I said most of what I intend to say regarding the series of amendments we have introduced. I was making the point that the views expressed by the Incorporated Law Society certainly seem to support very fully the point of view which has been expressed by me, and expressed in these amendments. I want to emphasise the point that the approach of the Incorporated Law Society to a matter such as this is entirely impartial so far as politics are concerned. Their interest is in no way a political one. Their interest is to serve the people of this country who are the clients of the members of the profession they represent.
I referred to the fact that in a published statement the Incorporated Law Society described the system adopted by the Minister in this Bill as an attempt to do justice blindfold. They also referred to the point made by the Minister in relation to his proposals, namely, that he did not want to drive the widow into court. I think I am not doing the Minister an injustice in paraphrasing what he said. He said that the big difference between his approach and the Fine Gael approach to the matter was that he saw no reason why the Legislature should drive the widow into court in order to get justice. The Incorporated Law Society described that argument of the Minister's as unconvincing. It is unconvincing. They pointed to the Minister's proposal that an application made by children should be heard in private. Our proposal in these amendments is that an application from children or from a widow should be heard in private and without any publicity, so that there is nothing to this argument about driving the widow into court.
The Incorporated Law Society also expressed in some detail the objections they have to the fixed legal right share proposed by the Government. I want to quote now from their memorandum which was published in the newspapers some weeks ago. They said:
The basic objection to the fixed share system remains. It is that the testator at the time of making his will is the best judge of the interests of his family and that the State is neither qualified nor competent to make the choice for him. In the minority of cases, and it is relatively a small minority, in which testators fail in their duty, an alteration of his will should be made only by some body with knowledge of the circumstances of the particular case. The legislature cannot know the circumstances.
They then set out what they describe as some of the practical objections to the fixed share system. Briefly, the objections referred to by them are: (1) An undeserving spouse would have an absolute right to share in the estate of the wronged partner. In order to deprive an unworthy husband of this right the wife will either have to obtain a decree of divorce amensa et toro or leave him and live apart. If, for the sake of the children, she decides to remain, the husband must receive his fixed one-third share, if he survives her. The same position will obtain if the wife is undeserving; (2) Wives and husbands who have executed separation deeds and are sufficiently provided for may have to apply to the court for judicial separation orders to avoid the consequences of the Bill if it is passed; (3) There will be fragmentation of estates and bad management in some cases. It may be best in a particular case to leave a farm or business to one or more children most competent to manage it. The decision must depend on the character of the parties, family relationships, the means of the parties and other particular circumstances.
I do not think I should read this in detail. Four or five other detailed objections of that kind were voiced by this most authoritative body which, I have no doubt, were brought to the attention of the Minister. I suggest to him that this is an opinion which he should not dismiss lightly. As I said earlier, it is only a matter of opinion as things stand whether the number of cases of unfair wills is large or small. I agree, and I think everyone on these benches agrees, that whether the number is large or small, some steps should be taken to remedy the position.
The view expressed by the Incorporated Law Society supports the view I expressed on more than one occasion, that while the problem does exist, it is not widespread. They said:
In the minority of cases, and it is relatively a small minority, in which testators fail in their duty ...
It seems to me, as I said before, that if the Government have come to the conclusion that the majority of Irish will-makers make unfair and unjust wills, then the system proposed by the Minister is justified, and the Minister is entitled to come in here and ask the House to pass this legislation. I do not think he is entitled to do that unless he is honestly convinced that the majority of Irish testators make bad, unfair and unjust wills. If the Minister believes that, he is doing the right thing. That is not my belief, and because it is not my belief I believe the Minister is doing the wrong thing and that it would be far better for this House to adopt the scheme outlined in the proposals we are moving.