Dáil Éireann debate -
Thursday, 3 Dec 1964

Vol. 213 No. 4

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 dependant 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."

Major de Valera

The case I was making when the House broke for Questions was essentially on the basis of asking the question whether the attempt to meet the hard case of the inofficious will would bring in its train a succession of undesirable legal consequences. In support of my view I had pointed out, firstly, that the very fact that the Bill itself in its first draft had to envisage exceptance and provide for these exceptions was a certain indication that the principle enshrined in Part IX was not as all-embracing or should not be as all-embracing as it would appear to have been at the outset. That suspicion was reinforced by the fact that the Minister, for very good reasons, was removing subsection (4), but in so doing was leaving room for further censure and, I fear, the necessity for further corrective provisions. I said that these symptoms in themselves were a pointer to the fundamental issue involved and it was necessary to ask the initial questions over again.

Furthermore, when one considered the position of dependants, the position of disposing all to a wife, the position of the independent child as against the dependant child, the small family, the small farm, and the other matters I mentioned, which were mooted at large, it seemed to me a very good case had been made for reconsideration and that, in fact, it raised the whole question as to whether this particular part of the Bill—parts of the Bill are excellent—should be allowed to stand. I had, both hypothethically and otherwise, dealt with the consequences of the Bill in particular cases.

I want to emphasise again the essential nature of the points I was making. It is not that many of the objections I put forward, and that have been put forward by others, are not also exceptions. They are. Let us face this. Both in a number of the exceptions in the Bill and in its root cause, inofficious will, we are dealing with exceptional cases that are not too numerous. But that is all the more reason for asking: do these exceptional cases compel us to legislate for them, whether directly in the case of the inofficious will or indirectly to deal with the consequences afterwards?

I personally feel in grave doubt on the matter. Leaving the consequences, which I think I dealt with fairly adequately before Question Time, the consequences of a will with these new provisions in it, I want to come again to this question of the disposition of property before death. A colleague remarked to me during lunch that in practice there is very little likelihood that a testator will denude himself for charity or some such purpose, that before his death human consideration will see that he keeps his property. There is force in that. It will be only the exceptional man who will do the other thing. I agree with that. Equally, it will be only the exceptional man who will forget his family, who will make the inofficious will. If the exception in one case is enough to compel legislation, the exception in the other case is probably enough to compel excepting legislation and, as I say, you get further into the mass of complexities I spoke on.

There is one point I did not make but I will make now in regard to disposition before death. Perhaps I took a rather unfortunate example when I said disposing of it to charity, but there are cases where a man may very well dispose of his property before death, very many cases which will be hard to decide in a situation like this. For instance, suppose we put the position another way. The man wishes to have more money, to enjoy a better income, he wishes to live in a bigger house or to change his mode of living. What is to stop him selling the property which he owns and then spending the proceeds? The point is this, that if we make a provision in law that he must leave so much under certain conditions in certain ways that he does not approve of, we are practically inviting him to do some such other thing as I have said. Furthermore, there may be dispositions in the last three years of his life; there may be even a question of death duties—that would apply to large estates—but I could not enumerate the considerations that might prompt a man to dispose of his property during life. He will find ways of doing it if you do not prevent him turning his property into cash—and it is very difficult to see how you can. If I own a house and in my declining days I have only a small pension, as many people have, and I decide I am going to live a bit on my capital, who is to say I should not do it and, once I have converted it into money, who is to trace how I have spent it?

These are all practical difficulties. They are not difficulties in principle. They are not the type of difficulty that, again, the academic lawyer or the lawyer in the university will think about but these are the practical things that the practical man will do.

Therefore, you have the dual objections of the futility of trying to tie him up. The more ingenious you are with legislation the more ingenuity will be exercised against you and the more complex your legislation, which is a disadvantage in itself, the more opportunities you give, and you still do not succeed. On the other hand, you bring in a period of uncertainty.

Take a genuine case of a man with a small pension and property who wishes to dispose of that and, so to speak, absorb his capital. He dies within three years. The whole transaction is immediately suspect. It will not take much ingenuity to represent it, given some little straw to grasp at, as having been done with the intention of defrauding the intention of the Act. Who is to judge that? It will have this effect, that if there is any question of that, both the value of his property will be depressed as well as the actual saleability because you are bringing in what might be called a defect in title.

I could go on probably for the next hour multiplying possible examples of this kind of thing. Some of them might be probable; some of them might be most improbable; but it suffices that they are possible. Then I raise the question again as to whether our initial departure is a good one when it involves such consequences as these.

So far, I will admit, I appear to have been merely destructive in dealing with the matter. I may have appeared to be imaginative when I suggested that if it was for the benefit of the family in one way it was against the family in another. I think that point could be developed but I will not develop it because, quite frankly, I think it is straining things either way to represent this provision as regards testamentary disposition as being either a grand bond for the family or a great potential cause of dissolution of the family. It is neither and an argument based on such abstract considerations is of little force compared with the arguments that can be advanced in the more relevant and direct way.

If there are tendencies in the present law of devolution towards breaking up the family, there are also tendencies in it and possibilities in it which greatly unify the family and exactly the same thing can be said about the provisions in this Bill which are, of course, another type of legal approach to the problem. So, for that reason, I do not think I will expatiate any further on the alleged social importance of the thing no matter how it might appear in an academic discussion.

On the other hand, as I say, I have been attacking this, if you like, all from one point of view. It is high time somebody asked me the question, and I ask the question myself—what are you going to do about it or are you just going to sit back and do nothing? That is a fair question. My answer to that is, sometimes doing nothing might be better than doing something if doing something is going to make the last state of that man worse than the first but I do admire the attitude of mind that wants to keep up to date and wants to do something and for that reason I find myself, once again, stimulated by Deputy John A. Costello whose valuable contribution this morning I have already commented on and whose experience and views should not in such matters be lightly cast aside by this House.

I think the kernel of the matter is the discretion of the court and that what is really wrong in these provisions in principle is that we are attempting to find a solution outside the spirit of the legal system which we operate. We are too ready to assume that judges and those administering and operating the law will be unreliable and too gullible or ready to think that because it appears nice and orderly on paper the provisions of codes or rigid provisions in enactments will, when it comes to the practical and social operation of the law, have an advantage. That is a mistake. This Minister has the advantage of having an expert knowledge of the situation and I am going to ask him would he not reconsider all this from the point of view of the system of law which we are operating here and also from the point of view of judicial discretion and the whole spirit of the legal system which we are operating here and see whether a solution within that framework can be found rather than attempt to seek a solution from extraneous jurisdictions and jurisprudences.

I want to take this opportunity to digress slightly and I think I am in a position to do it. It is time that we in this House should be careful to consider the importance of our legal system, not only of our courts but the whole legal system and the wonderful job it does for the country and the wonderful standard of justice and fairness that there is here. Nothing is perfect. There are objections. But there was a time in this country when it became very fashionable to run down politicians and public institutions. It went so far that it nearly got to the stage that people would be ashamed to be public representatives.

Let me pay tribute to those in this House from the leaders on this side, of our Party, to the leaders of the other Parties, and not least the Taoiseach and Deputy John A. Costello and men like him who had to fight and had to point out the honourable and useful role of the parliamentarian, of Parliament, of public men and public bodies. We ourselves have had to fight for that and we have had to suffer slander and sneers from people who should have known better. Is it good enough now that the legal profession should come in for this cheap sneering? The legal profession, any more than any other profession, do not exist merely for selfish purposes. They are professional men, whether barristers or solicitors, but they are honourable men and are giving great service to the community. These men are the custodians of the freedom of the individual which is enshrined in the Constitution.

I hope I will be pardoned for bringing a personal element into this but I can talk perhaps from a privileged position because I did not set out to be, nor was I by first choice a professional lawyer. However, for many years I practised at the Bar to earn my living. I was a barrister and I know what happens in the courts and I know the solicitors. I can talk now because I am no longer at the Bar. I feel it is up to me to say what I am saying. I have no personal interest whatever in this but I do think the remarks about lawyers that were made by Deputies here yesterday were very unworthy. The people who are making these remarks would be the very people who would talk about the freedom of the citizens and all that. I know this is a digression but I am taking this opportunity to say what I am saying about some rather unworthy remarks which were made in the course of this debate.

I have known the courts and lawyers. Perhaps I joined their ranks as a sceptic but I can say from my experience that if the standard of professional knowledge and conduct by and large was as high everywhere else in the community as it is among the barristers of Ireland, then perhaps many of the abuses for which we have to legislate would not be there to require legislation.

These comments are not made merely in defence of lawyers. These remarks have been made far too often. In this Bill there is an issue that is coloured to some extent by the type of unworthy thinking that is behind remarks about lawyers. Our law is there and our judges are there for a purpose and they are doing their work with integrity and to the best of their knowledge. There will be human variations of judgment and you will not improve things by transferring that function to an officer in the Civil Service or somewhere else. They are all equally good but equally fallible. We have a legal system which has worked well on the criminal, constitutional and civil side. That system has a tradition. It has a certain wholeness about it and a great many merits, and anyway it is the system which we have got. We should look for our solutions within that system. It is dangerous to run outside and to try to graft ideas on to our system without paying attention to the characteristics and the nature of the system as it is.

To the academic lawyer, the English law and the system of law we have is untidy as compared with a code but it has one very great merit. It grew and it grows with the community. It has a natural growth. That is why in spite of these codes and other developments throughout the world, there is a merit in the common law custom and what has evolved from it of English jurisprudence which carries it over a long period of time because of its flexibility.

What we should be trying to do here is constantly to get away from the complexities that grow with the system. It is a growth matter. We should always aim at simplification. It is a fallacy in law as well as in many other things to think we are legislating for all time. We are not. Foreseeable periods are what we are legislating for. Why this digression? One reason is that there has been a certain reluctance to trust our own judges and lawyers, perhaps because of the type of remarks I have heard on occasions. The other reason is that the approach I would prefer here—and let me say I do not claim infallibility—

General MacEoin

Very near.

Major de Valera

Is that so?

General MacEoin

In the Press anyway.

Major de Valera

I disclaim any such pretension. These are rigidities that can be criticised and the person I have called the academic lawyer—and let me point out I use the word "academic" there without the slightest suspicion of disparagement—will put his finger quite rightly on the absurd complexities that creep into the law.

In the case of the law of testamentary disposition, I do feel in certain ways that undue rigidity has crept in. I should like to point out—and I think Deputy Dillon did not quite grasp this point—that as far as principles are concerned, the whole principle of our law is that the intention of the testator should rule and the simpler the will and the clearer the intention, the better. That is the general principle, but when it comes down to working it out, there are decisions upon decisions and so on.

When we are exploring these other matters, and having made the case that we should have these matters explored on the basis of judicial discretion, can it not be approached on the ground that a procedure is there for application to a judge and can we not then provide for inofficious wills in that way, leaving a certain amount of discretion to the judge? Whether or not that approach will involve leaving the sections as they are, with just a slightly widening qualification for that discretion, I do not know. I am referring now to the sections as the Minister has amended them. I think we should examine the matter from that point of view. After all, it will be very hard in our system to get away from judicial discretion. Already I can itemise a number of points in the Bill where the matter will have to be decided in a particular case and what is that but bringing it back in one form or another to judicial discretion?

Consider the question of whether a disposition before death within the three years is or is not in defeat of the provisions of the Bill. Who will decide that? The court. Who will decide who is a dependent child? We all know very clearly and instinctively what that means but, when it comes to a formal claim, who will decide? The very slightest dependency may, from one point of view, depending how decisions go, capture what in effect should not be captured and vice versa. This is a constant feature of any law that is administered in a way that takes cognisance of the individual.

I have made the case that there are objections. I would ask the Minister whether we could not simpliciter consider a completely different approach and, if he is not prepared to do that, whether the approach which he has outlined in his amending memorandum could not be adjusted. There are all sorts of further snags with which we can deal on the Committee Stage, if the matter comes up, but both for small estates and for very large estates, and before death dispositions, you will have grounds before the Bill is finished for judicial intervention.

That brings me then to this question of unworthiness. That has given rise to a good deal of thought because it is quite clear there could be certain cases in which there is unworthiness. That is just another way of describing cases in which the Act should not apply. The Minister has taken out one set of cases but, if he takes out subsection (4) of section 119, he is then left with undue rigidity and the only solution I can suggest is some procedure in Chambers, something on the lines of the procedure in relation to income tax where the initial questions at least could be asked and decided as to whether or not the matter were captured.

There are a few minor points I should like to make touching on the Bill. I have not touched on the question of beneficial and proper interest. Perhaps we can deal with it on the Committee Stage. With regard to very small estates, the objection is that one-third will not mean anything to anybody and the Bill, therefore, achieves nothing. With regard to large estates, there are all sorts of complications when one takes into account the diverse forms in which property can be held, disposable property that survives on death. There will be some questions of beneficial interest perhaps, as to when the interest is beneficial and disposable, and when it is not, and so on and so forth. Frankly, I cannot see any way out of it than appeal to the much despised, if one is to believe some people, legal process and legal practitioners.

Some people seem to think there is some peculiar merit in avoiding consulting solicitors. I wish these people would realise that consulting a solicitor is a very private and intimate transaction in which they get private and individual attention. If it were on a public basis, whether consulting a Department or some particular body, notwithstanding the excellence of the personnel involved, it immediately becomes an impersonal, semi-public matter to be decided in the light of more or less rigid rules and the service the individual gets for the type of question involved—very intimate and personal questions arise—will not compare with the individual service a solicitor can give.

With regard to stamp duties, fees and costs, I think the community could do something from the point of view of minimising fees and the cost of administration and so on.

With regard to the system, I want to say something now that I have said here before. I have certain doubts about the value of explanatory memoranda. At one stage they seemed an excellent idea but the explanatory memorandum now can be nothing more than an attempt by those who drafted the Bill to say what their intentions are. It is impossible that the two documents should coincide completely. That is in the nature of things. When explanatory memoranda attempt to itemise, as the original memorandum did in this case, it is merely a duplication of the Bill and, in the nature of things, the memorandum cannot but diverge from the actual provisions at some point or other. That form of explanatory memorandum is not necessary. On the other hand, the supplementary explanatory memorandum, which came out in advance of the actual provisions, and without the same type of duplication, is extremely helpful.

There is one last thing I want to say, and I say it with some hesitation because my purpose might be misunderstood. It is all right to go abroad and look for advice, but when we are dealing with the law here, we are dealing with something that vitally affects the community. We are not attempting to build a legal or any other edifice per se for its intrinsic beauty or goodness. What we should be trying to do is to provide a piece of legislation for our own people, in their own circumstances, and for their maximum good. If that is to be achieved, we should first be assiduous in consulting the views and opinions of our people at home: the Incorporated Law Society, the Bar in a case like this, or any other body that might be interested, such as our university professors.

If we go abroad to get expert advice, that is very fine, but our own people should have an opportunity of commenting on these matters. I may be wrong but I seem to find a certain reflection of German jurisprudence in some of the approaches to these matters. I am not altogether enamoured of that. For my part a culture and a tradition that produced a Schopenhauer, a Nietzsche, a Hitler, a Himmler, have no great attractions over our own.

If we appreciate one thing here, no matter how we got it, it is that we have a legal system which has worked well for us so far in the 40 years of the State, a system which we have accepted by a solemn plebiscite, in effect through our Constitution, a system whether we like it or not—and leaving aside the problem of its origins —which even before the State came into operation was already adopted, a system which by and large today is giving good service. We must continue to think in those terms. Well and good if we want to change completely and bring in another code or a different jurisprudence, but if we do not, we must be very careful about grafting foreign concepts on to what we have.

I know, as I say, that the origins of the system we have today, like the origins of the Civil Service, are not native. I know we have inherited it. The law we have is not the Brehon law and I know this law was the instrument of great tyranny in this country in the past, from the time of the Poynings Act, the penal laws, down to the Balfour Acts. We took over the Civil Service when we took over the State, and it is no shame to us that we adopted the things we did adopt, and moulded them in our own way, in our own Irish way. We have today one of the finest Civil Services in the world— in some ways I would say the finest in the world. We have also got a very good legal system which is gradually being moulded to suit ourselves, our own ways, and our own growth, but we must, so to speak, have regard to that growth.

Lest it should be thought that I am criticising the fact of looking elsewhere I want to say that I am not. I want to emphasise that we must look around at home too. I want to emphasise that when it comes to a question of bringing in concepts, whether or not from Scots law which is very attractive because it has worked within our system to some extent—it has already to a certain extent been grafted in with harmony—whatever way we go about it, we must have some regard to the unit—albeit a fuzzy and untidy unit— which is our legal system and try to arrange it with simplicity and certainty.

Mr. Leneghan

Over the past few months, a great deal of nonsense has been spoken and written about this Bill. No doubt the final abyss was reached when Deputy O'Higgins arrived here and associated it with the future of the Border. The Bill as originally introduced appears to me to be one of the finest attempts made yet to introduce what I call perverted petticoat legislation into the House. I am perfectly satisfied, having seen the Bill and the Minister's memorandum, that every effort is now being made to rectify former errors.

I do not believe these provisions were ever thought up by the then Minister for Justice. This type of Bill would seem to have come from a succession of mothers' meetings, or something of that type. We all know those busybodies who go to meetings because they are not happy in their own homes. They have some kind of a scheme which they try to foist on the public. They start off by holding a meeting under some guise, and perhaps the biggest "twerp" succeeds in getting elected chairman, with an equally effective secretary and treasurer. Those "nuts" get going then and think out daft schemes. They work their way until they get into high places and succeed in getting people to become as daft as themselves. That has been happening, and it appears to me to be one of the things which started this Bill rolling.

I am perfectly satisfied that a Bill is required, and I am also satisfied it is not required in the format in which it has arrived in this House. No doubt we will substantially alter it in a short time. There are two lines of thought. There are those who attack the Bill and say when it goes through all mankind in this country will be condemned to hell for all eternity, and those who say that when the Bill goes through, everyone can die in peace. They would be the people, I understand, with money and property. I have not noticed any provision in the Bill for trying to distribute debts. One of these schools of thought is just about as daft as the other.

There have been certain things wrong in the laws of succession and down through the years it has been possible for people to do as much wrong as right. I am perfectly satisfied that the amount of wrong done was very small compared with the amount of right. I am not one of those people who accept that just one particular instance proves the general rule. I have never held those views and I do not want to hear those views expressed in relation to a Bill such as this. It is well known, of course, that members of families and wives have been badly treated but as far as I know in this country, they are a very small minority of cases. We cannot introduce a type of rigid legislation just because of some single instance.

Perhaps it would be only right to say that it has probably gone abroad that this is a Bill to end all Bills, that there will never be any other Succession Bill introduced in this House. That, of course, is farcical. We will have to change our legislation as times change. Those people who have got that into their heads should have it made clear to them that it is not so. My own attitude to the Bill is that it is one which has been formulated to cure a few of our lesser ills. These ills, or evils, have now been magnified out of all proportion to their importance. They have been completely and utterly magnified.

People have written into the Press day in and day out about this matter and bigger fools than themselves have replied to them. This has gone on for months and it has now reached a point that the whole Bill has become a major issue. In any case the people who are behind this effort to magnify this Bill out of all importance are people who are anxious only to create dissensions amongst the people of this country. They are people who are trying to smear the present Government and there is no other way of looking at it. The people who write into the Press and who are coming out against this Bill have no particular interest in the people who come in to defend it. They just want to make political ballyhoo out of it. That is the attitude which has been pursued by most people.

I do not know what those people hope to get out of that attitude. I do not for one moment believe they will succeed in stampeding this House into doing something which it does not want to do. This Bill will go through in a reasonable manner and in its own good time. It will definitely be of value to this country in the days to come. I do not believe by any stretch of imagination, no matter how we deal with it, or try to improve it, that this is the final enactment of this type we will see in this country. All these human instruments are fallible. We cannot deal with every case, no matter how we try to deal with this matter. We can only go out of our way to reduce hardship to the minimum.

It is possible in some parts of this country certain types of hardship are created by succession settlements, wills or assignments. This may be more noticeable in some parts of the country than in others. We do not get a lot of it in the West of Ireland because the people there have a much more Christian outlook than in other parts of the country. I never heard some of those stupid things which have been fired up at this Bill over the past few months. They have never happened in the West of Ireland and I believe in most cases they are figments of the imagination of the people who wrote them.

There will still be the odd case, no matter how we deal with this Bill, where somebody will succeed in getting away with murder. I have not gone into the original Bill in complete detail because I knew the alterations in it would be so great that it would be more or less a waste of time to do so. I believe there is one matter which will need to be dealt with in some way in the Bill. As far as I know, there is nothing in it so far which deals with the matter but we will find that out as it goes through Committee Stage. I refer to the possibility of a man, who, instead of making a will or making an assignment, just goes and disposes of his property and tells his wife and his family to go and be damned. He may put his money into an English bank or somewhere else, where it cannot be traced. I do not know if there is anything in the Bill to deal with that matter. I do not know if it is possible to deal with that type of case but if it is at all possible to legislate to deal with this matter, it is important that it should be done.

Mr. Lenihan

It is in the Bill.

Mr. Leneghan

Generally speaking, the ordinary decent Irishman provides for the dependent members of his family and for his widow after death. I have no doubt in the world that that position will not substantially alter in this country in the foreseeable future. I do not believe that legislation will change a man's mind. I agree, if he is prepared to get sufficient legal advice and to use the various devices which can be used, no matter what type of Bill is brought out in a matter like this, it can be got around. You could be arguing along those lines on this Bill in this House for months to come but that would be sheer nonsense. No Bill can be completely perfect. No Act passed by any Parliament is perfect or ever will be.

Deputies instead of pursuing a policy of destructive criticism, should now come together on the Committee Stage of this Bill and discuss it in a constructive manner. If they will do so, they will be doing a good turn for a very substantial group of people in this country. They will be doing a good turn for those people who often fail to secure their due and who often wonder what is to happen when their husbands or fathers die. If we can do anything at this stage to clear that doubt from the minds of that small minority, we will be doing a very good day's work indeed.

Mr. M.E. Dockrell

I have listened with a great deal of interest to the various speeches and remarks on this Bill. I should like to join with the other Members—some of whom are from this side of the House—who praised the Department and the Minister for the Bill. There are parts of the Bill to which Deputies on both sides object but this is a fine effort to codify and simplify a vast amount of legislation. The Department of Justice is to be congratulated on that work. When we came to certain parts of the Bill, and it was obvious that various sections would be objectionable to many people, the Minister asked us to make known our objections if we had any and he would receive them and pay the very closest attention to the objections put forward. A number of Deputies raised those objections and indicated the points on which they were at divergence with the Minister. The Minister, of course, has introduced his explanatory memorandum and has said he will introduce amendments on Committee Stage.

It is a pity that in all the circumstances we are not dealing with a Bill which really outlines the Government's, and the Department's wishes in this matter because the Bill does not do so. Until we have the clear amendments, and so on, it is very difficult to say exactly how far we will or will not object individually to the various parts of the Bill. The biggest difficulty comes, I think, with the question as to whether we should have judicial discretion or a rigid code.

Before I speak on that, I should like to say that I was very interested to hear Deputy de Valera refer to the contribution Deputy J. A. Costello made this morning. Unfortunately, I came in rather late and missed the beginning of his speech but I heard sufficient of it to realise, not, indeed, for the first time, that a very fine, incisive and powerful mind had been brought to bear on this subject and the House was being given the benefit of that mind and the years of legal training and legal knowledge which brought it to the pitch of perfection. I am sure the Minister will have found the remarks of very great interest and some of Deputy J. A. Costello's points, I am sure, will be embodied in the Bill.

When you come to look at the Part which has to do with the making of a will, and that is the Part which I wish to discuss, you find yourself in this situation. Do you in the main trust the testator to make a good will? Do you in the main trust him—or her; I am taking it as "him"—to make a proper disposition for his wife and his children? I belong to the school of thought that does in the main trust him to do that. I recognise the very grave rights of the wife and perhaps lesser rights of the children. The children will reach maturity and will be able to fend for themselves. They may be hampered a bit; their lives may be altered by lack of capital to follow exactly the career or profession they wish to follow. In the case of the wife, however, her best years may have gone and she, by the very nature of her occupation as housewife, and so on, cannot turn round, in the vast majority of cases, to do anything. She has given her life to her husband and her children and it is right that we in this House, and the Government, should absolutely recognise the right of the spouse to be placed in a very special position, and anything which interfered with that would be wrong.

When, however, it comes to deciding as between one child and another, we come up against a tremendous difficulty. I know that difficulty has been recognised in the alterations to this Bill, and what I am doing now is putting in a plea for the continuous recognition of that. I know of no easy way this can be decided, but, undoubtedly, we all know instances, or have heard of instances, in families in which the question of the unworthiness of one of the children, or, perhaps, the eldest son, has come into it, and where, if there was a rigid code, that individual could be left money or property which in the first place would ruin him and, secondly, might ruin the whole family.

Under a rigid code, you run a grave risk of having no way, or at best only a very difficult and circumscribed way, of dealing with that situation. Where you have judicial discretion, I think the judge can decide on the individual case where a code cannot do so. Then, as has been pointed out in this interminable correspondence to which Deputy Leneghan referred scathingly and which appeared in the press, there is the splintering of farms and property. Again, I know the Minister has taken cognisance of that and has promised to take cognisance of it in the new amendments which will be brought in. I should like to see that made as simple as possible and I should like to see it done as far as possible under judicial discretion and through the courts.

I am not a legal person. I do not hold any legal degree, except an honorary one, but that does not carry with it, unfortunately, any knowledge of the law.

Mr. Corish

You should have heard your citation.

Mr. M. E. Dockrell

We shall not go into that, I am not a legal person and I can, as well as the rest of the laymen, sometimes make scathing remarks, perhaps not in public, about the law and indeed those who carry it out. But, at heart, the ordinary man in the street, the layman, has a very great respect and regard for the law and for barristers and solicitors. Both those groups of men follow their professions and at the same time, follow them to the great advantage in many cases of the public. I think all of us would be very loth to give up a great deal of the help which can come from these men right up to the judicial level. We should be loth to lose that and to get in its stead a code which, no matter how well laid down here, would, of necessity, be very rigid.

I was talking to a Deputy a couple of hours ago here and he referred to the Code Napoleon in France. He said that a lot of the French people are not at all as keen on the rigidity of the laws of succession in France as we think they are. I do not know to what extent that can be taken as being a correct statement but at any rate it is of interest to hear that there are French people who wish they had the flexibility of our system.

I was most interested to hear Deputy de Valera's contribution. He made a very good point—indeed, it is far more than a point: it goes, I think, very close to the root of some of our objections to a code in that it is something which is outside our legal system. We have grown accustomed to the courts. We have grown accustomed to the differences between the points of view of various judges. One judge, probably judge A, will give a more legalistic decision while another may give a more humanistic decision. So, in the in and out which inevitably results from the different attitudes of our judges, we get in the different courts to which cases can be taken a sort of cross-reference that in the long run probably works very largely to the satisfaction in the minds of the people that justice has been done. We have become accustomed to that.

I think it is a very good point to say that we are not accustomed to a code and that that would sit very ill on us. At any rate, are we to have codes in a whole lot of other ways? If we do not live, in many other aspects of our legal life, under a code—as of course, we do not—are we then to find that the hardships imposed under a code sits very uneasily on us and that these rigidities are felt to be unjust and harsh? I think that that was what Deputy de Valera was saying and it is something that is well worth looking into from that point of view alone.

In this proposed change of the slant of legislation, it appears that we have moved away from the point and the idea that the testator's wishes must be carried out. We have moved right away from that to the other point of view, so that, even if he were known to be of absolutely sound mind and to have been completely aware of what he was doing, we say: "No, you must not do that." That, I think, would be a very dangerous position for us to try to take up.

The testator cannot always be right but in the peculiar circumstances of a particular family, he should be given very wide latitude. Lest I be misunderstood, let me say that I am in favour of a system by which, if a man has not given his dependent children and his wife the support which they have a right to expect, it should be made easy and cheap for those people to get their rights. I think they would get them better, however, under the sensitive judgment of a judge who can look at the particular merits or hardships of an individual case and take into account what the testator may have been trying to do. He may have been trying to protect the general interest of a family by a seeming act of injustice to one member but that one member may perhaps have been so unworthy or so incapable that very little could be done for him. I think we all know cases where these things have happened—where one individual has perhaps ruined a whole family.

I should like to mention in connection with this whole question of succession that we live in an age when all property is not just in goods and chattels and land but is also in business and in shares. The shares may be in private or public companies. It may be necessary, too, for a testator to leave what seems to be a disproportionate amount of shares to one, or a very small group, of a family or a ward in order to protect not only those particular beneficiaries but, far more, to protect the business itself and all the people working in it. That is a very real problem today. There are many businesses which could lie open to take-over bids which would not necessarily be either in the national interest or in the interest of the ordinary employees. I do not know how that can be dealt with. Legislatively, it obviously cannot.

The point I am making is that if by any chance a testator is forced into splintering shares in a business, he may, at the same time, be sounding the death knell of the management of that business as it is at the time. Furthermore, it may mean the eventual closing down of the business. That is something that would happen if due care is not taken now. It is just the same as splintering a farm into too many small parts. There is the exact counterpart in business. Of course, there is the fact that it can affect the lives of many more people than would be the case on a farm.

I do not want to speak at too great length. The Bill is one of the most interesting measures that have come before the House for a long time. I would, however, echo what Deputy J. A. Costello said: we want to treat this Bill not at all in a political sense. It is far too serious to be trifled with in any such fashion. I am glad that when introducing his first Bill as a new Minister, the Minister for justice has here thrown himself, as one might say, almost on the political mercy of the House by saying that he is prepared to treat it in an entirely non-controversial fashion, that he wishes us all to say what we feel about it.

In that respect, having been here longer than the Minister, I would point out that I have never known it to fail when a Minister took the House into his complete confidence and asked for co-operation across the chasms of Party in order to get through a Bill which would be of the maximum benefit to the people of the country. I have never known Deputies to fail to respond to that appeal. Speaking for this side of the House, we are as anxious as is the Minister to see that this Bill will be something that will help the Irish people in the very difficult and complicated matter of wills and succession.

I hope that the amendments to be tabled on sections 111, 117 and 119 will be treated with very great care and that, in switching from the viewpoint that the testator's wishes must be carried out to the viewpoint that we do not care twopence about what his wishes are, we enact the best part of the two systems, retaining a certain amount of rigidity to protect the widow and children from rare cases of downright injustice, but also introducing a system in which the individual judgment of a judge can be brought in to decide whether the testator was right when he departed from giving somebody his absolute right.

A testator may sometimes do that to protect the individual or the rest of the family. I have known a case where a man was left an annual sum of money in a will by his brother. The terms of that will were faithfully carried out until the death of the man who had got that annual payment. If he had been left his due proportion of the estate, as may be possible under some system like that proposed here, he would have spent it in from six to 12 months and would have had nothing for the rest of his life. There are cases like that and it is there that we must blend the two systems.

Mr. Booth

I should not like some of Deputy Dockrell's views to go unchallenged because I hope and believe they are not really grounded soundly on the terms of the Bill. I think it is incorrect—I certainly hope so—to say we are adopting an absolutely rigid code which will unduly restrict the right of testamentary disposition.

Mr. M.E. Dockrell

I did not say so.

Mr. Booth

No, but that could be interpreted from the Deputy's constant allusions to a rigid code.

Mr. Dillon

It was certainly proposed in the original Bill.

Mr. Booth

I entirely agree, but what we are here to discuss, in fact, is the Bill as it is proposed to be amended. I do not approve of the way in which the Bill was produced to us. I think it was done in all good faith but, at the same time, in the form in which it was published it was very obviously the production more of the academic lawyer than of the practising legal practitioner. I think it did not accurately reflect considered Government policy. I do not know, but I got the impression that it was hastily issued just before the summer recess, in all good faith, but in an effort to produce constructive discussion. It certainly did that.

It was a pity, in some ways, that it produced so much alarm. On the other hand, it has done good, quite unintentionally, by creating that alarm and bringing the whole matter of succession and the making of wills before the public. It is a matter of which the public are particularly ignorant and particularly shy. The very fact that there is such a high proportion of intestacy shows that there is this curious tendency to fail to make wills. I do not agree for a moment that people fail to make wills just by mistake, nor do I accept the suggestion that has been made here that people fail to make wills because they are quite happy with the present law as regards distribution of intestacy.

The average man knows nothing at all about what the law provides for the distribution of his estate on intestacy but he is as reluctant to make a will as he is to purchase a grave space in the local cemetery. He states quite clearly that he is not yet ready to die, that he is not prepared to order his coffin or reserve his grave space, or to make his will yet. That is a great weakness. We will not change that overnight but possibly the alarm created by the issue of the Succession Bill in its original form may have frightened some people into paying more attention to making wills. I know it was stated that the Government issued a White Paper in 1962 and that it was a sufficient invitation to members of both Houses, to professional organisations and so on, to make representations in that regard. I do not think I am any exception; I read the White Paper and I lost interest in it because I could not see any immediate prospects of this being transformed into legislation. That is probably what happened with the Incorporated Law Society, with the Benchers and possibly with the National Farmers Association.

Like Deputy de Valera and others, I am rather concerned that so much attention appears to have been paid to the advice given in other countries, whereas the same diligence does not appear to have been exercised in seeking similar advice from our own people. I cannot imagine that these distinguished professors of law in Germany, Switzerland and even Scotland, issued their advice simply because they saw a copy of the White Paper. It is quite clear they were approached directly, even to the extent of some members of the Minister's staff going to Scotland. Much of the criticism which was levelled at the original draft of the Bill would have been avoided, if similar efforts to get advice had been made very much nearer home before the Bill was actually issued.

The Bill itself in many ways is quite unexceptionable and I am very glad indeed to see this provision in section 5 dealing with the question which arises where two or more persons die in circumstances which make it uncertain which survives the other. That is a matter which has always agitated the legal mind and which became very critical during the last war but which is apt to happen any time, particularly in road accidents. It would be a great relief to the legal profession to have definite legislation stating that in cases of uncertainty, the persons concerned shall be deemed to have died simultaneously. This is all to the good because it is clarifying a point which while it may seem unreal to the average layman, is very real to the practising lawyer. I cannot speak as a practising lawyer, although I practised as a lawyer for quite a considerable period, but like Deputy de Valera, I can speak with the benefit of some professional experience but without any present vested interest.

The Minister commented with justifiable pride on the fact that this Bill will now remove all remaining distinctions between real and personal property for the purposes of devolution. That is something which should have been done long before now. It will be of tremendous assistance not only to practising lawyers but also to the student of law who is trying to qualify for his degree. This distinction between real and personal property was quite clearly meaningless in our present state of society and I am very glad we are to get rid of it once and for all. I hope the Minister will not lose sight of the fact that real and personal property are not entirely amalgamated in our legal system and if he can in further legislation go a step further and remove the distinction altogether and not only in this case in the context of succession, so much the better.

The Minister stated that it was desirable on every ground that the transmission of property on death should be a simple and inexpensive process for the ordinary person. It is time somebody with some knowledge of the fact said that the transmission of property on death can be, even as it is, a very simple and inexpensive process for the ordinary person. There is, however, a false impression that this business of becoming involved with solicitors and drawing up wills and extracting grants of probate and so on is a very expensive undertaking. It is not. It is not half as expensive as getting somebody to disentangle a really complicated intestacy but people will allow themselves to be talked out of making wills and out of going to solicitors and getting proper legal advice. I should like to state quite categorically that even at the moment it is not a difficult or expensive business to make proper provision for the distribution of property after one's death.

The Minister stated that he thought it might be assumed that failure to take out administration is in very many cases due to the difficulty and inconvenience involved. I think it is much more due to sheer ignorance as to what really is involved. Anyone who has had to investigate title of family property, either in the city or country, will know the difficulties that can result from an intestacy. When one follows another, the whole problem becomes virtually insoluble. You will find members of the family have spread all over the earth and it is impossible to know whether they are alive or dead. All this is quite unnecessary and is simply because people have failed to face up to their responsibilities when in good form and say: "I will make a will."

Debate adjourned.

The Dáil adjourned at 5 p.m. until 3 p.m. on Wednesday, 9th December, 1964.