I move that the Bill be now read a Second Time.
This Bill replaces the Succession Bill, 1964, which lapsed on the dissolution of the last Dáil. While it is basically the same Bill, it incorporates certain important amendments which I indicated my willingness to make consequent on the discussion which took place on the earlier Bill in this House and on the suggestions which were made to me by various interested organisations and members of the public. The principal amendments occur in Parts IX and X, and I shall deal with them in some detail when I come to talk about those parts of the Bill.
The Bill is one to reform the law relating to succession to the property of deceased persons and it deals comprehensively with all aspects of the subject, including devolution, administration, testamentary disposition and distribution on intestacy. Provision is made for assimilation of the law respecting real and personal estate so that realty will devolve and be distributed in the same way as personality. The present rules of intestate succession, which are highly complicated and draw irrational distinctions between real and personal estate, are to be abolished and replaced by new, simple and uniform rules which will be applicable to all property. Perhaps the most important provisions of the Bill are those in Parts IX and X which deal with the problem of the inofficious will, or the will which disinherits or makes insufficient provision for the members of the testator's family.
The existing statutory law governing succession to property on death is spread over more than 70 enactments, the earliest of which dates back to 1226. These enactments are being repealed or amended in consolidated form. When the Bill is enacted, the whole of the statutory law of succession will be contained in one Act of the Oireachtas. Thus, apart from anything else, the Bill represents an important step in the task of statue law consolidation. The Bill is accompained by an explanatory memorandum and, in addition, explanatory side-notes have been inserted in the Bill itself showing the provisions that are new to the law and the existing statutory enactments that are being amended or consolidated.
Part I is the preliminary and general Part and deals with such matters as commencement, interpretation, the juridiction of the courts and repeals. The proposed Act will apply to the estates of all persons dying after the commencement date specified in section 2, namely, 1st July, 1966. This will ensure that people will have a reasonably long period in which to familiarise themselves with the new law and make whatever adjustments they may consider necessary in their affairs. In the interpretation section—section 3—I would particularly invite attention to the definitions of "property", "purchaser", "valuable consideration" and "full valuable consideration". A thorough grasp of these definitions is necessary for a proper understanding of some of the more important provisions of the Bill.
Section 5 deals with the problem which arises where two or more persons die in circumstances rendering it uncertain which of them survived the other or others. In such a case, there is at present no legal presumption as to the order in which the deaths took place. This gives rise to inconvenience and uncertainty when it comes to determining rights of succession to the property of the deceased, particularly where the deceased were husband and wife. We have studied the solutions of this problem adopted in other jurisdictions, including England, Scotland and Continental countries; and we have decided that the best solution is to provide that, in cases of uncertainty, the persons concerned shall be deemed to have died simultaneously. This is the rule adopted by the German Civil Code and it has been operating satisfactorily since 1900. There is a similar rule in the Swiss Civil Code.
Section 6 provides for the jurisdiction of the High Court and Circuit Court in matters arising under the proposed Act. The High Court, as at present, will have original juridiction in all probate matters. The Circuit Court will continue to have jurisdiction in contentious cases, but it is proposed to increase the limits of that juridiction from £2,000 to £5,000, in the case of personal estate, and from a rateable valuation of £60 to a rateable valuation of £100, in the case of real estate. This is in accordance with the policy of substantially increasing the jurisdiction of the Circuit Court which I announced in the course of the recent debate on the Estimates for my Department.
Part II of the Bill deals with the devolution of real and personal estate on death. Devolution is the legal term applied to the system under which the property of a deceased person vests in his personal representatives, that is to say, in the executors whom he has appointed in his will or, if he has not appointed executors, the persons whom the court appoints to act as administrators of his estate. Up to 1959, only personal estate, including compulsorily registered land, devolved on the personal representatives. Real property, namely, unregistered freehold land, passed immediately to the heir at law or devisee as the case might be. The Administration of Estates Act, 1959, provided that, in the case of estates of persons dying after the 1st June, 1959, all property, whether real or personal, should devolve on the personal representatives of the deceased.
Section 10 of the Bill re-enacts the existing law and provides that all property, both real and personal, of a deceased person shall devolve on his personal representatives. Section 11 provides for the abolition of all surviving feudal rules and canons of descent applicable to real estate. This change will chiefly affect unregistered freehold land in urban areas. Since 1891, freehold registered land, comprising the bulk of rural land, is distributed in the same way as personalty. Section 13 provides that, where a person dies without having made a will, or where, having made a will, he dies leaving no executor surviving him, his property shall, until the grant of letters of administration in respect thereof, vest in the President of the High Court. This is a clarification of the present law.
The removal of all remaining distinctions between real and personal property for the purposes of devolution, descent and distribution will greatly simplify the rules of law and practice governing succession. So far as the existing rules distinguish between real and personal estate, they no longer serve any useful purpose, and they do make the law more confused than it need be.
Part III deals with executors and administrators and, in the main, provides for re-enactment of the existing law.
Part IV provides for the consolidation, with amendments, of the present law relating to the issue of grants of representation. Section 27 provides that the order in which persons are to be entitled to a grant of administration shall be regulated by rules of the High Court. In granting administration, the court will ordinarily be bound by these rules, but it will have a discretion to depart from the rules where circumstances so warrant. Section 30 provides for the issue of grants of representation to trust corporations and replaces the Bodies Corporate (Executors and Administrators) Act, 1928. In order to be eligible to obtain a grant, a trust corporation will have to comply with the requirements laid down in subsection (4). It is clearly desirable, in the interest of beneficiaries and creditors, that corporate bodies conducting executor business should comply with certain minimum standards. At present, under the Act of 1928, any corporate body, whether it is Irish or foreign and whether it has a place of business in the State or not, may obtain a grant. The only qualification is that the body must have a minimum capital of £50,000 of which not less than £20,000 shall have been paid up in cash. In future, only corporations constituted under the laws of, and having a place of business in, the State or Northern Ireland will ordinarily be eligible for a grant; and the requirements as to issued and paid up capital are being suitably adjusted.
I come now to a matter to which I attach considerable importance, namely, the need to ensure that adequate facilities are provided whereby grants of representation may be obtained easily and cheaply, particularly in the case of small estates. It is desirable on social grounds as well as from the point of view of economic policy that the transmission of property on death should be a simple and inexpensive process for the ordinary person. In the case of rural property, it is essential to the success of the Government's efforts to promote farming progress and efficiency that the titles to land should be clear and certain. At the present time, representation is taken out in only four cases out of every ten deaths of persons over 21 years of age. Even allowing for instances in which people die leaving estates which are so small or of such a nature that the taking out of grants would not be warranted, it is clear that there is a considerable number of cases in which representation ought to be, but is not, taken out. Such cases turn up regularly in the Land Registry, and difficulty and inconvenience are often caused to the parties to a transaction because representation has not been taken out promptly following a death.
It must, I think, be assumed that the failure to take out representation is in very many cases due to the difficulty and inconvenience involved. There is also the general feeling that the process is an expensive one. If it were made easier to take out representation, many people who are not at present prepared to put their affairs in order would do so. In this connection, it ought to be borne in mind that the law in regard to the devolution and administration of the property of deceased persons is in the interests of the community as a whole. Nevertheless, if people show themselves unable or unwilling to comply with the law, it is the clear duty of the State to come to their assistance by providing the requisite facilities.
At present there are two methods by which grants of representation may be obtained in a relatively easy and cheap manner. Irrespective of the value of the estate involved, personal applications may be made to the Probate Office in Dublin or to a district probate registry where such exists. In these cases the papers necessary to obtain the grant are prepared by the Probate Officer or district probate registrar at a charge not exceeding £5. The facilities are not being availed of to any appreciable extent, partly because there are only six district probate registries—at Castlebar, Cavan, Cork, Kilkenny, Limerick and Waterford—serving only a limited area of the country, and partly because the existence of the facilities is not generally known to members of the public. In the case of very small estates, that is to say, where the gross value of the property is £500 or less, grants of representation may also be obtained easily and cheaply by applying to the local Customs and Excise officer under section 33 of the Customs and Inland Revenue Act, 1881. Here again the facilities are not being used to any marked extent, the probable reasons being that, first, the limit of £500 is too low having regard to the present value of money, secondly, Customs and Excise stations are now too few and far between to provide an adequate service, and, thirdly, the existence of the facilities is not generally known.
In an effort to remedy the present situation, I have had stated clearly in section 35 of the Bill the existing law under which anybody seeking to obtain a grant of representation may, irrespective of the size of the estate involved, make a personal application for the grant either to the Probate Office in Dublin or to the district probate registry for the district where the decease lived at the time of his death. In addition, I propose to have new district registries established so as to provide a convenient service for persons wishing to avail themselves of the right to make a personal application. Each new registry will be located in a specified circuit court office.
The County Registrar designated will be the district probate registrar for the region and he will deal with all personal applications for grants of representation. He will prepare the papers necessary to obtain the grant and will, as far as practicable, assist applicants by giving them information and directions as to the course which they are to pursue. He will not, of course, give applicants legal advice. Where a grant involves difficult questions of law or needs a direction of the court, or where the distribution of the property of the deceased is a very complicated matter, the applicant will have to consult a solicitor in the ordinary way. The existing special probate fees for personal applications will be re-examined and I envisage that in the case of small estates the fees will be not much more than nominal.
The present right to make personal application for a grant of representation is contained in Rules of Court and was first granted in Probate Rules made in 1879. Over the years, the tendency has been to limit the number of district registries and this has restricted the exercise of the right to make personal applications. I consider it important that the right should be preserved, on the general principle that every citizen should be free to conduct his own legal business and be facilitated in doing so. What I propose, therefore, is to reverse the present trend by establishing a number of additional district probate registries in county towns. This will facilitate the making of personal applications and will also, I may say, facilitate solicitors acting for clients. Before I leave this subject, I should like to stress that I am proposing no change in the existing law and practice under which the Probate Officer and the district probate registrar have for years been issuing grants to personal applicants. What I am proposing is that the existing facilities should be enlarged by increasing the number of district registries. With the increase in the number of registries, there will be no need for applications to Customs and Excise officers. Accordingly, section 33 of the Customs and Inland Revenue Act, 1881, is being repealed.
Part V of the Bill deals with the administration of the assets of deceased persons and continues the process of the assimilation of the law relating to realty and personalty by providing that real and personal estate shall be administered in the same way. All the property of a deceased person is to be available for the payment of his debts and to satisfy any legal right under Part IX of the Bill. Provision is made for the amendment and simplification of the law in regard to payment of a deceased person's debts. Insolvent estates are to be administered in all cases in accordance with the rules for the time being in force in relation to bankruptcy; and in such cases the present right of retainer of a personal representative and his right to prefer creditors are to be abolished. A new order of priority is being established for the application of assets in the case of solvent estates. This new order, which is provided for in section 46 and in Part II of the First Schedule, will be simpler than that under existing law and will be common to both realty and personalty. Section 47 provides that any property of a deceased person which, at the time of his death, is charged with the payment of money shall be primarily liable for the payment of the charge. This proposal involves the extension to all property of provisions in the existing law which are applicable only to realty.
Section 49 proposes a valuable safeguard for personal representatives in respect of undisclosed claims against the estate of a deceased person. The effect of this section will be that, where personal representatives have issued such notices to creditors as would have been given by the court in an administration suit, they may, after the expiry of the period specified in the notices, distribute the assets without regard to any claims which have not then been disclosed. The section extends to all assets comprised in the estate of a deceased person the provisions of section 29 of the Law of Property (Amendment) Act, 1859, which are applicable only to personal property.
Sections 52, 53 and 54 codify the law as to assents and conveyances by personal representatives. These sections provide, in the main, for the re-enactment of the existing law, but subsection (3) of section 53 introduces an important new provision to the effect that a conveyance of unregistered land by a personal representative shall, in favour of a purchaser, be conclusive evidence that the person in whose favour the conveyance was made was, in fact, the person entitled to have the land vested in him. Thus, where a purchaser buys land from a vendor who is a beneficiary, he will no longer be obliged to concern himself with the terms of the will or of the intestacy under which the vendor acquired the property, but need only see to it that the land devolved on the personal representatives and that they, in turn, vested it in the vendor.
Under section 55, the personal representatives of a deceased person are to be given a general power to appropriate any part of the deceased's estate, in its actual condition or state of investment, in or towards satisfaction of any share or interest in the property.
Section 56 contains an entirely new provision which is primarily designed to protect the interests of widows. It proposes to give to the surviving spouse of a deceased person the right to require appropriation of the family dwelling house and household chattels in satisfaction of his or her share and of the shares of any infant children for whom the surviving spouse is a trustee. There will be exceptions to the general rule in the circumstances provided for in subsection (5) of the section. The purpose of the section is to allow the spouse to retain the family home, provided, of course, that, where its value is greater than the share to which the spouse is entitled, he or she will have to make up the balance in cash in order to exercise the option. By the way, I considered that the definition of "personal chattels" in the 1964 Bill was too wide. I have now restricted the definition and referred instead to household chattels. These latter may now be appropriated with the dwelling house.
It is proposed in section 57 that, where an infant is entitled to a share in the estate of a deceased person and no trustees have been appointed by the deceased, the personal representatives—or a trust corporation or any two or more persons appointed by the personal representatives—will be trustees of such share. These trustees will have full powers, without recourse to the court, to apply the share, or the income therefrom, for the advancement or benefit of the infant during minority. They will, in particular, be able to carry on any business in which the infant is entitled to a share.
Section 63 of the Bill enlarges and states in statutory form the doctrine of advancement and the rule against double portions. The law requires that children must bring into account any money or property they have received from the deceased in his lifetime by way of advancement or portion or upon marriage, if they wish to share in the distribution of the estate. It is proposed that the enlarged doctrine will apply to shares on intestacy or under a will. The doctrine is, as under existing law, being confined to children.
Part VI of the Bill proposes important changes in the rules governing the distribution of property on intestacy. Under the Intestates' Estates Act, 1954, where a man dies intestate leaving a widow but no issue, the widow is entitled absolutely to the first £4,000 of his estate. In the great majority of cases this means the widow takes the whole estate. Subject to the widow's right, the property of a person who dies intestate is distributed in accordance with rules which vary according as the property consists of realty or personalty.
Realty—which, as I have explained, nowadays consists in the main of freehold property in urban areas—descends to the deceased owner's heir, who is ascertained in accordance with highly complex rules having their origin in feudal conditions. Under these rules, males are prefered to females, the elder male is preferred to the younger, females of the same degree all take equally, paternal ancestors are preferred to maternal ones, relatives of the whole blood take before relatives of the half blood, and so on. A surveying spouse has certain rights which are prior to those of the heir. Thus, a widower is entitled to a life estate in the whole of his wife's realty, provided that she was seised in possession of an estate of inheritance and that issue of marriage capable of inheriting has been born alive. This right is known as a tenancy by the curtesy, or, more fully, a tenancy by the curtesy of England. A widow is entitled to dower, which is a life interest in one-third of the whole of her deceased husband's realty, provided that he was seised in possession of an estate of inheritance, that issue of the marriage capable of inheriting might have been born alive, and that a declaration in bar of dower was not made by the husband during his lifetime. Both curtesy and dower are being specifically abolished in section 11.
The existing rules for the distribution of personalty—which includes most agricultural freehold land and all leasehold land—are those laid down in the Statute of Distribution, 1695. They provide that a widower takes the whole of his wife's personal estate even where there are issue also surviving. A widow, on the other hand, takes only one-third of her husband's personal estate and the issue take two-thirds. Where there are no issue, the widow takes one-half of the estate and the next-of-kin take the other half. This is, of course, subject to the widow's prior right to £4,000. If an intestate dies leaving neither spouse nor issue, his father is entitled to the whole estate whether or not the mother also survives. If the father is dead, the mother, brothers and sisters share the estate equally. Children, but not remoter descendants, of a deceased brother or sister take their parent's share. If the mother, brothers and sisters are all dead, the children of the brothers and sisters take the estate in equal shares.
The new rules of intestate succession laid down in Part VI of the Bill will be applicable to all property, both real and personal. They are simple and uniform and are so framed as to accord due recognition to the important position which the wife occupies in the Irish family. The existing distinction between the rights of inheritance of husband and wife and of males and females is being removed. Section 66 provides that, where both spouse and issue survive, the spouse will take two-thirds of the estate and the issue will take the remainder. If there is a surviving spouse but no issue, it is proposed that the spouse will take the whole estate. If there are surviving issue but no spouse, the issue will take the whole estate. Where all the issue are in equal degree of relationship to the intestate, distribution among them will be per capita, that is, in equal shares. Otherwise it will be per stripes, the issue of a deceased child taking their parent's share. The following example will serve to illustrate how this system will operate in practice. Suppose an intestate, X, had two sons, A and B, who predeceased him, leaving ten children, seven of whom are children of A and the other three children of B. Under the proposal in the Bill the distribution among the intestate's grandchildren will be in ten equal shares. If, however, A survives the deceased and B does not, A's share will be one-half and B's three children will share the other half between them, each receiving one-sixth. This system was adopted in Scotland last year and is also, I believe, the system of at least some of the American States. I feel that it provides the method of distribution which the average reasonable person would prefer in the circumstances.
Section 67 of the Bill proposes to place the father and mother of an intestate on an equal footing as regards succession rights. Thus, if an intestate dies leaving parents but no spouse or issue, the estate will be distributed between the parents in equal shares. One consequence of this change is that the intestate's brothers and sisters, or children of deceased brothers and sisters, will be entitled to share in the estate only if the intestate leaves neither spouse nor issue nor parent surviving.
I must emphasise that Part VI of the Bill is concerned only with the distribution of the property of an intestate and does not in any way affect property that has been disposed of by will. If, therefore, any person considers that the rules of succession set out in this Part of the Bill would produce results that are not appropriate to his own family circumstances, his remedy is to make a will disposing of all his property. If he does so, then, so far as he is concerned, Part VI of the Bill is of no effect. The fact of the matter is, however, that, for one reason or another, almost fifty per cent of the people in this country die without making wills, and the purpose of this Part of the Bill is to make for intestate persons, so far as is possible, the sort of arrangements that they might themselves have adopted if they had made wills. It must, of course, be appreciated that any general rules of this kind can provide only for the normal situation. The best that one can hope to do is to draw up rules which will approximate as closely as possible to the likely wishes of the average reasonable person in normal circumstances. Statutory rules of succession cannot possibly provide for every exceptional case. On the other hand, if they are to operate effectively, they must be simple and easily understood by all. The new rules proposed in Part VI of the Bill have been prepared with these considerations in view. For convenience, a comparison between the existing and the proposed new rules is given in Appendix A on page 12 of the explanatory memorandum circulated with the Bill.
Under Part VII of the Bill the existing statutory law relating to wills is being consolidated with a number of important amendments. It is proposed in section 76 to reduce from twenty-one to eighteen years the general age limit for making a valid will. A person under twenty-one may marry, own property and operate a bank account. He may assign certain property interests—for example, money in savings banks—to take effect on death. If he has children, he may appoint guardians of those children. Generally speaking, young people tend to mature quicker, mentally and physically, than in former times, and, on the whole, I think it is reasonable to allow persons of eighteen years and upwards to make a will if they wish to do so. As under the earlier Bill, it is also proposed that any person who is or has been married should be allowed to make a will, irrespective of age.
Under section 77, the present requirement that both witnesses to the signing of a will must be present at the same time is being preserved. This is in deference to views expressed in this House on the last Bill.
It is provided in section 84 that a will shall not be revoked by the subsequent marriage of the testator if the will was made in contemplation of that particular marriage, whether so expressed in the will or not. No change is being made in the ordinary rules as to the manner of revoking a will.
Two important changes are proposed in the law relating to the interpretation of wills. Firstly, extrinsic evidence is to be admissible to assist in the construction of, or to explain a contradiction in, a will. This is provided for in section 89. Deputies will remember an ambiguity in the will that led to the tragedy in Seán O'Casey's Juno and the Paycock. Secondly, in the case of doubt as to the interpretation of a gift in a will, the interpretation according to which the gift will be operative is to be preferred. Provision to this effect is contained in section 98.
Part VIII of the Bill will amend the present rules of international private law in this country relating to wills. The main purpose of the proposed changes in the law is to enable this country to adhere to the Convention on the Conflicts of Laws relating to the form of Testamentary Dispositions drawn up at the Hague in October, 1961, under the auspices of the Hague Conference on International Private Law. It is provided in Part VIII that a will shall be valid as regards form if the form complies with the internal law either of the place where the testator made it, or of a nationality possessed by the testator, or of a place in which the testator had his domicile or habitual residence, or, in so far as immovable property is concerned, of the place where the property is situated. The existing law in this country is rather doubtful, as the Wills Act of 1861, known as Lord Kingsdown's Act, is considered to be of imperfect application, if it applies at all.
I turn now to the provisions of Parts IX and X of the Bill. These Parts contain the provisions that are designed to protect the spouse and children of a testator from disinheritance.
The right to disinherit one's spouse and family is not a fundamental right inherent in property and, as I hope to show, there is no real basis, moral or historical, for the view that it is. Under Roman law, freedom of testation was considerably restricted by the rules as to legitima portio, or the legal portion which could be claimed by a disinherited spouse or child. In all modern systems of law which are based on Roman law, the legitima portio exists in one form or another. Old Irish law knew nothing of freedom of testation. Our present law of succession in respect of personal property dates only from 1695, when the Irish Statute of Distribution was enacted. Section 10 of that Statute is of considerable historical interest inasmuch as it provided for the abolition of the “Custom of Ireland by which only one-third, of a moiety, of the personal estate of a deceased person is subject to the party's disposition by will”. The Custom is described at some length in the section. If a man died leaving a wife and children, his estate was divided into three equal parts, whereof one part belonged to the wife and another to the children. The remaining third was disposable by will. If the deceased left a wife only, or children only, his estate was divided into two parts, whereof one part belonged to the wife or to the children, as the case might be. Deputies will appreciate the significance of the fact that this excellent Custom of Ireland was abolished four years after the Treaty of Limerick and at the outset of the Penal Laws.
Complete freedom of testation is a peculiarly English idea which, apart from England and Wales, is only to be found in countries forcibly brought under British rule. However, even in England freedom of testation was introduced only very gradually and did not eventually find a place in the law until the seventeenth century. In so far as real property is concerned, rights to curtesy and dower continued to exist until 1925, and it is only since 1833 that a right to dower could be barred in a will, and only since 1882 that a right to curtesy could be similarly barred. In Scotland, freedom of testation is unknown, and the Scottish system of legal rights applicable to personal property has been maintained under the Succession (Scotland) Act, 1964. It is one of the ironies of history that, while the right of testation was introduced both at Rome and in England to allow a man to leave his property to his wife and children, the right eventually developed in England so as to allow him to disinherit them.
In a country such as ours which recognises the very special position of the family "as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", so-called freedom of testation is a paradox which cannot be defended on any ground. Article 41 of the Constitution pledges the State "to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State". Under the same Article, the State recognises that, by her life within the home, woman gives to the State a support without which the common good cannot be achieved; and the State undertakes to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. These principles cannot be reconciled with a system of law which allows a man to ignore the mother of his family and to leave his property to strangers. It is no answer to say that most men do, in fact, provide for their wives and children in their wills, when, as we know, there are those who do not.
The evidence available to me clearly establishes that there is a problem of disinheritance in this country. The existence of the problem was confirmed by some of our more experienced Deputies during the debate on the Second Stage of the previous Bill last December. Deputy John A. Costello expressed the view that the problem was a sizeable one and that it did call for some remedy. The Deputy said— and I quote from column 480 of the Official Report for the 3rd of December last —"There is a very large number of people who do not in fact recognise their obligations towards their wives and families...." I agree with the Deputy in that view and I agree with him also when he says that statistics as to the number of will suits in our courts prove nothing. Under existing law, the fact that a man does not properly provide for his wife and children is not a ground for upsetting his will.
It was clear from the discussion in this House and from the views expressed outside the House that there is general acceptance of the need to restrict a testator's right to disinherit his family. The difference of opinion that arose concerned the choice of method to be employed for the purpose. The choice rests between a system based on judicial discretion, involving an application to the court, and a system that gives the spouse and children a legal right to a specified share of the estate. While Deputy John A. Costello seemed personally inclined towards the system of legal rights, he expressed the view that the country was not yet ready for that system and he suggested that an effort should be made to find some intermediate way between it and the judicial discretion system. At the time, I welcomed Deputy Costello's constructive approach to the problem and I undertook to give careful consideration to his suggestion. The revised proposals contained in Parts IX and X of the present Bill constitute the outcome of my consideration of Deputy Costello's suggestion and I feel that they represent what the Deputy had in mind in seeking a marriage between the two systems.
With regard to a surviving spouse, section 110 provides for entitlement to a legal right share of one-third or one-half, depending on whether or not there are children of the testator also surviving. I remain firmly of the opinion that, in the case of a spouse, the provision of a legal right to a specific share, irrespective of dependency, is the only system compatible with the true nature of the obligations and responsibilities that bind husband and wife. Under this system, the spouse will be entitled to a share which is just and equitable having regard to his or her status as a member of the family. The degree of need of the spouse is not made a criterion. The view has been expressed in relation to the last Bill that testamentary freedom ought to be restricted to the extent necessary to ensure adequate maintenance for a man's widow, but not to the extent of granting her rights that would ensure for her the share which recognises the true extent of the responsibilities that, in a civilised society, husband and wife owe to each other. I cannot accept that view. In my considered opinion, the provision of mere maintenance does not fulfil the responsibilities to which I have adverted. The enactment of legislation which guarantees only maintenance for the widow after her husband's death fails to discharge the obligation imposed on the State under Article 41 of the Constitution.
In the course of his speech last December on the previous Bill, Deputy Costello referred to the habit of some people who seek to control their family from the grave. As he said, they "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". I believe that this tendency would be accentuated if we adopted a system which would compel a widow to go to court after the testator's death in order to establish her rights. The difficult, unreasonable or capricious testator would take the greatest pleasure in compelling his widow to go to the trouble of bringing a court action in order to lay her hands on any of his property. The system which I am proposing confers on the widow a legal right to a specific share of the estate and places her beyond the control exercised from the grave to which Deputy Costello has directed our attention.
I think it ought to be remembered that in Irish circumstances the wife plays a particularly important part in the affairs of the family. More often than not she has to engage in hard physical labour. In rural Ireland she is the joint manager of the home and farm, and very often, where her husband takes to drink or neglects his duty, she is the sole manager. It may, perhaps, be a platitude to say that the wife and mother is the very foundation of family society, but it is, nevertheless, true. She has moral rights above and superior to any mere right to be maintained in the house, given what is called "the range of her teeth", and allowed the use of the family conveyance to take her to Mass on Sundays. I am not going to force into court every Irish widow who is wronged by her deceased husband. Admittedly, there may be the occasional widow wealthy in her own right, but we have to legislate for the normal.
One of the vital sections in Part IX of the Bill is section 114 and I would like Deputies to consider it carefully. The section will allow a spouse to choose between her legal right and her rights under the will. The choice will have to be exercised within twelve months from the first taking out of representation of the deceased's estate. On the basis of past experience in this country, I believe that the members of the family will generally settle their problems among themselves. If the widow is adequately provided for in the will, she will not elect to take her legal right share. However, if she is not adequately provided for, she will have the legal right to fall back on. The point is that she must have some bargaining counter. I should imagine that the legal right will seldom be claimed. As in Scotland, its mere existence will deter the capricious testator.
The widow's third has, in the past, been a feature of every legal system in the world. In the form of dower, it was part of the common law system for centuries. To that extent, therefore, what I am proposing under Part IX of the Bill represents a step backward into history. I am satisfied, however, that this is one case where a step backward will, in fact, be a significant step forward. Deputy Costello mentioned the position in Canada, where the maintenance system operates. It is significant to note that in two of the Provinces, Manitoba and Saskatchewan, the widow is entitled to a minimum share of the estate. In Manitoba, the widow, if not satisfied with the will, may elect to take one-third of the estate and, if this is still not sufficient for her, she can apply to the court for more. In Saskatchewan, if reasonable provision is not made for the widow in the will, the court will give her an allowance the value of which must be at least one-third of the estate.
With regard to the position of children, I have recognised the force of the argument that the system of legal rights originally proposed could impose unduly rigid limitations on the discretion which a testator should have to divide his estate among the various members of his family in the manner best suited to the particular needs and circumstances of each case. I accept that a married man should not be compelled to leave anything to his children where, in fact, he wants to leave all his property to his wife; that he should not be compelled to leave anything to adult children who are no longer in any way dependent on him and to whom he owes no moral duty; and that he should be allowed to choose between his children having regard to the position in life of each child. After careful consideration of all the factors involved, I have come to the conclusion that the interests of the children can best be safeguarded by the introduction in their case of a system of application to the court under which the court will determine what constitutes dependency in any particular case and will have ample discretion to make such provision for a child as may seem proper and just in the particular circumstances. This arrangement will have the merit of avoiding the anomalies that are inevitable under a system based on any arbitrary definition of dependency.
Accordingly, section 117 of the Bill provides that any child of a testator will be entitled to apply to the court to have just provision made for him out of the estate. The grounds for the application will be that the testator has failed in his moral duty to make proper provision for the child, whether by his will or otherwise. The court will have to consider the application from the point of view of a prudent and just parent, taking into account the position of each of the testator's children and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the applicant and to the other children. The only limitation on the court's discretion will be that it will not in any circumstances be permitted to make provision for a child at the expense of the legal right share of a surviving spouse; and it will be permitted to interfere with a devise or bequest to the spouse only in the case of a child who is a stepchild of that spouse. I might mention that in New Zealand, the home of the judicial discretion system, the courts, in interpreting the family provision legislation, have accepted the notion of a moral duty. The question always is: what moral duty did this particular deceased person owe to this particular applicant? The duty, of course, varies from case to case and depends, among other things, on the means of the testator and the means of the applicant.
There will be general agreement that any scheme based on application to the court should be capable of being operated in as informal and inexpensive a manner as possible. Accordingly, subsection (5) of section 117 provides that rules of court shall be made in relation to the procedure on applications under the section so as to achieve these aims in so far as may be possible. All applications will be heard in chambers, and the time limit for bringing applications will be twelve months from the first taking out of representation of the deceased's estate. In order to discourage frivolous or vexatious claims, the costs of all parties involved in an unsuccessful application will be borne by the applicant, unless the court for special cause orders otherwise. In view of the greatly enlarged jurisdiction of the Circuit Court provided for in section 6 of the Bill, I envisage that that court will be able to deal with the vast majority of applications that will arise under section 117.
I believe, and I hope the House will agree, that the revised proposals in Part IX of the Bill strike a fair compromise between the opposing points of view which arose in relation to the earlier Bill. My proposals will, I feel, allow greater flexibility to a testator in disposing of his property among the members of his family. I would particularly draw attention to the fact that, under these proposals, a testator will be able to leave all his property to his spouse. Alternatively, he will be able to leave a life estate to his spouse with a direction to her to appoint among the children. If the spouse or the children are not satisfied with this, they will be able to exercise their rights under sections 110 and 117, respectively. Subject to the legal right of the spouse, a testator will be able to leave his property to any of his children that he chooses or, indeed, to anyone outside the family. The children will, of course, have the right to apply to the court if they feel they have been treated unfairly. If a testator's spouse is mentally ill or otherwise not fit to be entrusted with the management of a legal right share, the testator will be able, under section 116, to appoint trustees to hold the share in trust for the spouse.
Section 112 of the Bill will allow a spouse to renounce his or her legal right in writing, either by ante-nuptial contract or during the marriage. To deal with the type of case where, before the new legislation comes into operation, a testator has, during his lifetime, made permanent provision for his spouse whether by separation deed or otherwise, section 115 proposes that any such provision—other than a provision for maintenance to be paid periodically during the testator's life-time—shall be taken as having been made in or towards satisfaction of the legal right share of the spouse and shall be brought into account for the purpose of determining the size of the estate out of which the legal right share will be payable. I want to emphasise that this is a purely interim provision designed to cater for circumstances which may have arisen before the proposed Act comes into operation. It will not apply to a case where a husband makes permanent provision for his wife after the Act is in operation. In such a case, it will be open to the husband, if he so wishes, to arrange to have his wife renounce her legal right share. If he does not do so, she will be entitled to that share in the same way as if no provision had been made for her. At the moment, separation deeds often make provision for the intestate rights of the separated parties.
In considering the proposals as to the legal right share of the surviving spouse, there is one very important provision which must not be overlooked. It is contained in section 46 (6) of the Bill. By virtue of that subsection, a claim to a share as a legal right will be a claim against the assets of the estate of the deceased. In other words, all that the spouse will be able to claim is a monetary sum representing the appropriate share of the assets. The spouse will not have a claim to any particular asset or part of the estate. This is, of course, subject to her right to have the family home appropriated in satisfaction of her share under section 56.
It is important to remember that we have always had a legal rights system on intestacy in this country. Most property here is personalty for succession purposes and, under existing rules of intestate succession, the widow is entitled to one-third and the children to two-thirds. This gives rise to little or no difficulty in practice. Any difficulties that do arise are being taken care of by the provisions of Part XI of the Bill dealing with limitation of actions. At present, one out of every two successions here is an intestacy. Like the French, but unlike the Scots, we are not a will-making people. Accordingly, the proposed legal right under Part IX of the Bill will not apply to one-half of our people. Of the remaining half, only a minority will be concerned.
A major problem in dealing with the law of succession arises on the question of unworthiness to succeed. This is the subject of Part X of the Bill. If a spouse is to be given a legal right to a specified share, the testator must not be allowed to withdraw that share. The spouse should have an absolute entitlement to the share and should only be deprived of it on the same grounds as would justify deprival of an ordinary intestate share. Having carefully studied the provisions in other legal systems, I have come to the conclusion that there should be three grounds of unworthiness to succeed. These are the grounds which are provided for in section 119.
Firstly, a person who has been guilty of the manslaughter or murder, or attempted manslaughter or murder, of the deceased will be excluded from any share whatever in the estate, whether under a will, on intestacy or as a legal right. This follows the existing law and is based on grounds of public policy. Secondly, a spouse against whom the deceased obtained a divorce a mensa et thoro, a spouse who failed to comply with a decree of restitution of conjugal rights, and a spouse guilty of desertion for two years or more immediately prior to the deceased's death will be excluded from any share as a legal right or on intestacy. “Desertion” here includes “constructive desertion”, so that, where the deceased was obliged during lifetime to separate and live apart from the other spouse because of the latter's behaviour, the surviving spouse, being the guilty party, will not be entitled to succeed. Thirdly, a person who has been found guilty of a serious criminal offence—meriting two years' imprisonment or penal servitude—against the deceased or a member of his or her family, will be excluded from any share as a legal right or on intestacy. It is to be noted that, in the case of the second and third grounds which I have mentioned, the person concerned will not be excluded from a share under a will. This is because a man may wish to forgive the acts concerned and, if he does, there is no reason why he should not be allowed to make provision for the offender in his will.
Section 120 of the Bill is designed to prevent a person from disposing of property during his lifetime so as deliberately to defeat or substantially diminish the share of his spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or so as to leave any of his children insufficiently provided for. This section is essential if people are to be effectively prevented from disinheriting members of their family. I may add that similar provisions to those contained in the section are to be found in a number of jurisdictions; and the absence of such provisions in England, Scotland and Canada has been adversely criticised.
Section 120 will apply to dispositions taking effect within three years before the death of the deceased or on the death or later. It will not apply to a disposition for full valuable consideration or a disposition made in favour of the spouse or a child of the disponer, provided that, where the spouse was alive, it was made with her consent. Thus, a genuine business transaction involving the sale or mortgaging of property will not be affected. An insurance policy for the benefit of a spouse or child, an assignment of pension rights in favour of a spouse, or a family settlement made for the benefit of a spouse or for the benefit of a spouse and children, or for the benefit of children, will likewise not be affected. The stipulation that the spouse, if alive, must give her consent will provide a valuable safeguard against injustice being done to her or to any of the children.
In the case of a disposition to which the section does apply it will be open to the court, on application by or on behalf of the spouse or child of the disponer, to order that the disposition shall, in whole or in part, be deemed to be a devise or bequest made by the deceased by will and to have had no other effect. So far as a spouse is concerned, this will mean that the disposition will be reckoned as part of the estate out of which the spouse will be entitled to a legal right share. In the case of a child, the disposition will be included in the estate in respect of which the child will be entitled to bring an application under section 117.
Section 21 provides that applications under Part X shall be heard in chambers, as it is clearly undesirable that the issues involved should receive any publicity.
Part XI of the Bill provides for miscellaneous amendments of the law dealing with limitation of actions in respect of the estates of deceased persons. Section 124 proposes that, where two or more persons beneficially entitled to a share in land enter on the land, they will, for the purpose of acquiring title by possession, enter as joint tenants, not only as against excluded persons but also as between themselves. Under existing law it would appear that next-of-kin who acquire title by possession do so as tenants in common in respect of their own shares and as joint tenants in respect of the shares of excluded next-of-kin. Under section 125, the general limitation period for claims to the estate of a deceased person or to any share or interest in the estate is being reduced from twelve years to six years. The provisions contained in this Part of the Bill have been inserted in an effort to meet conditions peculiar to rural Ireland. They are framed to cure difficulties that arise in regard to the title to land where, for example, some members of the family remain at home on the farm, while others leave to take up professions or to work in towns and cities at home or abroad.
Part XII of the Bill provides for the consolidation of miscellaneous existing statutory provisions relating to the Probate Office and the district probate registries. These provisions do not, I think, call for any special comment.
These, then, are the main features of a Bill which, as the House will appreciate, encompasses a vast and complicated area of private law. In formulating the proposals that are contained in the Bill we were fortunate to have the benefit of the expert knowledge and advice of a number of eminent authorities on the laws of succession in Northern Ireland and in other jurisdictions. All were unstinting in their help and advice, and I am extremely grateful to each and every one of them. I should also like to express my gratitude to the National Farmers' Association, the legal professions and other organisations and persons in this country who have been of invaluable assistance.
Where it has been thought appropriate to do so, provisions contained in the laws of other countries have been adapted and included in the Bill. I make no apology for this. However, there is absolutely no foundation for the allegations which have been made that certain proposals in the Bill have been taken more or less blindly from the French and German Civil Codes. The notion in some quarters is that we have simply adopted provisions from these Codes without any critical analysis of their meaning or likely effect in the conditions of this country. The facts are quite different. First of all, there is nothing in the Bill that is taken directly from the French Civil Code. I challenge anybody to produce even one section, subsection or paragraph, other than sections 119 and 120, that corresponds or is in any way similar to any article in the great work to which Napoleon gave his name. There are only two rules taken from the German Civil Code. The first of these is the rule about commorientes contained in section 5. This is one of the sections which has met with unanimous approval and the fact is that there is no better rule in any other legal system. The other rule is contained in section 98 and deals with the interpretation of a devise or bequest in case of doubt. The Bar Council, among others, have welcomed this provision.
Sections 119 and 120 of the Bill were framed after a study of articles contained in the French, German and Swiss Civil Codes but were not taken directly from those sources. Section 119 is based partly on existing law in this country. Section 120 was inserted because of valid criticisms which have been made concerning loopholes in the systems operated in Scotland, England, Canada and New Zealand.
I cannot agree that our legal reforms must be confined to those adopted in England and that we should ignore what has been done in other jurisdictions. I do not imagine that such a course is one that would commend itself to this House, nor, indeed, has it so commended itself in the past. No single legal system has a monopoly of wisdom. Naturally, people tend to think that the system they know is the best system. And it is, of course, quite easy to be comfortably complacent about one's own system and to be critical of other systems, especially where one's knowledge of those systems is limited. That is not the way to undertake law reform and it is certainly not the policy which I propose to pursue.
I cannot stress too strongly that this Bill is one which intimately concerns every member of the community. Every section of the Bill is important and consequently, as it progresses through the various Stages, I shall be more than happy to have any suggestions which Deputies may care to make for its improvement. I assure you that I will consider all such suggestions very carefully. On Committee Stage I shall, of course, endeavour to furnish any additional information or assistance which the House may need in dealing in detail with the various provisions.
The Bill will effect a much-needed reform of our law of succession and I ask the House to give it a Second Reading.