Dáil Éireann debate -
Tuesday, 22 Jun 1965

Vol. 216 No. 8

Committee on Finance. - Succession Bill, 1965 : Committee Stage (Resumed).

Debate resumed on the following amendment:

In page 7, to delete lines 1 and 2

—(Deputy M.J. O'Higgins).

Mr. M.J. O'Higgins

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 a mensa 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.

Minister for Justice (Mr. B. Lenihan)

Deputy O'Higgins has really covered ground which was already covered during the Second Reading debate. This is concerned with a very fundamental principle, the principle of the legal right of the surviving spouse. The amendments which Deputy O'Higgins is moving concern themselves with this fundamental right which is incorporated in this measure.

First of all, I should like to emphasise that a number of representative bodies were met by me in regard to the Succession Bill as it stood originally, and in regard to the amendments which I incorporated in the original measure and which now form the basis of the Succession Bill, 1965. The main point proposed to me by the National Farmers' Association and the Incorporated Law Society, when I first met them, was the question which would arise, as the Bill stood originally, of having a number of fractions made because of the children's share of one-third—a situation in which a number of children who might otherwise have been provided for could claim their share of one-third.

I can say with truth that in the discussions I had with the Incorporated Law Society and the National Farmers' Association there was very little, in fact no dissent at that stage—it was before Christmas—from the point of view that it was right and proper that the widow should be looked after and have some basic legal right. That right is incorporated in this measure and is being attacked by these amendments. All the representations made by these bodies, and by the Bar Council and others concerned with the problem of succession, whom I met collectively and individually, indicated that they were mainly worried by the question of the breaking-up of the children's one-third into a number of shares, some of which would go to children who might have left the farm or otherwise settled away from the farm or business.

I could see wisdom in that point of view and I was personally convinced it was necessary, in the circumstances of this country, to ensure that a particular son or other member of the family chosen by the testator should get the property, be it farm or business, reasonably unencumbered, subject only to the obligation on that person to look after his or her mother. The weapon in the Bill to protect the mother in these circumstances, to ensure that the son or daughter looks after the mother, is written into the Bill in the form of a legal right for the widow to one-third, not just a one-third share in respect of which she has to go into the courts to claim, but a legal right share, which she can claim, and obtain from the personal representative if she has not been looked after within 12 months after administration has been taken out.

We have, under the present Bill, enabled this situation to be achieved in two ways. The first is where a man, with the consent of his wife, may make a family settlement giving the estate to one of the children, provided the wife consents to the deed of assignment. The owner can make such a deed up to the day of his death. He can transfer the property to the son or daughter of his choice. That is one way. The other way we have proposed for the protection of the son or daughter of the testator's choice is to ensure that by his will the testator can give the estate to one of his children, subject to the legal right of one-third for the widow. In addition, there is the important provision that, if the testator wants to give everything to his wife—which, as Deputy O'Higgins has said, is the case in 90 per cent of wills—he may continue to do so.

Therefore, the only division really between us at this stage is the question of the legal right for the surviving spouse—the widow, in most cases. The position is that Deputy O'Higgins's amendments are designed to push the widow into court to prove her case. Let us examine what that would involve. It would involve—the amendment suggests it should be a private hearing—going to the court, raking up all sorts of embarrassing matters, including, very probably, acts of unkindness and unfaithfulness. All these matters would have to come into open discussion before a judge. It is not the sort of thing that, in all compassion and decency, any woman should have to do. It is not something an Irish legislature should demand of any woman, having regard to her place in the home, her place in our Christian society and her position as written into our Constitution.

I can see a very real difference between obliging a widow to go into court to prove her one-third claim and obliging, as we have it in the Bill, one of the children who may be victimised to go into court. In regard to a dependent child, the basis of his application to the court in chambers will be necessity and dependency—the fact that he or she was dependent on the testator prior to his death. It will be a matter of economic proof, a question of going to court to show that the child was dependent for his education, for his living, on that person at the time of his death. The child involved in that case is in a very different position from that in which Deputy O'Higgins seeks to place a widow. He seeks to put on her shoulders the obligation to go into court to prove her rights to a share out of the testator's estate, a case which can only be refuted by allegations of unfaithfulness, of dishonourable conduct, which were better not opened up even if the court hearing is in camera.

Indeed, I see incorporated in the amendments tabled by Deputy O'Higgins a provision which I actually deleted from the original Bill. In the original Bill there was a provision which I consider very undesirable. It was very similar to the proposals in amendment No. 24 (c) which seeks to deprive of the right to make a court application any surviving spouse who is "by reason of continuing dissolute, dishonourable, cruel or unfaithful behaviour undeserving of such provision". A provision along those lines was in the original Bill. I thought it very objectionable.

Mr. M.J. O'Higgins

Because it was to be heard in open court.

Mr. B. Lenihan

What the amendment seeks is that it should be written in here that any judge should have to decide on a moral basis whether a person is guilty of continuing dissolute, dishonourable, cruel or unfaithful behaviour. I would prefer to rely on the basic marriage vows—which are indissoluble—not to have these matters raked up before the judge, who would then be the arbiter as to where the moral right might reside.

There is a clear distinction between the sort of rights an Irish legislature should give to a widow and the rights which such a legislature might confer on children. Because of that I think the court application procedure as incorporated in the Bill and which, I take it, largely meets with agreement from Deputy O'Higgins, is the best way to deal with children's rights. I can see a real distinction between that and the proposal to impose the obligation on a spouse, particularly a woman, to make a claim based on her dependency. Her claim is based on her moral right as a partner in the affairs of her deceased husband, created originally by the marriage vows themselves.

The Incorporated Law Society in their statement seek to say that this particular legal right in respect of the surviving spouse is some form of "Statism." They seek to convey in their statement that this is an unwarranted intrusion by the State. I wish to say now that the whole notion of legal rights for the widow is grounded on moral law and Canon law and it came into most of the legal systems of the world through that source. It is in the Catholic countries of this world that this particular legal right has been entrenched in legislation for hundreds of years. The whole basis of the legal right of one-third for the widow is grounded on the basic moral principle that a man's obligation to his wife is something more than mere obligation created by her dependence on him. She, by reason of the marriage contract, is very much a partner and has a claim on him which goes beyond the mere claims of dependency. This, of course, is incorporated in our own Constitution which recognises this position. I might say again that the leading moral theological authorities were consulted by me in connection with this and every one of them was wholeheartedly in favour of this provision and felt that this was the sort of provision which an Irish Legislature should enact.

There are other matters involved in Deputy O'Higgins's amendment on which I would cross swords with him. One particular aspect concerns his basis of making a court application in respect of children. I prefer our more flexible section which is there at the moment. We do not go into the details of defining dependency. At first when I came to look at this problem, I did bring before the House my own definition of dependency in respect of children but since then, on further thought, I have come to prefer the more flexible provision we have incorporated in this measure where we leave it to the court to inquire into the circumstances of the application made by the child, to look at it from the basis of the moral duty which the testator had towards that child and, in general, to make provision accordingly.

I would have thought that that flexible approach would appeal to some of the people opposite who were so insistent on the court's rights and the flexibility of any judicial discretion. I will quote one or two obvious examples to show how you could become involved in trouble if you go into too narrow a definition of dependency. Under Deputy O'Higgins's amendments, you could have the situation where the bachelor son who remained on the farm until he was 27, 28 or 30, which is not an unusual circumstance, and who had toiled and worked the land, would not, under this definition of dependency, be entitled, whereas you might have a situation in which, under this definition also, an unmarried sister, perhaps a professional woman living at home, would be regarded as a dependant. You could have a situation where somebody aged 22 or 23 might be attending a university and still have four or five years to spend there and would, therefore, be very much a dependant until the age of 26. Yet if that person is over 21, he or she would be excluded by this narrow definition. Therefore I think that it is preferable to have the wide, flexible procedure which we have prescribed in the Bill, providing for an application to the court in chambers, with power to the judge to look at the thing in the widest possible way, and apply as a criterion what the moral duty of the testator was to the child. To seek to look at that as the operative criterion is more sensible, in my view, than tying us down to a rigid definition of dependency.

In other words, it strikes me as being strange that Deputy O'Higgins and Deputies opposite who are seeking to make this a more flexible measure should in this particular instance, where we have provided for the utmost flexibility, seek instead to limit the judicial discretion by adopting a rigid, narrow definition. It surprises me, because I thought that the approach opposite would have been more in line with my own approach.

As I stated some time ago, that is largely a detail in regard to the method of the children's application. The main point between us is really a point decided by the Labour Party and ourselves in voting for the Second Stage, the question of the legal right for the widow. I am convinced that the only way in which she can have the power to ensure that she is treated properly is to have written into legislation a legal right to one-third, or one-half if there are no children. I think most of our people would agree with that as being very reasonable and, in fact, as I stated when the Bill first came up for discussion, after I became Minister for Justice I had discussions with the various interested bodies and there was very little point made on this. In fact, it was accepted by them that something would have to be done for the widow. The main criticism was in regard to the compulsory share for the children. Indeed, the NFA, who would be most concerned in this matter, to see that there was no fragmentation, were fully behind the amendments which I discussed with them, and they have since assured me of their support both by way of deputation to me and in the columns of the Irish Farmers' Journal. Therefore there is no opposition from that source. The Law Society have come back on the widow's legal right question and that is the only outstanding matter between us.

I feel I have met the points of the bodies mentioned more than half way in this measure, particularly when one considers that this legal right share residing in the surviving spouse is not a compulsory share to be extracted out of the State willy-nilly. We are not, in this measure, interfering with the right of the testator, with the agreement of his wife, to make any disposition of his property which he wishes in accordance with law, be it a life estate or any form of disposition or arrangement which is suitable to the wife and the family circumstances. I am saying, however, that if the wife is unjustly or wrongly treated, she has this right up her sleeve to insist that she is treated well and she can ensure that the people benefiting under the will will look after her. If she chooses not to enforce the full right to one-third, she can insist on a fair deal. On the other hand, if she is not well treated, she can insist on the legal right share. This appears to me to be very reasonable and I think it is accepted by the public generally as a reasonable approach on my part to this difficulty.

We have gone more than half way to meet the points made and, in my view, every legitimate point that was made has been met in a series of amendments in this flexible measure. I would appeal to Deputies on all sides to look at it from the point of view of a measure which is designed to remedy an injustice which Deputy J.A. Costello described on the Second Reading of this Bill as being of sizeable proportions and at the same time to preserve the maximum degree of flexibility, which was regarded as essential by critics of the Bill inside and outside this House. I think we have now achieved the situation where we have the maximum degree of flexibility compatible with the essential principle of a married man, or a wife, ensuring that the spouse with whom he or she has lived over a long period of years is entitled to a reasonable share, not more than one third, out of the estate which has been built up by the efforts of the partners and that the particular share of the estate is not one reliant on dependency or any other economic argument but is a right of a moral nature that either side of the partnership is entitled to, because his or her share arises out of that partnership. On that basis, I would ask the House to reject these amendments on the grounds that they are in fact a negation of the decision of the House reached by statutory majority after the Second Reading Division.

Mr. J.A. Costello

May I ask the Minister one question? I do not wish to speak on the series of amendments at the moment but the Minister has spoken all the time about the widow and children. What is his attitude about the husband? As the law stands at the moment husband and wife are on the same basis but he has spoken about the widows and the children only.

Mr. B. Lenihan

I did so because the most usual case is the surviving widow but what I said applies equally to the surviving widower. I know the Deputy has strong views on this and that, whereas he was well disposed towards having a mandatory legal right in the case of the widow, he did not see why that should exist in the case of the widower. In my view that would be a retrograde step. I am all for women's rights and all the suffragettes sought, and I am all in favour of equal rights for men and women, but I think if we build up this too far we would give more rights to the woman than to the man. The women have come far enough by their own efforts. I think we could push the principle too far if we had a situation where a widower was in a less favourable position than a widow. With all due respects to widows I would not push their rights that far. I may be fighting for their rights gallantly in the House but not to the extent of detriment to the male survivor. I think it is a proper principle to have equal rights for men and women.

Mr. J.A. Costello

How it could be to the detriment of the husband I cannot see.

Mr. B. Lenihan

When you have a situation where the male has less rights according to law than the female. That is what the Deputy says. I would not agree with him as a matter of principle.

Mr. Ryan

The Minister has been less than fair by a long distance to Deputy O'Higgins. The Minister said that the effect of the amendment moved by Deputy O'Higgins was to push the widowers into open court——

Mr. B. Lenihan

Into court.

Mr. Ryan

——where incidents of unkindness, unfaithfulness——

Mr. B. Lenihan

No, I said into court.

Mr. Ryan

I believe the Minister indicated it was open but it is perfectly clear now that it has been said in the House and there is no further dispute and Deputy O'Higgins used the words "in private"——

Mr. B. Lenihan

That is right.

Mr. Ryan

Nothing could be more solicitous for the welfare of the widow than Deputy O'Higgins's amendment for he also provided further, not that the judge might have discretion but that the judge should order the exclusion from the court of all persons other than the parties, their counsel and solicitors and the officers of the court ... It is perfectly clear that the whole purpose of that amendment is to treat with discretion and in confidence all the stresses and strains of married life. We consider that the amendments which the Fine Gael Party has put before the House take cognisance of the stresses and strains of domestic life which the original Bill and this Bill now do not allow for.

Nobody should know more than the Minister how unfairly the strict rules of law can apply to a particular case. He has reserved for himself, and society has given to the State, the power to remit penalties imposed in relation to criminal convictions and other quasi-criminal convictions and the purpose of this—which the Minister justified to the House within the past month—is that the court and the law could not take account of variations in human conduct which very frequently were open for consideration by the Minister subsequent to the strict application of the rules of law.

That is the argument that we use in asking for a system which will not dictate the precise proportions that must be applied to partners in a marriage contract. In many cases the one-third share which the Minister seeks to impose would be inadequate and in other cases it would be a wrong appropriation of the assets of the deceased spouse particularly when the survivor had substantial estate of his or her own. That is why we think this is bad law which we are seeking to make. It is bad law because we are trying to sow it in the infertile ground of the undutiful and inofficious wills which represent only a very small minority of the wills made in this country.

One of the drawbacks which the Minister and his advisers and many other people suffer is that they think typical wills made in this country are those which are fought out in court and hit the headlines in national newspapers. As Deputy O'Higgins said, there appears to be a peculiar interest on the part of people in the wills and family disputes of others. There is something attractively gruesome about the family squabbles of others. People are inclined to think the wills which reach the courts are typical and are the kind of wills that are made. That is quite wrong. I do not believe that the Minister has, or that his advisers have, ever taken instructions for the making of wills and I do not believe that anybody who has taken instructions for the making of wills could see any justification for a provision of this kind. We are told there are no two people in the world alike and if that is true of people then there are no two families exactly the same. Their circumstances and their relations with each other and with others and with other wings of the family all have a part to play in the past and future growth of families and legislation of this kind which seeks to apportion particular shares to particular survivors within the family will not meet human problems which we seek to solve in such a manner.

Let us again state for the record, lest it be forgotten, that the principal pioneers in the campaign to provide proper provision for widows were the Fine Gael Party. Long before the Minister and his colleagues thought of it themselves they were being pressed by Fine Gael on this side of the House to make adequate provision for widows. If a simple solution of the kind which we advocated for years had been introduced years ago, many cases of injustice which have occurred since this matter was first mooted would not have arisen and many widows who are weeping because of their misfortunes to-day would not have been so unfortunate if the Minister and his Department had not tried to do too much in such an extraordinary way and had not tried to fit the circumstances of other countries into the particular circumstances which we have here.

The Minister spoke about the legal right which he seeks to introduce and which we seek to delete, as being a moral right of a spouse. I am not aware of any wording in the marriage contract to the effect that one bestows on one's spouse one-third of one's worldly goods. I may be wrong in this but I do believe that the recent amendments of the liturgy have deleted the words "With all my worldly goods I thee endow" but, whether they have been deleted or not, they certainly never provided for a particular proportion and I do not think that the Minister is right when he seeks to apportion any particular share of the worldly goods.

Mr. B. Lenihan

The moral theologians tell me I am right.

Mr. Corish

They told the former Minister that in respect of his original proposals.

Mr. Ryan

I wonder do all the moral theologians tell the Minister that. I doubt that very much. Moral theologians can disagree as much as politicians and lawyers and if it were not for that there would be no such institution as the Ecumenical Council.

I think it is true to say that the testator is the best judge of the interests of his family. To enact legislation of the kind which the Minister asks this House to support is to pass a vote of no confidence in Irish people to make their wills according to the dictates of their family obligations and their understanding of their moral duties. The effect of this is to say that any Irish man or woman who in the past has made a will in a form which did not accord with what the Minister now proposes made a bad will, made a will which the Minister says was contrary to his moral obligations under the marriage contract, that such person made a will which, according to the Minister's opinion, did not make proper provision for the family. That is the effect of the Minister's proposals. It may irritate the Minister to have somebody render down the proposals which he is making but that in fact is what happens when you render down this legislative proposal. You are saying that most of the wills which have been made in the past and which are being made to-day are bad wills because they do not conform with the theories which the Minister seeks to enforce as part of the law of this country.

The Law Society, as Deputy O'Higgins has pointed out, has specifically mentioned the difficulties which are likely to arise in relation to voluntary separation deeds. Many of these deeds have been entered into over the years primarily because of the anxiety of people to keep out of court the type of dispute which the Minister says should be kept out of court, that is, family disputes where allegations of cruelty, misconduct, and so on, are thrown from one side to the other. If there is a saving section in the Bill dealing with this I should like the Minister to tell me. Certainly, on my reading of it, I have not been able to find it. But, clearly, it would be extremely unjust if we were now to change the law. Up to now people who entered into voluntary separation deeds understood that they were clearing the slate and that bygones were to be bygones and both parties were to live apart as though they were single and neither party was to be free to make any claim upon the estate of the other. The effect of this Bill will be to render nugatory such voluntary separation deeds.

Mr. B. Lenihan

Section 115.

Mr. Ryan

We can, perhaps, deal with that matter when we come to that section.

Mr. B. Lenihan

It is the provision about satisfaction of the legal right where such arrangement as the Deputy referred to is made in the lifetime of a testator.

Mr. M.J. O'Higgins

It is not necessarily so.

Mr. Ryan

That does not deal with it. A voluntary separation deed may simply have declared that neither party could make a claim on the other. The Minister's section simply provides that if in any such separation deed it was provided that the ultimate survivor had received one-third, then the person would not have any right to come along again and claim another one-third. That does not deal with it.

Mr. M.J. O'Higgins

It only applies to provisions made before the passing of the Act.

Mr. B. Lenihan

That is so. It can be a term of such arrangement or separation deed, that the legal right will be renounced. Each party will subscribe to that as a term of the deed. It is only a drafting matter.

Mr. Ryan

I can see all kinds of questions arising afterwards as to the validity of such renunciation and so on. This raises another issue, one on which I should like the Minister's guidance. He says that a testator may have free power to dispose of his property as long as the spouse agrees with the disposition of the property. What evidence has the Minister in mind to prove such agreement?

Mr. B. Lenihan

I take it the spouse will sign the deed.

Mr. Ryan

The spouse will have to be a party to the settlement?

Mr. B. Lenihan

Or could in writing sign a renunciation renouncing the rights.

Mr. M.J. O'Higgins

It is not provided that it must be in writing. It could be verbal and it might have to be thrashed out in court.

Mr. Ryan

They have been thrashed out in the horror chamber which the Minister says nobody should enter. You would think from what the Minister has said about our courts here that no sane person would ever enter them. I think he was being unfair to the whole institution of the judiciary in the remarks that he has passed. But we do not think that he is going to solve the problem of undutiful and inofficious wills in this way. He is going to create further injustice and as sure as we are here tonight discussing this Bill, if the Minister puts through this Bill without adopting the spirit and principle of the amendments coming from the Fine Gael side, we will be meeting in Dáil Éireann in the not too distant future to amend the legislation to provide for a more flexible system as there will be many cases of injustice which are bound to arise or, if we are not, we will certainly be failing in our duty.

It might seem odd that the Minister should be at loggerheads with the profession which in the main draw up wills in this country, that is, the Incorporated Law Society, and it does seem most undesirable that any Department of State should be in conflict on such a serious matter as this with the profession which is primarily concerned with it. It seems to me that the recent speech by the Minister for Justice in Cork in attacking the solicitors' profession has disclosed an unhealthy state of affairs and indicates the contempt which the Department of Justice has for it.

Mr. B. Lenihan

I certainly did not attack the solicitors' profession. It is the last thing in the world that I would dream of doing.

Mr. Ryan

This Bill and the principles it seeks to enforce and the way in which the State seeks to do the work which the solicitors were doing until now, indicate an extremely unhappy state of affairs and the effect of that may well be that the public who have been well served by the solicitors' profession over the years may find that all the voluntary service that solicitors have given to the public in the past may not be as readily available in the future. If that unhappy situation should arise—I know it is certainly not the wish of the solicitors' profession that it should—then the Minister for Justice will have a great deal to answer for. He has an opportunity to put things right by accepting the amendments of Deputy O'Higgins on this Stage.

Mr. T.J. Fitzpatrick

(Cavan): The object of this Bill is to revise the law of succession and the law relating to the making of wills. It is a reform of a branch of the law which affects very intimately and very closely all the people of this country. Therefore, it is something that should be thought about very carefully and should be enacted only if the House is satisfied that it is the best possible reform that can be brought in. It is certainly something that should not be fought out in this House on a political basis and it is certainly something on which the Minister or his advisers should not take a stand simply and solely for the purpose of face saving.

The history of this Bill and its predecessor, the Succession Bill of 1964, suggests that the thinking of the Minister, and particularly his predecessor, and his advisers on this matter was very much out of line with public opinion and with the wishes of the layman and the professional man. There was, first of all, the Bill as introduced in its original state. It virtually deprived a married person of the right to make a will at all. It said the married person with children had first to give one-third to the surviving spouse and another one-third to be divided equally between all his children, irrespective of whether they were dependants or not.

The reaction of public opinion to that was so violent that the then Minister and his advisers had to have second thoughts. They came before the House and the country on the eve of a vital by-election with a crop of amendments under which they retained the obligation to give one-third of the testator's property to the surviving spouse; they altered the provision whereby a testator was obliged to give one-third to all his children and substituted therefor an obligation to give one-third to dependent children. Again it became apparent that the people would not stand for that position, and this Minister had further thoughts on the subject. He now comes before the House with this Bill under which there is an obligation on a married testator with a family to bequeath one-third of everything he has to his surviving spouse, and certain rights are provided for dependent children.

Let it be said that this Party from the very beginning have taken up the attitude that there is a moral obligation, and that there should be a legal obligation, on a testator to make adequate provision for his dependent widow and dependent children. Subject to that over-ruling obligation, we think there is no one in a better position to make a will making adequate provision for his wife and family than the father or mother of that family, than the owner of the property.

One would think, as has already been said here today, that the vast majority of family people in Ireland made unjust wills, that they failed to make adequate provision for their dependants. Everyone knows that is not the case. Like Deputy O'Higgins, I have 25 years' experience of will-making in rural Ireland, of advising family people on making a will, and I am satisfied that married people in making wills go out of their way to be just to those who are left behind, go out of their way to make adequate provision for the surviving spouse and dependent children, having regard to the peculiar circumstances of each family.

The Minister stated in his Second Reading speech that a great many people do not make wills, and when they die intestate, the widow takes one-third of the estate. That is so, but the people who make wills, the people who insist on making wills, are people who have a particular family problem with which to deal, a problem which cannot be dealt with by an Act of Parliament, a problem which can be dealt with only by people who are familiar with the problem of that family. Those are the people who never neglect to make a will and those are the people who long before old age is reached before they become ill are careful to make a will.

I am against the provisions of section 110 of this Bill and in favour of the amendments, the substitute sections. First of all, I believe it is wrong to take away from a testator the discretion he should have in making his will, subject only to the legal obligation to provide adequately for his dependants. That is wrong and unsuited to the circumstances in this country. It is wrong that one-third of a farm should be put into cold storage for the life of the surviving spouse. I know I will be told that need not happen. I realise the Bill provides that by an ante-nuptial contract, one or other or both spouses can abdicate their rights, but how many people in rural Ireland will go to the trouble of entering into this pre-nuptial arrangement? That is not likely at all.

I know also there is a provision in the Bill that during a marriage one or other of the spouses can abdicate his or her rights but it might be necessary to make another type of will to deal with that. It is most unlikely that people would enter into such an arrangement during marriage. I know also that unless the surviving spouse elects within 12 months of the death or extraction of representation, this compulsory provision goes by the board. However, the surviving spouse who was likely to be difficult during life and who might not deal adequately or fairly with the surviving children is certain to exercise the election within 12 months and hold on to this one-third share. That is not a reasonable provision. The alternative provision suggested in Deputy O'Higgins's amendment by which the court can come in in a case where a surviving spouse has not been adequately provided for it is much more suited to the requirements of our people.

I have made the case on Second Reading—and I think it might be appropriate to make it in detail here now—that the surviving spouse who elects to take this one-third share can do what he or she likes with it and can assign it away over the head of the member of the family who has stayed at home and worked for years and years, and can be lured into transferring it to the white-haired boy who comes home once a week or for an odd week-end, and who brings the occasional present and stirs up annoyance in the home. That is possible, and it is more than possible ; it is likely in the case where a man or woman would have made a will to deal with a peculiar situation. If this goes through, it is likely to lead to the breaking up of homes and the selling out of farms and businesses. I have no doubt about that.

The Minister bases his case for section 110 on his anxiety to ensure that the surviving spouse is adequately provided for. But does section 110 do that? It certainly does not. In effect, the section means that, once the surviving spouse gets one-third of the estate, whether that is adequate provision or whether it is not, he or she has no further claim on the estate. It might very well be that under Deputy O'Higgins's amendment, a court, having regard to all the circumstances and having regard to the financial position of other members of the family, as well as that of the surviving spouse, might say that the surviving spouse could be adequately provided for only by giving him or her the whole estate. But that will not be permissible under this Bill. Once he or she gets the one-third, that is an end of it. Whether it is enough or whether it is not, that is all he or she has, as of legal right.

Under section 117 children can go to court. A dependent child who is not adequately provided for can go to court and claim adequate provision from a judge, but this one-third legal right share in the hands of an uncooperative surviving spouse may prevent a judge from awarding adequate provision to a dependent child because the section which gives the right to the judge says that nothing that he shall do under the section shall interfere with this sacred one-third, if my reading of the section is correct. That is another thing which can lead to abuse.

I cannot understand the Minister's attitude, seeing that he yielded on the compulsory legal right share for the children. Why can he not now go the whole way and yield on this particular section? I am afraid it is because, if he yielded on this, it could then be truly said that this, in effect, is a new Succession Bill; the old one is dead and has been buried. That may be so, and it might be said. Nevertheless, I do not think a consideration such as that should influence either the Minister or his Government in dealing with so important a subject, a subject which affects the life of the ordinary man in the street and in the field so closely and so intimately.

I repeat that we believe adequate provision should and must be made for a dependant surviving spouse and children but, mark you, this Bill insists on giving as of legal right one-third of the estate to the surviving spouse, irrespective of whether that surviving spouse be a poor person or a very wealthy person, a good, intelligent parent or a reckless, spendthrift parent. I know that under the terms of the Bill the testator has the right to appoint trustees to look after this one-third share for the surviving spouse, but the surviving spouse can challenge that trust in court and, unless it is held that he or she is unfit to look after himself or herself, the court is bound to upset the trust. That is a bad thing. For the sake of prestige, for the sake of not yielding, for the sake of not having to admit they were wrong, the Minister and his advisers are insisting on bulldozing section 110 through the House, a section which is both undesirable and unsuitable.

As the last speaker said, if the Bill goes through in its present form, I do not think it will be very long before public opinion will force the Minister, or his successor, to have further and better thoughts on this section.

Mr. Booth

I think we have strayed some distance from the terms of the amendment tabled by Deputy O'Higgins. That is a pity because it has tempted us to conduct a Second Reading debate all over again. As I see it, the point at issue really is that what is being proposed in the Bill basically is that, in the last resort, the surviving spouse shall have a legal right to a certain proportion. As against that Deputy Michael O'Higgins is suggesting a different system altogether, a system which gives no certain right whatsoever to a surviving spouse, or to the dependent children for that matter. His amendments, particularly amendment No. 124, appear to me to be completely impracticable. There are too many words which require interpretation. I agree with the Minister that, if we accepted these amendments, we would make applications to the court inevitable in far too many cases. I would much prefer that resort to the court would be the last resort and that every possible means should be taken to encourage reasonable family settlements.

Deputy O'Higgins suggests in amendment No. 24 that it shall be the duty of a testator to make such equitable provision for his dependants as is reasonable. To my mind that is incredibly vague. What is an equitable provision? Who is to decide whether or not it is reasonable? To me it puts an almost intolerable burden on any court to interpret such a clause. I should much prefer that our first responsibility would be to the surviving spouse, who is normally a widow, and to ensure that she shall be adequately provided for to the extent of at least one-third.

Deputy T.J. Fitzpatrick of Cavan seemed to have forgotten that there is no reason at all why a reasonable testator should not leave his entire estate to his spouse and that that would not be upset. In their arguments, Deputy Fitzpatrick and Deputy Ryan, to some extent, seem to suffer from what I describe as cross-thinking. One moment they say testators are well able to look after their families and nobody is better qualified to do that than the testator himself. They both say there is no need for this legislation. Yet Deputy Ryan said if only it had been enacted more quickly and if there had been some sort of amendment of the present law of succession, very many families would have been saved from tremendous hardship and misery.

Mr. Ryan

Some.

Mr. Booth

"Many" was the word the Deputy used.

Mr. Ryan

It is like "open".

Mr. Booth

It is not at all like "open". I was very careful to notice that. Deputy Ryan was stressing the fact that many people had suffered grave hardship by reason of the delay in introducing some amendment to the law of succession.

Mr. M.J. O'Higgins

Does the Deputy accept that or not?

Mr. Booth

I have no evidence whatever for or against.

Mr. M.J. O'Higgins

Is that not the big problem?

Mr. Booth

I know there is a problem. I agree with Deputy J.A. Costello that there is a sizeable problem here.

Mr. M.J. O'Higgins

One of our problems is that there is no evidence as to the size of it.

Mr. Booth

Quite obviously, there is not; but Deputy Ryan apparently has evidence that it is fairly large, and I have no reason to doubt it.

Mr. Ryan

I disagree with the cure. You do not need fixed shares to cure the problem.

Mr. Booth

We do agree there is a problem of the inofficious will which has to be dealt with in some way. This procedure outlined in the amendments is one which forces everybody to go to court.

Mr. M.J. O'Higgins

No, nonsense.

Mr. Booth

If you are not going to court, who is going to decide whether the testator has made equitable provision for his dependants in a reasonable way, having regard to his means? Who is to decide that? Is it the executor or the beneficiary? Somebody has to decide.

Mr. Ryan

His solicitor will advise him when he consults him about making the will in the first instance.

Mr. M.J. O'Higgins

There is no point in splitting hairs. You can do that about anything.

Mr. B. Lenihan

Deputy Booth is making a very constructive speech.

Mr. M.J. O'Higgins

I suppose you can split hairs about that, too.

Mr. Booth

The basic point at issue here is: what Deputy O'Higgins is trying to do is to make sure equitable provision shall be made for the dependants.

Mr. M.J. O'Higgins

And that there be a remedy if it is not made.

Mr. Booth

Equitable provision must be made as is reasonable. Somebody has to make a decision as to whether, after his death, the testator has been shown to have made equitable provision. At that stage a beneficiary may come to a solicitor and say : "I believe I should have got more. I believe the provisions of my father's will are inequitable." All the solicitor can say is: "I rather think you are right" or "I rather think you are wrong, but I do not know."

Mr. M.J. O'Higgins

Or he can be definite about it.

Mr. Booth

He can say: "That is a very inequitable will." What does he do with the executor? Does he go to him and say: "Do not mind the testator's will"?

Mr. M.J. O'Higgins

When the Deputy is back in practice, he will probably understand.

Mr. Booth

No, because I have had practice. I know a solicitor cannot advise an executor to administer an estate other than in strict accordance with the will as before him or the direction of the court. I think the Deputy will agree with me there.

Mr. Ryan

Or the consent of the other beneficiaries.

Mr. M.J. O'Higgins

I do not want to interrupt the Deputy. The Deputy has been advocating that people should be entitled to make settlements and arrangements. Just to keep the thing in order, all these amendments, including amendment No. 26, are being discussed together. I think the particular point to which the Deputy wanted an answer is dealt with in amendment No. 26.

Mr. Booth

Yes, I can see that. It is provided that it shall be lawful for dependants to enter into a deed of arrangement by way of compromise of their rights. But that is not the point at issue. Under amendment No. 24 the basic point is that somebody has to decide whether the testator had made such equitable provision as is reasonable. If the solicitor acting for the executor or the solicitor acting independently for one of the dependants feels the disposition by the testator was inequitable or not fully reasonable, there is no way in which he can act other than by submitting a case to court.

I feel that is undesirable. I would agree with the Minister that, if we have this legal right share of one-third for the widow, that gives her a final weapon, if you like, to be used only as a last resort to try to defend her rights against those of the children. I think everybody with reason and commonsense will see the point of that. But, quite apart from the words "equitable or reasonable", which seem to be far too vague to be taken really seriously, we come to subsection (c) of the proposed amendment——

Mr. M.J. O'Higgins

Before the Deputy leaves the first point, from what he is saying, I presume it can be taken he is equally strongly against the Minister's provision in section 117 of the Bill, which provides for an application to the court if the testator fails to make proper provision for children in accordance with his means?

Mr. Booth

No. I would agree with the specific point the Minister made on section 117. The only point to be decided on section 117 is need. What does the child need? How dependent was the child on the testator up to the date of his death? It is not a question of equity or reasonableness, but purely a matter of fact. Was the child entirely dependent on his father for his upkeep, education, clothing and what have you? That, to my mind, is a far safer basis on which to work.

Mr. M.J. O'Higgins

That is not what is in subsection (2) of the section.

Mr. Booth

I hope the Deputy will not sidetrack me on this. I think this is out of order at this stage. What we are dealing with are the Deputy's amendments. Unless we are careful we will be wandering around the Bill dealing with a number of sections. I should like to join issue with the Minister on section 117 when we come to it, but I would prefer not to get involved in it at this stage. I hope the Ceann Comhairle will feel I am acting rightly in the matter.

An Ceann Comhairle

I think we are dealing with legal right.

Mr. Booth

If we kept on that we would be on safer ground.

Mr. M.J. O'Higgins

I do not want to prolong this, but, in fact, we are dealing with a lot more.

An Ceann Comhairle

That is what the amendments deal with.

Mr. M.J. O'Higgins

We are taking all the amendments together. They also deal with the position of children and the right of application to the court.

An Ceann Comhairle

That involves legal right.

Mr. Booth

If this can be held to be a relevant discussion on section 117, I am perfectly prepared to carry on. But I thought it was slightly irrelevant to these amendments.

An Ceann Comhairle

I think it is quite irrelevant.

Mr. Booth

I bow to your decision, Sir.

Mr. Corish

That suits the Deputy anyway.

Mr. Booth

That suits me. Let us come back now to amendment No. 24, subsection (c):

Such person is by reason of continuing dissolute, dishonourable, cruel or unfaithful behaviour undeserving of such provision.

That, to my mind, is a nauseating suggestion. I can quite see what the Deputy has in mind and on the face of it, there is a certain amount of justice for it. It is a completely undeserving provision that there should be a discussion, even in chambers, whereby members of a family start accusing each other of continuing dissolute, dishonourable, cruel or unfaithful behaviour. That is sickening. It is no way to wind up the estate of a person. It is one way of fragmenting, not only the family estate, but the family as such.

Mr. James Tully

The lawyers will have great fun interpreting that.

Mr. Ryan

The alternative is to employ the Deputy.

Mr. B. Lenihan

We acknowledge the fact that they are not innocent.

Mr. Ryan

You should make it clear here.

Mr. Booth

That is the sort of remark I might expect from Deputy Ryan. He should be serious about this rather than make funny remarks which are not particularly comical on such a serious matter.

Mr. Ryan

My argument is that you cannot say those things cannot happen.

Mr. Booth

If the Deputy would try not to be flippant on this serious matter, we might get on with the discussion.

Mr. B. Lenihan

The reason why we do not have that provision is that we assume people are not perfect.

Mr. Booth

We are dealing with human nature as we find it but this is a provision whereby you are trying to give detailed guidance for the courts to decide on cases. That is quite impracticable and I feel it would undoubtedly lead to far more trouble than it could possibly solve.

I am perfectly happy with the Bill as it stands in that the minimum right is given to the surviving spouse and there is also a right, under section 117, to dependent children to bring their cases before the courts. I would very much hope, however, that testators would tend more and more to make what I believe is an ideal will and to leave everything to the surviving spouse, either absolutely or for life, with the remainder to the children, equally or in certain reasonable shares. We must try to avoid any ruling of a family from the grave. I consider we have gone as near as we conceivably can without leaving the widow without protection at all.

I hope through this debate and through the publicity which will be given to it, that more and more people will be encouraged to go to their solicitors and make a reasonable will at once. There is no point in waiting until you are feeling a bit sick. The time to do it is when you are well.

Mr. M.J. O'Higgins

They might be, if they listened to the debate.

Mr. Booth

We should also like to encourage testators to make their wills simple, as most solicitors encourage their clients to do. It would be an ideal solution if this Bill had not to be invoked in the great majority of cases. We are trying to make provision here for the admittedly small proportion of cases where the widow is not provided for and likewise where the children are not provided for. We have done this in a workmanlike, reasonable and practical way and I feel all these amendments by Deputy M.J. O'Higgins, particularly amendment No. 24, are too wordy and would be capable of such variation in interpretation that they would defeat the purpose the Deputy has in mind. The Deputy has got amendment No. 24 completely bogged down in the implementation of it. I do not blame him for that because he was trying to do the impossible. We will have the maximum flexibility in this and that is good. I feel that when this Bill is passed, as I believe it will be passed, basically as it is, it will not give rise to any of the evasion effects which have been forecast for it. We will be doing a lot of good if we can persuade people to make wills in good time and in a reasonable form.

Question put: "That the words proposed to be deleted stand."

The Committee divided: Tá: 69; Níl: 43.

Tá

• Aiken, Frank.
• Allen, Lorcan.
• Andrews, David.
• Blaney, Neil T.
• Boland, Kevin.
• Booth, Lionel.
• Boylan, Terence.
• Brady, Philip
• Brennan, Joseph.
• Brennan, Paudge.
• Breslin, Cormac.
• Cotter, Edward.
• Crinion, Brendan.
• Cronin, Jerry.
• Crowley, Flor.
• Crowley, Honor M.
• Cunningham, Liam
• Davern, Don.
• Desmond, Eileen.
• de Valera, Vivion.
• Dowling, Joe.
• Egan, Nicholas.
• Fanning, John.
• Faulkner, Pádraig.
• Fitzpatrick, Thomas J. (Dublin South-Central).
• Foley, Desmond.
• Gallagher, James.
• Geoghegan, John.
• Gibbons, Hugh.
• Gibbons, James M.
• Gilbridge, Eugene.
• Gogan, Richard P.
• Haughey, Charles.
• Healy, Augustine A.
• Briscoe, Ben.
• Burke, Patrick J.
• Calleary, Phelim A.
• Carter, Frank.
• Carty, Michael.
• Casey, Seán.
• Childers, Erskine.
• Clohessy, Patrick.
• Collins, James J.
• Corish, Brendan.
• Corry, Martin J.
• Hillery, Patrick J.
• Hilliard, Michael.
• Kenneally, William.
• Kennedy, James J.
• Kitt, Michael F.
• Lemass, Noel T.
• Lemass, Seán.
• Lenihan, Brian.
• Lenihan, Patrick.
• Lynch, Jack.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Meaney, Tom.
• Millar, Anthony G.
• Molloy, Robert.
• Moore, Seán.
• Nolan, Thomas.
• Ó Briain, Donnchadh.
• Ó Ceallaigh, Seán.
• O'Connor, Timothy.
• O'Malley, Donogh.
• Treacy, Seán.
• Tully, James.
• Wyse, Pearse.

Níl.

• Barrett, Stephen D.
• Barry, Richard.
• Belton, Luke.
• Belton, Paddy.
• Burke, Joan T.
• Burton, Philip.
• Byrne, Patrick.
• Clinton, Mark A.
• Coogan, Fintan.
• Cosgrave, Liam.
• Costello, Declan.
• Costello, John A.
• Creed, Donal.
• Crotty, Patrick J.
• Dillon, James M.
• Dockrell, Henry P.
• Dockrell, Maurice E.
• Donegan, Patrick S.
• Dunne, Thomas.
• Farrelly, Denis.
• Fitzpatrick, Thomas J. (Cavan).
• Flanagan, Oliver J.
• Gilhawley, Eugene.
• Governey, Desmond.
• Harte, Patrick D.
• Hogan, Patrick (South Tipperary).
• Hogan O'Higgins, Brigid.
• Jones, Denis F.
• Kenny, Henry.
• L'Estrange, Gerald.
• Lindsay, Patrick J.
• Lynch, Thaddeus.
• Lyons, Michael D.
• McLaughlin, Joseph.
• Murphy, William.
• O'Donnell, Patrick.
• O'Donnell, Tom.
• O'Hara, Thomas.
• O'Higgins, Michael J.
• O'Higgins, Thomas F.K.
• Reynolds, Patrick J.
• Ryan, Richie.
• Sweetman, Gerard.

Tellers: Tá, Deputies Carty and Geoghegan ; Níl, Deputies L'Estrange and T. Dunne.

Question declared carried.

An Ceann Comhairle

That decision governs amendments Nos. 1, 3, 4, 7, 8, 11 to 16, 20 and 23 to 26.

Amendments Nos. 2 and 10 can be taken together. Is that agreed?

Mr. M.J. O'Higgins

It is, if the Minister explains what they are about.

Mr. B. Lenihan

I move amendment No. 2:

In page 7, lines 10 and 11, to delete ", original or by representation,".

This is a drafting amendment which is consequential on amendment No. 10. The phrase which it is proposed to delete, "original or by representation," refers to the fact that an executor of an executor represents the original testator under what is known as the chain of representation. Amendment No. 10 proposes to abolish the principle that the executor of an executor represents the original testator, and, accordingly, it is necessary to omit the reference "original or by representation,". Heretofore the law has been that the executor of a deceased executor represents the original testator. We propose to delete that.

Mr. Ryan

Who would now represent the testator?

Mr. B. Lenihan

Administration would have to be extracted by one of the next-of-kin. We feel it is a bit unreal to have an executor of an executor who has no real contact with the testator. It is a long standing rule. It is more realistic to have an administrator appointed who is in touch with the estate rather than the executor of the executor who has no real knowledge whatsoever of the original estate.

Mr. T.J. Fitzpatrick

(Cavan): Under the law as it stands, an executor might find himself involved in an estate in which he has no real interest.

Mr. B. Lenihan

Exactly.

Mr. M.J. O'Higgins

I think this is a sensible amendment. I thought for a moment that the Minister would not make a case for it but he did in his last remarks. As the Minister and Deputy T.J. Fitzpatrick (Cavan) pointed out, the existing position is that you might have a person who willy-nilly has to act as personal representative in a case in which he does not want to act and in which he has no interest whatsoever. It is much more realistic in these circumstances to have the chain of the executorship broken and to require a new grant to be taken out by a person who will have some interest in the administration.

I feel tempted at this stage to comment on whether we will ever have an end to the modifications which are being proposed by the Government of this Bill. At this late stage there are more Government amendments coming in and I think one was circulated yesterday.

Mr. B. Lenihan

I emphasised at the outset that I was open and receptive to all ideas for the improvement of this Bill.

Mr. M.J. O'Higgins

If we keep the Bill going long enough, it looks as if we will make a good Bill out of it in the end.

Amendment agreed to.

Question proposed: "That section 3, as amended, stand part of the Bill."

Mr. M.J. O'Higgins

There are a few points on section 3 which I should like the Minister to explain. I notice that the definition of "purchaser" here has been altered from what appears in the 1964 Bill. Here the "purchaser" means "a grantee, lessee, assignee, mortgagee, chargeant or other person who in good faith acquires an estate or interest in property for valuable consideration;". In the previous Bill instead of "valuable consideration", it was stated to be for money or money's worth. I think the definition here is, in fact, an improvement on the position in the 1964 Bill but I should like to know if there were any reasons why the Minister decided on the change.

Mr. B. Lenihan

It is cleaner drafting. It is defined six lines below—"consideration in money or money's worth;".

Question put and agreed to.

SECTION 4.

Mr. B. Lenihan

I move amendment No. 5 :

In page 8, lines 10 and 11, to delete "to which a deceased person was entitled at the time of his death".

An Ceann Comhairle

Amendments Nos. 5 and 6 can be taken together.

Mr. M.J. O'Higgins

Would the Minister explain the deletion proposed in this amendment?

Mr. B. Lenihan

This is a drafting amendment. Paragraph (a) of section 4 defines the term "real estate". The words proposed in the Bill are unnecessary, and on closer examination, it was decided that there was no need for them. This again makes for cleaner drafting. The section makes full sense without the addition of these words.

Mr. M.J. O'Higgins

I agree.

Amendment agreed to.

Amendment No. 6 not moved.

Question proposed: "That section 4, as amended, stand part of the Bill."

Mr. M.J. O'Higgins

I asked the Minister on Second Reading if he would explain the exclusion of trust estates which were in the previous Bill and have been dropped from this section of this Bill.

Mr. B. Lenihan

Again, it is a drafting amendment, and if the words in question are deleted, I cannot accept the Deputy's amendment.

Mr. M.J. O'Higgins

I agree that the Minister's amendment is a sensible one and I am not moving amendment No. 6. On the section I am asking the Minister to explain the reason for the alteration in this section as against the similar section in the previous Bill. The Minister will recall that section 4 of the 1964 Bill provides exclusion in respect of trust estates. It provided:

an estate or interest vested on any trust in any deceased person solely shall be deemed not to be an estate or interest to which that person was entitled at the time of his death;

Mr. B. Lenihan

It is now in section 10.

Question put and agreed to.

SECTION 5.

Question proposed : "That section 5 stand part of the Bill".

Mr. M.J. O'Higgins

I wonder has the Minister given further consideration to this section? There is no controversy involved here. It is a question of trying to get the greatest degree of certainty we can. The Minister is attempting to improve the position by providing that where "two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, then, for the purposes of the distribution of the estate of any of them, they shall all be deemed to have died simultaneously."

I raised the question on the Second Reading as to what the position was if a husband and wife who had no children, and had made mutual wills, were both killed in a car crash, or a plane crash, or some other tragedy of that sort. Which will would be administered first, or would either will be administered first? If a husband makes a will leaving everything to his wife but back to his own side of the family should she pre-decease him, and she does likewise, and if they are both regarded as having died simultaneously, what happens?

Mr. B. Lenihan

It goes back to his own relatives. His wife is deemed to have died simultaneously in that case.

Mr. M.J. O'Higgins

But if she died simultaneously, she did not predecease him. That is the point.

Mr. B. Lenihan

It goes to his family. She is not surviving.

Mr. M.J. O'Higgins

It is a question of interpretation.

Mr. B. Lenihan

They are simultaneous deaths. This is precisely the cure for what the Deputy has in mind.

Mr. M.J. O'Higgins

If the will is so worded that he leaves the property to his wife, and if she pre-deceases him, then to his own family, and if she does likewise, under section 5, she is regarded as dying simultaneously with him, but she does not pre-decease him.

Mr. B. Lenihan

But she does not survive.

Mr. M.J. O'Higgins

Nor does she pre-decease him. That is the point.

Mr. Booth

Surely if the testator says "if she survives" and in fact she does not survive, the will cannot take effect because the widow is not there to benefit? Therefore, the testator is to that extent intestate.

Mr. B. Lenihan

That is a big improvement on the present situation.

Mr. Ryan

It seems to me that solicitors and others who make wills will in the future insert a phrase that if the wife dies simultaneously with him, the husband leaves his property to someone else. In that way the testator will avoid intestacy. As I understand this section, it is simply putting into legislative form the practice of the Estate Duty Office that in assessing liability for duty, they assume that the parties died simultaneously wherever there is uncertainty. In some other countries the assumption is to the contrary. They tend to accept that the wife survived the husband because of the assumption that women have greater powers of endurance than men.

Mr. T.J. Fitzpatrick

(Cavan): I do not clearly understand this, especially in the case of intestacy. If the two people die simultaneously, then how can the man's property go to his next-of-kin, and the wife's property go to her next-of-kin? I think that what the Minister is saying in this section is that each shall be deemed to have predeceased the other.

Mr. Booth

A complete circle.

Mr. M.J. O'Higgins

What would happen to the legal right share?

Mr. B. Lenihan

It is gone. They are both dead.

Mr. M.J. O'Higgins

On intestacy, what is the position?

Mr. B. Lenihan

They are presumed to have died together.

Mr. M.J. O'Higgins

They both died intestate?

Mr. Ryan

Unless otherwise provided.

Mr. B. Lenihan

This is an improvement on the present position.

Mr. T.J. Fitzpatrick

(Cavan): Is it, I wonder?

Mr. B. Lenihan

At present there are investigations into who died first. This gives a statutory presumption that they died together.

Mr. T.J. Fitzpatrick

(Cavan): In a case of joint intestacy of the husband and wife, what happens?

Mr. B. Lenihan

At the moment there is no legal presumption.

Mr. T.J. Fitzpatrick

(Cavan): If that is clear, it is all right. That is a presumption that each pre-deceased the other. Unless the wife pre-deceases the husband, his estate would not go to his next-of-kin.

Mr. B. Lenihan

There is no survivor if they are presumed to die simultaneously. It is an improvement of the situation that exists.

Mr. T.J. Fitzpatrick

(Cavan): The Supreme Court will clarify it some day.

Mr. T.F. O'Higgins

It is an improvement on the situation Deputy Ryan referred to. It at least is open to the testator now to make it clear what he wants to happen in the event of what is regarded as simultaneous death. It does not depend on an inquiry which might be carried out very carefully but which could come to a wrong conclusion.

Question put and agreed to.

SECTION 6.

Amendments Nos. 7 and 8 not moved.

Question proposed: "That section 6 stand part of the Bill."

Mr. M.J. O'Higgins

Is it the position that the amendments may not be moved or that they have been already moved and disposed of?

An Leas-Cheann Comhairle

They were before the house and discussed collectively.

Mr. M.J. O'Higgins

For the record I should like to make it clear that the position is that they have in fact been before the House. Is there a definition of "personal estate", which is referred to in subsection (3) (a)?

Mr. B. Lenihan

We have no definition of it. We have personal estate in (a) and real estate in (b).

Mr. M.J. O'Higgins

The Minister went to the trouble in section 4 to define "real estate".

Mr. B. Lenihan

What is not real estate is personal estate.

Mr. M.J. O'Higgins

Perhaps the Minister is right but one might enter into the field of quasi-real estate and quasi-personal estate. One would have the position in the matter of registered land of having personal estate treated as real estate. If the Minister is satisfied it is not necessary I shall not press it.

Mr. B. Lenihan

I shall look into it.

Question put and agreed to.

Sections 7 and 8 agreed to.

SECTION 9.

Question proposed : "That section 9 stand part of the Bill."

Mr. M.J. O'Higgins

I told the Minister earlier I would repeat a question on this section. I do not raise this simply as an academic debating point. It is a point which occurred to me and others on Second Reading, one on which professional colleagues have written to me since the Bill was published. It concerns the position of a testator who has made what is now a perfectly sound, good, valid will and who becomes incapacitated and unable to alter his will to comply with the legal right provisions and other provisions of this Bill.

The testator might become incapacitated mentally or physically and cannot, through no fault of his own, take any steps to comply with the provisions which the legislature is now forcing on him. I want to know if such a will complies with this Act. If, for example, the will does not make adequate provision for one-third to the widow to discharge the legal right obligation, it seems to me that will must now become partially in-operative and that to that extent we are legislating retrospectively to upset a will which at the time it was made was perfectly all right under our law.

Mr. B. Lenihan

Even if the testator had the mental capacity to make a will, the one-third or one-half would apply when this Bill becomes law.

Mr. M.J. O'Higgins

But he would have the problem of seeing to it himself. Take the position of the father of a family, leaving a farm or business to one of the children. That will is made with the knowledge and approval of the wife and, in the knowledge that the will is to be made, a particular son stays at home and works the farm. Then the owner becomes incapacitated. The position then is that because of the will, the son has acted on the assumption he will get the farm and the wife at the time, in discussions between them, has consented. Now, because of incapacity, the testator has no opportunity of revising his will. Consequently, even though at the time it was made everyone realised the will was leaving the estate to the son, now the widow will get the legal right one-third. There is no opportunity, because of incapacity, for the husband to discuss matters to make a settlement and get the wife's consent to agree. In such circumstances it is rather difficult, through this legislation——

Mr. B. Lenihan

Of course she can renounce. It is in the nature of a debt owing out of the estate which the wife may or may not choose to take.

Mr. M.J. O'Higgins

Supposing the father dies in the morning and the son wanted to dispose of the farm or mortgage it for the purpose of raising finance for restocking, he would not be able to do it.

Mr. B. Lenihan

This will apply anyway. That is the principle on which we had the division. It would apply even if the husband were mentally capable of conducting his business.

Mr. J.A. Costello

I want to raise a point which was raised in the memorandum sent by the Bar Council to the Minister, arising out of this section and in particular out of subsection (2) of section 9. This provides that nothing in the Act "shall affect any duty payable in respect of real estate or impose on real estate any other duty than is payable in respect thereof immediately before the commencement of this Act." It was suggested that under this Bill real estate and personal estate have become similar, indeed have become identical in so far as vesting in a personal representative following on the Administration of Estates Act, 1959. If the personal representative is selling personal estate, the purchaser need not, and should not, inquire as to whether death duties have been paid or not. The purchaser is entitled to purchase. That did not exist before 1959 and does not exist in relation to real estate sold by a personal representative except in certain circumstances. Where real estate and personal estate are being assimilated, there would not seem to be any logical reason for continuing this, and real estate and personal estate should be in the same position. Perhaps the Minister would clear that up.

Mr. B. Lenihan

My difficulty is that any change in respect of duty payable in regard to real estate, or any other change in any other section in regard to financial matters, is a matter for the Finance Bill and I have to assure the Revenue Commissioners that there is nothing here that would affect any payment in regard to real estate.

Mr. J.A. Costello

I thought the resolution which was discussed earlier would have been more appropriate to the Finance Bill than to this Bill. However, we have this problem arising in this Bill and it could not arise in a Finance Bill because here, following the principle laid down in the Act of 1959 real estate and personal estate are now by this Bill being assimilated.

Mr. B. Lenihan

Yes.

Mr. J.A. Costello

That is the position and between 1959 and now, the position was that a purchaser from a personal representative of a leasehold property or personal estate did not have to bother whether the death duties were paid or not but he had to bother about real estate. When real estate and personal estate are assimilated, then logically the purchaser of real estate should not have to inquire.

Mr. B. Lenihan

I agree. This sticks out like a sore thumb. It does not follow logically on what we are doing but the Revenue Commissioners insisted that in this measure we would not do anything to disturb any existing duty.

Mr. J.A. Costello

They are not affected at all. I think they are making a mistake and I think the Revenue Commissioners do not make mistakes. They are up to something queer. It cannot affect the amount of death duties payable. I am asking that the position of real estate should not be left in the old position because the Revenue Commissioners can still look to the personal representative for the payment of any duty.

Mr. B. Lenihan

I will take that up with the Minister for Finance. Certainly I am in sympathy with the Deputy.

Mr. T.J. Fitzpatrick

(Cavan): Now the personal representative has to give a bond specifically stating that the estate pays all the duty payable.

Mr. B. Lenihan

It does seem at variance with what we are doing.

Mr. J.A. Costello

We are not taking anything from the Revenue Commissioners. I wish we could.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill".

Mr. M.J. O'Higgins

I think sub-section (5) of this section answers the point I raised on section 4.

Mr. B. Lenihan

That is the point about the trusteeship.

Question put and agreed to.

Sections 11 and 12 agreed to.

SECTION 13.

Question proposed: "That section 13 stand part of the Bill".

Mr. M.J. O'Higgins

I previously raised a question regarding the President of the High Court. This section provides that: Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court.

The Minister gave as the explanation of that, and it is an explanation I accepted—it is a sensible provision— that property should not be without ownership for a time and that it should be vested in someone. The point on which I want clarification is: what is the position if the President of the High Court dies and there is no President of the High Court for a period, because the office is not a continuous one. It is not a case of "The President is dead: long live the President." There will be a period between the death of one President and the appointment of another. It does seem to me that in that interim period, and in the circumstance indicated in section 13, there would be a period during which the ownership of the property would be vested in no one.

Mr. B. Lenihan

I think the operation of political patronage might deal with that expeditiously.

A Deputy

It might hold it up.

Mr. M.J. O'Higgins

I have no doubt it would be dealt with as quickly as possible but there will be this gap, and I should like to know if there is any provision in regard to it.

Mr. B. Lenihan

The Deputy has a theoretical point, if you like —

Mr. M.J. O'Higgins

It is not theoretical. Presidents do die.

Mr. B. Lenihan

In practice, the matter would be dealt with —

Mr. M.J. O'Higgins

They also reach retiring age.

Mr. B. Lenihan

There is the other point, that it can be argued that in regard to "shall vest in the President of the High Court", it is the office in which it vests rather than in the person of the President. That is arguable as well. I am not saying that that argument holds but it is an argument. I can see the Deputy's point. How we can get over it —

Mr. M.J. O'Higgins

It can be got over by saying "or in whatever judge is acting in his place".

Mr. B. Lenihan

He could die also.

Mr. M.J. O'Higgins

Will the Minister have a look at it?

Mr. Ryan

Can the Minister tell me where does the property in such circumstances at present vest until the executor is appointed?

Mr. B. Lenihan

In the President.

Mr. T.J. Fitzpatrick

(Cavan): If he is dead?

Mr. B. Lenihan

It has not happened so far, due to the activities of the political Parties and Governments generally.

Question put and agreed to.

Section 14 agreed to.

SECTION 15.

Question proposed: "That section 15 stand part of the Bill".

Mr. M.J. O'Higgins

I am not entirely satisfied with subsection (4). I raised this on the Second Stage.

Mr. B. Lenihan

Yes. What was the Deputy's point?

Mr. M.J. O'Higgins

This reads:

Subject as aforesaid, references in any enactment, deed or instrument passed or executed either before or after the commencement of this Act to the heirs of any person shall be construed to refer to his personal representatives.

That refers to any deed or instrument executed either before or after the passing of this Bill. I am not interested in what is executed after the passing of the Bill but take a deed which was executed, say, in the year 1850. We are now saying that any reference in that deed to "heirs" shall be construed to refer to his personal representatives. The only point I wanted clarification on was whether if he referred back to the construction of that deed there would be any danger it would alter the subsequent devolution of the title.

Mr. B. Lenihan

I think it is subject to the previous sections. We start off with the wording:

The word "heir" or "heirs", used as a word of limitation in any enactment, deed or instrument passed or executed ...

Mr. M.J. O'Higgins

Then when used as a word of purchase?

Mr. B. Lenihan

Subsection (2) says:

The word "heir" or "heirs", used as a word of purchase in any enactment, deed or instrument passed or executed before the commencement of this Act, shall bear the same meaning as if this Act had not been passed.

Mr. M.J. O'Higgins

We are clear on the position of anything executed now but when you refer back, what is the situation? Here we are saying that after the passing of this Act the word "heirs" shall be construed to refer to personal representatives, irrespective of when the deed was executed.

Mr. B. Lenihan

I think what the Deputy has in mind is met by the fact that subsection (4) is subject to the provisions of subsections (1), (2) and (3) of the section.

Mr. M.J. O'Higgins

I think it probably is and for that reason I do not understand the necessity for sub-section (4).

Mr. Ryan

Subsections (1), (2) and (3) refer to "heirs" used as a word of limitation or used as a word of purchase, it could be used in a will in some way other than as a word of limitation. Subsection (4) speaks of interpreting its use in a will to refer to his personal representatives.

Mr. B. Lenihan

That is reasonable enough.

Mr. Ryan

That might be going too far; you might be conflicting with the intentions of the testator.

Mr. B. Lenihan

I shall have a look at it in any case.

Question put and agreed to.

Section 16 agreed to.

SECTION 17

Mr. M.J. O'Higgins

I move amendment No. 9.

In page 11, line 40, after "shall" to insert "subject to section 18".

This is only a small drafting point which I should like the Minister to consider. It seems to me that in section 17 he is providing for cases in which the rights of an executor shall wholly cease but in the next subsection, he provides a case of withdrawal where a person has renounced and then withdraws his renunciation so that it occurs to me on section 17, one of the classes of cases where the rights of an executor are expressed to cease wholly are cases where an executor renounces probate. But obviously they cannot wholly cease if he has rights under the next section to withdraw his renunciation. I suggest it should read ... "his right to executorship shall, subject to section 18, wholly cease."

Mr. B. Lenihan

I see the Deputy's point, although the two sections are separate. Each section stands on its own and there is nothing inconsistent in that respect. Section 17 is not dependent on section 18 or vice versa.

Mr. M.J. O'Higgins

Obviously they must be linked to this extent: if you provide in section 17 that in a case of renunciation the rights of an executor shall wholly cease, that seems to me to cease for all time, but in section 18 you say he is entitled to withdraw his renunciation and his rights revive. They cannot revive if they have wholly ceased. It is not a vital point.

Mr. B. Lenihan

I shall take it up with the draftsman.

Amendment, by leave withdrawn.

Section 17 agreed to.

Section 18 agreed to.

NEW SECTION.

An Leas-Cheann Comhairle

Amendment No. 10 was discussed with amendment No. 2.

Mr. B. Lenihan

I move amendment No. 10:

Before section 19 to insert the following new section:

"19. (1) Where the sole or last surviving executor of a testator dies after the commencement of this Act, the executor of such executor shall not be the executor of that testator.

(2) This section applies whether the testator died before or after the commencement of this Act."

An Leas-Cheann Comhairle

This amendment involves the deletion of section 19 of the Bill.

Mr. M.J. O'Higgins

It replaces section 19.

Amendment put and agreed to.

Section 19 deleted.

SECTION 20.

Question proposed: That section 20 stand part of the Bill.

Mr. T.J. Fitzpatrick

(Cavan): I appreciate that section 20 is a re-statement of the existing law but in this particular matter the existing law always appeared to me to be unsatisfactory. At present a man may appoint three executors of his will and one of them may extract probate, reserving the right of the other two. Notwithstanding the fact that discretion may have been by law conferred on executors, the proving executor can proceed to exercise that discretion under the will without any reference at all to and even without the knowledge of the reserving executors.

I know this is nothing new; it has always been the law, but I think it is unsatisfactory. At least the executors whose rights have been reserved should have notice that they are executors. As the law stands, it is quite possible, say, in the case of three executors appointed by the testator, that the will is in the custody of one of them. That executor can, without reference to the other two executors or without giving them an opportunity of proving the will, prove the will himself and proceed to distribute the estate and make decisions. That is the law as it stands. I think when we are reforming we should have a little reform here. It says:

... all the powers which are by this Act or otherwise by law conferred on the personal representative may be exercised by the proving executor or executors or the survivor or survivors of them and shall be as effectual as if all the persons named as executors had concurred therein.

I think we should add: Before probate is granted, notice shall be served on the executor or executors whose rights are being reserved.

Mr. B. Lenihan

I shall look into this, but at the same time I think the arguments in favour of retaining the existing practice under the law are very strong. In practice, what happens is that one of the executors takes an interest in proving the will and administering the estate. The others do not bother; they may have gone away and cannot be found. It is a practical thing to allow the executor who gets on with the job to do it.

Mr. T.J. Fitzpatrick

(Cavan): I would agree with that if all the executors had notice. Take the example of the solicitor who makes a will and it is put in his safe and there are three executors appointed and, say, the solicitor is one of them and maybe his clerk is one of them. He could go ahead, as the law stands, and take out probate without even acquainting the other two executors who may not even know that they have been appointed.

Mr. B. Lenihan

He is probably the only man in a position to do anything about it.

Mr. T.J. Fitzpatrick

(Cavan): How are the other two to do anything if they do not know they are executors?

Mr. M.J. O'Higgins

Supposing the third executor is a member of the family?

Mr. T.J. Fitzpatrick

(Cavan): Or supposing he is a friend of the deceased who the solicitor might think is a difficult sort of fellow, and the solicitor might say to himself: “If I have this fellow, I will be in all sorts of trouble”. He may be somebody the deceased depended on and somebody the deceased wanted to come to decisions.

Mr. B. Lenihan

I will look at it, but I can see a lot of sense in the existing practice and in the section. From a practical point of view, you want to give power to one person who wants to take out probate and get on with the business.

Mr. M.J. O'Higgins

Not to the disadvantage of the other.

Mr. T.J. Fitzpatrick

(Cavan): I do not agree with the Minister. What I am saying is that the other persons should have at least knowledge of their appointment and an opportunity of acting. If a notice is served on them that they have been appointed executors and after, say, a fortnight or three weeks they continue to show no interest in the thing, then by all means go ahead, but I say it is only reasonable that they should have knowledge of their appointment.

Mr. M.J. O'Higgins

There is precedent for this, as the Minister is probably aware, in the Land Registry practice when a dealing is lodged. Notice is given to the people who appear to have an interest and if they do not object when notice is given, the dealing will go through. I do not think there would be any practical difficulty in the operation of an amendment such as Deputy Fitzpatrick suggests.

Mr. B. Lenihan

With a short notice period?

Mr. M.J. O'Higgins

Yes. It is just a point of interest to note that while it is set out correctly in the marginal note here in the references to the existing provisions, in the previous Bill this was claimed to be a new section.

Mr. B. Lenihan

At any rate, I will have a look at that.

Question put and agreed to.

Section 21 agreed to.

SECTION 22.

Question proposed: "That section 22 stand part of the Bill".

Mr. T.J. Fitzpatrick

(Cavan): I should like to raise another point on this section. This is a section which protects personal representatives under grants of administration which have been revoked and the second part of subsection (2) says:

and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.

That obviously refers to payment of debts and things like that but I have in mind an innocent executor who in a bona fide manner and without any knowledge that there is anything wrong, extracts a grant of probate and proceeds innocently and in the best of faith a certain distance with the administration of the estate and pays out some legacies, again innocently and in all good faith, and then somebody comes in and has the probate revoked on the grounds that the will is bogus or something. Is the executor who acted innocently and in good faith liable for the legacies which he paid? I think he is because certainly this subsection does not protect him.

Mr. B. Lenihan

My reading of that section is that it is precisely to deal with the problem.

Mr. T.J. Fitzpatrick

(Cavan): Yes. Maybe I am not reading it correctly. The subsection says:

and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.

In my case you have a person taking out probate of a will. He is entitled to pay legacies directed by that will but if that will is revoked and declared to be void, a person who takes out a grant of administration intestate afterwards surely would not be entitled to pay legacies under the revoked or condemned will?

Mr. B. Lenihan

The point is that the personal representative, that is, your innocent bona fide administrator, who acted under the revoked representation may retain or reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made.

Mr. M.J. O'Higgins

He could not make it properly if it is declared to be an intestacy.

Mr. T.J. Fitzpatrick

(Cavan): He could not make it if the will is condemned. If there were two grants of administration, yes, but if you have a grant of administration following a grant of probate and under the bad grant of probate, an innocent executor had paid a legacy, I do not think this subsection protects him.

Mr. B. Lenihan

My reading of it is that it is a disposition or a payment which the person to whom representation is afterwards granted might have properly made.

Mr. M.J. O'Higgins

He could not have properly made it if you then declare the will is bad and there is intestacy.

Mr. T.J. Fitzpatrick

(Cavan): I am talking of a legacy of £100, say.

Mr. M.J. O'Higgins

He could not properly pay a legacy in those circumstances, although at the time the payment was made the original executor thought it was in order.

Mr. B. Lenihan

Under the ordinary law he would not be liable.

Mr. T.J. Fitzpatrick

(Cavan): The people who subsequently became entitled under an intestacy could say: “You paid out £100.”

Mr. B. Lenihan

They would have no cause of action if he acted bona fide.

Mr. T.J. Fitzpatrick

(Cavan): What is the necessity for the section?

Mr. B. Lenihan

Debts.

Mr. T.J. Fitzpatrick

(Cavan): In the case of debts, he does not need protection. The debts could be collected from the subsequent personal representative if they were properly due.

Mr. B. Lenihan

I think the section covers it.

Mr. T.J. Fitzpatrick

(Cavan): Would the Minister, in the receptive mood which he assures us he is in, have another look at it?

Mr. B. Lenihan

I will, but I feel that the section plus the ordinary law of the land protects the individual.

Mr. M.J. O'Higgins

Is the Minister clear on that?

Mr. T.J. Fitzpatrick

(Cavan): I do not think the ordinary law protects him at all.

Mr. M.J. O'Higgins

If the ordinary law of the land protects the executor in such cases, what on earth remedy does the ordinary law of the land provide for the person who should have been a beneficiary and who has by reason of this mistake been done out of what he is entitled to? Surely that person should have some remedy?

Mr. B. Lenihan

He goes after the assets as best he can, but, in my view, he has no action. As the law stands at the moment, I could not see him having any cause of action against an administrator who acted bona fide.

Mr. T.J. Fitzpatrick

(Cavan): I respectfully say that either section 22 is not necessary at all or it is no good.

Mr. B. Lenihan

I will have a look at it.

Mr. T.J. Fitzpatrick

(Cavan): It is either one or the other.

Mr. B. Lenihan

What the Deputy wants from me is a complete assurance that between this section and what may be the law otherwise the executor in those circumstances —

Mr. T.J. Fitzpatrick

(Cavan): An innocent executor.

Mr. B. Lenihan

— is fully protected.

Mr. T.J. Fitzpatrick

(Cavan): Is fully protected.

Mr. B. Lenihan

I will have a look at it.

Question put and agreed to.

Section 23 to 26, inclusive, agreed to.

SECTION 27.

Question proposed: "That section 27 stand part of the Bill".

Mr. M.J. O'Higgins

Subsection (4) seems to be very general.

Mr. B. Lenihan

Is that not the situation at the moment? I have made applications like that myself.

Mr. M.J. O'Higgins

Probably, but it does seem to be extraordinarily general.

Mr. T.J. Fitzpatrick

(Cavan): Is that the old 74th section that used to be talked about?

Mr. B. Lenihan

That is the very general section. It is a re-statement.

Question put and agreed to.

SECTION 28.

Question proposed: "That section 28 stand part of the Bill".

Mr. T.J. Fitzpatrick

(Cavan): This makes provision for granting administration separately in respect of real and personal estate. Would it not be better to have one grant of administration to the estate without any reference to personal or real estate? This seems to be out of line with the rest of the thinking in the Bill.

Mr. B. Lenihan

It is the existing position and it is designed to enable the personal representative to have separate grants if he wants them.

Mr. T.J. Fitzpatrick

(Cavan): There does not seem to be any point in it.

Mr. B. Lenihan

We do not wish to involve the personal representative in legislative pressurisation. If he wants to take out separate grants he may do so.

Mr. T.J. Fitzpatrick

(Cavan): We are doing a little pressurising in the Bill.

Mr. B. Lenihan

I shall look at it but it seems to be a very reasonable provision.

Mr. T.J. Fitzpatrick

(Cavan): It is very vague.

Mr. B. Lenihan

We are giving the personal representative the freedom to do it either way.

Mr. Ryan

We are blunting the difference between real estate and personal estate.

Mr. B. Lenihan

It still remains.

Mr. Ryan

Yes, but the variation in character is necessary and it seems desirable to discourage this practice. It leads to difficulties in administration, perhaps difficulties in regard to the suspension of the assets where creditors, and so on, are concerned.

Mr. B. Lenihan

The Deputy's suggestion appeals to my reforming mind. I am just restating the existing position, so I shall look at it again.

Question put and agreed to.

SECTION 29.

Question proposed: "That section 29 stand part of the Bill."

Mr. M.J. O'Higgins

I want to use section 29, if I may, for the purpose of asking the Minister to do something about the outmoded forms that are still in use in connection with applications for probate and administration. This point was raised under the earlier Bill by Deputy Seán Flanagan and I agreed with him on that occasion. The Minister should endeavour, when this mood of reform is on him, to bring the forms that are in use up to date. The Minister probably knows that when an application is made, for example, for a grant of probate it is necessary for the applicant to make what is known as an oath of executor. He might possibly have to file an affidavit as an attesting witness in connection with the will. In both of these forms, I think I am correct in saying reference is made to the will being annexed to the affidavit but in point of fact and in point of practice the deponent is not allowed to annex the will to the affidavit; and if he does annex the will to the affidavit, he must then file another affidavit to explain why he annexed it and how the pin marks or staple marks appeared on the will.

It does seem ridiculous that people must use these outmoded forms when the thing could be revised and brought up to date very easily. Instead of saying "the will annexed hereto", it should be possible to refer to the will being produced to the commissioner for oaths at the time the oath of executor is sworn. These are very frustrating matters and it is very difficult, if not impossible, for a solicitor to explain to a person who is required to take an oath before a commissioner for oaths that while he is swearing in this document that that document is annexed to it, in fact he is not allowed annex it and that if he does annex it, he must make another affidavit to explain why he did it.

Mr. B. Lenihan

We are engaged in a similar type of reform operation in the Land Registry which we hope to conclude shortly, and I intend to direct a similar sort of operation in the Probate Office.

Mr. M.J. O'Higgins

It would be well worth doing.

Mr. B. Lenihan

I agree with the Deputy.

Question put and agreed to.

SECTION 30.

Question proposed: "That section 30 stand part of the Bill."

Mr. M.J. O'Higgins

My recollection is that one of the junior Ministers in the present Government had some words to say about this when it was proposed in the last Bill.

Mr. B. Lenihan

Yes, but there was a certain ill-founded suggestion read into this Bill. Some people had a sinister notion about it.

Mr. M.J. O'Higgins

I think the comment on this section, sinister or not, came from behind the Minister's seat.

Mr. B. Lenihan

It did, but I was able to disabuse the Deputy.

Question put and agreed to.

Sections 31 to 33, inclusive, agreed to.

SECTION 34.

Question proposed: "That section 34 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): There is just one point here which makes me curious. Subsection (7) of section 34 reads:

An administration bond issued by a guarantee society or insurance company approved by the President of the High Court shall be acceptable for the purposes of this section whether the application for the grant is made in person or by a solicitor.

I do not understand the necessity for the words "whether the application for the grant is made in person or by a solicitor". Maybe there is some reason for them.

Mr. M.J. O'Higgins

Is it not the position whether the words are there or not?

Mr. B. Lenihan

It should be to be consistent with the principle of personal grants, but in fact the situation is not so.

Mr. T.J. Fitzpatrick

(Cavan): The words are not necessary. The Minister deleted words from some definition earlier because they were deemed superfluous.

Mr. M.J. O'Higgins

In this connection does the Minister mean that at the moment the bond is not accepted by the guarantee companies or the Probate Office?

Mr. B. Lenihan

By the High Court.

Mr. T.J. Fitzpatrick

(Cavan): By the High Court or by the Probate Office.

Mr. B. Lenihan

That is what I mean—the Probate Office.

Mr. T.J. Fitzpatrick

(Cavan): There does not seem to be any good reason why they should not.

Mr. B. Lenihan

Apparently it is a High Court rule at the moment and we feel this is inconsistent with the principle of personal application.

Mr. T.J. Fitzpatrick

(Cavan): I thoroughly agree that a bond issued by an approved society should be accepted whether the application is made by a solicitor or whether it is a personal application.

Mr. B. Lenihan

That is why we put this in; because, at the moment, it does not work out that way.

Mr. T.J. Fitzpatrick

(Cavan): I do not see why there should be any necessity for it.

Mr. B. Lenihan

My information is that this rule is operated by the Probate Office to the detriment of ordinary people.

Mr. M.J. O'Higgins

The solution would be to alter the rule.

Mr. B. Lenihan

I cannot do that.

Mr. T.J. Fitzpatrick

(Cavan): The Rules Making Committee could do it.

Question put and agreed to.

Sections 35 to 44, inclusive, agreed to.

SECTION 45.

An Leas-Cheann Comhairle

Amendment No. 11 in the name of Deputy M. J. O'Higgins was discussed with amendment No. 1.

Amendment No. 11 not moved.

Section 45 agreed to.

SECTION 46.

An Leas-Cheann Comhairle

Amendments Nos. 12, 13, 14 and 15 in the name of Deputy M.J. O'Higgins have already been discussed with amendment No. 1.

Amendments Nos. 12 to 15, inclusive, not moved.

Section 46 agreed to.

Sections 47 and 48 agreed to.

SECTION 49.

Question proposed: "That section 49 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan): This is the section which protects a personal representative who distributes an estate after giving the appropriate notice. I must confess that I had been trying for years to find out what the appropriate notice was and I had the greatest difficulty in finding out. After a great many inquiries, I came to the conclusion that very few people knew, but I think the notice required by a court of equity is a notice published in three different editions of a daily or provincial newspaper and publication of the same notice in Iris Oifigiúil. Am I right in that?

Mr. B. Lenihan

That is right.

Mr. T.J. Fitzpatrick

(Cavan): I suggest to the Minister we should do a wee bit of reform here, too. Advertising at the present time can be quite expensive, especially where small estates are concerned. To publish the required notice three times in one of the national newspapers can run into as much as £30 and then, on top of that, there has to be publication in Iris Oifigiúil. I do not think publication in three issues of a newspaper is necessary. It should be sufficient to publish the notice once.

Mr. B. Lenihan

There is no rule on it.

Mr. T.J. Fitzpatrick

(Cavan): Perhaps the Minister would give me the benefit of his advice on this. It says:

Where the personal representatives have given such notices to creditors and others to send in their claims against the estate of the deceased as, in the opinion of the court in which the personal representatives are sought to be charged ...

The old rule on equity, and the well established rule in administering estates, is that the acceptable notice is a notice published three times in a newspaper and once in Iris Oifigiúil.

Mr. B. Lenihan

That has no statutory basis.

Mr. T.J. Fitzpatrick

(Cavan): It has come to be recognised by the Court of Chancery as the necessary notice. I have spent years trying to get this clarified.

Mr. M.J. O'Higgins

It would be better if it were defined.

Mr. T.J. Fitzpatrick

(Cavan): For the ordinary country solicitor, and I am one, the position is not clear. Nobody seems to know what notice is required. I suggest to the Minister that we should make it definite now because I know in one part of the country I see notices trotted out in practically every estate in three successive issues of a paper.

Mr. B. Lenihan

That is too much.

Mr. T.J. Fitzpatrick

(Cavan): It is, but that is the position doubt is creating. If a person wants to be absolutely certain that he is going to protect the administrator he will advise on the side of caution and he will publish three times.

Mr. B. Lenihan

I will take it up with the Rules Committee because I think it is a matter more appropriate to rule than to statutory provision. I agree there is no rule at the moment.

Mr. T.J. Fitzpatrick

(Cavan): I am speaking about this as a practical difficulty and I would be obliged if the Minister would look into it between now and the Report Stage and clarify the position.

Mr. B. Lenihan

I think the best way would be to take it up with the Rules Making Committee.

Mr. T.J. Fitzpatrick

(Cavan): It is not a rule; it is an old established Chancery practice.

Mr. B. Lenihan

It has no basis in rule, regulation or statute at the moment.

Mr. T.J. Fitzpatrick

(Cavan): It is the practice.

Mr. M.J. O'Higgins

It is a practice which grew up out of the 1859 Act, which is more than a hundred years old. It grew up at a time when possibly printing and the publication of notices were not nearly as expensive as they are to-day.

Mr. T.J. Fitzpatrick

(Cavan): And people got newspapers only once every few months.

Mr. B. Lenihan

I have every sympathy with the Deputy. I will look into the matter.

Mr. Ryan

The Minister says it is preferable to deal with this by way of the rules. The Minister may not know that there are many rules which it is very difficult to find and very difficult to locate. It would be much better to put a simple provision as to what statutory notice should be given for the purpose of providing this necessary protection. This statute will be the principal instrument in a few years and surely it would be a simple matter now to make provision here. There is plenty of precedents in earlier Acts passed by the Oireachtas requiring notice to be published in the newspapers. We should, I think, do the same thing here.

Mr. T.J. Fitzpatrick

(Cavan): It is the rule of the old Court of Chancery because it says “would have been given by the court in an administration suit”.

Mr. B. Lenihan

My point is that there is no actual rule or regulation. It is a practice which has grown up.

Mr. T.J. Fitzpatrick

(Cavan): It is a long-established practice since the Judicature Act.

Mr. B. Lenihan

I have a great deal of sympathy with what the Deputy suggests. I will look into it for the purpose of seeing whether it could be done by regulation or statutory provision.

Question put and agreed to.

Sections 50 and 51 agreed to.

SECTION 52.

Question proposed: "That section 52 stand part of the Bill."

Mr. M.J. O'Higgins

There is just a small point here in relation to subsection (5). This deals with the question of an assent by executors and subsection (5) provides:

An assent not in writing shall not be effectual to pass any estate or interest in land.

Generally speaking, I can see the sense —it is there already since the 1959 Act, I think—of cutting out the idea of implied assent, but there are cases, which occur frequently enough, where the personal representative and the beneficiary are one and the same person. I am thinking of the case where the husband dies and leaves everything to his wife. The estate may include a business or house property. In such a case, where the executor beneficiary takes possession and ultimately has to deal with the title, it seems to me there could reasonably be an implied assent.

Mr. B. Lenihan

It could be dangerous, could it not?

Mr. M.J. O'Higgins

No. I do not think a purchaser in this case should be required to ensure that the beneficial personal representative had, in fact, executed a formal assent of the demise of the property to herself.

Mr. B. Lenihan

It does not say formal assent.

Mr. M.J. O'Higgins

An assent in writing. It must be a formal one.

Mr. B. Lenihan

When one is dealing with the title to land it is safer. It is traditional in common law to make sure that there is some writing as evidence of title.

Mr. M.J. O'Higgins

This is not something that has long roots at all.

Progress reported; Committee to sit again.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 23rd June, 1965.