This section deals with the assent of executors. On Tuesday I was making the point that there is a case for allowing implied assent by executors where the beneficiary and the executor are one and the same person. As the Minister, I have no doubt, is aware, by far the vast majority of wills, certainly in Dublin, and I imagine the same is true in relation to other larger cities, are wills in which one spouse leaves everything to the other. Where a husband dies leaving his widow the dwellinghouse, or other property of that description, it may be that the widow will decide to sell and will be brought up reasonably soon against the requirement imposed by the 1959 Act of having the assent of the executors in writing.
On the other hand, it very frequently happens that the widow and family continue to reside in the house and there is no necessity, so far as she is aware, for doing anything in particular in order to protect her title, once she has taken out a grant of probate. Where the widow continues to reside in the house, having extracted a grant of probate, it would seem to me to be reasonable, from the point of view of a subsequent purchaser, that the assent of the executor to the bequest of the house, or the entire estate, should be implied.
As the Minister is aware, prior to the 1959 Act it was not necessary to have the assent of the executor in writing and, in many cases, such as cases falling within the category to which I have referred, the assent was implied by the circumstances. It was implied where the beneficiary entered into enjoyment of the bequest. It was certainly implied in the case of a widow executrix who continued in occupation of the house and there was no problem when she ultimately came to sell the house or when the house passed by her will. There was no title question raised because there was no title question to raise.
Since the 1959 Act the position is that an assent of the executor must be in writing. When I refer to "formal assent", I am referring to the written assent as against the implied assent which was permissible before. Now this formal assent by the executor is required and it is required even though the executor and the beneficiary are one and the same person. I have had experience of a case—I am quite sure a number of my colleagues have had similar cases—in which a man died and left his house to his widow. The widow remained on in occupation without executing any written assent but obviously intending to take the property under the terms of the will. Then she died. From the point of view of a person purchasing the house, the situation then is that, for the vesting of the property in the widow, an assent is necessary, even though the widow was herself the executrix and no written assent was executed. That is clearly a case in which an implied assent should be permitted.
I think there is a case for the Minister looking again at the provision, which is now mandatory, that there should be a written assent in all cases. I appreciate, as most people in the legal profession appreciate, that, by and large, where the beneficiary and the executor are separate and distinct people and where there may be several devises of property passing under the terms of a will, it probably is a good idea, and it certainly eliminates mistakes, and gives a tighter conveyancing practice to require that the assent of the executor in such circumstances must be in writing. But, in the single case in which the beneficiary and the executor taking the property are one and the same person, I suggest to the Minister that there is a strong case for reverting to the old procedure and allowing the assent to be implied.