted the exercise of the right to make personal applications. It is important that the right of personal application should be preserved, on the general principle that every citizen should be free to conduct his own legal business and facilitated in doing so. What I propose, therefore, is to reverse the present trend by establishing a number of additional district probate registries in county towns. This will facilitate the making of personal applications and will also, I may say, facilitate solicitors acting for clients.

Part V of the Bill deals with the administration of the assets of deceased persons and continues the process of the assimilation of the law relating to realty and personalty by providing that real and personal estate shall be administered in the same way. All the property of a deceased person is to be available for the payment of his debts and to satisfy legal rights under Part IX of the Bill. Provision is made for the amendment and simplification of the law in regard to payment of a deceased person's debts. Insolvent estates are to be administered in all cases in accordance with the rules for the time being in force in relation to bankruptcy. A new order of priority is being established for the application of assets in the case of solvent estates. This new order, which is provided for in section 47 and in Part II of the First Schedule, will be simpler than that under existing law and will be common to both realty and personalty. Section 48 provides that any property of a deceased person which, at the time of his death, is charged with the payment of money shall be primarily liable for the payment of the charge. This proposal involves the extension to all property of provisions in the existing law which are applicable only to realty.

Sections 52, 53 and 54 lay down a code of law as to assents and conveyances by personal representatives. These sections provide, in the main, for the re-enactment of the existing law, but subsection (3) of section 53 introduces an important new provision to the effect that a conveyance of unregistered land by a personal representative shall, in the case of a bona fide purchaser, be conclusive evidence that the person in whose favour the conveyance was made was, in fact, the person entitled to have the land vested in him. Thus, where a purchaser buys land from a vendor who is a beneficiary, he will no longer be obliged to concern himself with the terms of the will or of the intestacy under which the vendor acquired the property, but need only see to it that the land devolved on the personal representatives and that they, in turn, vested it in the vendor.

Under section 55, the personal representatives of a deceased person are to be given a general power to appropriate any part of the deceased's estate, in its actual condition or state of investment, in or towards satisfaction of any share or interest in the property. This has been the law in England since 1925 and in the North since 1955.

Section 56 contains an entirely new provision which is primarily designed to protect the interests of widows. It proposes to give to the surviving spouse of a deceased person the right to require appropriation of the family dwelling house in satisfaction of his or her share or interest and of the shares or interests of any infant children for whom the surviving spouse is a trustee. There will be exceptions to the general rule in certain circumstances as provided for in subsection (3) of the section. The general purpose of the section is to allow the spouse to retain the family house, provided, of course, that, where the dwelling is worth more than the share to which the spouse is entitled, he or she will have to make up the balance in order to exercise the option.

It is proposed in section 57 that, where an infant is entitled to a share or interest in the estate of a deceased person and no trustees have been appointed by the deceased, the personal representatives—or a trust corporation or any two or more persons appointed by the personal representatives—will be trustees of such share or interest. These trustees will have full powers, without recourse to the court, to apply the share or interest, or the income therefrom, for the advancement or benefit of the infant during minority. They will, in particular, be able to carry on any business in which the infant is entitled to a share or interest.

Section 63 of the Bill provides for the enlargement and statement in statutory form of the doctrine of advancement and the rule against double portions. The law requires that children must bring into account any money or property they have received from the deceased in his lifetime by way of advancement or portion or upon marriage, if they wish to share in the distribution of the estate. It is proposed that the enlarged doctrine will apply to any share or interest whether on intestacy, under a will or as a legal right. The section as at present drafted provides for the application of the law to the share or interest of a spouse, but, on reconsideration, I feel that this would not be appropriate and might, indeed, give rise to difficulties. Accordingly, I will be proposing on Committee Stage that the section be amended by the deletion of the reference to the share or interest of a spouse.

Part VI of the Bill proposes important changes in the rules governing the distribution of property on intestacy. The present rules are complicated and confusing but I shall endeavour to explain them as simply as I can. Under the Intestates' Estates Act, 1954, where a man dies intestate leaving a widow but no issue, the widow is entitled absolutely to the first £4,000 of his estate. In the great majority of cases this means that the widow takes the whole estate. Subject to the widow's right, the property of a person who dies intestate is distributed in accordance with rules which vary according as the property consists of realty or personalty.

Realty—which, as I have already explained, nowadays consists in the main of freehold house property in urban areas—descends to the deceased owner's heir, who is ascertained in accordance with highly complex rules having their origin in feudal conditions. Under these rules, males are preferred to females, the elder male is preferred to the younger, females of the same degree all take equally, paternal ancestors are preferred to maternal ones, relatives of the whole blood take before relatives of the half blood, and so on. A surviving spouse has certain rights which are prior to those of the heir. Thus, a widower is entitled to a life estate in the whole of his deceased wife's realty, provided that she was seised in possession of an estate of inheritance and that issue of the marriage capable of inheriting has been born alive. This right is known as a tenancy by the curtesy, or, more fully, a tenancy by the curtesy of England. A widow is entitled to dower, which is a life interest in one-third of the whole of her deceased husband's realty, provided that he was seised in possession of an estate of inheritance, that issue of the marriage capable of inheriting might have been born alive, and that a declaration in bar of dower was not made by the husband during his lifetime.

The existing rules for the distribution of personalty — which includes most agricultural freehold land and all leasehold land—are those laid down in the Statute of Distribution, 1695. They provide that a widower takes the whole of his wife's personal estate even where there are issue also surviving. A widow, on the other hand, takes only one-third of her husband's personal estate and the issue take two-thirds. Where there are no issue, the widow takes one-half of the estate and the next-of-kin take the other half. This is, of course, subject to the widow's prior right to £4,000. If an intestate dies leaving neither spouse nor issue, his father is entitled to the whole estate whether or not the mother also survives. If the father is dead, the mother, brothers and sisters share the estate equally. Children, but not remoter descendants, of a deceased brother or sister take their parent's share. If the mother, brothers and sisters are all dead, the children of the brothers and sisters take the estate in equal shares.

The new rules of intestate succession laid down in Part VI of the Bill will be applicable to all property, both real and personal. They are simple and uniform and are so framed as to accord due recognition to the important position which the wife occupies in the Irish family. The existing distinction between the rights of inheritance of husband and wife and of males and females is being abolished. Section 66 provides that, where both spouse and issue survive, the spouse will take the personal chattels and two-thirds of the remaining estate and the issue will take the remainder. If there is a surviving spouse but no issue, it is proposed that the spouse will take the whole estate. If there are surviving issue but no spouse, the issue will take the whole estate. Section 67 proposes to place the father and mother of an intestate on an equal footing as regards succession rights. Thus, if an intestate dies leaving parents but no spouse or issue, the estate will be distributed between the parents in equal shares. One consequence of this change is that the intestate's brothers and sisters, or children of deceased brothers and sisters, will be entitled to share in the estate only if the intestate leaves neither spouse nor issue nor parent surviving.

In certain other jurisdictions, notably Northern Ireland, England and Scotland, the device has been adopted of giving the surviving spouse of an intestate a minimum monetary sum plus a fraction of the remainder of the estate. In Northern Ireland, a surviving spouse with issue gets £1,500 plus the personal chattels plus either one-half or one-third of the remaining estate, depending on whether there is only one child or more than one child. In England, a spouse with issue gets £5,000 plus the personal chattels plus a life interest in one-half of the remaining estate. In Scotland, a spouse with issue gets £2,500 plus one-third of the moveable estate plus the dwellinghouse and the personal chattels. In Northern Ireland, a spouse without issue takes £5,000 plus the personal chattels plus one-half of the remaining estate. In England, the same spouse takes £20,000 plus the personal chattels plus one-half of the remaining estate. In Scotland, he or she takes £5,000 plus the dwellinghouse and personal chattels plus one-half of the movable estate. This device of giving the surviving spouse a minimum sum plus a fraction of the remainder of the estate is not being proposed in the Bill. In the first place, to give a wife with children a sufficient monetary sum in Irish circumstances would, in fact, mean giving her two-thirds or more of the average estate. Furthermore, monetary sums are not satisfactory, as they need to be revised from time to time to take account of changing money values. What we are, therefore, proposing in the Bill is to adopt the system of fixed fractions of the total estate. This has been traditionally the system in this country and is also the system on the Continent.

I must emphasise that Part VI is concerned only with distribution of the property of an intestate and does not in any way affect property that has been disposed of by will. If, therefore, any person considers that the rules of succession set out in this Part of the Bill would produce results that are not appropriate to his own family circumstances, his remedy is to make a will disposing of all his property. If he does so, then, so far as he is concerned, Part VI of the Bill is of no effect. The fact of the matter is, however, that, for one reason or another, almost fifty per cent of the people in this country die without making wills, and the purpose of this Part of the Bill is to make for these people, so far as is possible, the sort of arrangements that they might themselves have adopted if they had made wills. It must, of course, be appreciated that any general rules of this kind can provide only for the normal situation. The best that one can hope to do is to draw up rules which will approximate as closely as possible to the likely wishes of the average reasonable person in a normal set of circumstances. Statutory rules of succession cannot possibly provide for every exceptional case. On the other hand, if they are to operate effectively, they should be simple and easily understood by all. The new rules proposed in Part VI of the Bill have been prepared with these considerations in view. I would invite the attention of Deputies to the fact that, for convenience, a comparison between the existing and the proposed new rules is given in Appendix A on page 12 of the Explanatory Memorandum circulated with the Bill.

Under Part VII of the Bill the existing statutory law relating to wills is being consolidated with a number of important amendments. It is proposed in section 76 that a person under twenty-one years of age who is married will be able to make a valid will. Under section 77, the present requirement that both witnesses to the signing of a will must be present at the same time is to be abolished. In a work entitled Reform of the Law prepared by the Haldane Society and published in 1951, it is claimed that this requirement has resulted in innumerable wills being held invalid and that, while it is supposed to prevent fraud, it probably facilitates far more fraud than it prevents. I have found that views on this section are divided, and I shall be interested to hear what Deputies have to say on the matter.

It is provided in section 84 that a will shall not be revoked by the subsequent marriage of the testator if the will was made in contemplation of that particular marriage, whether so expressed in the will or not. It is also proposed that will shall be capable of being revoked by writing on the will itself in terms revoking it, or showing an intention to revoke it, and signed by the testator. It seems ridiculous that a will should remain valid even though the testator has crossed it out and written the words "this is revoked" across it.

Two important changes are proposed in the law relating to the interpretation of wills, Firstly, extrinsic evidence is to be admissible to assist in the construction of, or to explain a contradiction in, a will. This is provided for in section 89. Secondly, in the case of doubt as to the interpretation of a gift in a will, the interpretation according to which the gift will be operative is to be preferred. Provision to this effect is contained in section 98.

It is proposed to repeal and not reenact the existing law concerning privileged wills of soldiers and sailors as contained in section 11 of the Wills Act, 1837, and in the Soldiers and Sailors Act, 1918. Under these enactments, members of the defence forces "in actual military service," and mariners and seamen at sea, enjoy a dispensation from the ordinary rules and formalities which require that a will shall be in writing and be witnessed, and which prevent a person under twenty-one years of age from making a valid will. The enactments in question were applied by section 5 of the Defence (Amendment) (No. 2) Act, 1960, to Irish troops serving with armed forces of the United Nations. The dispensation of making a "privileged" will was granted to soldiers and sailors, so far as personal property was concerned, by the Statute of Frauds, 1695, and was copied from Roman law.

Julius Caesar is said to have given the privilege to his legionaries in the field. The reason was, no doubt, that a soldier on active military service was likely to be in danger of death and without sufficient time to make a formal will. Be that as it may, continuance of the privilege will no longer be justified in view of the new rules of succession proposed in Part VI. These rules are fair and reasonable. There should no longer be any reason why a person should have a horror of intestacy, as the Romans had, or why he should be encouraged to make a hasty will. A will made informally and without sufficient consideration of the various contingencies may produce unfortunate, and even tragic, results. Furthermore, the interpretation in England of the existing law about "privilged" wills has been a source of considerable difficulty and has resulted in curious and anomalous decisions. The privilege extends to a member of an army of occupation in a foreign country, even though fighting had ended many years earlier, but not to a wounded soldier in a hospital in his own country: and it extends to a typist employed on an ocean liner as well as to a seaman attached to a ship which is permanently stationed in harbour.

Part VIII of the Bill will amend the present rules of international private law in this country relating to the formal validity of wills. The purpose of the proposed changes in the law is to enable this country to adhere to the Convention on the Conflicts of Laws relating to the form of Testamentary Dispositions drawn up at the Hague in October, 1961, under the auspices of the Hague Conference on International Private Law. It is provided in Part VIII that a will shall be valid as regards form if the form complies with the internal law, either of the place where the testator made it, or of a nationality possessed by the testator, or of a place in which the testator had his domicile or habitual residence, or, in so far as immovable property is concerned, of the place where the property is situated. The existing law in this country is rather doubtful, as the Wills Act of 1861, known as Lord Kingsdown's Act, is considered to be of imperfect application, if it applies at all.

I turn now to the provisions of Parts IX and X of the Bill. These Parts contain the provisions that are designed to protect the spouse and children of a testator from disinheritance.

Freedom of testation has come to be regarded by some people as a fundamental and inviolable right inherent in property. In fact, there is no real moral or historical basis for this view. On the contrary, the protection and preservation of the family as a continuing institution demands that the right to dispose of property by will should be subordinated to the just claims of the testator's spouse and children. In a country such as ours which recognises the very special position of the family as a moral institution forming the necessary basis of social order, freedom to disinherit one's wife and children is a paradox which cannot be defended on any ground.

The will as we know it is an invention of Roman law. Under the Roman system, however, freedom of testation was considerably restricted by the rules as to legitima portio, or the legal portion, which could be claimed by a disinherited spouse or child. Complete freedom of testation is a peculiarly English idea which, apart from England and Wales, is only to be found in countries forcibly brought under British rule. I should like to quote for you in this regard a passage from a recent book—“British Justice: The Scottish Contribution”—by Professor T.B. Smith of Edinburgh University. He says, and I quote:

Whenever British rule has been extended to a territory with an established legal system, that system has been maintained, with certain modifications to eliminate doctrines shocking to English ways of thought. Thus subject peoples have been liberated from such practices as the burning of widows, and in other jurisdictions from the necessity of providing for them. The concept of freedom of testation was spread with missionary zeal. A man must be left free to cut off wife and children with or without a shilling, and to benefit in lieu the local Hunt or the fair but frail comforter of his declining years. Thus it was that in Ceylon, Quebec and South Africa the established rules which secured to close relatives legal rights in the estate of a deceased were abolished.

In England freedom of testation was introduced only very gradually and did not eventually find a place in the law until the seventeenth century. In so far as real property is concerned, rights to curtesy and dower continued to exist in England until 1925, and it is only since 1833 that a right to dower could be barred in a will and only since 1882 that a right to curtesy could be similarly barred. It was necessary in 1692 to pass a special Act of Parliament enabling the inhabitants of the province of York, other than freemen, and in 1696 another Act enabling the inhabitants of Wales, to dispose of their personalty freely by will, notwithstanding the then existing claims of a spouse and children to their legal shares. This freedom was extended in 1703 to the freemen of York, but it was not until 1724 that freedom of testation was given to the citizens of London. In Scotland, freedom of testation in unknown, and the Scottish system of legal rights has been maintained under the Succession (Scotland) Act, 1964, which has just been enacted by the British Parliament.

Old Irish law knew nothing of freedom of testation. The will was introduced by the Church, but only in order to allow a person to bequeath portion of his property—the "dead's part"— for ecclesiastical or charitable purposes. The present Irish law of succession in respect of personal property dates only from 1695, when the Irish Statute of Distribution was enacted. Section 10 of that Statute is of considerable historical interest inasmuch as it provided for the abolition of the "Custom of Ireland by which only one third, or a moiety, of the personal estate of a deceased person is subject to the party's disposition by will". The Custom is described at some length in the section. If a man died leaving a wife and children, his estate was divided into three equal parts where of one part belonged to the wife and another to the children. The remaining third was disposable by will. If the deceased left a wife only, or children only, his estate was divided into two parts whereof one part belonged to the wife or to the children, as the case might be. This excellent Custom of Ireland was abolished four years after the Treaty of Limerick and at the outset of the Penal Laws.

The sanctity of inheritance as the great safeguard to family security is a theme which runs continually through the history of property. Laws of succession everywhere are but an attempt to express the family in terms of property. It is recorded in the Old Testament, in the Book of Numbers, that the Daughters of Salphaad came to Moses and claimed a right of succession to their father, who had left no son. They pleaded so movingly that Moses brought their cause before the Lord and judgment in their favour was pronounced as follows: "The Daughters of Salphaad demand a just thing; give them a possession among their father's kindred, and let them succeed him in his inheritance." In Germany, before the Christian era, there was an established custom whereby the movable property of a deceased person was divided into three parts, one of which was given to his wife, another to his children and the third burned or entombed with the corpse. After the rise of Christianity, this share was devoted to pious uses for the salvation of the soul of the deceased—at first as a matter of course and later by testamentary disposition. This system of thirds once applied generally throughout England, where it may have been introduced under Norman influence after the Conquest. As we have seen, the system also prevailed in this country until it was abolished in 1695 by the Statute of Distribution. The system still survives in Scotland.

Deputies may well say: "This historical material is all very well, but is there any real demand today for what is proposed in Part IX of the Bill?" The answer is that there quite definitely is such a demand. I am aware of this from the many letters that are received in my Department from widows who have been disinherited or insufficiently provided for by their husbands, and from children who have been similarly treated by their parents. I should point also to the widespread welcome which was forthcoming in the Press and elsewhere when the Government's intention of introducing legislation to deal with the matter was first announced. Then there is the resolution which was unanimously adopted by this House on the 6th November, 1963, calling for the introduction of legislation to prevent a person from disposing of his property by will without making adequate provision for a dependent wife or child. I want to emphasise, however, that even if there were no positive demand for legislation of this kind, I would still regard it as incumbent on the Government to have the existing law altered.

Article 41 of the Constitution recognises the family "as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law." The Article pledges the State to "protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State." Under the same Article, the State recognises that, by her life within the home, woman gives to the State a support without which the common good cannot be achieved; and the State undertakes to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. These principles cannot be reconciled with a system of law which allows a man to ignore the mother of his family and to leave his property to strangers. And it is no answer to say that most people do, in fact, provide for their wives and children in their wills, when, as we know, there are those who do not. One might as well contend that there should be no law to prevent unusual crime because people do not commit such crime except very occasionally. There are, unfortunately, some who argue that each of us has a right to do what he likes with his own property, forgetting that property has its duties no less than its rights.

The Federal German Constitution contains similar provisions to those in our Constitution in regard to the protection of marriage and the family. The great German and international authority on the laws of succession throughout the world is Professor Murad Ferid of the University of Munich. He points out in the leading commentary on the German Civil Code that, if German law did not already provide for legal portions for the immediate relatives of a deceased person, it would, by reason of the family provisions in the Constitution, be the duty of the State to amend the law.

When the present Bill was being prepared, the question naturally arose as to which system of legal rights ought to be adopted for this country. Before a decision was reached, a careful study was made of the systems in force in other countries. Some systems, such as those of Scotland, France, Spain, Switzerland and Brazil, exclude from testamentary disposition a fixed portion of a deceased person's estate, that is to say, they reserve a share of the inheritance for certain classes of beneficiaries. Other systems, such as those of Germany and the States of New York and Louisiana, do not provide for any reserve share, but on the precedent of Roman law, allow a claimant to apply for a definite part of the inheritance if he chooses to do so. These two types of systems are generally described as systems of the legitima portio, since the share which the beneficiary may take is fixed by law. A third approach to the problem is to give certain dependants the right to apply to the court if they wish to do so and to empower the court to award maintenance at its discretion. This system originated in New Zealand in 1908 and is the system now in operation in Northern Ireland, England and in eight of the Canadian Provinces.

The system of legal rights operating in Scotland affords a good example of the legitima portio method. The Scottish system of legal rights is basically the system of thirds to which I have already referred. If a man leaves both wife and children, his movable estate is divided into three parts. His wife is entitled to one part as her jus relictae (the wife's part), and his children to one part as their legitim (the bairns' part). The remaining third (the dead's part) may be disposed of by the testator in his will. If he leaves only a wife or only a child or children, the reserve share is one half of the movable property. There is a system of hotch-pot between the children (collatio inter liberos) to ensure equality between them. Posthumous children may take, but illegitimate children are excluded.

Officers of my Department visited Scotland some time ago for consultations with Scottish experts on the law of succession and to study the legal rights system at first hand. They found that the system operates remarkably well and that the need to enforce legal rights seldom arises, precisely because the existence of the rights ensures justice for spouses and children. The operation of the system was examined some years ago by a Committee of Experts headed by Lord Mackintosh and appointed for the purpose by the Secretary of State for Scotland. On the basis of the recommendations made by that Committee it was decided to retain the system, subject to certain modifications which did not, however, affect the general principles on which the system is based. The modifications were introduced in a new Succession Act which was enacted earlier this year. When the Bill for this Act was before Parliament, strenuous efforts were made by Scottish interests to have legal rights extended to the whole of a deceased person's estate, but this proposal was rejected in Westminster.

In France, the method of protecting the members of the family is to withdraw from the deceased's testamentary power a fixed portion of the succession, the size of which varies according to the number and relationship of the claimants. This portion is known as the hereditary reserve and it is set aside for kinship relatives within certain degrees. The remaining part of the estate, known as the disposable share, can be disposed of by the testator in his will. Except where there are no claims at all, the reserve share is always at least a quarter and at the most it may be three-quarters of the estate. Accordingly, if a testator attempts to bequeath away the whole of his property, the disposition is ineffective. The French system provides a remarkable example of the recognition of family ties, and it is not without significance that these ties are very strong in France.

The aims of the English law of family provision are strictly limited and its basis is very different from a legitima portio system. Firstly, it does not create any reserve in the succession or seek to limit the testamentary power of the testator in any way: it merely gives to certain dependants the right to apply to the court if they wish to do so. Secondly the law does not impose on the testator the duty to provide for any particular person in his will nor does it give to any member of the deceased's family a definite right of inheritance. The persons who may apply to the court are a wife or husband, an unmarried daughter, an is, by reason of some mental or physical disability, incapable of maintaining him or herself. The power given to the court is a discretionary one, and it is only if the court has found that reasonable provision has not been made for the applicant that any possibility of a successful claim will arise. Thirdly, the share to be taken by the applicant is not fixed beforehand by the law. The court has a discretion as to the amount it will award—and even as to whether it will make any award at all. Finally, the Act does not seek to relate the claims to any right on intestacy by distributing the capital of the estate. In most cases it is the income that is appropriated, and then only for so long as the applicant's need of it continues.

It might be thought that a system on the English or New Zealand model, being less rigid in conception than the Scottish or Civil Law systems, would be more satisfactory in operation. In fact the reverse is the case. To start with, no system can be satisfactory which obliges the members of a testator's family to go to court to obtain what should be theirs as of right. It is generally agreed that the extent to which any law gives rise to litigation is a measure of the failure of that law. The bringing of legal proceedings is an expensive process and in this connection it must be borne in mind that in this country approximately three-quarters of all estates are genuinely small ones—that is to say under £2,000 in gross value—which can ill afford to bear legal costs.

Another important consideration is that recourse to the courts can be a forbidding, and even a frightening, prospect for many people. Furthermore, in those countries which operate a system of family provision on the lines of that in England, experience shows that different judges tend to take different views of what constitutes a just and reasonable provision for a member of a testator's family. This has given rise to anomalous decisions which have tended to lessen the effectiveness of the statutory provisions and to nullify the intentions of the legislature. The New Zealand, English and Canadian statutes have necessitated a considerable amount of legal decisions as to the correct interpretation of what to the layman appear to be simple expressions. Indeed, the British Privy Council has on certain occasions been called on to decide cases arising under the New Zealand legislation. But perhaps the most serious objection of all is that recourse to the courts has involved in those countries the raking-up of all sorts of embarrassing family circumstances, including acts of unkindness and unfaithfulness and past squabbles, which are better not resurrected. For this reason alone, I feel that legislation on these lines would be positively anti-social in its effect in this country. It is the unanimous opinion of leading authorities—including, I may say, prominent English lawyers—who have studied the matter that systems of family provision which are based on the exercise of judicial discretion are unsatisfactory and are least capable of achieving the protection of the family which should be the common aim of all civilised communities. It is simply untrue to say, as some critics of the present Bill have said, that the English Inheritance (Family Provision) Act, 1938, provides a satisfactory system. A. G. Guest has the following to say in a learned article in the January, 1957, issue of The Law Quarterly Review:

Family obligations do not function only when a wife is in need, nor do they necessarily cease when a child grows up or marries. The ties of family duty are not so easily severed. A system which distributes a fixed share of the estate regardless of need more effectively recognises the true nature of the duties which arise. As it is, the caprice of old age or a petty family quarrel will often result in a breach of this duty where the applicant is not under one of the disabilities mentioned in the Act.

I suggest that this comment speaks for itself.

Having carefully considered the various methods of family provision operating in other legal systems, the Government came to the conclusion that the legitima portio method as exemplified in Scottish law achieves the most satisfactory compromise between individual and family rights and best accords with Constitutional safeguards for, and present social attitudes towards, family and property responsibilities in this country. Amongst the main advantages of such a system are that it is simple, cheap and effective in its operation. Above all, it avoids the expense and heartbreak of applications to the courts involving the resurrection of old family dissensions long since forgotten. Accordingly, Part IX of the Bill provides for the adoption of a system of reserve family shares, based generally on the system for movable property operating in Scotland, but extended in scope so as to be applicable to the entire estate of a deceased person.

In determining the size of the reserve shares it has been necessary to give careful consideration to the arrangements for distribution on intestacy. In this country approximately one person in every two with property to leave makes a will. It is essential, therefore, that the reserve shares granted to the members of a person's family, where there is a will, should be related to the shares to which the members of the family would be entitled on intestacy, This is the principle followed in other countries that have adopted legitima portio systems. In Canada, certain of the States which have a family maintenance system have also adopted an alternative system of fixed shares related to intestate shares.

Part IX of the Bill in its present form provides that the surviving spouse and issue of a person dying fully or partially testate will have legal rights to two-thirds of the deceased's estate, being one-third for the spouse and one third for the issue. Where the deceased is survived by his spouse only, or by issue only, the survivor or survivors are given legal rights to one-half of the estate.

These particular provisions have attracted a good deal of public comment and criticism. While there is general acceptance of the need to restrict a testator's freedom to disinherit his spouse and children, the view has been widely expressed that the proposed provisions would impose unduly rigid limitations on the discretion which every testator should have to divide his estate amongst the various members of his family in the manner best suited to the particular needs and circumstances of the case. It has been argued that a married man should not be compelled to leave anything to his children where, in fact, he wants to leave all his property to his wife; that he should not be compelled to leave anything to adult children who are no longer dependent on him; that he should be allowed to choose between his children, having regard to the position in life of each child; that he should have no obligation to grandchildren or remoter issue; and that, where he is the owner of a farm or family business, he should be free to leave the farm or business to one member of his family unencumbered by charges in favour of the other members.

As I mentioned at the outset, I have obtained the approval of the Government for the preparation of a number of amendments to meet these objections and arguments. I propose to introduce these amendments on Committee Stage. With the object of ensuring that members of the public will be fully aware of the Government's intentions in regard to the Bill, I indicated publicly the general nature of these amendments and I invited further comment on the Bill in the light of the changes that are proposed. An outline of the proposed amendments will be found in the supplementary explanatory memorandum circulated to Deputies at the end of last week.

Firstly, I propose that absolute entitlement to legal rights should be confined to a spouse and dependent children. The effect of this will be that children who are settled in the world and able to provide for themselves will have no claim on the testator's estate as legal rights, except where the testator leaves less than what I am going to call the "non-disposable part" of his estate within his family. This non-disposable part will be two-thirds of the estate where the family consists of a spouse and children, and one-half of the estate where the family consists of a spouse and no children or children and no spouse. The family will have a right to the non-disposable part of the property, but the testator will have greater freedom in the disposition of this part between the different members of the family. Subject to the entitlement of the spouse and dependent children to their legal right shares, the testator will be free to allocate the balance of the non-disposable part of his estate any way he wishes within his family. In addition, he will have no legal obligations towards grandchildren or remoter issue.

Secondly, I propose that section 111 of the Bill be amended to provide that where a testator leaves two-thirds or more of his property to his spouse, dependent children who are also children of that spouse will not be entitled to legal right shares. Dependent children who are not children of the surviving spouse will continue to be entitled to these shares. The effect of this amendment will be to allow a testator to leave all or the bulk of his property to his wife, trusting her to look after the children and to make the best possible provision for them. An exception is being made for stepchildren. For one thing, the cruel stepmother is proverbial. Moreover, stepchildren have no rights of succession to their stepmother's estate. And, if the stepmother re-marries, she is less likely to protect her stepchildren than she is to protect her own children.

Consequential on the proposal to confine absolute entitlement to legal right shares to dependent children, I propose to provide that where a testator leaves such children, the legal right share of each child will be a proportionate part of one-third or one-half of the estate, depending on whether there is or is not also a surviving spouse. For the purpose of calculating the share, all the surviving children of the testator will be deemed to be dependent. This means that, if, for example, the testator leaves a spouse, two dependent children and two non-dependent children, the legal right share of each dependent child will be one-quarter of one-third, that is to say, one-twelfth of the estate.

Where a testator completely disinherits his wife and children, she and each of the children, whether dependent or non-dependent, will be entitled to legal right shares. It is up to the testator to distribute the non-disposable part of his estate amongst his wife and children. Under the amendments he will be able to leave his property to his wife, or to his wife and dependent children, or to his wife and all his children. However, the wife and dependent children are being given an absolute entitlement to legal right shares. The amendments will be so drafted as to ensure that a child, whether dependent or non-dependent, will not be entitled to claim against any bequest made to his mother under the will. Where a testator leaves non-dependent children and no spouse, these children will be entitled to one-half of his estate but he may bequeath this half or all of the estate to any one or more of them as he thinks fit.

Section 117 of the Bill was designed to prevent a person from disposing of property during his lifetime so as deliberately to defeat or substantially diminish the legal rights of a spouse or child. This section is one of the key section in this Part of the Bill and is essential if people are to be effectively prevented from disinheriting members of their family. I may add that similar provisions to those contained in the section are to be found in the systems of other countries. At the same time, having examined all the comments and criticisms concerning the section, I am satisfied that it is unduly rigid as it now stands. I am, therefore, proposing that the section be amended by reducing the ten year period to three years and by excluding from its operation (1) premiums paid under an insurance policy for the benefit of a spouse or child of the testator; (2) an assignment of pension rights in favour of the testator's spouse; and (3) a family settlement made for the benefit of a spouse, or for the benefit of a spouse and children, or for the benefit of children, of the testator. Where the spouse is alive, the consent of the spouse will be necessary.

The ten year period at present specified in the section has been criticised as two long and likely to give rise to complications. I suggest that three years is a reasonable period. It is incidentally, the period for estate duty purposes at the present time. Moneys payable under an insurance policy for the benefit of a spouse or child do not form part of a deceased's estate, and it is only right that the premiums should be clearly exempted from section 117. Assignment of pension rights ought to be treated on the same basis. I propose to exclude family settlements in order to facilitate the practice of keeping a family business or farm in the hands of one member of the family and also in order to encourage an ageing farmer or businessman to hand over his farm or business to one of his children. The stipulation that the spouse, if alive, must consent to the settlement will provide a valuable safeguard against injustices being done to her or to any of the children.

The broad effect of the proposed amendments which I have outlined will be to give a testator much greater freedom in the disposition of his property within his family, while at the same time preserving valuable safeguards against the disinheritance of a spouse or dependent child. In all the public comment that has been made on the Bill, there has been virtual unanimity that a married man with children should be able to leave all his property to his wife, trusting her to make the best possible provision for the children. His right to do this will be ensured by the amendments. I believe that, when the Bill is amended in the manner which I have outlined, it will meet with ready acceptance from a majority of the community. We are all agreed that there is a need to deal with the social problem of disinheritance: the only difference of opinion lies in the method of achieving this objective.

Taken together, the proposals in the Bill as to intestacy and legal rights involve, in effect, the introduction in this country of a matrimonial regime under which property on marriage will, in the ultimate result, become the property of the husband and wife, and of the children until they reach the stage of being non-dependent. I envisage that the position will be somewhat the same as in France where husband and wife, in the absence of a pre-marriage contract, own their property in common. The pre-marriage contract is now very rare in France. French matrimonial property is divided on death between the estate of the deceased and that of the surviving spouse, and the children are entitled to a reserve share out of the estate of the deceased parent. In other legal systems that do not have community of property as between husband and wife, there is a growing tendency to accept the principle that the surviving spouse has a greater claim on the estate of a deceased person than the lineal or collateral kin. It will be agreed that this principle accurately reflects the true nature and importance of marriage and of the status which marriage confers on both partners.

Before leaving Part IX, I should like to refer to sections 113 and 115. Section 113 allows a spouse to renounce in writing her legal right share either in an ante-nuptial contract or at any time during the marriage. A child who has reached the age of 21 years may also renounce in writing his legal right share. I do not anticipate that this section will be used much in practice. Nevertheless, it is a valuable section.

Section 115 provides for the right of election. A spouse or child will be able to elect between a bequest in the will and the legal right share. In default of election, he or she will take under the will. I propose to amend the section to allow a spouse or child to accept a bequest in partial satisfaction of a legal right share.

A major problem in dealing with the law of succession arises on the question of unworthiness to succeed. This is the subject of Part X of the Bill. If a spouse or child is to be given a reserve share, the testator must not be allowed to withdraw that share. The spouse or child should have an absolute entitlement to the share and should only be deprived of it on the same grounds as would justify deprival of an ordinary intestate share. Having carefully studied the provisions in other legal systems, we have come to the conclusion that there should be three grounds of worthiness to succeed. These are the grounds which are provided for in subsections (1), (2) and (3) of section 119. Firstly, a person who has been guilty of the manslaughter or murder, or attempted manslaughter or murder, of the deceased will be excluded from any share whatever in the estate, whether under a will, on intestacy or by way of legal rights. This follows the existing law and is based on grounds of public policy. Secondly, a guilty spouse in divorce a mensa et thoro proceedings, or a spouse who has failed to comply with a decree of restitution of conjugal rights, will be excluded from any share as a legal right or on intestacy. I am at present considering enlargement of this ground so as to cover desertion by a spouse for two years or more. Thirdly, a person who has been found guilty of a serious criminal offence— meriting two years' imprisonment or penal servitude—against the deceased, or a member of his or her family, will be excluded from any share as a legal right or on intestacy. It is to be noted that in the case of the second and third grounds which I have mentioned, the person concerned is not excluded from a share under a will. This is because a man may wish to forgive the acts concerned and, if he does, there is no reason why he should not be allowed to make provision for the offender in his will.

Subsections (4) and (5) of section 119, which provide for disinheritance by a testator of a spouse or child who is guilty of dissolute or dishonourable conduct or of one of his children who is better off than the other children, have been criticised on the basis that they will inevitably lead to litigation involving the disclosure in court of embarrassing family circumstances. It is claimed that, in addition, they would be difficult of interpretation and proof. I think this criticism is valid and, in deference to the views expressed, I am proposing that the subsections be deleted.

Part XI of the Bill provides for miscellaneous amendments of the law dealing with limitation of actions in respect of the estates of deceased persons. Section 122 proposes that, where two or more persons beneficially entitled to a share or interest in land enter on the land, they will, for the purpose of acquiring title by possession, enter as joint tenants, not only as against excluded persons but also as between themselves. Under existing law it would appear that next-of-kin who acquire title by possession do so as tenants in common in respect of their own shares and as joint tenants in respect of the shares of excluded next-of-kin. Under section 123, the general limitation period for claims to the estate of a deceased person or to any share or interest in the estate is being reduced from 12 years to six years.

The provisions contained in Part XI of the Bill have been inserted in an effort to meet conditions peculiar to rural Ireland. They are framed to cure difficulties that arise in regard to the title to land where, for example, some members of the family remain at home on the farm, while others leave to take up professions or to work in towns and cities at home or abroad. Coupled with the proposals as to advancement in section 63, the provisions contained in Part XI should ensure that the proposed rules as to intestate succession and legal rights will not prove incompatible with the achievement of the unity and security of land ownership which is necessary to farming progress and efficiency in the circumstances of this country.

Part XII of the Bill provides for the consolidation of miscellaneous existing statutory provisions relating to the Probate Office and the district probate registries. These provisions do not I think call for any special comment on this Stage.

These, then, are the main features of a Bill which, as the House will appreciate, encompasses a vast and complicated area of private law. It has not been an easy Bill to explain, and I am grateful to Deputies for the patience with which they have listened to my attempts to deal with the more important of its provisions. I need hardly say that a great deal of time and effort has gone into the formulation of the proposals that are contained in the Bill. We have examined in detail the laws of succession at present obtaining in the North, in England, Scotland, France, Germany, Switzerland, the United States and Canada. We have considered the relevant provisions of the French, German and Swiss civil codes, and some of the world's recognised experts in this field of law have been consulted personally. We are particularly indebted to Dr. Cohn of London and Frankfurt, Dr. Ferid and Judge Firsching of Munich, Professor Halliday and Dr. Meston of Glasgow, Professor MacRitchie and Dr. Willock of Aberdeen and Professor Smith of Edinburgh. All were unstinting in their help and advice, and I am extremely grateful to each and every one of them.

Where it has been thought appropriate to do so, provisions contained in the laws of other countries have been adapted and included in the Bill. It would, of course, be a serious mistake to import ideas from abroad into our legal system simply because these ideas have worked satisfactorily in other countries. Quite obviously the laws of any community should be based on activities within that particular community and should reflect the social and ethical principles of its people. I must emphasise, therefore, that in drafting the Succession Bill the underlying aim has been to devise a system of succession which will be suitable to Irish needs and compatible with the traditions, beliefs and values of our people. As I stressed at the outset, the Bill is one of vital interest to every member of the community. Every section —indeed practically every line—of the Bill is important and, consequently, as the Bill progresses through the House, I shall be more than happy to have any suggestions which Deputies may care to make for its improvement. I can assure the House that I will consider all such suggestions very carefully. Of its very nature this measure is one which is more suitable for discussion on Committee Stage, and, on that Stage, I shall, of course, endeavour to furnish any additional assistance which the House may need in dealing in detail with the various provisions.

The Bill, in the form in which I propose to have it amended, should bring our law of succession more into conformity with the needs of present-day society. I ask the House to give it a Second Reading.

I move the amendment standing in my name:

To delete all the words after "That" and substitute "while Dáil Éireann is of opinion that the law should require that adequate provision should be made by testators for dependent spouse and children, the Dáil declines to give a Second Reading to the Bill unless Part IX, and the provisions consequential thereon, are deleted because of their utter unsuitability to Irish conditions."

May I say that I should like to have been in a position not only to congratulate the Minister on his appointment as Minister but also to congratulate him on his first major undertaking as a Minister in this House on the introduction of a Succession Bill. I am sorry I cannot do the latter but I have great pleasure in doing the former. I cannot congratulate the Minister in connection with this Bill because I believe the House and the country have been treated in a disgracefully cavalier fashion, perhaps not by the Minister, but by the Government, in relation to this Bill. Deputies find themselves to-day faced with the fantastic position that we are now being asked, on the Second Stage, to approve in principle a Bill which the Minister, in effect, has told us is not the Bill which it is intended to enact.

The Minister, even before he came into the House, had announced his intention of moving several amendments on Committee Stage but he did not even then give the complete picture and today we have had two or three further amendments mentioned by the Minister in the course of his speech. The method adopted by the Government in dealing with this Bill is a complete travesty of procedure. Instead of the ordinary Parliamentary procedure, the House is, in fact, being asked to participate in a grotesque face-saving operation for the former Minister for Justice. In inviting the House to participate in that face-saving operation, the present Minister is making a mockery of all our Parliamentary procedures.

The speech which the Minister has just made is a far greater justification than I myself could make of the amendment standing in my name. It vindicates fully the judgement of the Fine Gael Party in putting down this Second Reading amendment to the Bill as originally drafted, circulated and published by the Government. All of us will remember, and the Minister referred to it himself in the course of his statement today, how this Bill was ushered in with a fanfare of trumpets at a press conference in July last. Within five months after that, a new Minister for Justice having been appointed, the Bill as originally drafted and published by the Government has been gutted and it was solemnly buried by the present Minister at another press conference.

I suppose the appropriate music for the second fanfare would have been the Funeral March. Perhaps there is some significance in the fact that the Minister chose Friday, 13th November, as the date to give his press conference. The decent and dignified thing for the Minister and the Government in connection with this Bill would have been to accept the Second Reading amendment put forward by us, to withdraw the Bill, to scrap it completely, and come back to the House with a new Bill, with fresh proposals.

While the present Minister as a practical lawyer certainly shows a much more commonsense approach to this problem than the rather more fanciful theorising of his predecessor, nevertheless he should not lend himself to this kind of nauseating face-saving operation being performed in connection with this Bill. If the Minister wants a proper Bill, he should scrap this one. He should start afresh with a new Bill; otherwise he is building on rotten foundations. He is trying to patch something that does not take patching properly. The result from the Minister's point of view is that, instead of bringing in a Bill which will stand up over the years, which will be of benefit to the people of this country, he is going to have his name associated with a Bill built on rotten foundations which, ultimately, is not going to stand up.

I propose to examine the foundations on which the Minister is building. In other words, I propose to consider the Bill which is before the House and, notwithstanding our knowledge that the Minister does not intend standing over that Bill, it is necessary to ask the House to examine what is there and on what the Minister is building. The present Bill is one which the former Minister — on re-reading the Dáil Debates, I do not know whether he was joking or serious—told the House when he brought it in contained proposals, that, by their excellence, would be such that the majority of Deputies would be forced to accept them. The actual phrase he used was:

they will, by their excellence, have the undoubted approval of most Deputies.

In his press conference when he announced the terms of this Bill in July last, the Minister's predecessor painted a picture of himself and his officials spending long hours searching out the succession laws in all the countries of Europe. He said they had examined the succession laws of every country they possibly could. I have no doubt they did. I give them credit for any research work of that sort. But, having done that, they had come to the conclusion that the proposals put in this Bill were, apparently, the best that could be got.

The present Minister and the Government in their headlong flight from the controversy aroused by the original proposals are now adopting the attitude of saying they really did not mean it, that the original Bill was only a proposal put up for discussion. That kind of talk is utter nonsense. If either the present Minister or his predecessor had more experience of parliamentary procedure, they would know what most Deputies know: if the Government want to put up proposals for examination by Deputies and to ascertain the views of the people, the proper way to do it is by publication of a White Paper and not by putting it solemnly in the form of a Bill which is presented to the people as the Government's proposals.

Instead of doing that, instead of publishing a White Paper containing the Government's proposals, or even their provisional proposals, in order to have those proposals examined by bodies such as the Incorporated Law Society, the Bar Council and the general body of people interested in this vital question—it is a vital question and the Minister is quite right in emphasising the importance of legislation of this type as affecting the fundamental rights of every individual—the former Minister rushed into his press conference with his proposals. He did that, I assert here—and I would like to be corrected by the present Minister if I am wrong—without any adequate consultation, for example, with the Incorporated Law Society. It is the governing body of the solicitors' profession and, whether the former Minister likes it or not, those are the people who have most to do with the question of wills, advising people with regard to the making of their wills and advising with regard to their rights arising from that. There was no proper consultation at all by the Government with the Incorporated Law Society before their previous proposals were formulated and published.

I understand that the present Minister has at least paid that body the courtesy not only of accepting their views in writing and considering them but of meeting them and discussing their views with them. That is a change for the better so far as the administration of the Minister's Department is concerned.

I want to look for a few moments at the short, miserable life history of the first proposals which were published in connection with this matter. I have referred already to the statement of the Minister's predecessor regarding the excellence of the proposals he intended bringing in. I refer now to the Official Report of 6th November, 1963, where, at column 1031, the present Minister for Agriculture, who was then Minister for Justice said:

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.

Having given that kind of advance "blurb" to the publication he was about to bring out, the former Minister then went to his press conference in July, 1964. He referred, quite rightly, to the importance of the proposals. I want to emphasise that, because these, or any other proposals such as these which deal with a person's fundamental rights to own property, to deal with property and to dispose of property, are of vital importance to the people. At this press conference, the former Minister said:

We have studied every system we know of in the world and this represents the Government's proposals to deal with the situation.

That is reported in the Irish Independent of 11th July last.

Following the publication of the proposals contained in the Bill which we are now considering, various bodies found it necessary to examine the proposals carefully—the various legal bodies throughout the country, the National Farmers Association, organisations of one sort or another as well as private individuals—and it became quite clear that the proposals which the Government thought so excellent that they would command the approval of the majority of Deputies did not recommend themselves to the majority of the people in this country.

We in the Fine Gael Party gave the Bill the type of examination which any Bill of this sort warrants. We studied it carefully. We considered the implications of the proposals, the effects which, in our view, they would have on the people. As a result of our consideration and deliberation, we put down the amendment which I am now moving. During all of the period when that amendment was on the Order Paper of the Dáil, when there was what virtually amounted to a public outcry against the Government's proposals, the Government and every member of the Government stayed mum; not a word was uttered in public.

I am quite prepared to give the present Minister for Justice credit for fighting tooth and nail against the proposals as they originally stood behind the doors of the Fianna Fáil Party room. He was probably not alone in that. I hope I am not giving him undue credit but I believe that the proposals as originally framed never recommended themselves to him as a practical lawyer, as a man who had experience in the courts of this country, as a man who by reason of his profession and avocation was called on—I was going to say from time to time—I hope very frequently, to advise on questions such as this. I think that many of his colleagues were in the same position. But he was not in control then. The present Minister for Agriculture was still Minister for Justice and there was no let up, no suggestion of a let up, at all from Government sources.

Then, the resignation of the former Minister for Agriculture came about. I wonder does Deputy Smith even now realise the extent to which he has saved the people of this country from the proposals that were originally made and that are in fact enshrined in the Bill which we are discussing and from which the Government have decided now to depart.

The people may be gone out of the frying pan into the fire in the matter of agriculture.

That may be so. I have great sympathy for the agricultural section of our people but in relation to this Bill, Deputy Smith certainly by his resignation——

Saved the bacon.

——certainly had an effect. It was not until 9th October, 1964, reported in the newspapers of 10th October, that there was any further reference, that I know of in any event, publicly, by Government speakers to the Succession Bill. The former Minister for Justice, Deputy Haughey, having become Minister for Agriculture, went along to the Dublin North-East Comhairle Dáil Ceanntar of Fianna Fáil and spoke there about the Bill. Apparently, he wanted to set up the succession and to see to it that his successor as Minister for Justice was not going to let him down regarding the Succession Bill because, when the former Minister for Justice spoke to this august body of Fianna Fáil supporters in Dublin North-East, there was no suggestion, as recently as 10th October last, of any amendment of the Succession Bill. It was suggested, true enough, that the Government would not now insist on the Bill coming into operation on 1st January, 1965, but there did not seem to be any other concession in the mind of the former Minister for Justice. He did, of course, have quite a lot to say with regard to it.

There is one thing he said that I want to direct the present Minister's attention to, in the hope that, before this discussion finishes, he will dissociate himself from it. The Minister for Agriculture is quoted in the Irish Independent of 10th October last as saying:

The discussion——

This is regarding the discussion that had been taking place on the Succession Bill——

has on the whole been excellent though the ordinary man may have wondered as he followed the debate why if, as is alleged, the Bill is going to lead to a great deal of litigation so many lawyers have been attacking it.

That is the kind of unworthy jibe at the legal profession that comes so frequently from Government benches. It was an unworthy jibe to come from a man who up to a few days before that had held the post of Minister for Justice. I hope the present Minister will dissociate himself completely from it. He is, as I say, a practical lawyer, a man who has practised in the courts of this country. Even if the former Minister did not realise it, the present Minister will realise that, by and large, most of the lawyers in this country want to keep their clients out of court rather than bring them into court and that it is no part of lawyers' business to try to push their clients into court and that if they criticise a Bill because it will lead to litigation, they do so in the knowledge that they themselves might be the losers if they can succeed in getting the Bill amended but that their clients will be the gainers. That should be made clear to the former Minister.

However, I wanted not so much to underscore what seems to me to be an unwarranted jibe by the former Minister at lawyers in this country but to point out that, as recently as 9th or 10th October last, there was no indication that I could see by the Government that they intended amending the Bill. Some days later, the Sunday Express of 18th October presented an article. I want to be quite fair to the former Minister. I do not know to what extent this article purports to be an interview with the present Minister for Agriculture but it certainly purports to quote him with regard to the Succession Bill and what his hopes were on leaving the Department over which the present Minister now presides. According to this article, the former Minister is quoted, as recently as 18th October, as saying:

I want to see action taken on the horrible system of ground rents.

I hope the present Minister will not be as dilatory as his colleagues have been in taking action in that matter. They have been assured in advance of the fullest support from this side of the House for very many years. However, he went on:

And I want to see my Succession Bill get through the Dáil——

There was no question of any amendment then.

—because it lends a new aspect to justice.

Then the picture was painted of how strongly the former Minister was fighting to get his Bill through the Dáil and the steps he was taking to correct any erroneous impressions or misapprehensions that any ordinary member of the public had with regard to it.

The article goes on:

The Succession Bill aims at altering the present law of inheritance.

That, apparently, is not a report of the Minister's remarks but is part of the article. Then it says:

When Haughey heard that the wife of a man he knew—a housewife, with no political connections—was opposed to the Bill he rang her up to explain what it was about and advised her to read it in full before condemning it.

He then said, and this is a quotation:

It ensures that a woman gets one-third of her husband's estate and that the children get one-third. This is to ensure that in the case of a second marriage children by the first marriage are not neglected, and anyway the wife becomes the trustee ... this surely is just and right.

The next comments are not those of the Minister but a quotation from the article:

And then for one of the rare cases on record, the gay, debonair, astute politician was heard to complain bitterly: "Here I am trying to help women just like that, to save them from that pagan principle of `It's my money, I can leave it to whom I like and damn the sufferers... ' and she objects. It's bad enough having to fight it through against professional opposition."

On 18th October, the former Minister for Justice was full of fight. He wanted to see his Succession Bill getting through the Dáil. The next thing we heard of it from official sources was a statement released by the Department of Justice less than a fortnight after the quotations I have been giving of the remarks of the Minister for Agriculture. Less than a fortnight later, it is disclosed in a statement from the Department of Justice published in the daily newspapers on 31st October, 1964, that there are to be wholesale amendments to the Succession Bill. Deputy Smith had resigned. I do not know whether it was a coincidence or not but on the same day there appeared the report of conventions for a by-election in East Galway.

Shortly after that, on Friday, 13th November, the present Minister for Justice gave his press conference in which he decided that the Minister, Deputy Haughey, was not going to get away with it, that no matter how hard he fought, whether or not he wanted to see his Succession Bill going through, the present Minister would not have it and he announced at his press conference that there would be several amendments. I do not say this as any criticism of the Minister. I say it because I believe it to be accurate. I think the terms of the statement he made in his press conference and the appendix which he issued at that time are virtually word for word the same as in the second explanatory memorandum issued with this Bill, with one important exception which I do not understand. At his press conference, the Minister mentioned there was to be an amendment to section 6 of the Bill to increase the jurisdiction of the Circuit Court. That was for some reason left completely out of the second explanatory memorandum. I did not know whether the Government had again changed their mind in the last fortnight until the Minister spoke today.

I mentioned it today.

I find when he speaks to-day he says what was suggested in the press conference statement is, in fact, going to be done, so possibly it was an error and I shall not make any point about it. That is the history of the Bill to date.

I want to examine now what were the "excellent" proposals which the previous Minister put up. It was proposed, and it is to some extent still in Part IX of the Bill, to impose very severe limitations on the right of a person to dispose of his property by will. It was proposed, and still is, to establish fixed shares for spouse and children. It was also proposed to class as suspect for at least a period of ten years any voluntary settlements or dispositions made which were intended to defeat the fixed legal shares being proposed in the Part IX of the Bill. The effect, of course, is that a man who left a wife and children could dispose of only a third of his property by will. The State was to decide, and still is in many cases, what was to happen to two-thirds of the estate. The testator could dispose only of a third. This is being done now in order to deal with a problem that exists.

I do not want to minimise the problem and I certainly think it is entirely wrong to exaggerate it. The problem is the problem of the undutiful or inofficious will. In his press conference the former Minister spoke of the problem as though it were a very widespread one. He is reported as saying that a considerable amount of injustice resulted through the failure of testators to make sufficient provision for their wives and children. I think that greatly overstates the position here.

There is a problem and it is a problem that should be dealt with. It is a problem which we on these benches ask the Government to deal with, but it would be entirely wrong to suggest that the problem is a very widespread one resulting in a considerable amount of injustice. The proposals of the Government go away beyond the problem that exists. To my mind the Government have approached this matter in the wrong way entirely. The proper thing for the Government to do was, first of all, to assess the size of the problem and, having assessed it, bring in their proposals to remedy the particular problem. That is not what the Government have done. It is not what they chose to do. They chose instead to bring in a Bill designed not merely to remedy the problem—that was only incidental as far as the Government proposals were concerned —but to interfere with everybody in order to remedy a particular situation that exists only so far as a few are concerned.

We, having considered these proposals, particularly the proposals in relation to Parts IX and X of the Bill, put down the amendment which I have moved asking the Dáil not to give a second reading to this Bill until those Parts and the consequential provisions are deleted. Now, whether the Minister is prepared to admit it or not, he has accepted the terms of the amendment. He is telling the Dáil, in effect, that he will get away from Parts IX and X, as drafted in the original Bill, and he will modify these proposals to a great extent. The fundamental mistake the Minister's predecessor made was that he forgot he was legislating for this country and he went searching out succession laws all over the world. He was finding out what succession laws suited in different parts of the world, how they operated, and whether they were satisfactory or unsatisfactory, and he forgot apparently that here in this Legislature we legislate for the Irish people and whether or not a particular system operates satisfactorily in Scotland, Switzerland, or Germany is quite irrelevant to the work we are supposed to do here for our own people.

We have suggested in our amendment that the proposals contained in Parts IX and X are utterly unsuited to Irish conditions. I believe that is so and I believe that, even as modified, that is still so. The Minister instead of scrapping this Bill and bringing in a fresh one has built, as I said earlier, on rotten foundations. Now the Minister is quite entitled to ask me to give the reasons why we came to that conclusion. Some of the reasons he has given himself already. We believe that the proposals are unsuitable, first of all, because the people have, thank God, a regard for the permanence of marriage. They have different ideas with regard to the permanence of marriage from those which obtain in some other countries. Secondly, the particular form of our economy, based to a large extent on small farms and small holdings and on the small and medium sized businessman, is not such as is suited to the proposals put forward by the Government. Thirdly, we believe, and I think the Minister will agree with me in this, that there is a high sense of duty and justice, including social justice, amongst the ordinary people here. That is quite evident in the types of wills that are made and which can be regarded as the average, normal wills here. Grave injustice to the spouse or dependant children is not widespread despite what the Minister's predecessor said in his press conference. It exists in a very limited number of cases, but it is not widespread. Most would regard it as being extremely rare but, to the extent that the problem is there, it should be remedied, and we want to see it remedied.

Another reason why we believe the present proposals are utterly unsuited to our economy is because we here in this country, small and all as we are, have a problem of Partition and, if the Government are serious about wanting to see Partition ended, then it is sheer lunacy to have any radical difference between the succession laws north of the Border and South of the Border.

What about Scotland and England?

That is a completely different position. I am talking about our wanting to see an end of Partition. Legislation of this sort will make more permanent the artificial boundary that exists between the north and south of this country. We also believe it is unsuitable to Irish conditions because we believe the average testator is the best judge of the family's circumstances which he wants to meet when he is making his will. Any Deputy who is a lawyer, such as the Minister, and Deputy de Valera and I, know full well that the average testator here as often as not discusses the proposed provisions with his wife and family before he goes in to discuss them with his solicitor. Testators have that high sense of duty and social Justice.

Debate adjourned.