Succession Bill, 1965: Second Stage.

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 These enactments are being repealed or amended in consolidated form.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.

I think the Minister was perhaps generous to his predecessor and, at the same time, did himself less than justice when he claimed that this Bill is basically the same as the previous Bill which lapsed on the dissolution of the Dáil. In perhaps the most important matter dealt with in the Bill it is not basically the same in many respects as the previous Bill. To that extent, this Bill is an improvement. I do not think the Minister has, in fact, succeeded in solving the difficulties or in resolving the conflicts which existed in relation to the proposals which were first put before the public and the House by his predecessor. In relation to some of the proposals in Part IX of the present Bill, the Bill is still a bad one but it is not as bad as the atrociously bad Bill which was introduced by his predecessor.

It is only right to say that and to give the present Minister the credit for having effected the improvements that have been made in the Bill he now proposes to the House. It is right that someone from these benches should also welcome the fact that the Minister has, in what I might describe as a very politically generous manner, paid tribute to Deputy J.A. Costello's interventions when the previous Bill was before the House, and that he has in his speech here today clearly shown to the House that he is prepared to consider, with the respect that is due to Deputy J.A. Costello, and due to his experience, the views he expressed here the last day and to endeavour to meet them. I do not know whether the Minister has succeeded in meeting the views which were expressed by Deputy J.A. Costello, views for which, let me say, I have as much respect as, if not more respect than, the Minister, but he has not succeeded in this Bill in meeting a number of objections which were put up not only from these Benches when the original Bill was being considered, but also objections which were put up from various sources throughout the country.

This is partly a technical Bill and I think as was the case when we were discussing the previous Bill, that in relation to what I might describe as the purely technical aspects of the Bill, there will be very little disagreement between us on either side of the House. Most of the technical or mechanical portions of the Bill are quite unobjectionable. Various points will require clarification, and some possibly will require tightening up, but we can go into them in greater detail when we come to consider the Bill on Committee Stage.

The Minister has pointed out, and again I agree with him on this, that in a Bill of this sort which deals with fundamentals—which deals with a person's rights to property, the rights he may exercise over that property, his rights in the disposition of that property: these are all fundamental matters, and matters that affect everyone in the State—it would be a mistake, because so much of the Bill is technical, if we overlooked the importance of some of the changes proposed by the Government.

I certainly do not want in any way to be taken as taunting the Minister or the Government for their decision to come in with this Bill. It is entirely praiseworthy that the Minister should have departed so far from the Bill originally proposed to the House. I think that is all to the good. I also think the Minister will concede that we in the Fine Gael Party have certainly met him more than half way. Our approach to the proposals dealing with succession from the very start were— and I think I can claim this without exaggeration—both thoughtful and constructive. We went to the trouble of giving very careful and very exhaustive examination to the proposals which were brought before the House in the original Bill.

I think we can rightly claim to be the only Party in the House, not excluding the Government Party, to put down amendments to those proposals. I think it will also be necessary —and I say this not in any controversial sense—for us to repeat those amendments, with such modifications as may be necessary because, having considered this matter very carefully, we came to the conclusion that the approach of the Government to Part IX of the former Bill and also Part IX of this Bill was wrong. Having come to that conclusion after, as I say, studying the matter very carefully and obtaining the best advice available to us, we thought it right that we should not be content merely to criticise, but that we should put up in a constructive way comprehensive suggestions to deal with the situation which we felt should be dealt with, and which we felt required to be remedied.

The problem posed by the inofficious or undutiful will whereby a testator unfairly disinherits his dependants is the problem which the Government are seeking to deal with in Part IX of the Bill. I do not think anyone will dispute the fact that that problem exists. There may be differences of opinion as to the size of the problem. By and large, I think all of us can accept the suggestion made by Deputy J.A. Costello when the other Bill was being discussed that the problem is probably a sizeable one. Personally I am not convinced of that, but I am prepared to accept that it may be a sizeable one. Whether or not it is sizeable I think all of us are conscious that the problem does exist. So long as the problem is there, we all felt something should be done to remedy it.

In the other Bill the Fine Gael Party made an effort to have that problem remedied by putting down a motion for discussion here, a motion which was accepted by the Minister's predecessor, suggesting that legislation should be introduced which would remedy the problem, and under which dependent spouses or children would be protected against a capricious or a malicious, or an ill-disposed testator who sought unjustly to disherit them.

I was surprised on the last occasion to find that the motion we had put down was one of the reasons given by the then Minister for the introduction of the proposal he made in Part IX of the previous Bill. I merely mention that matter because I think I should make it clear, if it has not been made clear already, that it is entirely wrong to suggest that there is only one method which could be adopted to remedy that situation.

There are at least two. One of the methods suggested by the Government in the original Bill and repeated, although in a limited and modified sense by the Minister in this Bill, is the fixed legal right share system whereby the will of every testator in the country is affected in order to solve the difficulties created by some testators. Whether the number is big or small does not matter. The Government have now changed their mind in regard to that problem. Again, I want to make it clear that I am not saying that as a jibe; it is a matter for which I think they are entitled to credit.

The original proposal brought before the House was that there would be a fixed legal right share system not only for the surviving spouse but also for the children, and not only the children irrespective of dependency but the children per stirpes. That was the original proposal which created such widespread concern and controversy throughout the country. Subsequently the Minister—I think it was the present Minister on his appointment— announced that the Government proposed to modify that by having this system apply not in the widespread sense that had been intended, but merely to spouses and dependent children.

That did not go far enough. That was the position when the Minister spoke on the Second Reading of the Bill that has lapsed. Subsequently—I hope I am not giving the Minister too much credit when I say this—after his consideration of what was stated by speakers in the House on the Second Reading of the original Bill, after his consideration of the amendments which had been proposed by the Fine Gael Party, the Minister announced a further modification so that instead of having a system of legal rights applying to the spouse and the dependent children, it was proposed, as it is proposed in the Bill, to apply it to the spouse only, and that the children would be protected in the manner it had been suggested should be done from these benches—by giving them the right to make an application to the court if they were unjustly treated.

That is the position at the moment, and while I quite sincerely welcome the fact that the Minister has gone so far to meet the point of view expressed from these benches and by the Incorporated Law Society and the other bodies who have a definite interest in this Bill, I am sorry he has not felt that he could go the whole way to meet the arguments advanced.

The Minister has in the course of his speech here today and earlier at a press conference made the claim that he has succeeded in bringing about the marriage of the two systems which had been suggested as a positive intermediate course or compromise by Deputy John A. Costello. It is true he has brought about a marriage of sorts but I do not think it is likely to be a very happy one. I do not think the solution is a very happy one because you have on the basis of the Bill the Minister setting up two completely different systems, one to apply to the spouse and the other to the children.

It would have been possible to bring about a marriage of the two in another way, in the way in which it was done in some of the Canadian provinces to which the Minister referred in the course of his speech this evening. During the concluding discussions on the previous Bill, I threw out the suggestion that it might have been possible to arrange a compromise which could have had the unanimous support of all Parties in the House and could well have satisfied the views put forward by bodies outside the House if the Minister had decided to operate a system whereby court discretion would be allowed but whereby the court would have been required to give a particular minimum share in the event of its finding that a will was undutiful or inofficious.

That suggestion was one I would have been prepared to accept as a compromise, though I do not think it would have been the ideal solution. If the position were that there was only one way of dealing with the undutiful will, that there was only one way of solving the problem created by the testator who unfairly disinherited his dependants, and that that was by interfering with everybody's will in order to do it, that is a situation which would have required a very great deal of consideration, and my personal view is that if I were faced with the choice of either doing nothing or of interfering with everybody's will in order to solve this problem, I would have found myself on the same side as the Minister and would have said: "Very well; if there is no other way of doing it, if you cannot solve this problem otherwise than by interfering with everybody's will, then you will have to bring in legislation to interfere with everybody's will."

But that is not the choice. That is not the decision we are asked to take. It is possible to solve the problem of the inofficious will without interfering with the will of the average decent testator who makes proper provision for his spouse and children. The method of doing that is the method that the Fine Gael Party suggested by way of their amendments to the previous Bill. The method of doing it is to allow a court application which, as the Minister himself recognises, should be by way of procedure that would be as inexpensive and speedy as possible.

In the amendments which we proposed previously and which I again urge on the Minister for his consideration, we suggested that in this country we should not simply tag along behind legislation in Britain, in New Zealand or in Northern Ireland but advance beyond it. As the Minister pointed out, in England and Northern Ireland the power of the court to relieve the situation in the event of an undutiful will is limited simply to the making of provisions for maintenance of spouse or of children who have been unfairly disinherited.

There is no reason why we should not allow discretion to the court, in the event of a person unfairly disinheriting his dependants, to make such adequate provision as the court thinks proper not merely by way of maintenance allowances, possibly, as in other countries, ending when the dependence ends, but that the court could be allowed discretion to make whatever provisions are necessary or that the court thinks proper.

That, put very briefly, was the scheme we put up through our amendments to the previous Bill and which it will probably be necessary for us to put forward again in connection with this Bill. It is not very easy to argue out the details of these matters on Second Reading and I feel the Minister as well as myself would prefer to have detailed consideration and examination of the merits of each system on Committee. I shall certainly consider doing that so that we can have the kind of discussion which would be of benefit not only to Deputies but to everyone concerned with the problem.

I think it was Deputy Vivion de Valera—if I may return the Minister's compliment in quoting Deputies from these Benches—who on the discussion on the previous Bill quite rightly, to my mind, stipulated, or promulgated, if you like, the thesis that hard cases make bad law and that that seemed to be the fault into which the Government were falling in connection with their proposal under the previous Bill and which, as I say, to a definite, if modified, extent is being repeated in Part IX of this Bill. The objections made to the proposals contained in Part IX of the previous Bill still exist. They exist not as forcibly or as strongly as they did then because of the modifications the Minister has introduced into the Bill, but they do still exist and there is still danger that under the system proposed by the Minister we may have fragmentation of estates and property.

I notice in his speech today the Minister again refers, on page 17, to the Succession (Scotland) Act of 1964. He said in the course of his statement that:

In Scotland, freedom of testation is unknown, and the Scottish system of legal rights applicable to personal property have been maintained under the Succession (Scotland) Act 1964.

Exactly the same phrase was used by the Minister in his Second Reading speech on the previous Bill except that the words "applicable to personal property" were omitted. Today the Minister points out, quite rightly, that that applies only to personal property. The Incorporated Law Society in the course of a statement which they issued following the discussion here on the press conference given by the Minister, pointed out that in Scotland this question of a fixed share as a legal right does not apply to land at all, that it applies only to movables. I am assuming that it was because he was corrected by the Incorporated Law Society that the Minister was careful in his speech today to refer only to personal property.

Apparently the position in Scotland was that it was recognised that if the fixed legal share system were to be applied to land, it could have, and possibly would lead to, the dangers against which we warned the Government, the dangers of fragmentation. If the Minister wants the reference to his last speech, it was at column 337 of the Dáil Debates of 2nd December last. The second objection that was made, and again this is still a valid argument, in connection with the system proposed by the Minister was that by and large a testator knows the family circumstances best. He knows what is best for the family and what arrangements will suit them. That argument is as true today as when the more drastic step was proposed by the Minister in the previous Bill. It is also true, particularly in a country like ours where there are so many small holdings, so many small businesses, that very often the only substantial asset which the testator has to leave is a farm or a business which should in ordinary prudence and in the interests of ordinary economics be preserved as a single asset. That is still true and that position is going to be jeopardised under the system proposed by the Government.

There is another point the Minister and the House should consider and it is this: very often provision of a share amounting to one-third for the surviving spouse is going to be quite inadequate and might be grossly unfair, but under the provision proposed here the position is that if a testator does make provision for the one-third share, the surviving spouse is going to be completely debarred from getting any more. If he does that, it is a complete answer and the widow will not have the right to go into court and look for any more. If she gets the legal right share of one-third, that is all she is entitled to. I am talking now about the unfair, undutiful will and I am not talking about the will of the person who leaves all to his wife or leaves sufficient to his wife. The point I am making to the Minister is one which possibly he has not considered, that very often one-third is not enough but under these provisions if one-third is given, that is all the widow can get. She has no right to go into court to look for more.

If the suggestion we made were accepted by the Minister, the position would be that if the surviving spouse were dissatisfied, if the surviving spouse did not get enough or did not get adequate provision under the will, irrespective of whether it was one-fiftieth, one-third or one-half, the surviving spouse would be entitled to go into court and have the application made speedily, inexpensively and in private—and that again has been adopted by the Minister in relation to the children—and have a just award made by the court. It may very well be that in endeavouring to assist the surviving spouse by giving a fixed share as a legal right, the Minister will be in fact creating a difficult position for those whom it is intended to assist.

There is another point which should not be overlooked, that is, the fact that this will apply not merely to widows, but to widowers as well. In other words, when the wife dies, the surviving spouse, the husband, will be entitled to his one-third legal right share in the wife's estate. That is a matter which should not be overlooked. We are entitled, and it is very easy to fall into the error when considering a Bill of this sort, to assume these provisions are provisions that will apply only to a widow. In fact they will apply to the surviving spouse, whoever that may be.

Section 120 is going to restrict the disposition of property which might be regarded as an endeavour to defeat or substantially reduce the legal right share, whether a will, or a share, on an intestacy, and I should like the Minister to consider that a little further. It seems to me, with the section as it is—I do not agree with it anyway—very substantial title difficulties are likely to arise. It is provided in the section that any disposition can be upset unless it is a matter for full valuable consideration—I am summarising this. It seems to me that any solicitor engaged in investigation of title or the conveyancing counsel asked to advise on the question must come to the conclusion that once it is stipulated that there must be full valuable consideration a subsequent purchaser will be put on inquiry as to whether not merely was a valuable consideration paid but whether full valuable consideration was paid and the definition of full valuable consideration in the Bill is that it is such valuable consideration as amounts or approximates to the value of that to which it is given.

Therefore, a subsequent purchaser is entitled to be satisfied that full valuable consideration has been given and unless he can be satisfied that such is the case obviously the title is going to be a bad risk so far as he is concerned.

I have dealt generally with the objections which I feel still exist to the Bill. As I pointed out, I should like to feel that our approach is entirely constructive because we realise the importance of this measure to the public and to every individual. It is an important measure and, as I have said, it is one dealing with fundamentals.

Going back to some of the more technical parts of the Bill, I should like to express, as I did when we were considering the previous Bill, approval of many of the changes that are being made regarding intestacy succession. I think the new rules of distribution are set out very clearly—perhaps not for this purpose—in Appendix A of the explanatory memorandum. I cannot imagine anyone objecting to any of the provisions there. Some improve the position very substantially over and above what it is at present. I also think that the provision contained in the Bill regarding the assent of personal representatives in order to perfect title for purchasers is a valuable provision. Section 25 is one of the provisions which it is intended should ease the position for purchasers.

There is only one query I should like to raise in connection with that and it is a point which the Minister should examine between now and the Committee Stage. Section 25 provides that all conveyances of any estate or interest in the estate of a deceased person made to a purchaser either before or after the commencement of this Act by a personal representative shall be valid notwithstanding the subsequent revocation or variation of the grant. The one point I should like the Minister to consider in regard to that is whether or not it should be made clear in the section that he is talking about a bona fide purchaser for full consideration. I think it might be well in framing that section to guard in some way against the possibility of a collusion by a fraudulent-minded personal representative. It is only a small point but it is one that should be a little further examined by the Minister.

The power given to the personal representative in section 53 to appropriate portions of the estate in satisfaction of a share or a bequest, assuming that that system is going to be adopted by the House, I think, an improvement on the existing position and a valuable step to take. The Minister, as a person who was a practising lawyer, will know that up to now it has been possible to achieve the same result by means of deeds of family arrangement following the death but it is simpler that the personal representative should now be entitled to do this as a matter of right.

I have referred to the question of new rules of intestacy and, generally speaking, I approve of those. It is a new idea to enable persons at the age of 18 to make wills. I confess I have not considered the implications of that very deeply but by and large I am disposed in favour of it. As the Minister said today, people aged 18 nowadays have responsibilities of one sort or another and are entitled to engage in national service here. I think probably the Minister is right to bring in that amendment. As against that, I do not like the extension of the doctrine of advancement which is set out in section 63. I have already dealt with the question of section 120.

Assuming that the Bill in its present form is to become law, it seems that the Minister is making a mistake with regard to the question of the right of children to apply to the court, making a mistake in the length of time he is allowing for that application. It is provided in the Bill that the application should be made within, I think, 12 months. I think that may create serious difficulties in regard to the administration of the estate. It may well be that personal representatives will feel the administration of the estate must be held up until all danger of such application has disappeared. I should like the Minister to look again at that section.

When we drafted our amendments to the previous Bill, which, as the Minister knows, were generally in favour of the idea of court applications, we considered that as one of the practical problems likely to arise and whereas in the British and Northern Ireland legislation on the subject where court applications were allowed to be made, it was provided, in both the 1948 Act in England and the 1960 Act—I think it was—in Northern Ireland that the application should be made within six months. In the proposals we put down by way of amendment, we adhered to the suggestion of six months but we did put in a provision that in case of urgency, that might be reduced by means of the personal representative serving a notice on all parties that he intended distributing the estate and we suggested that, on such notice being served and transmitted through the Probate Office, any application to the court would have to be made within a month of the notice.

It would be well worth the Minister's while to consider bringing in some similar provision here because otherwise there would be real danger of estates being tied up for a minimum period of a year even when it might be a matter of vital urgency to get the administration completed reasonably quickly.

I had a note here to ask the Minister why he had decided to delete the definition of personal chattels which appeared in the last Bill but he has answered that already in his speech and, as he pointed out, he has replaced it by the reference to household chattels.

With regard to section 5 of the Bill, I expressed approval of this proposal when the previous Bill was being considered and I still think that anything which leads to greater certainty is all to the good. This is the section dealing with simultaneous deaths. On considering the position further, I am not sure that this really brings us as far as we would like to go on the road to certainty. I should like the Minister, for example, to consider the case where a husband and wife are killed in an accident, a car crash or plane crash or something of that description, where they have no children and they have made mutual wills, each leaving everything to the other and, in the event of the other's death, then leaving the estate back to their own side of the family. What happens in those circumstances under section 5 if they are presumed to have died at exactly the same time? If the Minister ponders on that question, he will see that this section does not really solve it or bring us very far on the road towards solving it. However, in so far as it does help to avoid uncertainty, the section probably is an improvement on the existing position.

I am not entirely sure why in section 4 the Minister has dropped the reference to trust estates which appeared in the earlier Bill. In the previous Bill a trust estate was deemed not to be part of the estate of the deceased. In other words, if he held merely in trust then it was not regarded as part of his estate for probate or estate duty purposes. That has been dropped from section 4 of the present Bill. I assume there is some reason for it but it is not immediately apparent to me and I should like the Minister to explain the reason for it.

With regard to section 9 of the Bill, I should like to repeat a query raised on the last occasion. Section 9 provides that this Bill, when it becomes an Act, will apply to the wills of all persons who die after the commencement of the Act, irrespective of when the will was made. A situation may very easily arise where a person has made what is now a perfectly valid will but which, when this Bill becomes law, infringes the legal right share to be specified here. What I want to know is, what is the position of that person who has made what he regards as a perfectly valid and perfectly proper will now, if he subsequently becomes incapacitated, for example, if he becomes mentally incapacitated and incapable of making a new will or adding a codicil to his existing will. It does seem to be rather hard that this will should be in some respects bad when he has no opportunity himself of remedying the position.

The final point I want to make, again, is purely for clarification and is purely a technical matter. It is in relation to section 13 of the Bill. This is a section which provides for the vesting of an estate, between the date of death and the date of raising representation, in the President of the High Court. The Minister set out in his explanatory memorandum, and I think also in his speech here this evening, that there should not be a vacuum as far as ownership is concerned and that as between the interim period between death and the extraction of a grant, the ownership will vest in the President of the High Court. I simply want to find out what is the position if the President of the High Court is himself dead and a successor has not been appointed, because the office is not a continuous one and until a new President of the High Court is appointed there would seem to be no person under this Bill in whom the ownership of the estate would vest.

I do not think there is anything else I have to say in relation to this Bill except to repeat what I said earlier, that in so far as the Minister has come a considerable distance to meet the views put forward here and put forward by others, I certainly welcome that. I think he will find that, as on the last occasion, our approach by way of both Second Reading discussion and Committee Stage consideration by way of amendment or otherwise, will be entirely constructive and in the best interests of the people of this country, to try to get a Bill which we think will meet the needs of the people on a matter of such vital importance as this.

It has struck me over the years in this House listening to Deputies, particularly in relation to pieces of legislation of this kind, that when lawyers seek clarification, laymen are liable to become very confused. The posing of conundrums seems to be part and parcel of the profession. It is all in a good cause, I suppose.

As far as we on these benches are concerned, our primary consideration has long been with that vast and respectable body of men, the men of no property. The phrase will be familiar. It is one used by Theobald Wolfe Tone when he was seeking to free himself. He said: "We will do it. If the men of property do not help us, we will do it with the help of that vast and respectable body, the men of no property." It should be of interest to historiographers to know that he was talking about freeing himself and not the men of no property.

We are living today in a time when there is a greater dispersion of property ownership than there has been at any time in our history. Quite apart from the fact that so many people in rural areas have become property owners in the past 50 or 60 years by virtue of the passage of various Land Acts and so on, there has been an urban and, indeed, municipal development in the past 20 years which has resulted in the creation of a vast number of new property owners. I refer to people who are purchasing their houses under the terms of the Small Dwellings (Acquisition) Acts. In rural areas there has also, to everybody's knowledge, come into existence quite a considerable class of people who are living in county council cottages and who are in the process of purchasing these cottages. These, too, have entered into the ranks of what may be termed loosely property owners. These people are affected by any legislation such as the Succession Bill and we must ensure that their newly-found rights are protected and entrenched in so far as it is possible for this House to accomplish this.

There has been a great deal of public controversy about this Bill and, looking at it from a purely nonpartisan point of view, it has seemed to me from the beginning that the Minister of the day was motivated by the desire to bring about a legal situation which would reduce to a minimum the possibility of the continuation of the abuses which, as we know, prevailed in relation to the willing and inheritance of property and to the dispossession of widows and children. To effect this is a most complex and difficult thing. A perusal even of the explanatory memorandum to this Bill or of the Bill itself will show clearly the great complexity of the law relating to property, with its origins in enactments going back before the Conquest and with all the various alterations, influences, statutes, and so on, down through the years, all of them, I may say, dominated at all times by the desire of the property owners to protect their interests against all comers, which is inherent in all property law. All of these things have resulted in a situation in which it would take the best-intentioned legislator in the world He also mentioned in his statement— a great deal of trouble to effect even a slight change. The Minister has done well with this Bill.

A complaint has been made on other occasions about the undesirability of dictating, as was suggested, to a property owner as to how he should dispose of his property, that the principle which is enshrined in this Bill, the principle of the legal right, was an undesirable one because it interfered unduly with the liberty of the individual. These specious arguments have been made, whereas any of us who are going about our constituency business know that the principle of the legal right of the spouse has been in active operation in this country in regard to legislation relating to intestacy, and letters of administration when taken out have this principle operating. Therefore, there is nothing new in that. I do not know exactly when it originated but I presume some time at the end of the last century. Certainly there does not seem to have been any outcry against it, and I do not see that there should be any outcry now against the Dáil because we wish to do justice to the families who have property and ensure that such property will be disposed of in such a manner that it will be as near as possible to being just to all concerned.

I agree with what the Minister had to say in regard to the need for the provision of inexpensive law, in so far as that can be done, in relation to small estates of which there is a large number, especially those estates consisting of county council purchased cottages which number some thousands. There should be a reduction of the existing charges; small though they are at the present time, they still represent an imposition upon the people concerned, and I would urge upon the Minister, when he is preparing the Bill for Committee, to take that into account.

The Minister intimated in his introductory statement that he was anxious to see that the citizen would be ensured cheap administration as far as it was possible to do that, and there is provision for that at the present time, it is not generally known — that a spouse can obtain letters of administration at a fairly low rate of charge, but still, I would think, not low enough. I suggest the limit of £500 for the lower rate should be increased considerably because it bears little relation, as he says himself, to present day money values. However, the Minister's expression of concern in this matter is to be commended because the principle which we must at all times strive to maintain is that the legal process should be open to the poorest in the land and that the test of wealth which, unfortunately, has been far too obviously a test in the past should not be so in the future. A person who feels he should take action in the court to attain any end should have such a course open to him without the disability of having to find inordinately large sums. That is a very important principle to which the Minister adverted in his statement.

There is not, as far as I can discover, any definition of the term "children". It is obvious what is meant by spouse, the widow or widower, but "children" is a somewhat loose term. I should like to know if it is meant to refer to minors or could it conceivably refer to, say, a Dublin publican of 45 years of age? One could never deem him to be a needy person but it would be of interest if the Minister would let us know what is meant by this term.

Generally, from our point of view, the Bill is as satisfactory as it is humanly possible for such an instrument to be. It has its flaws but in every effort made by man there are flaws. This is, I think, a fair effort to meet a very difficult and complex situation. We shall take the opportunity, along with members of the other Parties, to examine the Bill in detail in Committee and make such recommendations, suggestions and amendments as we think will improve it. I am happy that the Minister has invited the House to approach the Bill in this way. That approach could, I think, be usefully copied by other Ministers who have legislation in mind. In the first place, they should seek consideration of such legislation in Dáil Éireann rather than canvass various organisations and societies outside the House.

I should like to join with the last speaker in complimenting the Minister on his approach to this Bill. For nine-tenths of it, this Bill is essentially the Bill that was here before. We were all agreed then that, except for one or two matters, the Bill as a whole was an excellent measure. The matters that were criticised were largely matters that would arise on any Bill. No Bill introduced here can be regarded as in its final form. If we are to do our job properly, it must be subject to criticism and will, most probably, be subject to amendment before it is completed.

It was largely around the controversial part of the earlier Bill that the debate centred. For my part now, having weighed the matter up, I think the Minister has by and large solved the problem. His solution may not be the solution all of us would have wished but we have, I think, a workable solution here, subject to one or two matters I hope to put before the Minister either now or at a later stage. The earlier conflict resolved itself finally into whether the provision for the widow should be mandatory, or, as the Minister phrased it, a legal right, or whether it should be a discretionary right. As the earlier debate proceeded, we all came to the conclusion, I think, that there should be some provision for the widow and for the children and that that provision should be, in one sense, a legal provision. In other words, she and they should have a right.

The arguments with the Minister on that score would, in my view, have resolved themselves into a question of drafting, a question as to whether you would provide, as the Minister does in the Bill, a final legal right of a third, or a half in certain circumstances, or whether you would make the vesting of that right contingent on an application to a judge in chambers where there would be a wider possibility of meeting the case to an extent greater than the legal one-third, or less, if necessary. This is where the dispute centred in the first instance. Actually what has happened now is the Minister has compromised. In regard to the widow, he chooses to define that in all cases where a man dies, a widow will have a legal right to one-third or one-half of the estate as circumstances dictate. In regard to children, he has adopted the discretionary approach to the point where that discretion can range from nothing to ample provision.

That is a solution, as I say, to the problem. It is not, perhaps, the one some of us would have adopted. For the record, I should like to say that the way I would have preferred to have done it is to have provided, in the first place, for an application and then to have defined the limits of the amount that could be given to the widow, enabling a judge to give her the third, and more, if necessary, but relying on the judge to meet the case. That approach has not been adopted and I have to make up my mind now in all the circumstances as to whether the essential distinction between that approach and the Minister's is an irre-solvable conflict. I do not think it is.

If the widow gets one-third on intestacy, it seems to me a fair argument that she should get one-third or one-half where there is a will and, for my own part, I am prepared to accept that and to support the Minister wholeheartedly now in the provision he has before the House. The question is one of balance and judgment. I have no doubt he is right in what he has done in regard to the children and, in all the circumstances now, having regard to the earlier debate, the earlier motion and the feeling of the public, which is something we must also take into account, I now find myself in the position in which I would urge the adoption of the solution proposed by the Minister in this new draft.

There are some points of difficulty that necessarily flow from that approach and which I think we should make some further effort to overcome. In the case of very large estates, I would again ask the Minister to consider whether there is any way of limiting the provision. I agree with the Minister when he says the widow is entitled to something more than maintenance, but there are occasions when there would be very large estates which, in modern circumstances, would be associated with a large company or some other large interest and where, without going into details, I can foresee difficulties arising. Furthermore, I can foresee circumstances in which it would be unnecessary for the widow— the word "unnecessary" is the mildest word I can use—to inherit to the full extent of one-third. Admittedly, this would be a relatively exceptional case, but the whole idea of this, as we argued on the earlier Bill, is largely to deal with what are in practice exceptional cases, inofficious wills. I do not think I am being unreasonable, therefore, if I ask the Minister to consider this exceptional case. It might have repercussions. The other case then is at the opposite extreme. In the case where a testator dies and his estate is very small, where one-third is inadequate to maintain the widow, that also seems to be a case for which it is difficult to provide under the scheme which is being adopted; but, if it is possible to provide for these extremes, then I would urge that strongly on the Minister.

I do not want to delay the House with what are essentially Committee points but there is one further point, essentially a Committee point, I should like to make in order to illustrate the dangers of the approach that we may be taking in this. After much discussion on section 119, concerning a spouse who feloniously kills or attempts feloniously to kill another being precluded from taking any share in the estate of that other, I notice that the Minister has translated or interpreted the phrase "feloniously killed" as murder or manslaughter. Under modern conditions on our roads an interesting possibility arises. Supposing —and we have heard of cases where it has actually happened—the husband and wife are involved in a car accident. The wife was driving and there was some degree of negligence on her part which results in a manslaughter conviction. I think I have seen a reported case of a child being convicted of the manslaughter of a parent. It could happen. That is the main point. It would be rather a tragedy in that case if a disinheritance should follow as well, because the type of crime contemplated here is clearly not the type of crime I have outlined. Admittedly, that is possibly a stretched point. It is a point that could be covered, but it occurred to me on reading the Bill that it was a possibility.

I approve of subsection (3) of section 119, where there is a constructive desertion. That was a point that had been worrying us at an earlier stage, but I think the Minister has met it fairly completely.

With that comment on section 119, which came very much under fire on the previous occasion, I think we could possibly accept that section without the qualms we had before.

The last thing is the question Deputy O'Higgins raised about disposition for full valuable consideration. This also caused us some trouble. It seems to me that that section will virtually demand the joining of the spouse in the conveyance, and will even that do it? It seems to me it does not matter what person owns property and is parting with it. Subsection (1) (a) of section 120 seems to imply that, if a testator at any stage of his life or at any point as a married man, seeks to part with property he will be captured by that section if for any reason he should die within three years.

We are accustomed when thinking of wills to think of the three years before the death of a person who dies at what I might call a normal age, that is, a person fairly advanced in life. The expectation of life, however, has been vitiated in modern times at all stages by transport risks and such matters, even medical risks. It seems to me, therefore, on the simple reading of this section that he cannot dispose of property that would in any way prejudice the third or the half, as the case may be, for the widow without either extraordinary precautions being taken to show that it was for full valuable consideration or else getting the spouse to join in the conveyance. That may be a forced interpretation, if you like, but I am making it for the purpose of alerting ourselves to possibilities of that nature in the wording of the Bill to which we may not have adverted.

There is very little else I want to say on the Second Stage on the general principles of the Bill. The Minister's concluding remarks cause me to make this comment. This Bill is now much more in accord, in spirit and in outlook, with the system of law we are operating. One of the things the Minister has done is to see that the provision is part of our system of law. At the earlier stage nobody criticised or would have criticised looking for ideas or provisions in other systems. What was criticised was the danger of wholesale grafting of purple passages, and a tendency to that can happen. There is no evidence of any such tendency in this Bill. I think it can fully take its place in our system and, by and large, is one to be fully commended. The remainder of what I might say on it is properly confined to what will arise on the Committee Stage.

I expressed my views in general and in some detail in the course of the Second Reading of the Bill before the previous Dáil. I have no intention of repeating my views given at that time, and I hope to make the comments I have to utter here this evening as brief and as succinct as possible. Speaking generally, I think this Bill is a very considerable improvement on the previous Bill. I think I am entitled to say this—perhaps, like many of my views, a lot of people will not agree with it—there is a greater hope of general agreement on this Bill than there ever was on the previous Bill. The Minister has made approaches to us to such an extent that I am not without hope that by the time the Committee Stage is over, we will have reached some sort of general agreement on what should go into this Bill, even though it may still call for some further concession on the part of the Minister.

Of this I am also satisfied—again, perhaps, many people will not agree with me either—no matter what Bill we produce, it will not be popular in the country. I believe, from my knowledge and experience of the country, that, if you could envisage such a thing happening as a free referendum on a Bill of this kind around the country, everybody entitled to vote the way they want to vote with no political Parties entering into it at all, there would be an overwhelming majority against any change in the free testamentary capacity that exists at present. Of course that does not end the matter at all. There is undoubtedly a problem and I still adhere to the view, although I know a lot of people do not agree with me. I take a more radical view of this matter than most of my colleagues and many of the people in the country.

I want to make the first radical suggestion in this matter. Why should we use the word "spouse"? I am only interested in widows. It seems to me that we should not go to the trouble of putting into this Bill a provision that a wife must make provision of at least one-third of her estate in favour of her husband. If he will not provide for himself and is depending on what his wife leaves him, the devil mend him and we ought not to legislate for that. We should confine the operations of this Bill to widows.

There is another matter on which I am perfectly certain of disagreement with the views expressed before and also with the views of my colleagues. I want to reiterate this here again today. I do not consider widows are very well treated in this country. I suppose if a foreigner said that about Irishmen, there would be a howl which you could hear from here to Holy-head. That is my view and I am expressing it from my own experience. Great sympathy is expressed for a widow when her husband dies. When a few weeks or a few months pass, you will find a change of attitude and she will not receive the assistance, the help or the sympathy she is entitled to expect. That is not a popular view but I know it to be true from my experience.

I remember being present at a deputation on land provision—I will not describe it in such a way that it will be known exactly where it was—but I looked at one man who murmured to himself: "Little so-and-so's little holding which adjoins mine would make a good addition to my holding." The widow had a little farm next to that man. He wanted the addition of that land to make his own a much better farm. The fact that she was a widow did not enter his head at all. That happens in many parts of the country. This problem is not an extensive one but it is one which requires to be aired.

I agree with the Minister when he says that he could not accept the view that the provision of mere maintenance fulfils the responsibilities of a husband to his wife. He said the degree of need of the spouse is not made a criterion. I disagree with the view of the Minister 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 think a man is entitled to take into account his responsibility towards his wife when she becomes his widow. He does not discharge his obligations by merely putting into his will or marriage settlement his widow's right of the grass of a cow, wet or dry, the right to have a pony and trap to bring her to Mass and the right to be maintained on the whole. That is a consideration she is entitled to.

I entirely agree with the view suggested by the Minister that the problem we had here in this measure and the previous one was to reconcile, if it was possible, the claims and rights of those people who up to now have had the full right of free testamentary capacity. These safeguards are of very little use if the man can will his property to anybody he likes and overlook his widow and children. They are of very little use if he can give his property to charity or somebody else he prefers and leave out his wife and children. That was the right of full testamentary capacity. The man making a will should be able to understand the claims of his wife and children upon him, to know the contents of his will and to appreciate the extent of his property. Subject to that, Parliament or anybody else has no right to interfere with the rights of an individual unless there is a demand or need for it.

It is perhaps open to question whether there is a demand for this. I said on the last occasion, and I want to say it again, that what I was afraid of was that we were letting the train run away with the engine, that we were running away from what the public wanted. It struck me at that time as one of the most extraordinary features of public life since I came into it, the interest which is being taken in this Bill and the views expressed that it was a man's right to leave his property to anybody he liked. We have to recognise the fact that during the past few months that particular view has been expressed by a very large number of people throughout the country. They feel that a man is entitled to give his property to anybody he likes. I do not fully subscribe to that view. That is a principle which I think is certainly not of universal application or dogma. A father very often does not know what is best. I had better get down to the provisions of the Bill before us, now that I have made those remarks.

I said, on the occasion of the previous Bill, but I think it is proper that I should repeat it again, that this House should recognise the extraordinary erudition, industry, learning and research that went into the making of this Bill. It is a Bill that the greater part of the world could be proud of, the way it is designed and formulated. We should not merely pass this over and say all the parts of it are acceptable. They are more than acceptable. They represent the fruits of labour, industry, research and learning from which this country will undoubtedly for many years to come get great good.

Deputy Dunne said—I forget the phrase he used—that his Party were interested in all those people of no property. Then he proceeded to talk on behalf of people with small cottages and those people who, ten years ago, had no property. There are people all over the country who did not own property ten years ago and who are now people of property. Even a man who has a small cottage and who has to till a half-acre of ground is as proud of that as the man who owned Castle-town estate which was sold the other day. The provisions of this Bill will apply to that man of small property.

May I ask the Minister to take out one particular subsection of the Bill which appears to me ridiculous and slightly laughable? I refer to section 117, subsection (5), which deals with the application to the court on behalf of children which would be held in chambers. That means the press cannot publish proceedings of that kind. That particular subsection reads:

Rules of court in relation to the procedure on applications shall be so made as to ensure that the proceedings are conducted as informally and inexpensively as possible.

The Minister must recognise that it is completely ridiculous to put that into the Bill. I entirely appreciate what is at the back of it but I believe that putting it into the Bill will achieve nothing. It will achieve nothing by asking for rules of court. This legal provision will prevent a junior counsel making a guinea or two or likewise a solicitor making a guinea or two. It will lead only to trouble. I would ask the Minister to drop that and he can secure the matter quietly and informally rather than in this way.

The real choice to be made on this Bill is the choice between what Deputy O'Higgins said and what is in the Bill. I shall talk about the widow from this on—I hope I shall not be confused with my friend Deputy Burke opposite—because I cannot with any degree of seriousness speak on behalf of a husband being done out of property by his wife. The widow is entitled to get one-third, a fixed legal share, and the children can apply to the court: that is what it comes down to now. Deputy O'Higgins said that instead of that you should have the system that applies in England. I should think he would like to improve the system which exists in England and which, as I said on the last occasion, is clearly inadequate.

The Minister says we must have this one-third. I fully appreciate the approach both by Deputy O'Higgins and by the Minister but I would think that, as a via media between the two of them, instead of the Minister laying down a strict one-third there should be a declaration in this Bill that the widow be entitled not to a fixed one-third or any other share but to a share of the property which is just and equitable having regard to her circumstances in life, to the amount of the estate, to the claims of her children and the conditions of the family in general—some words of that kind; I do not ask the Minister to accept them. It is just the idea, the principle, that the widow will get a share which is just and equitable having regard to all the circumstances of the case. If she is not satisfied with what the husband has done in the will, or if anybody else is not satisfied, then the matter can be litigated. It will take away this very serious objection that exists and will continue to exist and there will not be great resentment at the idea of the Legislature interfering in private affairs.

No man should object to a provision of a statute by an Irish Parliament directing him that he is bound to give a proper and just share of his assets to his wife. That will take away the notion, I think, that we are interfering with a person's private affairs and, to some extent, at all events, it will take away the objection to a fixed amount. Having considered the matter sympathetically, I thought that was the best way out of the situation. The position would be that we would have hardly any conflict from the way I suggest. It would get over the difficulty pointed out by Deputy O'Higgins and I think agreed to by Deputy de Valera that the one-third share may well represent a very inadequate share in the property.

I think I did mention privately to the Minister a case that came to my attention which is not even dealt with in this Bill. It concerns a man who, in circumstances where his wife is afflicted, has created adequate arrangements to keep her in her home in perfect comfort for the rest of her life with medical, surgical and nursing attendance of all kinds and which were agreed to between him and the authorities concerned. They are childless. He has discharged his complete obligation towards her. She can never recover and make a will. She will not want any more of the property if it comes to her under this Bill, if it comes into operation, and her relatives, who have no claim upon her husband, will get that property. That should not be possible under this scheme and I do not think it will be possible under the scheme I suggest. I was consulted on this point by the man concerned and I told the Minister about it. It is a typical case. I mentioned it before but I so camouflaged the facts of the case that the person concerned could not be recognised but the Minister will know what it is about. It is a case that may occur if a person has an afflicted wife of that kind and no children.

There is no reason why the relatives of the wife, because she cannot make a will, should get a pretty substantial share of her husband's estate merely because we say that the proper thing to do is to give her one-third. That particular case was operating in my mind when I thought that the best way would be to adopt the formula that I have suggested declaring a legal right in the widow and, to give it in general terms, a just and proper share having regard to all the circumstances of the case and then let it be contested in court if anybody thinks that should be done.

I have felt that much of this Bill in its present form was long overdue. I am delighted that the few amendments made in the earlier parts were made in response to criticisms of the Bill's predecessor. I have commented before on the additional facilities provided for the granting of representation by personal application. I feel there is a basic misconception here, to which the Minister refers in his speech, which will only be confirmed by the terms of the Bill itself and that is that the raising of representation to the estate of a deceased person is somehow a very difficult, complicated and expensive procedure.

In his introductory speech the Minister said that he felt there was a need to ensure that adequate facilities are provided whereby grants or representation may be obtained easily and cheaply, particularly in the case of small estates. I personally do not feel it can be made much easier than it is at the moment. Once we start making reference to cheap law, I react as adversely as Deputy J.A. Costello has reacted in connection with another matter about inexpensive procedure in a hearing in chambers. If solicitors' costs for raising representation are too high, it is our fault, not theirs, because it is we who have prescribed the scale fee in all these matters. Granted a solicitor has to be paid but he may not overcharge and in 99 cases out of 100, he would not even attempt to do so. If he attempts to overcharge, there is an easy remedy open to the aggrieved party—to have the costs properly taxed and adjusted to the proper figure. I resent on behalf of the solicitors' profession, of which I am a past member, the suggestion that to engage a solicitor in this matter is unnecessarily expensive. On the contrary, it is the wisest possible course to follow. It is not expensive—certainly not unduly so.

The Minister stated that there is a considerable number of cases in which representation ought to be taken out, but is not. I agree with that, but when he goes on to say: "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 I part company with him. I do not believe for a moment that failure to take out representation is due to difficulty or inconvenience and, in my fairly short experience, which all the same extended over a number of years, and even since I have ceased practising as a solicitor, I have found that the main obstacle is sheer, downright ignorance and that people do not know how to get started in making representation. They suffer some mental blockage and do not get going at all. It is not difficulty or inconvenience; it is simply lack of knowledge as to the procedure.

The Minister also refers to the fact that there is general feeling that the process is an expensive one. I feel we must play our part in counteracting that feeling. The process is not an expensive one. I find difficulty in following the Minister when he says: "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." I just do not follow that at all. It is not a question of people not complying with the law; it is a question of people not availing of a normal legal process. They are not being wicked by failing to take out representation. They are under no obligation to do that, but it is right in the public interest that they should do so. Let us by all means give them encouragement but I do not think the State is under any obligation to bottle-feed people who are being helpless.

I resent a grandmotherly approach to individuals. I resent any Government saying: "You are weak, you are helpless, you are quite unable to do what is right; therefore, we as an all-seeing Government will take you by the hand and conduct you through all your duties and see you safely out at the far end." People must not be allowed to depend so exclusively on Government advice and assistance all the time. They must be allowed to grow up and become mature. Let us by all means show them that they have a duty in their own interest, in the interest of their family and in the interest of society generally to take out representation, but, for heaven's sake, let us not go too far.

The Minister said that in his view facilities were not being availed of to any appreciable extent, that is the existing facilities for personal application, partly because there are only six district probate registries and partly because the existence of the facilities is not generally known to members of the public. I would say it is almost entirely due to the fact that the facilities are not generally known to members of the public. If they were generally known I am quite sure that such places as Castlebar, Cavan, Cork, Limerick, Kilkenny and Waterford would produce a number of these personal applications. Very few people know about it and the number of people who ever heard of getting a grant of administration through the local office of the Customs and Excise must be a single figure.

The Minister says that in an effort to remedy the situation he intends to make personal application more easy by having new district probate registries set up to provide a convenient service for people who wish to avail themselves of the right to make a personal application. He goes on to refer to papers being prepared by the district registrar who will also give applicants information as to the course which they are to pursue. He goes on to say the district registrar will not, of course, give applicants legal advice.

As I said before, when the previous Bill was before the House, I do not accept for a moment that the main point at issue here is the mere mechanical process of the extraction of the grant of administration. There is far more to it than that. Anyone who is administering the estate of a deceased person is always in need of legal advice and assistance. If they do make a personal application to the district registrar they will inevitably find themselves relying on him for legal advice even though he is not supposed to give it. Being human, he will find it hard not to give that advice. He will be trying to oblige and help people who need assistance and he will be slow, I am sure, to say to a personal applicant—my lips are sealed; I know what you should do but I will not tell you, you must go to a solicitor and ask him. I do not thing a district registrar would be able to do that. He would be entitled to do it and should do it but I do not think he will.

If the Minister is successful in increasing the number of applications he will have a district probate registrar placed in an extremely difficult position. I think personal applicants would find it hard to understand why the district probate registrar could go so far and then suddenly stop and leave them high and dry. They will inevitably feel he is being unco-operative and unhelpful.

The Minister also stated that he considers 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. That is a matter on which his predecessor also commented in precisely the same words. I want to draw the attention of the House again to the fact that a person who is applying for a grant of administration as the legal representative of a deceased person is not conducting his own legal business at all. He is conducting the legal business of the deceased person. While I may be entitled as a private individual to try to conduct my own legal business, if I want to do so, I am not entitled if I am a trustee, to take the law into my own hands and try to act as a lawyer at the same time.

An administrator or an executor is also to some extent—to a large extent —a trustee, and he is not conducting his own legal business. He is conducting the legal business of a dead person who cannot remonstrate or reason with him, or criticise him. Therefore, his capacity as trustee is even more onerous. I feel in those circumstances it is essential in extracting a grant of administration that a person should be encouraged by every possible means to take proper legal advice at every step. It would be far quicker and I believe in the end far cheaper. If the Minister is really in earnest, as I think he is, about raising the grant of administration there is an easy way out, that is, by reducing the court fees payable, because they contribute largely to the cost of administration. That is the easy way of doing it; it is a much more logical way; and it still leaves the legal advice in the hands of the solicitors where it should always be.

Quite apart from anything else, the district probate registrar will not have clients. He will only have members of the public for whom he is discharging a mechanical function. It is essential that people acting in this capacity should be clients of a legal practitioner who will not only answer questions put to him, but also be able to give general legal advice until the whole estate is properly realised and administered. If the district probate registrars are to be really involved, as they may well be, they will be faced with the necessity either of increasing their staffs very much, or of allowing their work to become very much in arrear. Even as it stands, I believe the wait outside the probate registrar's office in Dublin is very considerable. You have to wait a very long time, indeed, although personal applications are not unduly numerous. If we are to encourage these personal applications we will have to increase the staffs. That will cost money, and someone will have to pay. If the district probate registrar has an accumulation of work he may feel very nervous about asking for increased staff in case the work dwindles away, as it may very well do. If he increases his staff he may not be able to keep them at work.

A solicitor is a very different person because he is not working solely on the administration of estates of deceased persons. He is engaged in conveyancing and many other matters, and he has a certain flexibility. In a bigger office certain members of the staff may be employed exclusively on administration work, and others employed exclusively on conveyancing, but in the smaller office the members of the staff, whether qualified or unqualified, are able to turn their hands, under proper supervision, to most of the different tasks that fall to be discharged by solicitors. Therefore, a solicitor's office is in a much more flexible position and is better equipped to deal with the fluctuations in any one particular line of business, while the district probate registrar's office will have to be adjusted so far as staff is concerned to deal with the general average rate of personal application.

If this general average is exceeded over a period, the delay in the extraction of administration may well be almost intolerable. I hope the Minister will reconsider this because I feel it is not wise and not necessary. In fact, it is something of a slur on the legal profession, and it perpetuates the illusion that we are in favour of cheap law as opposed to the expensive processes in operation at the moment. They are not unduly expensive and, if they are, it is our fault, and we must do something about it, and we can. To say that a solicitor will gobble up most of a £500 estate in his own costs is nonsense, downright nonsense. We should stop perpetuating this idea, and get the facts clearly before the public.

I am delighted to see that the previous distinction between the rights of inheritance of husbands and wives and males and females is being removed. That is a matter which has not received as much publicity as it deserves, because it is at last establishing that men and women are equal before the law. We have always had a prejudice in favour of men over women, and now we are trying to get complete equality, and we are doing remarkably well at it. Deputy J.A. Costello said that he wishes to provide only for widows and not spouses. Fair is fair, and if we are to say the wife is equal to the husband, it is not unfair to say the husband is equal to the wife. The widower should have the same right as the widow and it would be unreasonable to go the other way round. We would be falling over backwards in favour of the female if we did that.

I am delighted, too, that the provisions for witnessing the execution of a will have been retained, and also that the provisions for revocation of a will have been deleted. To my mind they were unwarranted and we are well rid of them. On the question of the legal rights of the surviving spouse, I am very glad that under section 110 the legal right is one-third, or one-half depending on whether or not children of the testator are also surving. I agree with the Minister that the provision of mere maintenance does not fulfil the responsibilities to which he previously adverted.

I am only sorry the Minister did not go a little further, because I feel that the obligation of husband and wife is not merely an obligation under the Constitution, however binding that may be. There is also the obligation of the marriage vows, and to my mind that should be the primary factor in this whole matter. When a man and woman are joined in matrimony they pledge themselves to each other, and the husband endows his wife with all his wordly goods for so long as they both shall live. I feel that the suggestion that a man can escape the obligations of his marriage vows by dying are without any moral justification whatsoever. There have been quite definitely men who have attempted to do just that. They said they had to look after their wives but, as soon as they were dead, the wives could look after themselves.

At last we are escaping from that danger and it is a very real one, even though it may not too often raise its ugly head. Here again we are establishing beyond all doubt the legal rights of the widow and putting her in a very much better position as regards the children than she was in before. I think the children themselves are being very adequately provided for, because after all if one-third or even more goes to the mother they will have their legal rights against her. All they are being asked to do is defer their acquisition of the parents' property until both parents have died.

I feel very much happier about the Bill now than I did before. I am delighted that the question of leaving everything to the spouse is clearly provided for and, though it may be unnecessary in certain circumstances to establish the legal rights of the widow, it will not act unjustly on anyone. It may be an unnecessary provision in certain cases but it can never be unjust. At the very worst, it may be temporarily irritating but it will never be finally unjust.

The Minister has been most helpful and co-operative in the way in which he has dealt with this Bill. I do not think he is being unduly modest when he refuses to take all the credit for the different framework in which the Bill is now being presented. The original concept of the Bill was unfortunate and I have found that in a number of points on which I have had discussions with the Minister, he has been more than helpful.

I am delighted that Deputy J.A. Costello was so enthusiastic about most of the Bill. I would feel absolutely happy if only I could get some assurance from the Minister that these provisions for personal application will not be regarded and cannot be regarded as being a reflection on the legal profession. I feel that in many cases these personal applications are bound to lead to legal complications and to legal costs in the end, but if it goes out from the House that we recommend every person first, to make a clear will, properly witnessed, preferably through a solicitor, and secondly, that in the case of death of a very close relative, whether he is the survivor or the administrator, to act in either capacity on advice from a competent solicitor and to do that, knowing he is doing it in the best interests of the estate and that it will not be unduly expensive, we shall have done a good day's work. Let us get this into people's heads, once and for all. In most cases it will be economical. I congratulate the Minister and I hope he will be able to meet me on this one point of phrasing.

(Cavan): I regard the introduction of this Bill as a substantial victory for public opinion, a substantial victory for democracy in general, and I therefore congratulate the Minister on the courage he has displayed in interpreting to a substantial extent the violent reaction of public opinion in this country against the Succession Bill of 1964 which is being replaced by this measure. The pity is that the Minister did not go the whole way and accede to the clear indications given from various sources that the people of the country, informed opinion of the country, were entirely dissatisfied with Parts IX and X of the Succession Bill, 1964.

This Bill, as I have said, replaces the Succession Bill of 1964 and it is, in my opinion, quite unrealistic to describe it as substantially the same measure as the Bill which was introduced last year. In my opinion, it is no such thing. The Bill of 1964 sought to deprive a married Irish citizen of all testamentary discretion, or practically so. It sought to reduce the serious business of will-making to a trivial informality. Under Part IX of the Bill of 1964, a married person had, first of all, to give one-third of everything he possessed to his surviving spouse, another one-third to his children, and could do what he liked with the remaining third.

It soon became apparent that that measure was entirely unsuited to Irish traditions and Irish conditions, particularly to rural conditions and rural traditions; and we had the unprecedented experience of the Minister announcing before the Second Reading took place that he proposed to alter it in a fundamental and substantial manner. Having done that, and before he put down any amendments, the Minister had not second thoughts but third thoughts and intimated to the country that he proposed further to modify and water down the objectionable provisions of the Bill of 1964. Many people thought it would have been a neater job and easier to follow if the present Minister, on assuming office, had withdrawn completely the Bill brought in by his predecessor and introduced a new measure.

Fortunately the 1964 Bill fell with the 17th Dáil and, as I say, I congratulate the present Minister for Justice on his courage in introducing a measure which, though it does not go all the way to meet the objections of the public to its predecessor, is certainly a very considerable improvement on it. There are many points that can be raised on Committee Stage and can then be dealt with in more detail.

I propose to come at once to section 110, which is the section which is unsuited to rural conditions at present and unsuited to family conditions. It is the section which makes it obligatory on a spouse when making a will to leave one-third of everything that that spouse possesses to the surviving spouse, When I speak on section 110, I do not propose to do so as a lawyer of any unique qualifications but I do presume to do so as a practising solicitor in rural Ireland with quite a few years experience of dealing with the type of person this section seeks to deprive of the right to dispose of his property, quite a few years experience dealing with the type of problem that intestacy creates in rural Ireland. With all due respect to the barristers' profession, I presume to say that there is no comparison between the qualifications of a country solicitor with considerable experience to speak on family matters and family problems and the barrister. He is far better qualified to speak on them because he comes into contact with his clients in an intimate and confidential way every day of the week. The members of the Bar are only asked to deal with the problem will, with the will which is not acceptable to the widow or the children, with the will that is made by the testator who is of doubtful testamentary capacity, but we of the solicitors' profession, especially those of us practising in rural Ireland, meet the average honest-to-God Irishman and woman whose only anxiety in making a will is to be fair to the surviving spouse, to be fair to the children and to create a situation in which the family farm or the family business will continue after his death, and at the same time provide adequately for those who come after him.

Under section 110, as I have said, a spouse or a testator who is married and has children must leave one-third of everything he possesses to the surviving spouse and he has to do that without any regard for the dependency of the surviving spouse on him. It does not matter whether the surviving spouse is a wealthy man or woman in his or her own right, one-third of everything that the will-maker has must be left to the surviving spouse. It does not take into consideration general family circumstances; it does not take into account whether it would be practicable in fact to carve up the estate, which may consist of a farm or a small business, and give one-third to the surviving spouse and two-thirds to a member of the family. That is not taken into consideration at all.

The general character or temperament of the surviving spouse is not to be taken into account. We are not to consider whether the surviving spouse, if she be a widow, might be likely to be difficult with the son who is residing in the farm, whether the surviving spouse might be unlikely to be fair to that boy who has stayed at home. Apparently we are not to think that there might be a danger that this one-third which is being left to the spouse might be given away to some son or daughter who is adequately provided for and has gone away from home. Those are things that should be taken into account, that considerate parents take into account when making their wills, and those are the kind of problems that cautious solicitors, when advising their clients, take into consideration.

The Minister in his opening speech invoked Article 41 of the Constitution as giving some support to the provisions of section 110. His extract from Article 41 of the Constitution states that:

The State, therefore, guarantees 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.

That speaks of the family as a unit; that speaks of the preservation of the family as a unit. In my considered opinion, the section with which I am dealing is calculated to break up the family, and calculated to break up the family home, calculated to cause the sale of the family homestead and send the mother in one direction and the son, who has stayed at home and worked and helped to keep that homestead there, in another direction.

In dealing with this Article of the Constitution, we should regard the family as a unit. We should not try to deal with individual members of the family and we should try to encourage a state of affairs under which the mother, if she is the survivor, will be left on in the family home with a son who will get married and raise a family there. We should not encourage a state of affairs in which we would have sons and daughters visiting the homestead with an eye on the one-third the mother had, visiting the homestead and making trouble in the hope that they might encourage the surviving spouse to make over to one of them, although they had long left the homestead, her legal one-third. That is the sort of situation that is not unique. That is the sort of situation that people pretty far removed from the hearths and homesteads of rural Ireland might not be acquainted with.

The Minister also said that like the French and unlike the Scots, we are not a will-making people. That may be so. He says that only 50 per cent of our people die testate. I accept the Minister's figure but I put it to him that the man with a problem makes a will. The man who foresees that, if he does not make a will he will leave a problem behind him, makes a will. We are going to take away in this section, substantially, the right of that man to deal with that problem. People make wills because they know if they die intestate they are likely to leave trouble behind them because their widow, husband or children may not get on and strife and bitterness and litigation may result. That is why people make wills—to avoid that sort of thing.

If we go on with this section as it stands, we shall be depriving a cautious parent who knows his or her family circumstances, the temperament and personalities of those being left behind, of the right to cater for that situation and we are handing it over to an Act of Parliament which cannot cater for individual cases. There is nothing human or personal about it.

The experience of most solicitors is that married people with families who make wills are extremely anxious to leave a happy state of affairs behind them and to leave everything going on as it has been going. Has the Minister any figures to show the number of wills of married people that have been contested in the past ten years, and, more particularly, successfully contested. An average solicitor, I suppose, would make a couple of wills a week, that is, 100 a year. Over 25 years that would come to 2,500. I suggest there are many solicitors who have made that number of wills in their career and have had none contested.

We are dealing here with the exceptional case, with the unjust testator, the man who has not proper regard for his obligations to his wife or children but we are doing it in a way that will deprive, I should say, 97 per cent—and that is putting it low—of the well-disposed, fair-minded testators from dealing with their own family as they, in their own way, know best.

In his opening remarks, the Minister paid a very high tribute to Deputy J.A. Costello and indicated he regarded him as one whose opinion and advice could, and I would even say, should be considered seriously. I ask the Minister to go the whole way with Deputy Costello who, in his speech a short time ago, said the problem was not an extensive one but one that had to be dealt with and suggested to the Minister that the proper way to deal with it was to put a section into the Bill making it obligatory on a testator to make a fair and adequate provision for his widow—he concerned himself with widows—stipulating that if a widow thought that she had not been fairly and fully dealt with under the will she should have the right to go to court, as the children have, and ask that justice be done.

I accept that proposition entirely: I accept that a testator should make adequate provision for a surviving spouse and children but I say the method suggested by Deputy J. A. Costello and by Deputy O'Higgins and the method called for by public opinion is the right method. That is the method that confers the right on a widow or child who thinks she or he has been unfairly treated to go to a court in a cheap and inexpensive fashion—I am all in favour of that— in chambers behind closed doors—and I am in favour of that—and ask the judge to see that justice will be done having regard to all the circumstances of the case and particularly family circumstances—which are all-important in the matter we are now dealing with. If the Minister has, shall I say, forethought in this matter and goes the whole way and does that, he will have given the country and the House a measure which will protect the widow and the widower and the children without damaging the family in general and without damaging family tradition and our Irish traditions.

I want to make it perfectly clear, and I think I have done so, that as far as I and my Party are concerned, we believe that the case of the unjust will should be dealt with; that the case of the man who does not make adequate provision for his widow or children should be remedied. I am not advocating anything else. When dealing with Irish wills and Irish estates, by and large we are dealing with comparatively small estates and not with estates that can afford to pay large annuities or pay thousands of pounds here and there. What is the use of one-third of a £3,000 estate to a widow if she will be given the road, if she will be told: "That is your share and that is all you are entitled to"? It is really no use to her.

Even at the risk of being criticised, I think times have changed in Ireland and we cannot overlook the widows' pension. We cannot overlook the fact that on a comparatively small farm, a widow who has a right of residence, support and maintenance and a widows' pension of 37/6, 47/6, or whatever it is, is not badly off and is very welcome in the homestead because she is independent, because she can perform very good services in regard to the grandchildren and buy little comforts in the home that are very welcome. That is a position we should not overlook. If a widow gets one-third of the estate under this instrument, amounting, we will say, to £1,000, then, as the law stands at present, her pension will be very limited on £1,000. If one-third of the estate amounts to £1,200 she gets nothing. It does not take a very big estate now for one-third of it to be £1,500 and, as the law stands at the moment, on £1,500, the widow would get no pension.

I also stated to the Minister in my opening remarks that members of families who are away from the homestead can be very mischievous and can try to drive a wedge between the widowed mother and the boy who is at home. The widowed mother and the boy who is at home are seeing each other every day and, naturally, little things are inclined to crop up between them and they may be inclined to get on each other's nerves somewhat and it is very easy for the person who comes home for the weekend or a weekly visit to cultivate the parent as against the boy who is at home. If this Bill goes through, the result might very well be that, as I have already said, the one-third which the surviving parent gets would be given to somebody who had no real right or claim to it and the result might be that the homestead would be broken up.

That is all I want to say on section 110 but I should like to assure the Minister that I am saying with the utmost sincerity and from very considerable experience and with the utmost conviction that it is a bad section and a bad provision.

There are other sections in this Bill which can be dealt with more properly on Committee Stage but I will, perhaps, take some of them now at random. There is the section which Deputy O'Higgins dealt with—section 5—which provides that where two people die in or about the same time and it is impossible to say which of them died first, they will be presumed to have died simultaneously. What happens if they are a married man and woman dying intestate? Maybe I am not thinking clearly, but I should like the Minister to tell me if a married man and woman without issue die intestate at the same time, where does their property go? I am sure there is an answer to it but I should like to have it.

It has always been the law up to the present time that the marriage of a testator revoked a will. The reason for that is obvious because a man's obligations change with marriage. He has another person, at least, to think about and to provide for when he marries. Section 84 of this Bill provides that marriage shall not annul a will if made in contemplation of that marriage whether so expressed or not. I think "whether so expressed or not" is a little bit dangerous. A person could make a will a year or so before he got married and, if it is not expressed to be made in contemplation of marriage, there could be an argument about it afterwards as to whether or not it was made in contemplation of marriage. We lawyers are sometimes accused of encouraging litigation and wishing to see Acts of Parliament passed that will lead to litigation. I think this section if it stands as it is certainly could lead to litigation and could lead, perhaps, to injustice.

Section 119 is the section which states that a sane person who has feloniously killed or attempted to kill another shall be precluded from having any share in the estate of that other. I can see quite clearly that a person who is guilty of the murder or the manslaughter of another person should not participate in that person's assets but it is the "attempted to kill" that gives me some difficulty. It seems to assume that there is never to be any forgiveness. If a person attempted to kill some other person, perhaps a wife, a husband, a father or a mother, and both persons live for 25 years, is the person who committed that crime, although he has been long since forgiven by the aggrieved party, to be deprived for all time?

That is the law at the moment. This is a restatement.

(Cavan): We are in the course of law reform at the moment and I would suggest that if that is the law at the moment, this would be a very good time to change it because I think it is completely unfair.

In the marginal note it is referred to as being new.

Subsection (1) is not new. Subsections (2), (3) and (4) are new. The word "New" is over subsection (2). Subsection (1) is a restatement of the existing law.

(Cavan): I put it to the Minister, whether it is new or old, that I consider that it is not reasonable that there should be no such thing as forgiveness and that, once a person attempts to kill another, even if both are to live for 25 years after, the guilty person can never participate in the assets of the aggrieved person either under an intestacy or under a will. Maybe that is not the law and maybe that it not what the section means.

That is the law and it has been there for years.

(Cavan): If it is the law, I say the Minister should have another look at it and another thought about it.

I am very glad to see that the Minister has seen fit to preserve the formal characteristics of a will and will-making. I am very glad to see that he has retained the provision that two witnesses are necessary to a will.

I hope the Minister will not take me as ungracious or as unduly critical if I dealt nearly entirely with section 110 of this Bill. In section 110 we have really the only principle at stake. It is the big change in the law and for that reason I dealt with it at some length. I agree with the other speakers who complimented the Minister on introducing a consolidating measure, a measure which puts the entire statute law on succession in one measure. That is a matter that should be appreciated by the public and by the legal professions. There are many good sections in the Bill and we will deal with them and pay our tribute to them in detail on Committee Stage.

Deputy Booth dealt at some length with the Minister's statement that he proposed to provide a cheap system of extracting grants of administration. Coming from a town in which there is a district registry, I can tell the Minister that the number of personal grants is comparatively few, and the registry has been there for years. I agree with Deputy Booth that if the Minister wants to reduce the cost of extracting grants of administration, a very good way of going about it would be to reduce the probate fees. The fees payable to the probate registries have gone up several times in recent years. On any sort of sizeable estate, fees which used to be only £1 or £2 are now £8 or £10. If the Minister wants to provide a cheap service, that is one way he can go about it. It is a very easy thing to find out how much these probate fees have gone up. I am sure a Parliamentary Question would establish it.

With these grants and with the exception of section 110, the Bill is quite good. Again I congratulate the Minister on his courage in revising very substantially the 1964 Bill, and the pity is that he did not disown it altogether.

I did not intend to speak on this Bill but having listened to what some of the other speakers have said, I want to put a few points to the Minister. I join with the other Members from this side of the House who have applauded the changes in the Bill. We are glad to see that some of the suggestions which came from this side of the House and, indeed, the other side of the House have been incorporated in the Bill. I think that the Minister, had he been Minister 12 months ago, would not have brought in the Bill in the form in which it is, and already he has brought about alterations in it which are to the good.

Like other Deputies, I am nervous of the provisions in section 110. We have had in this country and largely, I suppose, in these islands, a system partly of primogeniture and partly of giving the widow a life interest in the estate, wherever possible. Deputy Fitzpatrick spoke about the surviving spouse, the woman left on the farm with, perhaps, the son, and not put out on the road. She certainly was given right of shelter and she may actually have been left the farm or property, as the case may be. At any rate, she was usually left a life interest and that worked out very well.

The point which the last speaker made about people coming in from the outside, other members of the family trying to get around the old lady, is a valid point. Families should be protected, wherever possible, from a situation like that arising. I also see a very grave danger, in fact I see it is inevitable, that if section 110 goes through even in its present form, it will lead to a tremendous splinterisation, if I can use such a word, of farms and businesses, be they large or small. We do know that in the world of today property in Ireland, whether it be land, a business or some other form of property, has become, fairly suddenly, rather attractive to outsiders. If this provision goes through it will tend to break up these farms or these properties, which does leave it easier for individuals or outside interests to take them over. It is easier to get hold of properties if, say, 30 per cent or one-third can be got from one person.

I do not want to press that too far because I am sure this is a very sincere measure. It is a measure which is trying to legislate for the women and children, but like many types of legislation which has as its aim the benefiting of people, it may not succeed at all in doing it, and I do not think it will succeed in doing it in many cases. In that section we are legislating against the unjust man, the man who is not making adequate provision for his widow and children. We have been assured both today and in previous speeches on the Bill that that is a very rare case, that most men do recognise their duties in this respect. We are running the risk of not taking into account how to deal with the situation where the spouse is, perhaps not mentally unsound but not entirely capable of managing her affairs, or where certain children are in that position, but where it would be very difficult to go into a court of law and prove it. In cases like that persons have made special arrangements in the past and I would not like to see, as a result of the proposed section, that wisdom being taken away.

Deputy Fitzpatrick spoke about special circumstances of a family and that situation is very important. I would read into his statement with regard to special circumstances of a family, cases where persons, a widow or even some of the children, are not entirely capable of managing their affairs, but whether it would be very difficult, if not indeed impossible, to prove that either medically or factually in a law court I do not know. I feel that in this section we will break up properties and estates in relation to which in the past a life interest was held to deal adequately with the situation. There was a system frequently resorted to here of a tenancy for life in relation to a spouse or a member of the family who was perhaps not entirely capable, or who was perhaps unmarried for one reason or another. It now looks as if that discretionary power which the testator had up to now will be taken away. I would appeal to the Minister to increase the judicial discretion he has introduced into the Bill to the point at which circumstances could be taken into account where the giving of the one-third all round would mean the breaking up of an estate to the extent that it would result not only in unemployment and hardship for the erstwhile employees but also in the eventual impoverishment of the family concerned. I appeal to the Minister to look very carefully into that aspect.

I should like, first of all, to deal with the last point made by Deputy M.E. Dockrell. He made the point rather more strongly than did other speakers who adverted to the matter in this debate. The point embodies a basic misconception of the entire Bill. I should have thought that, after the very prolonged discussion we had on a previous occasion, coupled with a good deal of discussion outside, this misconception would by now have been removed. Apparently that is not the position. The legal right to one-third will in no way lead to a breaking up or, to coin a word, a "splinterisation" of estates, farms or businesses. In the case of land, the Land Commission prohibit subdivision. They will not give their consent to any subdivision which involves the carving up of an estate. More important than that, however, is the fact that the misconception arises because people are ignoring what I regard as the most fundamental section of the Bill. I refer to section 114, which clearly provides that this legal right to a third is a legal right rather than a share in the estate, farm or business.

It is a legal right which may be enforced.

It is a legal right which may be enforced but it is not a share in the estate in the sense that, on the death of the testator, the widow automatically comes in for a third which she then proceeds to take willynilly out of the estate. In effect, she gets a legal right to a third. She may enforce that legal right if she thinks she has been treated unjustly in any way. I would envisage that this particular legal right will be used far more as a bargaining counter to ensure that the widow gets justice.

It is also fallacious to suggest, as has been suggested, that this provision of a legal right will mean that wills will be rendered invalid. That is not so. A man may continue to bequeath to his widow a life tenancy or a right to maintenance and support. He may deal in any one of many ways with his property for the benefit of his widow and children. If, under section 114, the widow does not elect to exercise her legal right within 12 months of the taking out of representation, then the legal right lapses, is forfeited, and is no longer operative. She then takes under the will as decreed by the testator.

The will would not be invalid but it might be ineffective. I gather from what the Minister says that there is no question of the will being invalid, but it could be rendered ineffective in part at least. Is that not the position?

Yes, at the option of the widow who may, if she is not satisfied, elect within 12 months of the taking out of representation to go for her legal one-third. That is quite different from the position depicted by some speakers, like Deputy M.E. Dockrell and Deputy T.J. Fitzpatrick (Cavan), who incorrectly alleged that this right to one-third would render nugatory any will which might be beneficial in another way in the particular circumstances of the case. What the section really amounts to is that the widow will, through the existence of her legal right to a third, be assured of getting justice. I do not subscribe to the view that justice for the widow is provided by the widow's pension and a right to maintenance and support. I do not regard such provisions as justice for a widow who has spent 30 years of her life managing a household, rearing a family, and helping in a business or on a farm. At the end of her days she should not be left merely with the widow's pension and a right to maintenance and support. I do not accept it as equitable that a widow should be left in that position. What I want to ensure is that a widow is guaranteed this right to one-third so that justice is ensured for her.

Under the previous Bill, there was also one-third for the children as a legal right. After the constructive discussion we had here on the Second Stage of the 1964 Bill, I decided to delete that provision. I did that in the interests of preserving the farm, the estate or the business as a unit. I grant that a break-up might result from a situation in which a number of children would come in for their portions of the one-third share. I could visualise that situation leading to trouble; and that is why I decided to abandon the idea of a legal right share for the children. Under the present Bill children can go into court and show that they have been unfairly treated. There is a very great difference between children going into court and forcing a widow to go into court. If children have been prejudiced, the matter is largely one of proof of dependency. That is an ordinary question of fact and easily capable of proof. It does not involve any raising of family issues of an emotional nature. Such issues could easily be involved in the case of a widow who was forced into court.

There is no great burden of shame on a child who has to go to court to prove dependency. In the case of a widow, however, the raking up of issues and episodes best forgotten would be involved; so also would an inquiry into the matrimonial and family relationships of the widow and her late husband. All this would require evidence of a kind that might easily deter a widow from going into court to obtain her rights. I see a basic difference between the children's position and that of the widow. For that reason, I decided to have proof of dependency in the case of children, but to preserve a legal right for the widow. Once that right is not put on the basis of an automatic share but on the basis of a right which the widow may or may not elect to exercise, I cannot see any trouble arising from the point of view of the administration of estates or the breaking up of farms and businesses. Under the Bill, a man will be able, in order to preserve the farm or the business as an economic unit, to choose the son who is to inherit the farm or business, having made suitable provisions for the other children. The only burden that the son is being asked to bear is that he look after his mother. If his mother is not looked after properly in her own home, she will be able to protect herself. She will have this legal right to a third to ensure that she gets justice. I see no difficulty arising from that situation. My contention in this respect is borne out by the fact that 50 per cent of the estates in this country are intestate estates, where, under present law, the widow is entitled to a one-third share, which she can enforce if she wishes. This is a stronger right in that it continues after 12 months from the death of the testator. It continues indefinitely, as it were. Yet this particular intestate right is not enforced by widows to any substantial extent and, in fact, only to a negligible extent.

(Cavan): That is why there are so many unmarried farmers.

We propose under this Bill—and this has been generally agreed as proper—to make that intestate share two-thirds instead of one-third. I emphasise that the situation in regard to the legal right share of one-third is the situation that has existed for years in respect of intestacies, which cover 50 per cent of the estates in this country. This has not led to any of the dire consequences alleged.

On the economics of running farms and businesses somebody mentioned that there was something particularly desirable about a life estate. I know the country fairly well and I can think of no more unsatisfactory form of disposition than a life estate. The life estate held by a widow after the husband's death, with the remainder to some children after she dies, is the most useless form of estate from the point of view of raising money. When it comes to getting a loan or credit accommodation to buy stock or extend operations on a farm, a life estate is the worst form of security from the practical point of view. Certainly, it is a form of devise I have never understood as being proper. In fact, I have often queried solicitor friends as to why they ever encourage people to create life estates. However, that is only by the way.

A number of points have been mentioned which are more proper to a discussion on the Committee Stage. Deputies raised various matters of a technical nature which we can cover on that Stage, and I do not propose to go into them in any detail here this evening. The main matters of principle involve the sections we have been just discussing in Part IX. We have improved Part X by adding a further ground of unworthiness to succeed. We are dealing with the case of a spouse guilty of desertion, including constructive desertion. The two-year period for desertion is adequate and should be generally welcomed. Desertion was missing from the Bill as it stood originally. I feel the existing law in regard to the exclusion of a spouse guilty of having feloniously killed or attempted to kill the other is reasonable enough. It is more or less the law at present, and, unless a very strong case is made against it, I would not be disposed towards changing the provision.

Section 5 was mentioned by Deputy Fitzpatrick and Deputy O'Higgins. The section is an improvement on the present situation. We now make it quite clear that for the purpose of the distribution of the estates, two or more persons who die together in a common accident shall be deemed to have died simultaneously. One of the purposes is to ensure that if each had made a will the property goes in accordance with the intentions of the testator. At present, the situation is that there is no presumption of simultaneous death or of any order in which people die in a common accident. Under the Bill, if two people die intestate and simultaneously, the property of each goes to his or her relatives.

If that is the effect of it.

That is the purpose of it and that is the effect of it. Mention was made of the provision we are now making for per capita succession rather than per stripes succession. Where there are only grandchildren, they will each get the same share instead of a share related to——

(Cavan): Surely they will get their parents' share still?

No. The proposal in the Bill is that they all share equally. We do not preserve the existing rule.

(Cavan): Supposing there are three children and five children of a pre-deceased child. Surely the five children of the pre-deceased child will get their parent's share?

Yes, but all grandchildren take equally between themselves. That is a new provision in the Bill and it was welcomed by Deputy O'Higgins. It is more sensible than the provision which existed heretofore, much more easily understood. I never saw the merit of distinguishing between grandchildren. However, the point is arguable. What we have in the Bill is, I think, an improvement.

We have a further provision, also welcomed by Deputy O'Higgins, in which we reduce the age for will-making from 21 to 18. This is in accordance with modern trends where people are maturing earlier, getting married earlier and taking on responsibilities earlier.

(Cavan): The next step is the vote at that age.

That is another day's work. A point was made by Deputy Booth—he spent some time on it—in regard to this question of personal applications for grants of probate or administration. All we are doing in section 35 is to put into statutory form what is already there by way of rules of court. That, and no more, is being done. I want to dispel any fears that the county registrars or probate registrars will in any way engage in the process of administration.

(Cavan): They will just create a mess and leave it there.

The actual process of carrying out the administration will, of course, as always have to be done by the executor or administrator. Everybody has this right to a personal grant. It is particularly important in cases of small estates where no great legal work is involved. In such cases, a person can go into the probate registrar and fill up the necessary papers for a grant of administration. I must emphasise that I am simply putting in statutory form what has been a rule of court since 1879. My only wish is to extend the facilities to other county towns where there are county registrars' offices which can operate as probate registries.

I feel the Bill will be welcomed. I see no evidence of any public opinion against it. It was hardly an issue in the recent general election. In discussions I have had with the people who might have been expected to be in some way opposed to it—the people representing the farming community, the NFA—they fully welcomed the Bill. They were delighted with the amendments made to it and felt that their points of criticism in regard to the original measure had been fully met. I think the Bill will work satisfactorily and that the widows of Ireland will not seek to use in a wrong and unreasonable manner the legal rights designed for their protection.

Question put and declared carried.
Committee Stage ordered for Tuesday, 15th June, 1965.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Wednesday, 26th May, 1965.