Succession Bill, 1964: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."
Debate resumed on the following amendment moved by Deputy M.J. O'Higgins on 2nd December, 1964:
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."

When I was attempting to make a few comments on the Bill last night, I received a lot of assistance from some of my colleagues on both sides. The result was it was hard to say anything constructive. I would recommend that it would be a good idea not to close the bar so early on a Wednesday night and it might be possible to make some kind of constructive contribution without the assistance of some of the people who came in here last night.

There is very little more I want to say except that the Bill does, of course, propose to amend the laws dealing with the distinction between land and houses and other types of property. This is particularly the case down the country and has caused a tremendous amount of trouble over the years. Law cases which have taken place as a result very often have had the effect of dissipating whatever bit of estate is there by the time it is cleared up. This is one good thing in the Bill. Secondly, there is the question of the effort to prevent the members of the family from being dispossessed again. This is a good idea. Whether or not the proper shares are being allocated is something which can be debated on the Committee Stage.

I do not know whether I understood the Minister last night, but when I referred to the question of people dealing with a small estate and who at present can go to the customs and excise officer and have the estate settled for a relatively small sum of money rather than do it in the usual way through a solicitor, I understood him to say, first of all, that the Bill suggests that the amount would be increased from £500 to £2,000, and that he was removing the limit completely.

At the moment it is a rule of court that a person may make an application to take out a grant of probate. We are now extending that to the District Registrar and anyone can go and extract. That does not stop them from taking professional advice if they wish as an alternative.

I would suggest to the Minister that he should be careful about this. While it is quite in order to have that done in the case of a small estate of up to £2,000 in the cheapest possible way, there might be a danger in allowing it to be handled for an unlimited amount in a different way. While people are dealing with a small estate generally if a slight mistake is made, there cannot be much harm. Now the Minister has decided that he will appoint County Registrars.

The County Registrars are there already.

The County Registrar is there already but he is not the person who does most of this work. The person who does the work is the customs and excise officer.

We are dropping that.

You must have somebody else and not replace him by the County Registrar. The County Registrar in Meath lives in Trim. Is it the case that a poor person who wants to take out an estate worth a few hundred pounds, and lives 30 miles away, will have to make application to the County Registrar? It might be cheaper to go to a solicitor.

They are not using the existing one at the moment.

That is because the customs and excise officers are scarce.

That is the point.

I understood the Minister was going to make a better arrangement. If there will be one in each county, he will be snowed under with these applications, particularly if the Minister says they are for an unlimited amount. Does the Minister intend therefore to include that an application can be made in the central office in Dublin?

That is the rule of court at the moment and I am only putting it into the section.

Few people are aware of this. The only person they may apply to is the customs and excise officer and there might be half a dozen visits. In the case of vested county council cottages worth £300 or £400 where a person dies intestate, the next of kin want to take possession and get it legally transferred to them. There is all sorts of trouble, that is, if they have to go eventually and find a customs and excise officer. By going to a solicitor, it might cost £17 or £18 and that is a lot of money to a widow with a pension of 32/6. People who live in Deputy Sweetman's or Deputy Crinion's constituency in Meath, outside the town of Kinnegad, have to travel from Enfield to Drogheda. It is 20 or 30 miles and by the time it is straightened out, it costs them a lot.

There is the local divisional officer.

It is very desirable that these things be done properly with the County Registrar.

I am sure the Minister appreciates the difficulty that can arise in this case, and will he ensure that an effort is made to improve the present arrangement? Will the Minister ensure that the matter will be simplified as much as possible at least for those who will be under £2,000? If the estate is big it certainly can afford to carry costs but it is different if people have not the money. The person with the small farm, the cottage and an acre of land who tries to take out administration finds that by the time he has got over and back—they are not people who have cars of their own — it usually costs a lot of money. The more the Minister can simplify that matter the better it will be appreciated by all concerned. I hope he will clarify it for me, anyway, because I am not quite clear on what he proposes to do.

There is a suggestion in the Bill that unborn children will in future be able to have the same right as those born before the testator dies: that is a good idea. I still think the Bill is a little unfair to illegitimates. The State and, perhaps, a lot of institutions may have a peculiar way of looking at these things but surely if they are the responsibility of the parent, some effort should be made to try to give them a little more. There is a slight improvement here but it is not sufficient to compensate them. Perhaps the Minister might have a look at that matter and see if he can improve the position a little. I do not think it will increase the number of illegitimates in the country; maybe the opposite might be the case.

I should like to repeat what Deputy Corish said last night and what I repeated afterwards. In our opinion, the Bill can best be discussed by people who discuss its merits rather than its political implications. It would be a mistake if, for any reason, the Bill became a political Bill in this House. There is a danger of that happening if it continues to be discussed in the way in which the discussion started. As Deputy Dillon so rightly pointed out, we shall have not alone one but two Committee Stages because it has to be recommitted after the Committee Stage. For that reason, I would suggest, as I suggested last night, that the Bill could very well be dealt with by a Select Committee of this House. In that case, there would be no question of playing to the gallery and we might have an honest expression of opinion which we might not get if we continue our discussion here on the basis on which it started. I hope there will not be any more by-elections during the passage of this Bill. If there should be, all sorts of matters will crop up during the discussion of the Bill for the purpose of gaining political kudos.

While we welcome some of the amendments which the Minister has introduced since he took up office, and which have improved the Bill, I think that if we are to have a whole series of Ministerial amendments put in week after week after week, it would be much better if the Minister withdrew the Bill and reintroduced it, or at least withdrew it from the House or held up further discussion on it, until such time as the Government and the Minister have finally made up their minds on what they want to do with the Bill.

I said last night—the Minister did not agree with me but I repeat—that, in my opinion, the Bill before this House should have the considered opinion of the officials of the Department, of the Minister and of the Government. It should not be necessary, immediately a Bill is introduced, to have a whole stream of amendments coming in, completely changing the whole Bill which has been introduced. The Opposition are perfectly entitled, because they had not a say in the original framing of the Bill, to put in amendments to alter it. It would be unseemly if we have as many amendments as sections.

The Minister is anxious to make a good job of this, his first assignment as Minister. If he is to do so, he will need to ensure that the Bill will not be changed by amendments as we go along. As Deputy Dillon rightly said last night, it is unfair to announce an amendment after somebody has commented on the Bill and to introduce another amendment which changes the complexion of the Bill. The Minister did that last night. Possibly he took a certain amount of malicious enjoyment out of the fact that he had discomfited somebody in doing so. I do not think it is the right way of doing things.

Legislation of this description is brought in here generally for the betterment of the people whom we represent. I entirely agree with the attitude that has been adopted on this Bill and that I hope will be adopted on Bills for the future, namely, that the Bill is first published and that invitations are given for criticisms of it. It is a far better method than bringing in a Bill here, putting it through the House and finding two years afterwards that another Bill must be brought in to amend it and later a third Bill to amend the second one, as has happened here repeatedly. As a matter of fact, I think the House would be kept going for a full twelve months in endeavouring to amend anomalies in Bills of this description. I do not say that we shall not have to amend them again in a few years.

I shall give an example which I have repeatedly brought forward to the Minister concerned. We are mainly a rural community. A farmer's son gets married and settles down in the house at home. He gets the farm from his parents. Now, whatever is due to the State is paid and the transfer is made but, if that parent dies within three years of that handing over, the State comes in again for death duties and claims the full amount as if the property had not been transferred. That has been enshrined in legislation in this House by some idiot and it has been carried on here up to the present day. I want the Minister to make certain now that that anomaly is ended so far as the rural community is concerned. It is hard: you meet cases of that type.

I shall give another example. A bachelor in my part of the country had a farm of land which he gave to his nephew who got married into the house. The farm was handed over to him — a legal transfer again — the bachelor reserving to himself the right of a room in that house and his board: that is all he wanted from him. The boy had a wife and six children when the uncle died. The State marched along again to claim the full death duty on that farm because the old man had kept the room and his board. I raised the matter in this House. I raised it on several occasions both by question to the Minister for Finance and otherwise. I want to know if that situation is now being remedied in this Bill. If it is not, I suggest the Minister should put in another amendment to remedy that position.

You may start again. It is not in it, anyway.

Those are the facts.

This is for the Finance Bill.

I do not think it is a matter for this Bill at all.

With all due respect, if one anomaly is being remedied, we should endeavour to remedy the others. If we are bringing in legislation dealing with succession, surely we should be entitled to point out anomalies in succession that are serving practically to wipe out the unfortunate farmers concerned. Nobody will pretend there is any justice in the State coming along and claiming on the transfer of a holding and again when the owner dies.

I admit there is occasion for some barriers as regards wills and the handing over of property. However, some extraordinary things happen. I know another farmer in my county. His son was married in the house, the old man still holding the reins. He decided to get in a lad of a solicitor and he made a will and under that will he gave six members of his family £2,000 that he had not got. One of them was a Christian Brother. A couple of the others were married away and the others were in good occupations. They had all left the farm years before. The unfortunate son living on the farm had a wife and children.

The old man willed something more than £2,000 that he had not got to his other children out of the farm on which the poor unfortunate son, 40 years of age, had been trying to make a living for his wife and children. To pay that money, he had to sell every four-footed animal on the farm. In the financial mess he was in, he came to me and asked me in God's name what he could do. I gave him the last advice I would give to anyone: "Pay no annuities for two years; let the Land Commission put up the damn holding and you travel around and pull down every poster as they put them up".

He did, and he bought the place for £83 and he got rid of the £2,000 will commitments. I think it was better advice than he would get from any senior counsel. Sometimes you do meet them fairly good; you do meet that kind of case and if this Bill ends that situation, the better for all concerned. You do meet them in your travels. I advise a lot of people on wills.

The Lord preserve us.

It is part of my job.

What is part of your job?

I am giving better advice than the advice they get from the boys they pay. In those cases I have mentioned I have found that people are reasonable if you are reasonable with them and do the right thing. Deputy Tully mentioned the difficulties involved in the legal transfer of cottages. Surely something can be done to remedy that problem? Deputy Tully said we were in the happy position where the ordinary worker, having a labourer's cottage and an acre of land, is now the owner of his own house—he is entitled to purchase and own the house.

However, if that man dies, his widow comes along and the transfer to her of that little cottage and the acre, in County Cork anyway, costs anything from £25 to £80 according to the rapacity of the lawyer she falls in with. Those are cases which definitely should be met in this Bill. If they have already been met, well and good. If they have not been met, I suggest to the Minister that he bring in amendments to provide for them. I speak as one who has been 38 years here during which I have seen many things. However, I have never seen a Bill perfected here. It goes to the Seanad and if the Seanad were a body of men whose kind I would put in there— they would be men who could do their job—all would be well. Unfortunately, the Seanad is a joke.

The Deputy should not make such references to the other House.

I am sorry; at least, they are unsuited for the job they have.

The lawyers, the judges and the Senators are out now, anyway.

Anomalies are there, being carried on because the Minister concerned, when asked to remedy them, says: "When I am bringing in the next Bill I shall remedy that." The three-year limit from a person's death was put in and left there and I do not know how many farms and homes have been broken up due to that three-year period. The case in Youghal which I mentioned involved roughly £1,800 in duty. If a man gets a slap like that soon after he starts out in life, with a wife, maybe, and six kids, where is he?

Those are the things that in my opinion the Department of Justice should concern themselves with; they are the things they should remedy by bringing in Bills here. I do not wish to hold up the House but I should like to ask the Minister a few questions, which I hope he will answer when he is replying. Has the Minister now got rid of the bugbear of the three-year period? I should like to hear his opinion on the cases I mentioned here. Can he say to the cottier or to his family when he dies that the transfer will cost a maximum of £10? If he can, I am satisfied. The minimum amount I have seen paid in such cases has been £25 and it has stretched to £80, according to the solicitor handling the transfer.

This Bill has 129 sections and two Schedules and is divided into 12 parts. Of those parts, two only are concerned with the very controversial matters that have been occupying and will occupy this House for a long time to come. Parts IX and X are the parts that deal with the question of the limitation of the testamentary powers of testators. There are only 11 sections in both of these parts and I do not think I would be exaggerating in saying that of those 11 sections there are only three or four in which the vital principles are enshrined. We therefore have a position facing us now that on this Bill the main controversy, which will be long and, I am afraid, bitter, is contained in three of the sections. The 118 sections and two Schedules are matters on which there could be, to use the Minister's expression yesterday, sensible discussions in a very short space of time. They will be mostly agreed to. There cannot be in those 118 sections more than half a dozen sections which will cause not controversy but discussion.

Suggestions were made from the Labour benches that this Bill should be sent to a Select Committee. I thought that was the proper thing to do when I first saw the Bill and when I read of the controversy arising in the country, but I am quite satisfied now that the proper place to have this discussion, particularly on Parts IX and X, is here in this House.

Hear, hear.

I put forward this suggestion not in any spirit of opprobrium for the Minister, or as a criticism, that he should divide this Bill into two parts; that he should put the 118 sections and two Schedules into a Bill, and we could, inside a month, have the beneficial sections in operation, and then at our leisure we could discuss the rest of the controversial matters contained in the four of the 11 sections and Parts IX and X. That would be a way of getting rid of delay in this matter and it would also have this benefit, that we could openly discuss the various points of view that are essential to be brought to the attention of this House if a proper solution to the problem which undoubtedly exists is to be arrived at. As I say, I am making that suggestion because it is one that will go a long way towards overcoming a lot of difficulties and perhaps produce a better atmosphere.

The Minister expressed satisfaction in his speech at the interest and reception this Bill received. Perhaps I am wrong in saying he expressed satisfaction at the reception because it got a rather hostile reception on the whole. It is, however, gratifying that a Bill of this kind which as everybody agrees— and it is stated in the Minister's speech—affects every member of the community, should have invoked spontaneous views and criticism and, if necessary, concern. It is something rather unusual in the circumstances of this country that a Bill, which would appear on its face to be a technical measure, should have, so far as the ordinary people are concerned, caused them to think and consider how they will be affected by it, to the point that it might have been, and indeed still may be, a very vital factor in a general election. This is the first time we have had a technical Bill that certainly looked like having, and may still have, a political effect and the people may vote on their various choices in the forthcoming election in relation to this measure as far as it affects their private interests.

There is no use in Deputy Tully saying that we should not approach this in a political way. That is the sort of thing that we should get rid of, the idea that we are always discussing things for political advantage. Politics is the essence of government and we should approach a matter even of this kind, where the very provisions of the Bill necessarily entail political considerations, in a political way, not in the way that ordinary people understand it but from the point of view of the science of government and what is best for the people concerned, and vitally concerned, in proposals of this character.

I do not approach a problem of this kind thinking in terms of whether anybody in my constituency will vote for or against me and I do not think anybody should approach a Bill of this kind in that way. I do not think many people will concern themselves with anything except the reasons put forward for the points of view here and it will not be because Fine Gael want one thing or Fianna Fáil want another.

They will vote for the reasons put forward for the solution that is ultimately enshrined in this Bill, whatever it may be.

Deputy O'Higgins in opening the case from this side yesterday, so to speak, said that undoubtedly there was a problem but that we should assess the value of the problem. I do not agree that this problem is a small one; I think it is a sizeable problem and it is a problem that does call for some remedy. The real question we have to decide is what is the nature of the remedy for the problem which, as I say, in my view is a sizeable one, but it is not too big. It is quite clear that the people are not, if I may use the expression, "will minded". Comparatively few people make wills and quite a substantial number do not make wills and die intestate. The Minister said 50 per cent.

That is right.

I always knew that but I was surprised that there was such a big proportion. There is no use in Deputy Corish, the Leader of the Labour Party, saying that we should all join together to repudiate the notion that the Irish people do not recognise their obligations towards their wives and families. There is no use in being sentimental about this. There is a very large number of people who do not in fact recognise their obligations towards their wives and families and the very fact that there are so many intestates clearly shows they are avoiding the issue, that they do not want to get down and make wills, very largely because they cannot make up their minds and they leave it to the law.

Very often what happens is the priest or the doctor, in the country, tells a person that he is dying and that he had better settle his affairs. It is only then that such people start to do it and they do it without proper consideration very frequently and trouble may ensue as a result. There is nothing—and I speak from knowledge—that causes such family dissension, family disunion and disruption as the provisions in a will where one person thinks he has been overlooked or badly treated, one son or daughter not given proper consideration, and very serious family trouble prevails for a long time as a result of the will.

There is no use shirking the issue. There are wills made and a considerable number of inofficious wills, as they are called, that is, they do not carry out the obligations to the family. A lot of people do carry out their obligations and a lot of people think they are carrying out their obligations. We are all aware of the attitude of people, certainly in the country, and this is exemplified by a story which I heard and which actually occurred. There was a man who had seven daughters and finally a son was born and the son was the apple of his eye. He explained, as this boy grew up, what he was going to do for him: he would send him to the best school and then to the university, and his attitude was summed up when he said: "You would like to do the best you could for the one child you have". The seven daughters were in the halfpenny place.

I have seen cases of wives, after a lifetime of service, being rather badly treated, if not very badly treated. The first time this was brought to my notice was when I was quite young down in County Clare. A farmer, having lived with his wife for some years—they had no children—died. He left a will. He carefully put into that will that the farm was to go to his family, that she was to get back merely the fortune she brought some years ago—£100, or something of that kind. He thought he was doing the proper thing. She could not live a year on what he left her. The house finally went back.

We all know from our own experience the extraordinary habit of some people—they may not be very numerous, but still are quite a sizeable number—who want to control their family from the grave, to come out from the grave and keep their influence over their family in the following years. We all know cases where the testator says so much is to go to a daughter or son, provided they do not marry without the consent of his executor. They want to control from the grave the free choice of their children. It has also happened—and the courts have set their minds against it as far as possible—that there is a provision in the will that the daughter or son shall not marry a person of a particular religion. These are quite common matters.

The problem is there. It is a sizeable one, although not a very great one. We should not be too concerned about the urgency of the problem. I certainly have had this in my mind for a very long time. The very fact there are comparatively few wills litigated in the country gives no evidence of the extent of the problem, because you cannot set aside an inofficious will unless you can show the man had not testamentary capacity. Such a will is very easy to make and very difficult to disprove.

So, having made up our minds there is a problem, what this House has to do is to concern itself with the nature of the remedy. Before I come to make the observations I intend to make on the provisions of Parts IX and X and the amendments the Minister has intimated he intends to bring in, I should like to say as regards the other 119 sections of the Bill that they show the clearest evidence of very great erudition, research and industry. I should like to pay tribute to the Minister's advisers for the amount of work they must have put into these sections, which are very beneficial indeed and which will render the task of practitioners and public very much easier in the future. At the end of what I say I might want to draw attention to three or four points in that particular section.

Having said that and having made this additional remark, I want to make a few comments on the approach to the remedy we have to make. I want to express my own view—I am expressing only my own view—as to the nature of this remedy. As far as I have any preconceived notions at all, my predilection would be to approach it on the basis of what is called the rigid remedy—to interfere with the testator's testamentary capacity to the point of making indisposable part of his property. That was my predilection from reading the academic studies, from a very cursory knowledge of the Code Napoleon. I never read it but I have heard of it. I know nothing about the German Civil Code. I am a severely practical lawyer. But, having regard to past glories when a student, it left the impression that there was something to be said for the Scottish view of the remedy.

I feel a very much stronger case must be made by the Minister for the provisions contained in this Bill. The reaction of the public was not merely the reaction of practical lawyers and solicitors. I was in Cork at the time and the general public came into the solicitors' offices on the South Mall asking what was the meaning of all this. The solicitors in Cork were busy day after day advising farmers as to the effect of this Bill. When you consider the kind of outlook the farmers have about will making and the kind of provisions they habitually make in the course of their practice over the years for their wives and families, this Bill must come as a great shock to them. I have come to the conclusion that at the moment, until I hear more evidence, this country is not yet ready for this particular shock on testamentary ability.

We know the little settlements made on marriage in this country. Writing is drawn up almost in common form. Very often when a will is made, if there is not a settlement of that kind, provision is made for one particular son. He has to provide again very small fortunes for the sisters. The widow is relegated to the use of one room, the grass of a cow, wet or dry. She is to be given the use of the horse and car to bring her to Mass on Sundays. She is to be maintained in the condition in which she was heretofore maintained. We have it all off by heart. I am sure the Minister knows it. To that type of farmer and to that type of outlook, the provisions of this Bill must have been not merely academic but a shock. Therefore. I think we have not solved the problem in this Bill. I am not satisfied that the provisions of the Bill are agreeable to the people. I am not satisfied in particular that the Minister has made a strong enough case for this particular remedy. To convince the people of the country, a very much stronger case will have to be made.

I would again make an open confession. I have said my predilection was towards what is called, generally speaking, the rigid remedy. Deputy Corish objected to the Latin quotations, so I will compromise and call it thelegitim position. I did not like, and I do not like, the provisions of the British Act. I never did like them. I do not think it goes far enough. That does not say, however, that some amendment of that or some other statutory provision on judicial discretion could not be envisaged.

The Minister appears to have formed the view—I may be wronging him— that the provisions of this Bill— Parts IX and X as he intends to amend them by the amendments indicated in the supplementary explanatory memorandum—are the final result and that that is Government policy. When the Parliamentary Secretary to the Minister for Lands was speaking last night, the Minister interjected and used an expression "a sensible discussion on Committee Stage" and somebody said that this was a Committee Stage Bill. I want to give my view against that. It is not a Committee Stage Bill. The 119 sections are, but the 11 sections in Parts IX and X are not, because, before you get down to these 11 sections, there is a fundamental principle to be resolved by this House, openly, so that the people may know what is the case for this, what is the case for that, and be satisfied that their interests have been considered and secured and that it is not merely because the Minister, perhaps academically and with strong reasons to back it, has come down on his side, and the other side has not been thought of. In any event, a case will have to be strongly made.

Convinced as I am personally that this is necessary, I believe that the case has strongly to be made justifying any interference at all in this country by any sort of measure or any remedy, whichever way one looks at it. The people have to be educated. There is a right that they always thought they had. Our people, despite all the strong and abundant evidence to the contrary, are really conservative-minded. They have been supposed to be "agin the law" for many years but they really have a tremendous respect for the law, as they on many occasions have demonstrated. They have had this system by which they could leave their property or their money, big or small, to anybody they liked, for well over a century and they have also the feeling —it is a strong feeling—perhaps not one that is to be encouraged—that they can control the conduct of the members of their family by the fact that they are able to make a will and cut them out. It is not a very desirable attitude but some people have it and I do submit to the Minister that, however strong arguments there may be, academically and intellectually, from the point of view of bringing a rigid system into this country, there is a big task in front of him to educate the people and to make them see. The particular system on the side of which he has come down is really one that, I think, at all events, is not suitable in the present conditions, for the present education of the people.

I am convinced that something has to be done but you must bring the people with you. There is no use from that point of view, saying that you consulted German, Swiss, French or Scottish lawyers. They are all, of course, very eminent in their own way. The Minister was right when he said that there is no use in considering Scottish law, Scottish theory, the academic theories of the Continent or of America. You have to see what is desirable and possible for our own people and in the circumstances and conditions of our own people. I, again, am not convinced that they are ready for these rather drastic provisions in this Bill although I personally tend towards them myself.

I was greatly impressed by the reaction of the people generally speaking and particularly by the country people coming into Cork City, which I knew of—I knew of Kerry also but I did not know that as well—to know what was the meaning of this.

I should like perhaps to mention one matter now, in case I would forget it. The Minister said yesterday he was considering the question of providing for the case where a husband or wife deserted the other spouse. In the Bill as it stands at the moment it only deals with where there is a divorcea mensa et thoro. I know of my own experience of cases coming within my own knowledge that within the provision as it stands, the present a mensa et thoro would be utterly unsuitable, that even bringing in cases of desertion, it still leaves very hard cases.

You will find a wife who has been living with her husband who is a complete, confirmed drunkard—a decent man but quite incapable of controlling himself in the matter of alcoholic drink. She cannot get a divorcea mensa et thoro. I had that experience myself in court where, under the direction of the late Mr. Justice O'Byrne, who was a very eminent trial judge, the jury found, I am sure reluctantly, a verdict against her. She went through absolute torture, from the point of view of having a man drunk night after night, spending money, but she could not get a divorce a mensa et thoro because it did not amount to mental cruelty. If that woman leaves the husband— she cannot be said to be deserting him—builds up a little business or anything of that kind and then she dies, is he to get the property? Justice would not permit him.

I should like to mention another case so that there cannot be any identifiable person, where two elderly people have got married and the marriage has not turned out to be suitable. The woman has money. The man has not. He will harry her and give her a shocking life all his days at present knowing that she must leave him something. Of course that is not right.

There is another case within my own personal knowledge. This person married a girl. They were very happy for a very short time. Unfortunately, she became insane and he spent his life looking after her with great devotion. He provided for her and will provide for her in the will in the way of a life annuity or capital sum. If this Bill goes through in its present form, even with the amendments, then the lady who is insane will have to get the money and it will go to her executors or to her next-of-kin who may be in America, Australia or anywhere. That is not right.

There is another point that I should like to make. I think the Minister's proposed amendments do meet it to a little extent. What is the position where a father, say, has a son who is a spendthrift or who is not capable of earning his living? Take the case of the spendthrift. You know the sort of form that goes into wills where a capital sum is given to trustees to dole out the money as they see fit so as to prevent the assignees in bankruptcy from estreating this sum and leaving him high and dry? What is the position of that individual?

I mention these cases merely for the purpose of showing that you just cannot come down and say as this Bill says, that is that. There are so many exceptions, so many different kinds of cases that are not covered and that will cause injustice that we have to consider very carefully before we just go for the particular policy that the Minister has come down upon.

There are very good grounds for the Minister's decision to come down on a particular policy. What has to be considered is, is it proper for our particular circumstances? The Minister has rejected the system that is in operation in England now and in operation in eight of the provinces of Canada. Two of the Canadian provinces—Quebec and, I think, Prince Edward Island— have not adopted them. It is rather remarkable that Quebec has not adopted the policy but it is explicable, I suppose, because Quebec would not have anything to do with the Code Napoleon. They have, I think what is called dominion property or community property, but that is not the same thing, not in any way at all. I think the one-third or, at least, the share that is in France derives from the Code Napoleon. I have heard it suggested, and I do not guarantee either its accuracy or effectiveness, that this particular provision deriving from the Code Napoleon in France tends to some extent at least to be responsible for the limitation of the family in France. That may not be true.

It is not such a glorious thing as the Minister makes out in his speech, notwithstanding all these learned gentlemen, I have no doubt, with high academic qualifications and integrity who have been advising him. I make this comment without any great rancour, that it is a pity that before the decision was taken originally members of the Bar were not consulted. To have jibes at us does not worry us at all but it might have been useful if we had been consulted. I understood the Minister to say he consulted a number of people——

The only people who asked to see me were the members of the Incorporated Law Society. I met them and the amendments meet every single point they made.

I do not want the Minister to divulge any secrets but was that before or after the Bill was drafted? I may be wrong but I take it from the Minister's speech last night that it was he who saw the Incorporated Law Society.

That is right.

A rather strong decision was made about which the Incorporated Law Society, the Bar Council or any of the professors in the universities were not consulted.

The White Paper was submitted for their observations.

That takes away a certain amount of my objection or what I might call a mild protest. Now that I know the Minister has had recommendations from the Incorporated Law Society, I should like to know what they recommended on this. I do not think it would be confidential and I should like to know, not now but sometime, what they recommended. I could imagine they made criticisms of the proposals directed to showing the weaknesses in the original proposals and suggesting amendments but did they go further and say: "We do not like the system. We prefer this other system" and make any suggestions on that?

No. They pointed out a number of practical difficulties in implementing the original proposals and I drafted amendments to meet them.

Did they object to the system as a system and say it should not be brought in because of particular objections. Did they then say: "We favour the British system or the Canadian system."

They said they favoured the British system and then pointed out a number of practical difficulties in carrying out the Bill as it stood, and I met every one of those practical obstacles.

I have no doubt the amendments proposed by the Minister go a considerable way in overcoming the objections to the original proposals but it still leaves the big point.

That is right. That is the issue.

The amendments have undoubtedly bettered the position as it was under the original Bill. The next matter to which I want to refer is the case that was made by the Minister for these proposals that are now intended to be embodied in the Bill eventually. I should like to know from the Minister, if he is not breaking any confidence, what the National Farmers Association had to say. They represent an important section of the community.

I met them as well. They were agreeable to the Bill as amended. They raised objections to the original Bill and they were quite happy with the amendments.

What I want to know again is: did they make any objection to the fundamental principle in the Bill, about what is called the forced contributions?

No, they did not. They were concerned with——

With detail, not with principle.

That is right.

I am glad to know that. We have to make up our minds as to whether the rigid system we have in the Bill is better than the other. There are two systems, one the rigid system embodied in the Bill which has the forced contribution by the testator; then there is the other system of discretion which is operated in Canada and in most of the States of the British Commonwealth. America, I think, has the forced or rigid system. Why do we cast aside the system of traditional discretion? The Minister said he had certain reasons which he set out in the course of his speech yesterday. He gave a number of these reasons starting at the point where he said:

It might be thought that a system on the English of 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.

I am not satisfied that the reasons the Minister has given are sufficiently cogent to cast aside that system at least without very considerable further investigation. The Minister has set out a number of reasons against judges doing this, particularly, that the approach varies from judge to judge. Nobody knows that better than we who practice in the courts. When you have a case before judge A or judge B, you know what will happen to your case. That is a valid criticism but it is not in itself sufficient, and I join issue with the Minister when he says this at page 29:

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 a 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.

The opinion is only worth the strength of the reasons on which it is based. The Minister has not said who these leading English authorities are. He has taken one fromThe Law Quarterly Review but that does not represent a cogent statement of the matter. As far as I know there has been no attempt in England, in connection with law reform proposals of which there have been very many over the past 20 or 30 years, to seek a repeal of these provisions, or a claim that they have been unsatisfactory. I am not satisfied and I suggest the Minister should satisfy the House sometime that those statements of his there are founded upon cogent reasons and valid authorities of a convincing character. The Minister cannot get away merely with saying categorically: “It is simply untrue to say”.

I want now to refer the Minister to a few passages fromThe Canadian Bar Review. I had the privilege—it is one I value greatly—of being made an honorary life member of the Canadian Barristers Association and, in that capacity, I receive periodically a copy of their Review. It is very erudite, very informative and extremely interesting in regard to problems in Canada.

This is Bale's article, is it? I have it here.

This is the September issue. I made use of it in relation to another matter here in connection with restrictive trade practices legislation. The present Taoiseach and the Minister for Justice at the time challenged me to produce evidence in support of my argument and I was able to produce it from theReview and the proposal I made then is now incorporated in the Act, though it was said at the time it would be impossible to do so. However, that is beside the point.

At Page 371 the following appears:

A brief consideration of the merits of these two general approaches is, I think, warranted. If the most important attribute of the law is that it should be certain, it might appear that the legitim of the civil law and the forced shares of the United States should be preferred. However, certainty with respect to law means predictability which does not require a fixed rule such as is involved in legitim. Mr. Justice Oliver Wendell Holmes stated that: "The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies." It is, I believe, possible for practitioners to predict, within tolerable limits, the situations in which dependants will receive assistance and the approximate extent of that assistance under legislation which gives the court discretion about maintenance. The discretionary approach cannot, therefore, be disqualified on the ground that it is uncertain.

If we accept the position that society has two basic interests in the law of succession, testamentary freedom and proper maintenance for dependants, it is necessary to consider how the two approaches reconcile these two interests. The forced share scheme automatically comes into operation whenever dependants receive by will less than their statutory share. No matter how handsomely a wealthy testator has provided for his dependants, no matter how unworthy they may be, and no matter how beneficial his planned disposition may be, his will will be ineffective to the extent that it encroaches upon his wife's fixed share. This indicates that the forced share principle with respect to large estates interferes with testamentary freedom when protection of the widow does not warrant it. With regard to small estates, forced heirship may provide inadequate protection for the widow or widower. Only statutes which give the judge discretion in determining what is required for proper maintenance will ensure the maximum amount of testamentary freedom and at the same time provide adequate maintenance for dependants.

I quote that for one purpose, namely, to controvert the proposition of the Minister that it is simply untrue to say, as most critics of the present Bill have said, that the judicial discretion provides an unsatisfactory system. Here is an eminent lawyer, a member of the Canadian Bar Association, maintaining that it is a very good system. He goes through the legislation of every single province of Canada, criticises the drawbacks, points out the various decisions and the conflicts in decisions, if you like, in the various provinces. He is in favour of the maintenance of the system and wonders why Quebec and Prince Edward Island have not got it. The Minister said yesterday that it is simply untrue to say that it provides a satisfactory system. Apparently it is satisfactory in Canada. That does not mean, of course, that it is necessarily satisfactory for us, but we must not approach this on the basis of the Minister's stand yesterday, that one must cut out all consideration of the British, Canadian and New Zealand system. The system was very slow in coming in in England. There has been no outcry at all worth talking about; there was possibly some academic consideration, but there was no practical consideration to show that the Act is not working satisfactorily in England. Obviously it has worked in Canada.

The system had its origin in New Zealand in 1900 and possibly that is why it has such an influence in the Commonwealth countries. New Zealand was the first to show any progressive outlook in this matter. Again, I am not saying that that is conclusive. All I am saying is that there is a case to be made. What is wrong with judicial discretion? Where are all the authorities referred to by the Minister? What authorities are there other than, perhaps, academic authorities? The one in theLaw Quarterly Review is the only one that is mentioned. That does not convince me.

I want to suggest to the Minister that we approach this on the basis that it will not be done by what he called sensible discussions in Committee. I do not believe it will be done that way because these so-called sensible discussions in Committee resolve themselves invariably into verbal sparks; the Minister is stuck to the principles in the Bill and, while we may have these verbal sparks from one intellect rubbing against another, the end result is the same. We will not get beyond the Bill as sure as there is, to use Deputy Dillon's expressive phrase, an eye in a goat unless we get down, before the Committee Stage, and agree that this Bill is not unalterable Government policy.

Now we will not make political capital—personally I object to that phrase—if the Minister makes a further retreat on the Bill. Indeed, I should not describe it as a retreat at all. I should call it a sensible decision arrived at after grave discussion, with no other object than that there should emerge from the discussion, after serious consideration of all the difficulties and all the problems, a Bill acceptable to both sides of the House and to all sections in our community. That is what I want done. That is the plea I make to the Minister.

I do not want the usual Committee Stage discussion on this Bill. I want the Minister to make his case, bringing in all the evidence to support his point of view, and, at the same time, produce all the other evidence in favour of the judicial discretion, and then see if there is not some intermediate way more suited to the circumstances of this country. It might be one or the other, or a combination of the two principles, or an amendment of the British system. It is no use saying that when you go into court, you will be destroyed. It was pointed out by Deputy M. J. O'Higgins yesterday that we spend most of our professional lives preventing people from going into court. We do not encourage them. To use a phrase used by a learned judge who is now dead: we do not foster litigation. We say what we think is the proper thing and, as I am sure the Minister knows from his own practice, many cases are brought into court contrary to the very strong views of counsel and solicitor.

Litigation may be a bit expensive but it is an extraordinary thing that although people talk about the horror of going to court, going to lawyers, and all the rest, one thing they really like to do is go to court. They want to go, and they cannot be held back even though they are told they cannot win the case. They like the courts and they like a good fight in the courts. They will not be deterred by all the weepy talk we hear in this Chamber from time to time about lawyers and litigation. As the Minister knows, they get good value and they appreciate it.

Deputy Barrett will know of a case down in Cork some time ago in which half the parish were on one side and the other half were on the other side. It was a title action. They all wanted to fight. No one wanted to settle. The case went on for hours and hours, and finally a decision was reached in favour of one barrister. He met his client afterwards, who shook him by the hand and said he was delighted. He said it was a tremendous fight. As a person once said to me: "You were as good as Tim Healy." That was not said but it was meant. As I say, his client shook him by the hand and expressed his appreciation of what he had done. Then he said: "By the way, who won the case?" All he was interested in was the fight.

People will go to court no matter what we say. As one farmer said to his neighbour in a title process involving a gulley: "If you do not close it will cost you the price of a cow." On the question of judicial discretion, I know there are judges who may be different, and judges who may have different views.

There is the fixed share scheme.

That is what I suggest. What I want is that as a result of this Second Reading discussion, we will have agreement between all sections of the House that we are going to approach this on the basis of trying to get the best for the country. The amendments envisaged by the Minister are undoubtedly an improvement on the Bill but they do not represent fixed Government policy. The Canadians are satisfied with what they have, but it might not be good for us. In certain States in the United States, they have this fixed rigid remedy. New Zealand was the originator of the whole statutory judicial discretion and they are perfectly satisfied with it.

People go to court and the whole family are dragged there. Looked at coldly, that is horrible, but does it not happen every day of the week? One thing that does not stop people from litigation is lack of money. What may stop them is the public washing of family linen. No one in this country has ever been prevented from going to court through lack of money. I said years ago—the Minister was probably still at school—when we were discussing the perennial matter of legal aid on the Estimate for the Department of Justice, that no one was ever prevented from going to court through lack of money. We lawyers, who are supposed to be so money-minded, frequently give our services free, gratis and for nothing to people who want it. The St. Vincent de Paul Society also help them. In fact, a lady came to me recently and said: "I am one of the people you were talking about. Will you take my case?"

We must not be concerned with this idea that people do not want to go to court. They do, and they are prepared to pay for it. In fact, they will pay a bigger fee to a lawyer to go to court than they would pay to an eminent surgeon who has their lives in his hands.

Not so much in this type of case. This is more sensitive and delicate than a title action.

I agree, but they will fight a will suit to the last ditch if there is any chance at all.

Before I conclude, I want to make a few observations on some of the provisions in the technical part of the Bill. I am entirely opposed to the provision in regard to two witnesses being capable of witnessing a will at different times. I want to say this so that the Minister can consider the views I put forward. The making of a will is a most solemn act. Again I am open to correction by someone who knows more about foreign systems than I do, but I think there are very solemn procedures in foreign systems, too, such as, witnessing wills before a notary or in a consulate.

As I said, the making of a will is a very solemn act in this country. We must have two witnesses to the will at the same time. Supposing a man has one witness to his will on one occasion and a week later he has another. In the meantime there may have been a change in the physical or mental health of the testator. If that is shown in court, the will is gone. Some one else suggested that provision might lead to fraud but I do not think so because we are used to the idea of two witnesses.

For the same reason, I do not think the mere writing across a will of the words "This is revoked" is desirable. A man may come home from a fair and perhaps his wife may reproach him for the convivial company he has kept. He takes out his will and writes across it "This will is revoked". That is not sufficient consideration to give to it. He may tear it up if he likes. It takes a little more deliberation to tear up a will.

She would do better on the result of the intestacy.

At all events, I do not think it is worth making that change. There is no demand for it. What will happen is that the will will be put in a drawer with this writing across it.

What happens if he just tears it up?

It is revoked.

What is the difference between revoking it and tearing it up? I am with the Deputy on this matter.

If that is so, we will agree on that. First of all, it might be false and, secondly, you do not know what testamentary capacity the man had when he did it. He only wrote it there. However, the matter will be debated in court.

I approve of the provision in the Bill about extrinsic evidence. I consider it is a desirable reform. There have been many wills which have been given constructions in court that were, and could be demonstrated as being, the complete antithesis of what the testator wanted. The reform is a good thing but it is one which will have to be very carefully operated in practice. That is a matter for counsel applying to the courts.

There are two matters I want to refer to very briefly so that the Minister will have time to consider them before Committee Stage. There is a provision in section 27 and another provision in section 100 giving certain powers to the President of the High Court which I think the Minister will be very well advised to cut out of the Bill. Subsection (3) of section 27 provides that:

the person or persons to whom administration is to be granted shall be determined in accordance with rules made by the President of the High Court.

That should come out. It should not be his job or else there ought to be some direction in the Bill itself as to the lines along which the President should go when making rules. There ought to be some such direction and the Minister might look at it.

Section 100 has the same sort of thing. It says:

The President of the High Court may prescribe and publish forms to which a testator may refer in his will...

That rather appals me.

We shall delete that.

I want to make one final appeal to the Minister to adopt the suggestion I make that we will not approach this Bill on the Committee Stage as a Committee Stage Bill but that we will see the sense of having a wide-open discussion. We will not only discuss what is now in the Bill, as bettered by the amendments suggested and proposed, but consider all kinds of remedies and see if we can arrive at one that will satisfy all. It is very difficult to satisfy everybody. If there is discussion in all sections of the community and all approaches to the problem are discussed, there will be as many opinions as Deputies and probably as many opinions as farmers in the country. We will have the views of everybody as to how best to solve this problem for the good of everybody. I think we should approach this matter as far as possible with a view to getting the best solution and not merely any of the solutions proposed at present.

A great deal of thought, time and research has been put into this Bill and we have the fruits of it in many sections which I think will pass the House without controversy of any description. I should like to pay tribute to the Minister's advisers who went to such trouble to put before the House what is in many ways an excellent Bill and explanatory memorandum. I consider, however, that the Bill is in many ways not practicable. I refer to the more controversial portions of it when I say this. These have been referred to already.

I believe that when we are dealing with the making of wills, we are dealing with a general problem and it is terribly difficult, even for this House, to prescribe particular remedies for problems which can be met in the making of a will. I consider the manner in which this problem is dealt with in the Bill impracticable, and not alone impracticable but objectionable. It will still mean, as the Bill may be now as amended, or at a later stage, that a person making a will, will, not alone need the assistance of a solicitor but very likely his bank manager and auditor as well; otherwise, he could very easily find that the provision he made was contrary to the Succession Act.

I believe that if the controversial sections of this Bill were taken out and some general provisions made, extending the grounds upon which disappointed dependants could apply to the court and attempt to upset a will, it would admirably meet the purpose which the Minister seeks to achieve. It would be wider and would not be as particular as the provisions which the Minister makes at the moment. I would appeal to the Minister to approach this Bill from that point of view at this stage. Surely some provisions could be introduced which would throw open the court's opinion to members of the deceased's family on a wider basis?

Deputy J. A. Costello has already referred to the fact that there is a limitation at the moment on successive litigation in will cases. If the Minister were to say that if the dependant felt disappointed or that he had been unfairly dealt with, the courts would be open to him and the courts could then decide upon the issue, it would probably be the simplest way out of the whole problem. Provision should be made to prevent unnecessary litigation and to compel the court to give costs against unsuccessful litigants. It may be too soon to attempt such a solution but it would easily be the simplest, most sensible and most practicable way of approaching the problem.

This fact has been referred to by Deputy J. A. Costello, that the grounds for upsetting a will probably rob the court statistics of much of their usefulness. When we come to consider this problem on Committee Stage, it would be no harm to have some statistics before us. On 3rd November last, I asked a question here on the incidence of will cases, both in the High Court and the Circuit Court, and the answer was quite enlightening. In the year ended 31st July, 1961, there were 1,074 cases of various natures in the High Court, and, of these, eight were will cases; in the Circuit Court, there were 8,430 cases and, of these, only 30 were will cases. In the following year, ended 31st July, 1962, there were 1,068 cases heard in the High Court and, of these, only 13 were will suits; in the Circuit Court, there were 8,963 cases and, of these, only 16 were will cases.

As the Deputy has pointed out, that is no real criterion.

Unfortunately, there is a certain significance to be attached to that for reasons which, again, Deputy J. A. Costello has dealt with. In other words, if a person is disappointed about a will, rightly or wrongly, he is ready to dash into court and, even if his senior counsel or junior counsel, or his solicitor, goes down on his knees asking him to stay out of court, he will still go in. There is significance in these figures. The figures for 1963, of cases in the High Court, were 1,001, of which seven were will cases. In the Circuit Court, there were 9,306 cases, of which 19 were will suits and, in the year 1964, there were 1,086 cases in the High Court, of which 12 were will suits and, in the Circuit Court, 9,497 cases, of which 25 were will suits.

I think the Minister should realise there are hundreds of thousands, certainly tens of thousands, of wills made in this country which are eminently sensible, having regard to the domestic circumstances in which they are made. This is something which we must bear in mind continuously when we discuss this Bill. It is all very well to approach the thing from the academic point of view, and it is all very well to say injustice may be done sometimes. It is quite true that injustice may be done on some occasions. I have canvassed the views of many members of the legal profession in Cork city and county, as well as members of the general public, on this matter. I found that very few of them see any reason, much less commonsense, in the proposals which the Minister now asks us to adopt—even, as amended, I imagine.

I admit I have not discussed the amended proposals of the Minister fully, because they have only recently been made available. We are discussing the Bill before us in an amended form and the Minister can rest assured that in the south of Ireland, in the largest county which is Cork and the second-largest city, the people are out of sympathy with the proposals which the Minister puts before them. For that reason, we should approach the problem very carefully. Deputy J. A. Costello has already pointed out that the courts are always there to check errors and to improve. If the Minister were to extend the jurisdiction of the court to deal with inofficious wills, I think he would find that many of the wrongs which he seeks to right in this Bill would be righted by such a general provision.

I do not completely agree with Deputy J. A. Costello's suggestion that the number of intestate deaths in this country indicates that people are not very worried about what will happen to their estate after their death. I think any man nowadays, over the age of 50 begins to think, not alone of the next world, but of the future of those he leaves behind him as well.

How do you explain the 50 per cent intestacy?

Many of those who die intestate, die intestate deliberately, because they think the distribution of the estate made for them by the law is satisfactory. The Minister should bear that in mind, and we should not impute to every man who dies intestate disregard for the family he leaves behind. Many people feel the best will that might be made is the will made under the present system of intestate succession. I think the Minister will have to agree that a large number of those who die, die in that frame of mind. The result of the Bill, as the Minister has introduced it here, will be that there will be no more intestate deaths, or few anyway. The average man will go to his solicitor from now on to express some preference as between some members of his family and the others. Whilst I welcome the amendments the Minister has made, I do not think he has gone far enough at all to deal with the situation.

I do not intend to keep the Minister very long, because Deputy J. A. Costello has dealt with most of the problems with which I intended to deal. I should like to tell the Minister that Deputy J. A. Costello and I reached an identity of views, absolutely independently, in regard to section 27 (3). We discovered that this morning when sitting in the benches together. I do not see why this House should give to the President of the High Court the right to make rules for deciding the persons to whom administration is to be granted.

We agree on that.

I need not go much further than that, except to say I welcome the Minister's approach to that. This House delegates far too much of its powers to other sources and, if the Minister's approach to subsection (3) of section 27 is an indication of his future approach to these things, I welcome it very much indeed.

The Minister has also evidently decided to take out section 100. I welcome that, too.

On the question of dependants, in the Bill as amended, I think the Minister might consider whether there is a case to be made, in certain circumstances, for destitute parents, or a man who leaves no dependent children, who leaves a spouse only. I know of many cases of parents, especially nowadays when parents realise the importance of education for their children, and when the State does not make all the necessary provision for the education of their children who have left themselves in very sorry straits in enabling their children to take up a profession and prosper greatly afterwards.

I know many of those children, because of the care, attention and expense their parents lavished on them, have gone to England and America, have done very well and have forgotten their parents. The same is true of people who stay at home, people who have done well because of what their parents have spent on them, but who have forgotten it. I would ask the Minister to consider the possibility and advisability of making some provision for parents in such cases. It need not be an outright gift but some provision could be made for a trust fund for the maintenance of parents who prove to be destitute or of poor means. Not alone would it right many wrongs but it would relieve the State in many cases of the responsibility of maintaining these people.

I welcome particularly the intention expressed in the Bill to extend the jurisdiction of the Circuit Court to cases where the value of the estate does not exceed £5,000 or £100 rateable valuation. The Minister may think I have some personal reason for that. I think it is important that law should be made available locally and inexpensively to the people. Again, if the Minister's provisions in the Bill indicate a new view in regard to the making available of law generally to people locally and inexpensively, I particularly welcome the section. Whatever the reasons for it, I welcome the section very much and I think it will be welcomed throughout the country not alone by the legal profession but by those who understand what is involved in the matter.

The Minister invited the views of the House on section 77. My views are in accordance with those expressed by Deputy J. A. Costello. The Minister would be very unwise to change the present dispensation in that regard. I do not see any reason why it should be changed. It is a reasonable proposal that when a person is executing a document of the important nature of a will the present proposals should pertain. There is a safeguard, I think, in the fact that two witnesses have to be present in each other's company and in the presence of the testator when they are signing the will. The Minister would be very unwise to introduce any new proposal in that regard.

The Minister dealt with section 27 (3) and section 100 along lines that run similar to my point of view. I should like to suggest to the Minister that the principle involved in section 37 is not a very wise one. It gives free or cheap legal aid to estates where the actual value of the property might even be £10,000. The Minister will remember that section 37 (2) reads:

For the purposes of subsection (1), the value of agricultural land comprised in the estate of a deceased person shall be calculated at twenty-five times the rateable valuation.

We are deleting that section. I mentioned it yesterday in my opening statement. We are substituting an alternative.

I am very glad. I hope the Minister will not substitute any alternative proposal of a similar nature.

I shall go into it in greater detail later. Section 37 is going out completely. We are extending the system of probate registries, where people can make personal application.

Are you extending also the principle that not alone is the power of probate registries being widened but that they will be able to administer the entire estate?

No, they will not— merely issuing the grant.

I am quite satisfied. I think that was a very dangerous proposal.

This Bill has attracted an unusual amount of interest for a Bill of this nature both in the House, and in the country at large. I think it is a good thing that it has, because it is well to realise that Bills and legislation of this nature touching private law and the law of the individual have very far-reaching effects on the individual and on the community. Under modern circumstances, it is very important that this House should watch very carefully what we legislate for because there may be tendencies in the administrative machine to shove the community in certain directions for very good reasons that are not altogether what the community want.

This is a very important Bill not only in its substance but also for the amount of thought and preparation that went into it. For that very reason, our criticism must be forthright and our thoughts and care must measure to the thoughts and care that went into this Bill. In other words, we are not dealing merely with a mechanical or an automatic action. We are dealing with a positive setting of an aspect of social policy. I am, therefore, very glad to find that an experienced responsible Deputy such as Deputy J. A. Costello, a veteran lawyer of great renown in the legal history of this State, should express himself as he did here today. I think that most people who have had, on the practical side, experience of the problems with which he dealt would sympathise very greatly with his approach.

At the outset, though I shall be equally critical in some regards, I want to join Deputy J. A. Costello in the tribute to the people who did the thinking and the work on this Bill even though, I too, will fundamentally disagree on the controversial sections. However, I should like to join in that tribute. I should also like to say—and I think it should be said—that if somebody does not start the hare, so to speak, there will be no course: in other words, this problem had to be raised. It is no reflection on anybody to say that the problem was raised and faced. Furthermore, it is no reflection on the person who raised and faced the problem to say that a course was set. Rather, I think it is a matter for praise for the initiative involved in this. So, in any criticism we make on this measure, there must be no implied criticisms of another nature. Let us deal with the matter, as Deputy J. A. Costello said.

Before we get to the controversial parts of the Bill, the fundamental fact of course, is, as he stated, that the Bill combines features that are found in two types of Bills in a somewhat unusual way. Normally, we find that a Bill which comes before us is either a Bill that has something completely new in principle and the new principle is isolated and becomes the focus of discussion or else the measure is an administrative or consolidation Bill which is generally referred to as a Committee Bill. This Bill cannot be dismissed facilely as a Committee Bill, as some people on the Labour benches have dismissed it, or treated as a principle Bill, as the Leader of the main Opposition Party treated it. It is neither and, at the same time, it is both. This Bill, for the bulk of its actual content, is a consolidation and law reform Bill of great merit. The remainder, Parts 9 and 10, the testamentary parts, are the controversial parts and do introduce new principles into our law. The reason I want to expatiate on them a little further later on is that I suspect that the thinking behind it introduces a new attitude to jurisprudence when considered from the point of view of our traditional legal approach. These two things are separate and we should not be confused in them.

There are two separate things in the Bill which merit the careful attention of this House and for that reason, because of the nature of this measure, I agree with Deputies who said it should be committed to the whole House. I have a feeling the Minister is sympathetic to that view. This is not a case to be dealt with by merely a committee of experts and disposed of merely as a Committee Bill.

To come to the Bill itself, in its first Part it is a consolidation measure, to some extent, which should be welcomed from the point of view of the community as it will help to make law more fully known and very much more acceptable from the point of view of the practitioner, of the courts which may have to decide, and the administration which may have to interpret. I should like at this stage, in passing, to pay a tribute to the energetic efforts of the Minister's predecessor in the office of the Minister for Justice in getting ahead with consolidation and law reform and, through him and with the present Minister, the people who did so much of the staff work behind the scenes.

Anybody who knows anything about research in statute law and of how statutes and decisions accumulate will appreciate the industry and the devotion and the sagacity it takes to coordinate and to assemble the material that has grown in that natural way. In so far as the Bill does consolidate existing provisions and order them, I think it is, in its own right, to be welcomed. It also does something that becomes necessary from time to time: it provides for the rearrangement of the jurisdiction of, say, the Circuit Court and the superior Courts. The changing of the amounts of money involved, fixing limits, is something which must happen from time to time, and it is an important function which must be adverted to.

In so far as the Bill does that, it does it usefully and any questions that may arise on these details can properly be dealt with in Committee. I am glad to see that the Bill deals with what has been a traditional problem in property law. It arose for reasons the Minister gave in his speech. My own experience has been that it was liable to be a bit of a nuisance. I cannot say it caused all the difficulties that some people say it caused. On the average, in cases where problems arose from the difference between personalty and realty, real difficulties have been few in modern Ireland in recent times. There nevertheless was untidiness.

In regard to registered land, the difficulty has been dealt with previously. It is high time this provision was inserted and that this side of the law was rationalised. That this was done in the Bill is right and proper.

So far, one can have nothing but commendation for the Bill. Naturally, there were problems, some of them thorny, and again I think one must commend rather than condemn the attitude of mind that wants to face up to them. It is very easy to let sleeping dogs lie, but they may be in the way. The question of simultaneity—perhaps the death of two people, husband and wife, at the same time—has been a problem not only of academic interest to lawyers but also a practical one. It is not easy to see the best solution to it. Let us say it is not a major matter of law, of major interest to the community, or even of very major interest to the individual. It is something that can happen, does happen infrequently. When it happens, it can give rise to anomalies but, viewing it by and large, it is not a very serious social problem. Neither is it a serious legal problem. There is no reason why the problem should not be faced, however.

Because of that, I am rather easy, personally, on such a problem. I do not think I would join very greatly in any issue over it, but I do think it is dangerous to make such problems the focal points of discussions on jurisprudence—to make such relatively unimportant problems so much the centre of discussions on jurisprudence as to make them reasons for changing from the traditional system to some foreign system or getting systems of jurisprudence mixed together.

That, of course, is the danger of the academic lawyer. I am quite prepared to take this or any solution in regard to simultaneity. It is a problem, not a very important one. Well and good, let us go abroad or anywhere else for a solution but let us realise it is, in practice, from the social viewpoint, from the viewpoint of the community as a whole, indeed of the individual, relatively unimportant. I commend the attitude of mind that will grasp the matter rather than the one that will slip by it.

In so far as all these things are very excellent features of this Bill, it would be wrong for it to go forth that this is a bad Bill, or to have a tendency to denigrate itin toto because there are controversial features in it. Before coming to what is really the kernel of our discussion, perhaps I should mention one or two points in regard to administration. Perhaps “administration” is a bad word to use in this case because it might confuse it with the term used in relation to devolution— the question of local registry, the function of the county registrar or the customs official. What is really involved here is not a question of law: it is a question of ordinary practical working, but you must have regard to the fact that it is undoubtedly tied up with the administration of the law and how the law takes effect. Therefore, it should be organised, to my mind, within recognised legal mechanisms.

This is not a plea for lawyers, judges or legal procedure. It is very necessary that these things should be done properly, in an orderly way, with relation to their background, and their background in a case like this is completely a legal one, This is why I commend the Minister on withdrawing section 37 and on his approach to the county registrars.

I think it is illusionary for Deputies like Deputy Tully to think that a better service will be got from some other officer in administration. First of all, if there is any question at all, the matter will be so closely related to the courts that an official of that nature should have knowledge of it in the first instance. Secondly, the experience is there and traditionally the county registrar's office, and the county registrar, have been dealing with such and related matters. Therefore, that amendment is an excellent one and will not have any great opposition. There are, however, other difficulties which must be faced in all these cases and they are the convenience and cost. I shall return to this question of costs later on another matter. One of the greatest difficulties in dealing with the enforcement of law, of private law, is the cost, if it has to be referred for anything in the nature of a judicial decision or even a quasi-judicial procedure.

In administration of this nature, you have cases for free services. You have to meet two things here: to provide the services in the county registrar's office by the county registrar and the second is that a fee should be minimal. Another difficulty is location and at first blush one is tempted to suggest that, perhaps, through the district court clerks the matter could be centralised into the county registrar but I can see administrative difficulties here.

Three points have, therefore, to be met and the suggestion that the county registrar perform the service is excellent provided he is not asked to exercise judicial functions, so to speak, that is to make decisions of interpretation. If he is empowered to deal as the registrar then the fees, the cost of doing this, should be minimal. Lastly, there is the time at which he should be available and there is the location. The real difficulty is location but if necessary that point can be taken up on Committee Stage.

Perhaps this could be a good time to make a remark for Deputy Dillon's benefit. Last night Deputy Dillon made great play about White Papers and that this should have been promulgated as a White Paper, or something like that. To tell the truth, I cannot see the essential difference between a White Paper and a green paper. We have got it much more definitely in the form of a draft Bill than we would get it merely in the form of a white explanatory memorandum. I have often listened in this House to people on both sides complaning, and I have done a bit of it myself, that Ministers came in with their Bill so set that they would not change their minds about it. I have heard many complaints that the Minister was so committed when he came to the House that he was not willing to listen to suggestions or have another look at its provisions in the light of the discussion and the developments brought about thereby. Surely if there is anything in that criticism the people who have been so fond of making it should be very pleased that we have an approach to this Bill which is so obviously in the interests of the community. Here the Minister, and his predecessor, were prepared to issue a Bill for consideration and for discussion and had, like a judge, an open mind to postpone final decision until the matter had been carefully examined. Perhaps the partisan in us all makes it inevitable for us to say contradictory things but let us remember the approach which Deputy J.A. Costello indicated today. Deputy Costello is a veteran lawyer of very great standing in his profession and he also has the advantage of knowing the administrative side and we could heed what he has said in that regard.

Now, to come to what unfortunately appears in the public eye to be the Bill. To some people a thing is either black or white; some people have decided this part is excellent and some have decided that this part could not be worse. It is not as simple as that. I had better declare myself at the outset as being one of the severe critics of the draft, and that I remain, as I hope to show. Nevertheless, some move had to be made. Now we will take the original Bill, the Bill which Deputy Dillon would argue is the Bill before the House. It is approached from a certain point of view. Needless to say I cannot read the minds of the people who were doing the actual drafting nor can I know the thoughts that prompted them but I can see a double approach to it. Even if one does object to something there is no harm trying to see the approach of the other side. As I see it, these provisions stemmed from the inofficious or capricious will. The inofficious will has been notorious and, in certain cases is again just like simultaneity, one thing on which, at academic discussions on law the lawyers will fasten. It is an anomaly, an injustice, and something that calls for a remedy if remedy there be. All that, any reasonable man will appreciate.

The Minister's speech and the explanatory memorandum show a certain approach. I do not use the next word in any way disparagingly. That is the trouble about saying some of these things. I want to take it exactly as Deputy Costello did and say there must be no disparaging imputations put on the words I use. This has the hallmark of the academic lawyer's approach. I have great admiration for the academic lawyer in some ways, but we here are concerned with law as a social and practical thing. The thinking seems to be focused on foreign jurisprudence rather too much to the exclusion of the traditional legal thinking of the society whichde facto we have. I am not for a moment discouraging research or looking further afield if we can get something better. Again, there is no element of disparagement in this. It is an excellent thing to do.

I want to bring in, if I can, a small element of corrective balance. In reading the Minister's speech, the explanatory memorandum given in the first instance, and any other evidence before me, I can see no more extensive basis for the proposals in this measure than the three following. If there are more cogent reasons, I should be, I hope, only too glad to consider them. It appears to me to have been generated somewhat after this manner. A Bill to deal with the complications of succession law as it is today was desirable and was being produced. All aspects should be looked at. That was the first consideration. The second would appear to be the inofficious will, the manifest injustice of a testator capriciously disinheriting those to whom he had a duty. Stated netly, that certainly is a problem and, if it is widespread, an important one. Thirdly, in considering this problem, it seems to me it was the law reviews, the academic lawyers and the people of that nature who were consulted and who carried weight in the final decision rather than the judges and practising lawyers. In the Minister's speech we had quotations fromThe Law Quarterly Review. That was answered by Deputy J. A. Costello. What you really want in practice is the decision. I would have been much more impressed if I had dicta from judges in particular cases when they were confronted with particular problems.

Now, if that is the basis of it, I will go so far in answer as to say that I think I agree we should meet the problem of the inofficious will, that it is not right in principle anyway for a man to disinherit his wife and children, so to speak, on a whim or for inadequate motives. But when you find that the remedy proposed is going to have the effect the proposals originally in the Bill and, to a minor extent, the proposals before us have, then we must stop and ask ourselves some further questions.

The first danger any practical lawyer will recognise associated with a problem of this nature is that hard cases make bad law. Remember that. One interpretation of that is this. You may strain to do justice in a particular hard case, but in straining to do so you may produce a situation in law that brings infinitely more injustice afterwards. It is one of the facts of human organisation. It is, unfortunately, true that that is the case. Hard cases make bad law. Therefore, we have got to ask ourselves in regard to this Bill is this a case where the hard case of the inofficious will is going to result in bad law.

Unfortunately, I feel the danger is there. It must be guarded against. As an example of the kind of thing I am trying to say—the danger of the bad law resulting from the hard case of the inofficious will—the first symptom is to be found in the Bill itself. Once I saw the Bill, read Part IX and then saw that Part X had to follow, I saw the red light. When you bring in a provision and then have to start legislating for the exceptions from your provision —all too often in law it has to be done—it is something to be avoided if possible. When you find you are making a decision in principle of that nature and you then have to legislate to take cases out, what it means is that your principle is not or should not be as all-embracing as you have made it. The trouble about that part of the Bill is this: to meet the case of the inofficious will, that hard case, an all-embracing decision in principle was made on the implicit assumption it was all-embracing, and then immediately you find you have to legislate out exceptions.

Then, again, as has actually happened in the House with the Minister himself, you have to subtract from that again. That is a dangerous symptom and may have been an unavoidable symptom. It is not anything for which either the draftsman or anybody behind him, any of the staff officers preparing the Bill, are to be in any way impeached. In fact, they are to be commended for seeing these difficulties— fully commended for it—but it does set the question that when your principle raises this position for you perhaps you may have to review your decision in principle.

Perhaps, a Cheann Comhairle, you might allow me to repeat netly the point I made in order to make what I am going to say intelligible? My approach was this: seeing this was legislation to meet the hard case of the inofficious will, I was asking does a hard case not make a bad law and I then saw the symptoms of that happening in the Bill itself in that in legislating for the principle on the basis of the hard case immediately within the Bill itself, in Part XI, there had to be exceptions made. We have not even yet seen the end of the exceptions, and we have had exceptions to the exceptions. I was pointing out that that kind of thing can be a pointer to this question: is your principle as enshrined in those sections as all-embracing as it appeared to have been when it was accepted as a basic principle?

Further to develop the weaknesses from the point of view, does the hard case make the bad law, we have to ask ourselves two further questions. One question that must be asked is: is that case so hard that you must make bad law and, afterwards, how hard or how bad will the bad law be that follows it. When you have asked all these questions and answered them your final result must be a matter of judgment.

Let me then ask the second question which I pose myself: how bad in this country is the case of the inofficious will; how serious a social or even an individual problem is it? I am sorry I cannot accept Deputy Barrett's statistics as meaning anything because unfortunately, as far as wills are concerned, despite what others have said, I think people avoid having them tested in court. It is only exceptional ones and that would be for reasons of family pride or otherwise. Secondly, the law has crystallised in such a rigid way on it that you are not likely to get much change on any speculative matter where there is a will concerned.

So that, I am not impressed by the statistics in this but what I do feel is that, by and large, most people who make wills make proper wills. Here I should say straightaway—I am sorry; I am off at a tangent; I should have said it earlier—it is important to realise at this stage that the intestacy parts of the Bill are apart from the testamentary parts. In other words, in so far as intestacies are provided for in the Bill, I do not think there is anything fundamental there; we can talk about it; but, if you have provided for intestacy adequately it is all the more reason for adopting the attitude that I am adopting from this out.

Many people do not make wills because they feel the intestacy is adequate for their situation. In regard to those who do, in the vast majority of cases the wills have been satisfactory. Secondly, we must not blind ourselves to the fact, although it will give us no legal arguments for debating societies or anything else, most ordinary people when they make wills make decent wills because blood is thicker than water and most decent people look after their spouse and their children in a more sagacious way and in a way that is far more applicable in the particular case than any blanket legislation can do.

In this regard I am tempted to think of what one reads about countries that have divorce. In some countries that have divorce one would imagine reading the reports that everybody was divorced or something like that. The plain fact of the matter is that in these countries no less that here marriage and family life are treated by the vast majority of the people as something sacred. The instinct is in all of us, I hope, to decent things and decent feelings and it is a fundamental instinct in the human being to be devoted to spouse and to family notwithstanding the practical frictions of life.

In the same way, with regard to wills here, I feel that this case of the inofficious will, although it is obviously something for the pundits and for the writers of legal reviews to discuss, is an anomaly. It is a problem that should be solved if it could be solved and should be approached in order to get the solution. Nevertheless, because of what I have said, because the normal and the good are so normal, they do not attract attention. The abnormal and the forced do. We should not lose our sense of balance.

I, therefore, ask this question which I cannot answer categorically. I could come, perhaps, to a final choice for myself but will make no attempt to answer it. Every Deputy must do that for himself. The question is: how great is this evil of the inofficious will? How much real injustice is being done by it and in what type of case?

Moving from that, let us see what consequences can follow from the principle which this Bill introduces into our law that two-thirds of a man's estate is no longer disposable by him by testamentary disposition. Do not let us get involved in such details as where half is going to the spouse and what happens when the spouse is dead. These are details that have to be attended to. Well and good; let us take the essential point in it for a moment. This Bill proposes that the greater part of a man's estate is no longer at his disposal by will and, furthermore, it provides that certain people, namely, his spouse and his children, are legally entitled to a certain proportion of that whether he wishes it or not. That is the new principle that this Bill introduces and for the moment I will take it as in the original Bill, always conscious of the amendments that the Minister has brought in, but the Minister's amendments are palliatives only. The principle still remains.

What are the consequences of that? The first case, of course, that was immediately made, which, in fact, seemed to be a case based on the very reasons why the Bill was brought into effect was, why could not a man leave the whole lot to his wife? Again, I do not want to invite the Minister to say: "I have done all this." He has. I want to go through, to follow the process here. Why could a man not leave all to his wife? Because we had to deal with the case where, say, a man died leaving a young family which would have to be provided for.

The next type of case which, if the original provisions had remained in the Bill, would have created great difficulties was that of the small farm or small business. A case in connection with a small business came to my notice when this Bill was promulgated. It concerned a man who had a flourishing business and who died intestate, leaving children. The business had to be sold and everything went, which was the worst thing possible for all the family. If there had been a proper arrangement, a son who was able and willing to carry on the business could have done so. The tragedy of the situation was that no such arrangement could be made. That was very many years ago.

There is also the case of the small farm. You may wonder why I am discussing all this when it has been met by the Minister but I have a point in it to which I shall come later. Where a farmer's son remains on a small farm as virtually an unpaid farm labourer for the best part of his life, has he not, in effect, bought an interest in that farm? Provision must be made not only for the integrity of the farm but also for that further type of case which is very difficult to deal with by the doctrine of advancement. One would think the man who stayed on the farm, if you like, in expectation, would be the obvious object of his father's bounty. It is not enough to say that the doctrine of advancement will meet that point, on the one hand, or that consents will meet it on the other hand, for two vital and different reasons.

The doctrine of advancement will not meet the case. There are three sons on their father's holding. One of them stays on—this is in the past, I think; conditions have improved in rural Ireland but there was a time when this was true—as an unpaid labourer for the best part of his life. The other sons were not prepared to stay on as unpaid labourers but without any positive advancement from their parents, they went off and maybe did better for themselves in England or elsewhere. There is the anomalous position of the boy who stays at home working the farm and acting as an unpaid labourer. The Minister has met this by taking the word "dependent" out and the only reason I am discussing it is to get at a principle which is involved. The original proposals in this Bill would mean that the man who went off and had no real claim would get a share of the estate and the man who had actually earned it by his work would not get it. I have dealt with that in some detail in order to indicate the anomalies which can arise from this type of legislation, and neither the doctrine of advancement nor the mathematical apportionment of shares can meet any such case. I mentioned consents a little prematurely and I shall come back to that in a moment, I hope, in a more logical way. There is a first symptom that makes one beware.

The next question is that of independent children. Both Ministers have been very ready to meet that point but in that regard I want to come back to my first point, that hard cases make bad law. In regard to the fact that the Minister now finds himself making exceptions for dependent children, for the farmer's son and for the wife, is this trend of exceptions a further pointer to the fact that the hard case has been unduly influencing the legislation in this regard?

I shall raise this on the Committee Stage again but in passing, I want to ask the Minister this question, seeing that he has—and rightly so—excepted children who are independent so that only the spouse and dependent children are involved: why bring the non-dependent children into the reckoning at all? Why not calculate their share and leave their share free? If it has been decided that children who are independent should not have a statutory claim, it does not seem logical that their share should be brought into the non-disposable part of the estate. Their share should go to the free part rather than to the tied part. However, that is a matter with which we can deal on Committee Stage.

Not only is there the pointer of the wife being made an exception, the dependent children being made an exception, the farmer's son and the family business being made an exception, but if you go that far, there may be something further than that in the family interest. There may be other cases not necessarily a farm or a business but a family house or a bit of family property. There may be some reason for keeping that property and giving it to one person rather than to another. If it is brought into question at the will stage, it may cause considerable embarrassment. There is also the question of the rights to the family dwelling. Again, this is an exception which is compelled by circumstances only to complicate the law. The more you go on with this, the more you find yourself with a great many exceptions. Here you have a provision providing for a great many exceptions and, further to hedge them round, you find you have something more complex than you envisaged at the outset.

Is that not yet another indication of bad law? Are not all the characteristics of good law simplicity and directness? The manifest intention is to get order and simplicity and it is not commendable to have in legislation provisions which complicate the law. I referred to the exceptions in Part IX. Here we get into further difficulty. I understand—indeed, I sympathise with —the very able people who dealt with the provisions of section 119 but now you see because of other considerations, we have to delete subsection (4) of section 119. One is then left with a very restricted form of exception in what remains and, as Deputy J. A. Costello pointed out, that is by no means adequate. He mentioned a case very similar to a case of which I have a note here.

What happens in such a case? You have provided only for a decree ofa mensa et thoro. What about actual physical desertion? Suppose one spouse deserts another, what happens then? Deputy Costello's case can be pushed a little further. Suppose a spouse, having failed to get a separation, finds the situation utterly unbearable and clears off? What happens in these few cases? I believe they are comparable in number to the inofficious will cases where one married partner misbehaves but, for the sake of the children and for the sake of the Faith, they stay together and make the best of the situation. But one partner may leave the other. What about a case like that?

How is such a case to be provided for? You have the hard case of the inofficious will but, equally under these new provisions, you could have a hard case in relation to an innocent woman who might have a dependent sister or relative who might be the only friend in her distress. That woman may have been deserted by her husband. Is he to get all her estate, or even part of it, notwithstanding that? But the situation is even worse than that because if you try to legislate for that exception, you get caught the other way. There is the case of the woman who has had to leave her husband because he becomes unbearable and impossible because of drink. She quietly does the decent thing, having stood by him as long as she possibly could. If we provide for the first case, how do we deal with her? One gets into a regular morass of exceptions and counter-exceptions all because of the inofficious will.

I anticipate now that I will be charged with making imaginary exceptions or ones of such rare occurrence that they are not of importance. Fair enough, but let me ask a question: is the inofficious will not as infrequent as the type of case with which I am dealing here? It would not take any great ingenuity on anybody's part to produce cogent reasons and if one were to sit down in the study and peruse the law cases, using one's imagination, one could paint a much more intimidating picture just as one can imagine all the horrible cases of inofficious wills, even picking out some very bad cases in forensic history.

Everybody feels a very fine job is being done in tackling these problems and the reason I advance these arguments is that I believe we must look at the practical side and ask does a hard case make bad law? We are not out of the bog yet even when one considers the consequences. Another symptom of the dangers in principle is the fact that it had to be foreseen that settlements could have a bearing on the problem by either defeating the purpose of the legislation or from the point of view of protection where the settlements would be meritorious. Immediate reflection showed that both the suspected dangers were very real.

One of the troubles in dealing with testamentary disposition and the curtailing of it is the fact that it is very difficult to do that if you do not curtail settlementsinter vivos. In other words, the date line of a man's death is not sufficient. You cannot partition everything on both sides of that line and what he does before his death may have a very grave bearing on what will happen after his death in relation to his property. The Minister has rejected the principle of ten years, but we are not free of trouble yet and one comment in the debate is of some importance. If there must be a search within three years of death, if one is limited to three years, anything that depends on that uncertain period will be suspect. Secondly, it is very difficult to say what would be in anticipation of a testamentary disposition and what would not and your only answer would be to bring in a phrase that would invoke the jurisdiction of the court.

What is to determine, whether it is ten years or three years, that the transaction is in defeat of testamentary intention or testamentary liabilities? Suppose for a moment a man owns some property and decides to dispose of it for cash. He says: "Mary Anne will not get that anyway", and he blows it good and hard. Who is to say that was deliberately in defeat of Mary Anne's legal rights, or whether it was a legitimate thing for him to do with his own property while still alive?

He can gamble it.

Suppose he were of such a pious mind—and we might say of such a distorted mind; there have been such people—that he wished to will it to some charitable purpose. He finds he cannot do so, and what is to stop him finding roundabout ways to do so in the course of his life? If we can stop the direct transaction, he has other ways. If he cannot will his estate to the disadvantage of his family to some foundation he believes in, what is to stop him from giving it here and now? The trouble is that when you have complicated law —and this is getting very complicated —the more ingenious the Legislature are to provide for all contingencies, the more ingenious will be the man at the other end, and his legal advisers to find a way out.

If we embark on a course of trying to block all the loopholes, we are doing what the people who talk about unfortunate lawyers obviously want us to do. How can we deal satisfactorily with pretestamentary dispensations? All we really catch is the poor fellow who did not go to the trouble of exercising his brains properly and, shall I say, fraudulently from the point of view of the law. The man who sets out to do it will do it if we have that type of complicated provision. We cannot legislate for particular cases and no matter how we try, we will hit only a broad average, and I think more injustices will be done in many cases than the inofficious will ever did.

The Minister has gone a very long way to meet this situation and both he and his predecessor are to be congratulated on giving us an opportunity of dealing with these matters and discussing them in this way. I am taking that opportunity and I am grateful for it. This is a very democratic procedure, although Deputy Dillon unworthily chose to sneer at the former Minister. I thought it was rather bad taste, I must confess. We are setting a pattern in which all these questions can be courageously raised, where the staff work can be so thoroughly done, and where we can have these discussions. That is a great thing in our present day community, and I will welcome it. I hope my contribution, hostile as it is to the actual provisions in the Bill, will be taken in the spirit in which it is offered. The Minister is already showing his expertness as a professional in his approach to the Bill, and I hope he will not take it amiss from me, and that he will accept me as a former colleague——

The Deputy has not left? He is still his colleague.

In another way.

I thought the Deputy had left as well.

In another sense, I am not his colleague because he is on the Front Bench.

Is there that final line?

There is room for differences of opinion, and it would be a pity if a partisan approach developed, implying reflections on people with whom others were arguing.

I want to join hands again with Deputy Costello in his constructive approach to the Bill. If the provisions of the Bill are unacceptable to the community, or simply bad in the sense that they are not good, they are not the right provisions to adopt. They might lead to complexity, such as theante mortem complication. The doctrine of advancement does not help because there is the question of proofs and facts, and we can only escape the other dilemmas through the discretion of the court. The provision for consent does not help because it is one thing to get consent in the abstract, and another thing to get consent when you have vested rights. The very fact that these people have vested rights, and are in a position to give consent, precludes the provision of escape from other dilemmas by means of consent in settlements. Settlements can often act to defeat intention.

There is something in what Deputy Costello said, that you have the inofficious children and the inofficious spouses as well as inofficious testators. I should like to join issue with the Minister on the case he made that this provision would make for the solidarity of the family. I wonder if that argument can be cancelled out by other facets of the same story. I am critical not of the Bill itself—I am full of admiration for the expert way it was dealt with—but of the principle in this section. Except for the principle no better job could be done. The principle itself is open to the objections which I have tried to make.

Debate adjourned.