Succession Bill, 1965: Committee Stage (Resumed).

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

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.

I do not think I would go the whole way with the Deputy. I can see his point and I shall certainly consider it, but it has always been a basic rule of the legal system to be very careful in regard to transactions in relation to property, and land in particular. I take it that what the Deputy says relates solely to land.

Yes. It is conveyancing titles I am concerned with.

If you go right back to the Statute of Frauds, you will find this emphasis on writing from the point of view of evidence in regard to land. If there were something more formal required by subsection (5), I might go some way with the Deputy, but a consent in writing implies something merely written. There is no necessity for a formal document or deed. If there is something on paper, that meets the case. It would be undesirable, I think, to depart from that.

It meets the case only theoretically. As far as the Act is concerned, any scribble on the back of a postage stamp is sufficient, but, in practice, it is not sufficient. If the Minister ever had the experience of having to satisfy solicitors for a bank or a building society, he would know that an assent is required to be in writing. Although it is not obligatory under the 1959 Act, it is permissive that the assent should also be registered. In fact, the practice is that solicitors for building societies, insurance companies, banks, or any other body advancing loans, with the premises as security, require the assent in writing, and not only must it be in writing but it must also be registered in the Registry of Deeds.

Whatever the intention behind the 1959 Act, the practice that has grown up, and will continue to grow, is a practice which is fenced in by formality and doing the thing in a very exact and formal way. It seems to me to be rather anomalous if a man leaves property to another person, the will is not allowed to become effective unless his executor takes some step which is interposed by the Legislature. I am prepared to accept the reasoning behind that in cases where the executor and beneficiary are different people, where they are strangers. I think there may be something to be said for it there, although I am not convinced there is a lot to be said for it; but I do not think there is anything to be said for it when the executor and beneficiary are one and the same person. Then it is nonsense. If I leave my property to my wife, before that property can vest in her, she has to draw up and sign a written assent, confirming she assents to the vesting of the property in herself. It is simply compelling people to do something which should not be necessary but which should be implied in the circumstances.

It is not an extraordinary obligation to require anyone——

Why put it in?

In the interest of the greatest percentage of cases— in the cases of most land dealings where intestacy arises and where you have an administrator administering property on intestacy.

This does not apply to intestacy at all.

It does. This same requirement applies to intestacy as well.

My argument does not apply at all to intestacy.

No, the Deputy's argument does not.

I am talking about the case where a man dies and leaves property to his executor, or to anyone else for that matter. The generality is where he leaves it to someone not the executor. In those cases I am saying there is something to be said for requiring the assent of the executor, although I do not think there is a whole lot to be said for it. The particular case I am pressing on the Minister—there is no reason why it could not be made an exception, because it is not breaking down his argument on the other point—is where a man leaves his property to the executor and that executor is the one and the same person as the beneficiary. That person should not be required to execute a written assent. The circumstances of the executor entering into possession of the property should be sufficient to imply the assent. I know if the executor decides to sell, and sells as executor, the assent is not required. But if he sells as beneficiary, then written assent is required. I do not think it should be. It has raised a complication already in the type of case I have referred to, where a man leaves his property to his wife, where the wife did not consider it necessary to do anything except continue living in the family residence and, when the wife herself then dies without having ever taken the step of executing a written assent, which under the present Act is necessary, before the property can vest in her a difficult conveyancing problem, to put it mildly, arises as to how the position can be remedied.

I do not like interfering with the general principle, which I think is well established, of having dealings in land established by writing, be it ordinary writing in the case of a release of this kind or a more substantial document of title. Land dealings and title are important for future generations. When title falls to be investigated, it is important that there should be a record in writing. I see no merit in the argument, apart from the exceptional instance mentioned by Deputy M.J. O'Higgins, that is, where the executor and the beneficiary are the one and the same person. There may be some merit in that, but outside of that, I would not go. I shall have a look at it to see what I can do about it.

I would not mind even if it were limited to the case of a bequest to the spouse.

I shall have a look at that.

Question put and agreed to.
Section 53 agreed to.
SECTION 54.
Question proposed: "That section 54 stand part of the Bill."

In this section the Minister will see we are getting into a different plane altogether, where there is going to be a certain amount of formality attached to the assent that is required. Under this section, not only will the assent be required to be in writing but it will have to be in the prescribed form, in the form required under section 61 of the Registration of Title Act, 1964. If it is not in the prescribed form, the position is that the wishes of the testator are going to be completely nullified and negatived, because the Legislature now requires the executor to take a further step and we require him to take that further step in a particular way. If he does not do it in the particular way which is going to be required—not only in writing but in the prescribed form —the position is that the bequest made in the will is not going to be effectively vested in the beneficiary.

And I think it is proper that it should be so.

I do not think it is. The Minister has been arguing that what is required is something in writing. You cannot have a will not in writing. Surely the will supplies the writing the Minister has his heart so much set on?

Is the will a document of title?

It becomes part of the title. It will be a document of record when it is proved.

I think it is better to have it this way. Does the Deputy feel strongly on that point?

I certainly feel strongly on the first point I raised in respect of the spouse.

I agree with the Deputy on that.

In this case I think that at least it should not be fenced in by having it in a prescribed form.

I shall have a look at the matter in the context of both sections.

It should be possible for a letter to be written to the Registrar of Titles which would satisfy the requirement.

Question put and agreed to.
Progress reported; Committee to sit again.