I think we left off at the stage where the Minister was going to have another chat with Deputy Booth. I have nothing more to say on this section. Deputy Fitzpatrick was raising the point, which I think is a legitimate one, that in the case of a solicitor witnessing a will where the will has given the solicitor authority to charge his proper costs if he acts as executor or in the administration of the estate, that should not be regarded as a gift or bequest under the will but that, in fact, it be simply an authority to charge proper costs when earned. By reason of legal decisions down the years, it has been regarded, in fact, as a gift. It is anything but a gift. The case has been made that in those circumstances the Minister might consider adding a subsection here to make it clear that such an authority should not be regarded as a gift under the will.
Succession Bill, 1965: Committee Stage (Resumed).
I made my position clear on the last day. I could not give way on this matter. There is a question of principle involved. It has been the practice down the years.
It is clear under section 83 that the fact that an executor may be a competent witness to a will does not, so to speak, jeopardise his executorship under the will? He can still act as executor?
That is right. That is the position, precisely.
I have been thinking over this provision. I am not altogether satisfied that section 84 (1) (b) should remain, and between now and Report Stage I shall have a look at it with a view to its deletion. I think it is much better just to have it expressed that the only exception should be the exception set out in (a)—a will in contemplation of that marriage. whether so expressed in the will or not —that that shall be the only exception and that in every other case the will shall be revoked on subsequent marriage. Subclause (b) is obscure and I am not altogether happy about it.
Is it not the present position that the provision is a provision simpliciter, that a will is revoked on subsequent marriage?
Yes.
I think that at present there is not even the saving provision in respect of a will made in contemplation of marriage. I am not sure of that.
That is right.
To the extent that the section here makes that saving provision, it is good. I am not sure with regard to subsection (1) (b), to which the Minister refers, whether that is wise or not, but in any event, the Minister is being prudent in deciding to look at it again.
I will look at it between now and Report Stage.
I should like the Minister to expand on section 85. I am aware that it is a re-enactment of the present law but it does seem to me on reading the section as it stands that it might be worthwhile tightening it up a little bit. I should like the Minister to explain it as it stands at the moment.
It is really a restatement of the position. I do not see how it could be tightened up. It makes it quite clear that an obliteration, interlineation, or other alteration made in a will after execution shall not be valid or have any effect.
I will draw the Minister's attention to a particular point I have in mind. This section provides that an obliteration, inter-lineation, or other alteration made in a will after execution shall not be valid or have any effect. That is perfect as far as it goes. Then the phrase is used, "except so far as the words or effect of the will before such alteration are not apparent". Taking the section as far as it goes now, incorporating those words in it, it means, surely, that you can alter, interline or obliterate part of a will after execution for the purpose of making the words in the will apparent?
Yes.
I think that is dangerous. This is a matter of interpretation and construction. The alteration might be made for the purpose of giving meaning and effect to the wording of the will, or for some wilful or malicious purpose which would, in fact, have the effect of altering wrongfully the terms of the will. I feel this section would be better if the words in lines 25, 26 and 27 were completely omitted. If the words, "except so far as the words or effect of the will before such alteration are not apparent" were left out completely, everyone would be quite clear as to what the law is, that you cannot alter a will after it is executed and that if a person wants to make an alteration, if he has made a mistake or something like that, it is simply a matter of adding a codicil.
My inclination is towards simplicity and commonsense in regard to this matter. I think it is quite proper to set out, "except so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed as is required for the execution of the will." In other words, any such alteration is not valid except when the terms of the will are not apparent and by reason of the terms of the will not being apparent the insertion is put in writing to explain the terms of the will that are not apparent.
Perhaps I am misreading it. The phrase "... executed if the signature of the testator and the signature of each witness is made in the margin", does not refer to the phrase I am referring to. So far as I can see, the section as drafted means that you may alter your will without any formality at all where the meaning is not apparent to give it meaning, and you do not have to take the precautions set out in the latter part of the section which you have to take in other cases.
I think my interpretation is right.
It may be. The section reads: "An obliteration, inter-lineation, or other alteration made in a will after execution shall not be valid or have any effect, except so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed as is required for the execution of the will". To my mind, that cannot refer to exceptions because exceptions have been dealt with. There are two types of alteration that can be made. An alteration can be made in a will for the purpose of making clear the meaning of the will. That does not require to be executed in the same way as another alteration does. That is why I think the section is dangerous.
I can see Deputy O'Higgins's point and I will look at it with a view to tightening up the drafting to ensure that what I have said is set out more clearly.
I have no objection to that.
That is precisely what I envisage the section to mean. We will tighten up the drafting.
If it means that, I have no objection.
I will have another look at it.
This is a re-enactment of the present position
That is right.
Section 88 provides:
Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
As the marginal note shows, the intention is to ensure that the will will, in fact, speak from the death of the testator. I agree with this section. Again, as the marginal note shows, it is an extension of the 1599 Act, to over-rule Wild's Case. We are solemnly asked to enact that section and in the self-same Bill, we are asked to adopt a scheme of succession in respect of testate succession as distinct from intestate succession where a will is obviously not going to speak from the date of the death of the testator but may or may not speak from a date which can be as long as 12 months after the death, depending on whether or not the widow decides to opt for her legal share as against the legacy in the will. It is simply a comment. I am not asking the Minister to answer.
That goes to the root of the matter.
This is a new section providing that extrinsic evidence will be admissible to explain the testator's intentions.
What does it mean exactly?
At the moment extrinsic evidence is not admissible to show what the testator meant. It is not admissible in court to prove the intention of the testator if there is a dispute, except in regard to the form of the will. If the terms of the will are vague and there is an inquiry in court to ascertain what the intention of the testator was, extrinsic evidence is not admissible. Documentary or oral evidence of what he said or did not say at the time of making the will is not admissible to show intention, but I think it is desirable to permit that evidence to be given.
This strengthens my belief that section 85 should be tightened up. Now that this step is being taken to allow extrinsic evidence to be admissible in court—and I agree with this step—to clarify the provision in the will, the Minister should not hesitate to tighten up the wording in section 85. I think the step that is being taken in section 89 is one that should possibly have been taken before. It is worthwhile. As the Minister knows, the general pattern in the courts has been that the intention of the testator was paramount. Very often, while that rule was there, at the same time it was not one which could be carried into effect. Cases of ambiguity might exist in the will which could be cleared up by the admission of extrinsic evidence. Once that evidence was not allowed in, there was no way of clearing up the ambiguity. This does improve the position and it is a section which is worth having.
I think this is a re-enacting section.
Yes, it is.
Would the Minister please explain this section?
This is a re-enactment of the equivalent section of the 1837 Act. It is exactly a restatement of section 27 of that Act.
The Minister agreed to re-examine one of his earlier amendments which seems to fly in the face of these insertions in relation to property disposed of by will.
I shall look into the matter again in the context of all the relevant sections.
Would the Minister mind explaining the marginal note to this section?
Again, this is largely a restatement of section 33 of the 1837 Act, extended to cover appointments under special powers.
This can really be coupled with section 89. It is an improvement.
That is right.
Would the Minister please explain subsection (2)?
This subsection goes to the determination of whether or not a will complies with the law. Regard is to be had to the law at the time the testator makes the will, but that is not to prevent account being taken of any alteration of the law affecting wills at the time if the alteration could have the effect of validating the will.
I am not quite clear as to what that means. The point has been made to the Minister on a number of occasions, in relation to the Bill, that you have at the moment a number of wills in existence that are in every sense valid wills, although some of them might not comply with the legal right provisions that are being incorporated into the law under this Bill. Does section 106 mean that this Bill is not going to be retrospective or does it mean something else? If it means something else, what exactly does it mean?
It is retrospective because as the Deputy knows well, a will is not a legal instrument until the death of the testator. My intention, in section 106, is to validate a will made, for example, by a person under 18 years of age. Under existing law, a will made by such a person would be invalid. We are now going to make such a will, if it is in existence, valid. That is just an example.
The Minister says this Bill is not retrospective. Does he or does he not mean that? If it is not retrospective, it means it does not reach back to affect wills that were made before this Bill becomes an Act. If it does reach back and it affects wills already made, then this Bill is proposing legislation which will have a retrospective effect. It seems to me that it is intended that this Bill, when it becomes an Act, will operate retrospectively. I had no doubt in my mind until I read this subsection which reads:
In determining whether or not a testamentary disposition complies with a particular law, regard shall be had to the requirements of that law at the time of making the disposition, but this shall not prevent account being taken of an alteration of law affecting testamentary dispositions enables the disposition to be treated as valid.
This says, in effect, as I read it, that in deciding whether a will is valid or not, you have regard to the law as it stands at the time the disposition was made. You can also have regard to any alteration made in that law if the alteration in the law has the effect of enabling the will to be treated as valid; otherwise, you do not have regard to any subsequent alteration in the law. Is that not so? Subsection (2) says, irrespective of deciding whether a will is valid or not, you will have regard to the law as it stands at the time the will was made.
That is right.
I am concerned with wills that are at present in existence and that have been made before the law required any provision for a legal right for spouses to be catered for in a person's estate. Will those wills be operative, as they stand, or not?
They are valid wills and will continue to be so. In the last analysis, the legal right is the amount of money which must be distributed by the executor out of the estate, irrespective of what is contained in the will by way of bequests or otherwise. The provisions as to legal rights will not become operative for a due period of time which will allow people to study the matter. After this due period of time, when the Bill becomes law, that is, after the appointed date, the legal right will be in the same position as a debt is at the moment in relation to the estate. Any will made at the present time which is valid can be executed and administered and there is nothing in this Bill to render nugatory any existing will, or indeed any will in the future, which may not have made provision for a legal right. But, after the appointed date, the legal right will be a debt which may be claimed by the surviving spouse within 12 months of the raising of representation.
Surely the position after this Bill goes through will not be, as the Minister says, that no will will be rendered nugatory? That is a general statement which is putting it too far. Surely the position is that existing wills, which do not provide for a third share, to put it in its simplest terms, or wills made hereafter which do not make that provision, while they would be valid as wills, will not be wholly operative. In other words, they are rendered partly nugatory by this provision. Is that not the position?
The will itself stands. It can be admitted to probate. The executor can administer, the only change being that the one-third is a debt due out of the estate which may be claimed by the surviving spouse.
Surely the position is that a person who does not make the third provision for the spouse in his or her will is making a will which by the operation of this Bill, when it becomes an Act, will be rendered partially inoperative? The intentions of the testator as expressed in his will will not be carried into effect provided of course the spouse claims the third share.
Precisely the same thing could be said of the share which the court would award——
Yes, on the Minister's wording of it. But what we are doing in this legislation imposes or creates a debt on the testator's estate, whether he likes it or not.
I was about to say that precisely the same situation would arise if we accepted the Deputy's amendments—if we provided that an amount be allocated by the court to any one of the surviving dependants set out in the Deputy's amendments. It is precisely the same situation. In other words, any will existing at the moment, if we accept the Deputy's amendments, would be subject to a similar "payout", as it were, by the court, if the will were brought through the court.
I did not think the Minister understood my amendments. He has demonstrated that now. There was no such suggestion in the amendments I proposed. This is the vital point which I tried to hammer home to the Minister and obviously he did not grasp it. My amendments were limited to the case of the inofficious will, the unjust will and the unfair will.
There may be no such unjust and unfair will.
My amendments were limited to those wills and did not apply to the generality of wills which were fair and proper. The Minister's legislation applies to all wills; that is the difference between us.
The Deputy's amendments apply to wills which are ascertained by the court to be inofficious. On that ascertainment, a specific amount would be allocated to dependants. All I am stating in the context of our present discussion is that that would have precisely the same retrospective effect on an existing will which would be deemed to be inofficious as would the legal right share. I think that is a valid point to make.
It brings out the difference in approach. One is dealing with the problem that requires to be dealt with, the problem of the inofficious will. That was the problem dealt with in the amendments and it did not seek to interfere with wills which were good, proper, just and were not undutiful or inofficious wills. The Minister has pin-pointed the difference between us when he points out in the section we are discussing and in the other sections of this Bill that there will be retrospective effects. Everybody's will will be dealt with, whether the will could honestly now be regarded as an inofficious will or not.
It is inaccurate to treat this matter as a matter of retrospection at all. Everybody in the House agreed that something must be done to improve the present situation regarding absolute freedom of testation. Anything you do will have retrospective effect at present; that is obvious. I do not think retrospection should be called in in this context. Anything we do is bound to have retrospective effect on existing wills.
I agree with the Minister, except for his concluding sentence. His Bill has retrospective effect on all existing wills. The scheme put up from these benches by way of amendment would have had retrospective effect limited to the operation of the inofficious will.
Every will that has been made now ought to be altered in case some of the provisions in the will will be altered by this legislation and in that respect it must be retrospective. I do not mean that in any insulting way but is the date of the making of the will or the date of the coming into effect of the will the operative date?
The legal position is that a will is not a legal instrument at all until the testator dies. It can be changed, amended or thrown out up to the time of the death of the testator. So this will only apply to wills in the future where people die after the appointed date, which will be the 1st of July of next year. That will give 12 months to enable everybody to re-examine——
And re-make their wills.
And re-make their wills, if they so wish.
Amendments Nos. 23, 24, 25 and 26 in the name of Deputy M.J. O'Higgins have already been discussed with amendment No. 1 and are withdrawn.
They are not withdrawn.
They are not moved.
I think we agreed that the decision on amendment No. 1 would cover the others. I do not want for the record to be put into the position of saying I am withdrawing them. I would prefer to have them negatived. "Not moved" is better.
With regard to section 109, is there a definition of "child" or "children" in the Bill?
No, not in this Bill.
Is it a person over 21 years?
It includes such a person.
This section provides:
The legal right of a spouse may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.
It seems to me this is likely to create a certain amount of difficulty. I do not think a section such as this should appear in the Bill at all once it is determined that there will be legal rights. I can well imagine a situation arising—it has not arisen up to this because legal rights did not appear anywhere in our legislation—in which with, first, legal rights and, secondly, the existence of the second provision in particular in this section under which legal rights may be renounced if one partner succeeds in persuading the other to renounce them, a considerable amount of family acrimony and difficulty is bound to arise. My recommendation would be that, if you are determined to have a system of legal rights, it is better to go through with it whole-hog rather than make the kind of provision there is here for legal rights with an addendum that, if one partner is able to persuade the other to renounce such legal rights, they may be renounced.
Renunciation would surely take place only where there was considerable property. I am sure ante-nuptial renunciation would take place only as a result of pressure, usually brought to bear by family lawyers, and such people. This could lead to a good deal of ill-feeling. In cases where there was no wealth at the time of marriage but wealth was subsequently accumulated difficulty and acrimony could be created. This seems to put one section of the community in a different position from another section. It does not, I think, make for good legislation. On the face of it, my advice would be not to have it at all if you are going to have the legal right. I am not sold on the legal right. I do not agree with it.
Surely this is an illogical position for the Deputies opposite to take, since this makes the whole system more flexible. I have already emphasised my desire to make it as flexible as possible. I have also emphasised the fact that the legal right may or may not be exercised by the surviving spouse. Equally, this right can be disposed of in a very simple manner during lifetime. It is only in the case of an ante-nuptial contract that it must be formally in writing. It is only natural that a husband and wife would have a discussion about the property held by them and it is only proper that he or she should be in a position to renounce in writing after marriage. Such writing is sufficient evidence of the legal right.
It is, I think, a very sensible position. It would be unwise to hedge it in, in any way. This emphasises the point I made before—that we will have a very flexible position in relation to the legal right when it becomes law. The provision of the legal right will have the great merit of ensuring that the surviving spouse is treated justly. The approach, however, should be flexible. That has been the situation in Scotland for many years. I envisage very few situations in which the legal right will be exercised. If, however, some arrangement is sought to be reached by the partners to a marriage during their lifetimes, then a simple statement in writing to the effect that one or other of them is not interested in exercising his or her legal right can be drawn up. That scheme will give more flexibility, but, at the same time, it will ensure that essential justice is done to the surviving spouse who will be, in most cases, the widow.
I do not want the Minister to misunderstand the comments made by Deputy Dockrell and myself. We think the concept in this Part of the Bill is a bad one. We think it will lead to trouble but, for good or ill, the House has decided in relation to legal rights. We will have them and, in future, we will have to live with them. That being so, I am anxious to avoid the practical difficulties I can see arising under this Bill. One of the difficulties is the creation of family bitterness and acrimony, which is likely to arise under this section if a man or woman wants a system of testamentary disposition which is being taken away under this Bill. The only way a widow, for example, could get that back would be by trying to persuade the other spouse to renounce his legal right share. I do not think one needs to be a prophet to see the type of acrimony this is likely to generate in family circles.
The Deputy has a very pessimistic view of human nature.
That is No 1. No. 2 is that the Minister says this is introduced in order to allow flexibility and make things easier; in order, in other words, to tone down. From the point of view of the effect of what he has done in earlier sections, that may be all to the good from the point of view of the case the Minister makes, but it will give rise to practical difficulties. One of the practical difficulties will be the withdrawal of a renunciation of a legal right made under this section. According to the section, all that is necessary in order to renounce such a right is to write a note saying: "I renounce it". Supposing a person renounces it today and withdraws the renunciation tomorrow, what then will be the position? Is the renunciation final?
That is the plain meaning of the section.
It cannot be withdrawn?
Unless there is fraud or undue influence.
It can be withdrawn.
The same legal criterion will apply to such a renunciation as applies at the moment to any document which carries the signature of a person who subsequently wishes to upset that document. A person who wishes to upset his or her renunciation will prove in court that the renunciation was obtained by fraud or undue influence on the part of the other spouse or of some other party; the renunciation can then be upset in court, as any contract can be upset at the present time.
That is not in the Bill.
That is an elementary legal principle.
The Minister is making new law now.
No. That is an elementary legal principle. Any document can be upset in court on proof that the consent to such document was obtained by fraud or undue influence. There is no need to stipulate that here. It is an elementary legal right that everybody has.
You will want a divorce court after this.
I agree a person is protected in court where there is fraud or undue influence. Here one is dealing with family matters and rights. What the Minister is doing here is interfering in family life in relation to special family and personal considerations. The Minister is coming in with a sledge-hammer to interfere with this. I do not believe it is possible or workable. But, following up what the Minister is trying to do, I think it would require a Solomon sitting in judgement to decide where influence starts to become undue in the case of spouses. That is not going to be an easy matter at all. Simply because a man and his wife are living together in a house and neither wants to risk a break on this question of legal rights and if the husband suggests to the wife she should renounce her legal rights under section 112 in order to avoid a row, will that be considered by the courts as undue influence? There is no precedent for this on which the courts can rely as a guide.
There is ample precedent. The courts have been deciding disputes of this kind for many years.
As between the Minister and myself, for example, as between strangers, there is no difficulty. In that case there is a set of precedents to guide the courts. It is not the same here. This is where the Minister is entering into the family circle.
The courts inquire into the family circle where some deed is made making provision for the widow, which the widow subsequently disputes. The criterion applied by the courts is fraud or undue influence, in regard to any subsequent action by her to have the deed upset. The same will apply in this matter.
It may be that that is the criterion there, but the number of cases to which the Minister refers are very few and far between. This is an open invitation to family rows and acrimony. That is my objection to it. That is one of my objections to the whole set-up the Minister is operating under this Part of the Bill.
There is just one other point. The last four lines of this section provide that the renunciation in writing can be made only during the lifetime of the testator. That again seems to run counter to the general provision the Minister wants to make here, that the surviving spouse shall have 12 months to decide whether or not to take the legal right share. Apparently, if the surviving spouse, on the day after the testator dies, decides he or she will renounce the legal right share, that renunciation under this section will not be a valid renunciation.
That is not a renunciation under this section. That is under the election section—section 114.
One section must be taken with another. There is no point in putting into this section something that is going to clash with something in another section. My query with regard to the last four words in this section is whether or not a renunciation made a day, a week or a month after the testator dies is going to be regarded as invalid or no renunciation at all, or will it be taken, as I believe it should be taken, as a renunciation of the legal right share and an election not to take it.
I think the Deputy is under a misapprehension. There are two separate procedures. Section 112 is concerned with (a) ante-nuptial contracts, where there is agreement to renounce, and (b) where either spouse during the lifetime of the other agrees to renounce simply in writing. Section 114, to which we will be coming, deals with an entirely different situation which arises when the testator has died, where within 12 months after the taking out of representation, the surviving spouse may or may not claim. It is not a question of a renunciation; it is a question of whether or not the spouse elects to claim the share. These are two entirely different procedures. What we are concerned about here is the position that operates when the partners are alive.
Whatever might be said about the question of undue influence after marriage, young people should be protected from what they may do in an ante-nuptial contract. After all, most young people are in a state of——
Euphoria.
Exactly. That is just the word I was going to use. They are looking at life through rose-coloured spectacles. You would possibly find both of them very anxious to renounce every right and give it over to the other. But, with the slow stain of life, they may change very much. I think, without being cynical or anything like that, it is unfair to hold them to that. There has been, and frequently is, great bitterness on account of ante-nuptial contracts made in a whole variety of different ways. The Minister should just think about the ante-nuptial provision and whether he should include it.
The ante-nuptial contract is an established arrangement and I do not think we could interfere with it. We have it now. I do not see why partners should not make arrangements, if they wish, prior to marriage. That is why we have a much more stringent procedure for arrangements before marriage. In that case we insist on its being a contract, which presumes a certain amount of deliberation on the part of the parties, despite their state of mind.
At that stage they have separate solicitors.
Yes. After marriage we say a renunciation in writing is sufficient. This is a much less formal procedure than the procedure required before marriage—a contract with full professional advice.
I am still not satisfied with the position as regards sections 112 and 114. I do not want to dwell too much on it now. I will come back to it on section 114. It does seem that there is a complication there. I think the Minister should have another look at it.
We will have a discussion on section 114.
I cannot see that adding the words "and during the lifetime of the testator" adds anything. It certainly would not weaken the section to take them out.
In my view, there is a distinct difference between the procedure envisaged in section 112 and that in section 114. We will come to that on section 114.
This is another one of these sections that is likely to constitute a trap for testators. It is all very well for the courts to say ignorantia juris non excusat—ignorance of the law is no excuse. As the Minister in his professional capacity knows as well as I do, while the general outlines of the law may be known to people, the technical details, such as those being established in this Bill, are not known to the vast majority of people. It is not every testator who has the opportunity of having his will drawn up by a solicitor or of discussing the ins and outs of it with a solicitor before he signs it. Every now and again wills have to be made in a hurry. A person, as a result of leaving it too late, finds himself on his death-bed and wants to make a will, or a person is involved in an accident of some sort and feels that it has become a matter of urgency to make his will and he decides to make it there and then as best he can. Very often in these cases there may be some particular provisions the testator has on his mind which he wants to settle and perhaps he is not particularly concerned about other extraneous details.
Under section 113 (1), it is provided:
Where a devise or bequest to a spouse is expressed in the will of a deceased person to be in addition to the share of the spouse as a legal right, that share shall, for all purposes (including determination of the size of any estate as to which the deceased died intestate), be deemed to be a devise or bequest under the will.
Subsection (2) provides:
In any other case a devise or bequest to a spouse shall be deemed to have been made in full and final satisfaction of his legal right.
I want to take the case of the spouse who, after this Bill has been passed, is aware of the provision that the spouse is entitled to a legal right share of one-third and who wants to do better than that, who wants to leave more than the legal right share of one-third, and at the same time to make other dispositions in the will and not make a simple will leaving everything to the spouse but something over one-third of the legal right share.
To my mind, it is most unlikely that unless a solicitor is called in to advise the testator, that person is going to be familiar with the provisions of subsection (1) of section 113. The odds are that the person will make his will leaving a bequest to the spouse under the impression that that bequest will go to the spouse over and above the legal right share of one-third but under the Bill as it stands, that is not so unless it is expressed to be in addition to the legal right share. That is my complaint against this section. Unless a person is advised in his will by a solicitor that he must express any bequest to his spouse as being in addition to the legal right share, then the position is that the bequest is going to be taken as being made in full and final satisfaction of the legal right share.
The purpose of this section is the guidance of the court in interpreting wills in the future. It is an interpretation section and it is essential to lay down the guide lines so that the court will be quite sure in its interpretation in the future. It is quite clear in subsection (1) that where a devise or bequest to the spouse is expressed in the will to be in addition to the share of the spouse as a legal right, that share shall for all purposes be deemed to have been devised or bequeathed under the will. Where the devise or bequest is not so expressed, it will be deemed —under subsection (2)—to have been made in full and final satisfaction of the legal right share. I think that is clear enough.
Exactly; it is crystal clear. From the drafting point of view it is a most praiseworthy section. There is not a comma wrong. It is absolutely clear but the ordinary testator is not going to know a word about this, unless he is advised by a solicitor. I am thinking of the testators who do not have an opportunity of being advised by a solicitor. What is their position? This is not only a question of interpretation for the guidance of the courts. This is going to apply to wills, whether they go into court or not. It is entirely wrong for the Minister to say that this is simply laid down as a guiding line for the courts. It is no such thing. It will apply to all wills, and if a man makes a bequest to his wife in the will and does not express in the will that that bequest is over and above the legal right share, then what is the position? The widow will have the option of electing——
That is right.
—— but will not get both, despite the fact that it might be crystal clear that the testator wanted her to get both. We are going to defeat that by means of this section. I would suggest to the Minister that in legislation of this sort we should not put the onus on the testator. We should not legislate against the widow as we are doing here, and if the Minister wants to bring in a provision of this sort, then it should be put the other way around and should be worded that unless the contrary intention is expressed, the widow will get both the bequest and the legal right share. If the Minister will do that, I will be quite happy.
It is quite flexible as it stands. It is a matter for the surviving spouse to opt for either the legal right share or the bequest, and it is open to the testator to give the widow, say, all his estate, or nine-tenths of the estate, or eight-tenths, or seven-tenths of the estate, whatever he wishes. It is open to him to do that. It is the most flexible procedure possible.
Does the Minister think it is fair to put the ordinary simple testator in rural Ireland, who wants to make a simple will giving the widow something more than one-third, in the position of having to know the provisions of section 113 at the risk of his intentions going by the board if he has not been taught in school what section 113 (1) of the Succession Act, 1965 contained? There were some schools in the early days who taught the provisions of the Statute of Fraud, but normally speaking that is not done.
The Deputy, I think, is drawing a long bow in this matter. We have made this very flexible. As the Deputy knows, originally there was rigidity, if you like, in that the testator could not give everything to his widow. Now it is being provided that he can give what he likes. He can give all his estate or any share of it. 1536 The widow may opt for the legal right or for any other sort of arrangement she wishes. I do not see how it can be made more flexible, once we accept the basic principle of the legal right.
Take a simple example. Supposing there is some item of particular sentimental value to a particular family and a man makes a will deliberately in the knowledge that his wife is entitled to a legal right share of one-third and he deals with two-thirds of his property, for practical purposes, in the knowledge that his wife will get one-third anyway. Supposing then he leaves an object which might or might not be of particular value. Is it not the position that the wife must take that object, which might be of sentimental value to the couple but of no great money value? She may take her legal right share but then she cannot take the particular bequest?
She can.
She cannot take both her legal right share and the object of sentimental value.
She can. I made it quite plain that under the Bill she can get everything the testator wants her to have out of the estate. She can get any share, including the legal right share. At the bottom she is entitled to the legal right share if she wants to elect for it. She has entitlement to one-third but the husband may give her more—all the objects in his estate in addition to her legal right share.
I agree that is so, subject to the condition that it is expressed in the will to be an addition to the legal right share. That is what I object to. The testator must know of that condition and must in his will express it to be in addition to the legal right share. That is the whole point of my argument with the Minister. If he had put it the other way and said that unless a contrary intention is expressed, the widow could take both, I would agree. What he is doing is forcing the testator to express in his will in respect of any bequest to the widow that it is over and above the legal right share. If the testator does not know that is in the Act, if he is not familiar with the Act, if he has not a solicitor or if his solicitor does not advise him of it, then he will go wrong.
This is a matter for court interpretation.
It should not be.
The courts must apply certain rules of interpretation when a will comes before them but this does not in any way interfere with the testator's right to give to his spouse if he wishes, all or any part of the estate, subject to the basic right of the surviving spouse to the legal right share.
The Minister will see that is an extremely weak argument. It does not prevent the testator giving a bequest to his wife in addition to the legal right share, but it can, and in many cases will, interfere with his doing that because if he does not know he must express in the will that it is in addition to the legal right share, then the wife will not get both, even though it might have been the testator's intention that she should get both. If he does not know the effect of subsection (1) of section 113 and does not take the precaution of setting it out in his will that the bequest is in addition to the wife's legal right share, she will be in the position where she cannot have both.
(South Tipperary): I want to ask a question for my own information. If a will is made giving the spouse two-thirds of the estate, can the spouse add on the legal right share and get the full estate?
If she gets two-thirds of the estate in the will she takes it.
(South Tipperary): Is her legal right share wiped out?
She can claim the legal right share. If she gets the whole lot, she can take it.
Deputy Hogan's query is based on the point at issue here. Take the example he gave. I do not see why a testator should do it because it would be a tortuous way of leaving an estate. Supposing he did it on the basis of leaving his wife two-thirds by will and then let the Act operate to give her the other third by legal right, she does not get the whole or two-thirds. She must make a choice unless the husband is familiar with the exact wording of the Bill. He must express that the two-thirds are in addition to the legal right share. If he forgets to do that or does not know he has to do it, then she does not get both. It is not a question for the courts. It is a question for us to settle now.
If a man makes a disposition to give two-thirds of his goods and chattels to his wife, I am quite sure he will make some disposition of the other one-third. He will not leave one-third in the air, which is the presumption from what Deputy O'Higgins has stated.
I was taking the example given. I thought it was an exaggerated example but it could happen. It would not be an ordinary case and it certainly is not the case I am interested in. It would be, as I have said, an extremely tortuous way for a testator to act. I am interested in the ordinary testator who has not an opportunity of being advised by a solicitor when making his will. He makes a bequest to his wife without expressing that it is to be in addition to her legal right share. In such a case, the wife, despite the intention of the testator, will not get the bequest he left to her because he did not know it was necessary to express in his will that the bequest was to be over and above the legal right share. It would not weaken the Minister's position to put it the other way around and say that in such circumstances the spouse will take the bequest in addition to the legal right share unless a contrary intention is expressed in the will. That would be far fairer in the ordinary course of events. If a man or woman goes to the trouble of making a bequest in a will, it is because he or she wants that bequest to become operative.
The Deputy is drawing a long bow. If it is necessary, I shall tighten the drafting of this. This gives a guide line to the courts to interpret such a will, which I regard as being a very unlikely type of will. The normal type of will leaves property from one spouse to the other in whatever way the testator wishes and, if the surviving spouse is not happy with the will, she will insist on her legal right share. She can elect to take whatever else she gets in the will. However, I shall have a look at it.
I again wish to make it clear that whatever the intention of the Minister is, we cannot regard these sections as simply guide lines for the courts. They will operate, when they become law, on wills, whether those wills go to court or not. If a solicitor is advising an executor of a will, the solicitor must advise him in accordance with the provisions of this Bill when it becomes law. That will be irrespective of any question of the will going into court. He will have to advise the executor—in the case of a bequest made to a widow and not expressed in addition to the legal right share—that in such a case the widow can take only the bequest in full satisfaction of the legal right share and that she cannot take both.
I shall have a look at it. It is clear to me, as it stands, but I shall have a very good look at it.
What it says here is crystal clear and that is why I object to it. I do not agree with what it says and that is why I object to it. I should be quite happy with it if the Minister put it the other way, that, unless a concrete intention is expressed, the spouse would be entitled to both the legal right share and the bequest under the will—that the onus should not be put on the testator to express in his will that it should be in addition to the legal right share.
I shall have a look at it again. We shall have plenty of amendments on Report Stage.
I may be entirely misreading the section. What does the Minister think is meant by subsection (2), which reads:
In any other case a devise or bequest to a spouse shall be deemed to have been made in full and final satisfaction of his legal right.
As I understand it, in order to get the real meaning of section 113, you must read it with section 114.
Of course. I said that before the Deputy came in.
I want to be quite clear on that. I think there is no doubt about it. You will find that if a testator leaves in his will a devise or bequest and expresses it to be in addition to the spouse's legal right and for certain purposes it is to be deemed a devise or bequest under the will, then, to get that meaning you must go to section 114. Here again, I am in difficulties and I should like the Minister to resolve them.
Let us pause at that point in section 113 (1). If an additional benefit to the legal right is given by the will then, when we come to section 114, we read: "where,... there is a devise or bequest to a spouse,..." and, going back to section 113, it says: "Where a devise or bequest to a spouse....". That being so, it goes on to say that a spouse may elect to take either that devisory bequest or the share which is the legal right. In section 113, it is that legal right, plus; in section 114, she must elect. Is there not something wrong there?
In section 113, it is expressed——
If the testator expressly states, for example: "I am leaving her a sum of £1,000 and that is to be over and above her legal right", that is now labelled in section 113 (1) as being a devise and bequest under the will. To find the effect of that, you go to section 114 (1) (a) which says that the spouse may elect to take either the additional devise or the legal right. Surely there is something wrong there, seeing that, under section 113, she is entitled to both? Section 114 seems to take one or the other but not both.
I will go this far with the Deputy that we would have to except out of section 114 any devise or bequest under section 113.
The section is all wrong. Section 114 (1) (a) takes what is given to her by section 113 (1).
I can see the Deputy's point of view. We shall have to make it clear that any case arising under section 113 (1) does not come under the exclusion provision of section 114.
Under section 113, a widow is entitled to her legal right plus whatever the husband gives her as well. Provided he expresses it in the will, she is to get it. Section 114 (1) appears to say: "You must elect between the two", although the earlier section gives the two. She must be entitled—section 114 must be amended in order to make it clear that she is entitled to get her legal share plus whatever the husband gives.
I agree with the Deputy. It appears to me, taking the two sections together, that, in fact, it is certainly not clear.
I am afraid it is clear.
It is certainly open to the interpretation that, if you are a person benefiting under section 113 (1), where you get a bequest in addition to the legal right, then you are forced to elect under the following section.
It seems very queer.
I shall have a look at that.
We are still at section 113. The Minister has undertaken to look into the point of possibly swinging it the other way so as to provide that unless a contrary intention is expressed the widow will get both.
I really intended to speak on subsection (2) of section 113 as well, which says:
In any other case a devise or bequest to a spouse shall be deemed to have been made in full and final satisfaction of his legal right.
I mentioned it when I started speaking on this section. You have the two contrasts. If something is expressly given in the will, it goes under section 114. But, in subsection (2), you have "In any other case". In other words, if he does not expressly state that a thing is in addition to, then it is to be in full and final satisfaction. Is it to be declared that, in effect, if a person gives a bequest under his will to his widow, and if he does not expressly say that it is to be in addition to, then it is to be deemed in full and final satisfaction?
No.
Supposing a testator gives £1,000 to his widow and does not say that that is to be in addition then that is to be deemed full and final satisfaction——
——"deemed to have been made"——
If the legal right is less than £1,000 then she only gets less than £1,000?
No.
That is what it says.
The election procedure then comes in under section 114. He is put to his election then.
I do not think so. Section 114 (1) (a)——
——"deemed to have been made".
There is a devise or bequest to a spouse. That covers only the first part of section 113 but not subsection (2).
Subsection (2) states that the devise or bequest to his spouse shall be "deemed to have been made".
It is very difficult for the Minister to construe a section of this kind here with a point such as this turning up. All I am afraid of is that the use of the words "in full and final satisfaction" may do damage to somebody. If it is in full and final satisfaction of the wdiow's claim and it is less than the legal right, what is to happen? Where it is less than the claim, the legal right, what is to happen?
He opts either way.
Who opts?
He or she.
Where do they get the option?
Under the following section, section 114.
That is where I have got to. If it is in full and final satisfaction, there cannot be any election. It is the words, "full and final satisfaction", that are causing me the trouble. If there is an election provided afterwards I could understand their being entitled to it but when you have first said there is "full and final satisfaction", there cannot be any election.
I shall have it looked into it but I think the election procedure in section 114 stays irrespective of what precedes it.
It would be all right if the words "final satisfaction"——
Were deleted?
I do not know why they were put there. I can understand whatever is given by the will would be taken into account as part satisfaction, but if what is given in the will is clearly less than she is entitled to and it is declared in the statute to be "full and final satisfaction", it is confusing and ambiguous.
I agree with the Deputy that it gives rise to certain ambiguity and I want to have this perfectly clear. The intention of the two sections taken together is to give this option. I think there is some point in what Deputy Costello says and I shall look into it.
We shall agree to the section, subject to the Minister's undertaking.
This section has, in fact, been considered now with section 113 and I do not intend to add to the discussion other than call the Minister's attention to the way in which this is drafted. I may be wrong but it seems to me that there is a difference between the rights of a widow where the deceased has died wholly testate, as is provided for in subsection (1) and the case where a person dies partly testate and partly intestate. The type of case we were referring to under section 113 was the type of case where a man died wholly testate and, consequently, as Deputy Costello pointed out, we would seem to be giving a person something extra under section 113 and taking it away under section 114 (1). I am wondering is section 114 (3) intended to plug the gap Deputy Costello was referring to where a person's bequest is less in value than the legal right. It does not seem to me to be fully expressed there but I think it was possibly intended to cover that kind of case.
It still does not cover the point made by the Deputy and by Deputy Costello.
I am not satisfied with it.
I am not satisfied with it, either, now, in view of what the Deputy has said.
Subsection (3) deals with "partial satisfaction" and it is "full and final satisfaction" in the previous one.
I shall have it looked into.
Would the Minister explain this?
This is where permanent provision has been made during the lifetime by the testator for a spouse under a contract or otherwise —that that shall be taken to be in satisfaction of the legal right share.
There are one or two points I should like to raise on this. The last few lines of the subsection make a very long sentence which it is often very difficult to construe. The object of the section, apparently, is that if the testator has made whole or partial provision for his wife in his lifetime under some arrangement or other, then that is to be brought into account—and this is what I want the Minister to explain—"for the purpose of (and only for the purpose of) determining the size of the estate out of which that share is payable". Surely, there must be some other purpose?
For the purpose of ascertaining the one-third.
It says "only for the purpose of ascertaining the size of the estate". Surely, it must be for the purpose of seeing if it is sufficient to satisfy the legal right or not?
That is right.
But it does not say that. It is commonsense that this must be the case but the section does not say it. It says "for the purpose of (and only for the purpose of) determining the size...", not for the purpose of determining to what extent, the amount, the size or the nature of the provision is sufficient in whole or in part to satisfy the legal right. I am afraid that if you say it is "for the purpose only" you may exclude everything else, without intending it.
I think everything else is intended to be excluded. I agree with what Deputy Costello has said but I think the section means what it says and that that is the purpose of subsection (3).
That is what it says but if it is for that purpose there must be some object in section 113 other than determining the size of the estate. You must, first of all, know what you are to take into account. But it does not go on to say what is the effect of that. There may not be a lot in this point but it strikes me as peculiar that there should be a limit inserted in such emphatic language, "for the purpose of (and only for the purpose of)".
The section would read quite well without the words in parenthesis.
That is why I want to know why they are put in. The general principle is that the Legislature must have meant something when they put them in. Many a time I have argued that in court when it is said that something does not appear to mean anything. At any rate, I want to have the point cleared up.
I do not suppose the section would lose anything by deleting those words.
I should not like to induce the Minister to do anything without giving the matter full consideration but I should like to have the point looked into.
I shall do that.
There is a case that I have cited before and if I am not wearying the Minister too much I want to put this matter to him. Take the case of a person, whose wife has gone insane during his lifetime. He makes what he deems to be at the time full and ample provision for his wife to be looked after medically, surgically, in nursing and maintenance and at the time that was apparently perfectly good provision and, perhaps, good even yet. It is obvious that this person cannot elect, whether there is any right of election or not — having regard to other sections, I do not know. The husband is faced with the difficulty that he has made ample provision and if he has to give the legal right share, it may be a very big sum of money. She cannot make a will and the money will go to all sorts of people, perhaps, people in Australia, people he never heard of, next-of-kin. Perhaps it is one of those cases of which we say that hard cases make bad law, but we have an opportunity here of providing for specific cases. This is a case when the husband has had a very hard life and has done his best for his wife. Will he have in addition to that to give the legal right share, or what is the effect of this?
Has the Deputy a specific case in mind?
I have an actual case. I know of one case where the person is still alive. That is the case I referred to. I have tried to make the case so that the identity of the person would not be revealed. Although ample provision for the comfort, care, maintenance, medical, surgical and nursing attention for the rest of the life of this person was made, if something is not done about that—and I admit I find great difficulty in giving specific assistance as to how it could be done—the effect will be that a big amount of money will have to be given to satisfy the estate. So this person may never deal with it and it will go to the next-of-kin, all over the world perhaps.
I should like to have a discussion with the Deputy about that.
This section appears to me to raise it.
I thought this section was going to deal with it but it does not.
That is what I thought.
This is designed to cover the cases at the moment where provision or settlement has been made and might be prejudiced by reason of the passage of this measure. That is the purpose of the section.
This section does not help.
It does not help Deputy Costello's specific point.
Or the case the Minister mentions now. All this section does is to say that all these payments or advances that were made should be taken into account for determining the size of the estate.
Where it has been done prior to the passage of this Act.
Yes. It is clear what it says but I do not know why it says it. I could follow this if this section went on with another subsection to say that such advances that had been made would be taken either in whole or in part in satisfaction of the legal right share. It would seem to me to make some sense then. But, what it says now in effect is that if a man has already made permanent provision for his spouse, that provided he has done that before the commencement of this Act then the provision which has been made is going to be collared for the purpose of determining the size of the estate and of ascertaining the amount of the one-third fixed legal right share.
That is not the intention.
It may not be the intention.
There is a drafting difficulty here which I think can be met. I will not guarantee to do it but it appears to me at the moment that the way to do it is to delete the words in brackets in subsection (1). I will look at it, because the intention of this section is precisely to meet the sort of case at the moment where you have, by way of separation deed or otherwise, arrangements entered into between parties to marriage contracts. It is intended, where such permanent arrangement has been made by one spouse in respect of another, that that should be in discharge of the legal right, so that the additional legal right duty is not placed on the spouse who has by deed, such as I have mentioned, made provision for the other spouse.
That I understand and appreciate and agree with but I am afraid this section does not do it.
The difficulty is in the words that Deputy Costello drew attention to.
Oh no. I do not want to keep this going but even if those words were taken out, I suggest it still would not do it. It is quite clear—the Minister has made it quite clear in his explanatory memorandum —what this section is intended to do. It just does not do it. In the explanatory memorandum he says that section 115 deals with the type of case where before the commencement of the proposed Act a testator has during his lifetime made permanent provision for a spouse.
The section provides that any such provision shall be taken as having been made in or towards satisfaction of the legal right share of the spouse—
The section in fact, does not do that—
and shall be brought into account for the purpose of determining the size of the estate out of which the legal right share will be payable.
It does that. It does the second part, but not the first part.
Perhaps the Minister would take the advice given to me by a colleague: Put in section 115 as explained in the explanatory memorandum, which is much clearer than the section.
Than the draftsmen have made it.
It is much clearer in the explanatory memorandum than in the section. The section, in my opinion, does not do what the explanatory memorandum says.
This is what draftsmen do to our intentions.
In the explanatory memorandum, it is as clear as noon day.
I will have a look at that and make it clear. There is very big room for drafting improvement.
There is only one point that I should like to raise in connection with section 116. The Minister and myself have both at different times expressed the view that in dealing with this kind of family matters it is right that the court should be enabled to hear them in private. In the amendments which I proposed and which were not accepted that scheme was proposed. The Minister himself has accepted it in relation to the children's shares. Section 116 deals with the case where a testator has reason to believe that the spouse will not be a fit person to take responsibility for the legal right share which he or she is getting and, accordingly, appoints a trustee to handle the share for the spouse but it goes on to provide that the surviving spouse of a deceased testator who has so appointed trustees of the share of the spouse may apply to the court to set aside the appointment. That I agree with. Then it goes on:
and the court, unless satisfied that the surviving spouse is not a fit person to be entrusted with the management of the property concerned, may set aside the appointment.
That makes it quite clear that the question to be determined by the court, in fact, the only question to be determined by the court, under this section, is whether or not the surviving spouse is a fit person. Under the section as it stands it would seem to me that that is an application, that is a discussion and that is a decision that must be brought, met and taken in open court. It might be desirable to follow the same pattern as appears elsewhere in this Bill to enable the application for children, for example, to be taken in camera.
I agree fully with what the Deputy has said. To be consistent in the matter, this is obviously a sort of issue which should be decided, as the Deputy suggests, in camera or in chambers and we will amend that section to have such a hearing.
Will the Minister look at subsection (3) of this section and explain what the scope or intention of the subsection is? Subsection (3) as it stands at the moment provides:
The court, on the application of the surviving spouse, may vary the terms of the trust.
In what respect? Does that give unlimited authority and power to the court to do anything they like? I can imagine certain judges saying, "Have we got any direction from the legislature as to the principles on which we are to vary this trust?" We have no clear idea of the terms of the trust or why it should be varied. We should examine that subsection a little further. It is very wide.
It is wide and I think purposely so.
What is the trust? You go to section 116 subsection (1) and you find that a testator may appoint a trust corporation or any two or more persons to be trustees of any share of the estate to which his spouse may become entitled as a legal right. In other words he can appoint by his will certain persons to be trustees of one-third but the wife is entitled to that one-third. What are the trusts? There are not any, as far as I can see, although further on you can see that the court may vary the terms of the trust. I cannot see that there are any trusts except that either the persons or the trust corporation holds the legal right, which is normally the one-third, for the beneficiary, the spouse. There is no trust attached to that. What are you varying? Apparently, the testator has no power to create trusts attaching to the legal right to which the spouse is entitled absolutely without any trust. What are you varying? I cannot see any trusts. There are very wide powers to vary nothing.
The purpose of this is to deal with a case where a testator is not happy as to the spouse's capacity to administer the property or the estate and in that case it enables him by his will to appoint trustees to deal with the management of his property.
The section does not say so. I wonder has this been thought out or am I all wrong? The position as I understand it is that under the previous section the widow of a testator is entitled to one-third of the estate as a legal right. Let us take a simple position. She is entitled to get that and to do anything she likes with it. No one can manage it for her. It is hers, and unless the Minister gives additional power in this section, which is not given expressly, to deal with the case of a person who is not capable of managing her property, the trustee can do nothing except hold it for her in trust and pass it on to her. She is entitled to get it. If a publichouse is part of the assets, it will have to be sold, because she is entitled to one-third of the business. That is the position under the Bill at the moment. One-third of the business must be realised out of the estate of the deceased to furnish the widow, to take the simple example, with her legal right of one-third. She is entitled to get one-third and in order for her to get one-third, the publichouse or the business has to be sold.
Not if a trustee is appointed under section 116.
That is precisely my point. The trustee has no power to do anything to interfere with the widow's right to one-third. That is hers absolutely under a previous section. This section does not enable any trustee to do anything except act as what was known in my student days as a bare trustee of the property. He can do nothing.
This is to meet the situation where the spouse is regarded as incapable of managing the estate.
That may be so, but it does not do that. The position is that the widow is entitled absolutely to her legal share and no one can stop her from getting it under the previous provisions of the Bill. The testator cannot reach down after his death and try to control her, even if he thought she was not a good business person. He cannot do that. There is nothing in the section that enables him to do it.
Fundamentally, the position under the Bill is that the widow is entitled to a share of one-third without any tags, strings or trusts. She is entitled to that within a certain period of the death, and when probate has been taken out, she can sue for her share of one-third. If you say that you appoint a trustee, all he can do is hold the share in trust for the wife. I am not too sure if the Minister should put this provision in at all. All I am saying is that it is not in. All the trustee can do is pass over the property to the widow.
I will have another look at this section. I should like to have the Deputy's views as to whether we should spell out more precisely what the position of the trustees should be.
That is an entirely different matter. We have not approached that at all. If we decide that the widow is entitled to a legal share, we should not go back on that, and should not interfere with it at all. However, we can debate that matter afterwards. At the moment this section does not do anything.
I will have a full look at the section between now and Report Stage.
I think the explanatory memorandum bears out Deputy Costello's views because it seems quite clear to me from the explanatory memorandum that the trustee is intended to be a bare trustee only and to hold the share in trust for the spouse. It is not suggested in the explanatory memorandum that the section is intended to give the trustee any power to manage part of the estate or to operate the business but simply to hold it in trust for the spouse.
Another subsection which upends the whole section, and which I cannot understand, is subsection (2) which provides:
(2) The surviving spouse of a deceased testator who has so appointed trustees of the share of the spouse may apply to the court to set aside the appointment and the court, unless satisfied that the surviving spouse is not a fit person to be entrusted with the management of the property concerned, may set aside the appointment.
"...may apply to the court to set aside the appointment and the court, unless satisfied that the surviving spouse is not a fit person ... may set aside the appointment." Surely that is the opposite to what is meant.
"Unless"...
"Unless satisfied that the surviving spouse is not a fit person... may set aside the appointment."
If the Deputy reads it with "unless".
I did read it with "unless" and that is what put the doubt in my mind. The point is that if the court is satisfied that she is not a fit person to be entrusted with the management of the property, it may set aside the appointment of the trustee. That is what it means. It is rubbish, of course.
There are two negatives. It should be put positively. Anyway, I have a very open mind as to whether the section should be there at all.
Now the Minister is talking. If we take up the position that the person is entitled to one-third, we should not interfere with that at all.
I am sorry I did not have the assistance of Deputy Costello earlier when I was dealing with another section. I do not agree with the provisions of a legal right share but once we decide on that, any other sections that cut across it and narrow it down will lead to trouble.
Logically, we should leave it alone.
We may do that between now and Report Stage.
I am sorry Deputy Booth is not here to discuss this section. I have not got my copy of the Official Report with me but my recollection is that when we were discussing amendment No. 24 in my name, he described it as too incredibly vague. If ever such a description was warranted, I think it is warranted by the phrases used in section 117. I have no doubt that the House understands and agrees that the Minister's intentions here are good. They are intentions with which the majority of Deputies would agree. What does he do in subsection (1)? This subsection says:
Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty.
We are now going into the field where courts of law are being invited to decide on questions of moral duty. That is a matter which the courts have not been required to decide heretofore. They have been required, and obliged, to deal with questions of a person's strictly legal duty. Here we have a requirement on the courts to decide on a person's moral duty. How are the courts to decide on that?
I agree with the Minister—I think we all agree with him—that there is a moral duty on a testator to make adequate provision. Our job here is to impose on him a legal duty which the courts will be able to interpret and enforce, in addition to the moral duty which we do not place. We have nothing to do with whether he has a moral duty or whether he has not. If he has a moral duty, it is there, quite apart from anything we say or any legislation we enact. We are concerned at present with imposing a legal duty which the courts can interpret and can enforce. The subsection goes on to say if he "has failed in his moral duty to make proper provision for the child in accordance with his means". That was virtually the same phrase as I used in my amendment. I did not say "in accordance with his means". I said "reasonable, having regard to his means". Deputy Booth contended that my phraseology was too incredibly vague. I invited him, at the time, to state whether he had the same objection to this but the Chair decided it was not the time to discuss it.
This subsection goes on to say:
the court may order that such provision shall be made for the child out of the estate as the court thinks just.
I agree we should set up this machinery. This is machinery which I have been recommending all along. It is machinery for application to the courts in cases of injustice and cases where an unfair will is made by the testator. We should set up such machinery but this section does not set up that machinery. If there is anything, to use Deputy Booth's phrase, "too incredibly vague", surely subsection (5) of this section is? This subsection states:
Rules of court in relation to the procedure on applications shall be so made as to ensure that the proceedings are conducted as informally and inexpensively as possible.
I know what the Minister wants to do but in subsection (5) he is merely expressing a pious aspiration of what he wants to do. We should be concerned here with putting into our law, and, in particular, into this section, the actual machinery, to use the Minister's phrase, as far as possible spell out here what the procedure is to be. If it is left in this vague and general phrasing that is used in subsection (5), it is very much on the cards, no matter what procedure is subsequently adopted, that somebody who has nothing better to do will go to the courts and argue that it could have been more informal and more inexpensive and that there could have been more acceptable procedure. They could say that because the Minister is not providing for the most informal and most inexpensive procedure, the procedure which he is providing is bad. That argument can be made when you say "rules of court in relation to the procedure of applications shall be so made". We are imposing this duty in the rules when we say that the proceedings shall be conducted as informally and inexpensively as possible. If someone challenges the rules, when they are made, and says: "you have provided in these rules that an application can be made ex parte”, surely it would be more informal to provide that it can be done by writing a letter instead of going into the courts. Surely that is more informal procedure. It certainly would be less expensive procedure as well.
The Minister would be far better advised to give it more precisely rather than do what he proposes. He should do something on the lines of the amendments we tabled to this Bill. He should set out the actual machinery which is to operate. We proposed in our amendments that these applications should be brought by notice of motion. We set out the powers which were to be given in the notices and we set out the time and so on.
That is more appropriate to the rules rather than to the subsection here.
It is a matter of opinion. You have matters set out very fully in the rules of the workmen's compensation procedure. It can be done by the rules. I would suggest the Minister should study the matter away from the generality in subsection (5).
I now want to deal with the provisions of subsection (7) of this section. My remarks also relate, although we have passed it, to subsection (4) of section 114. This is the provision whereby a period of 12 months is to be allowed for making these applications. A period of 12 months will also be allowed, in the case of a spouse, to exercise her right of election. I am not entirely happy about this from a practical point of view. I agree that adequate and ample time must be given to a person who is getting rights of election, the rights of going into a court and making an application.
It is only reasonable that such people should be given adequate and ample opportunity of knowing their rights, of getting to know what happened in the will and of taking legal or other advice as to whether or not they should make their application. That is reasonable but the other side of the picture is the side that will give considerable concern in practice. Once this Bill becomes an Act, in practice, executors will not be able fully to administer the estate. They will not be able to distribute the assets until the period of a year is up, until they are quite satisfied that a child will not bring an application under subsection (7) of section 117.
I know that here you have a kind of tug-of-war between the interests of the children, on the one hand, the duties of the executor on the other and the interest of other beneficiaries. I would suggest to the Minister, even though the amendments which I proposed were not accepted by the House, that he should consider adopting something on the lines of the amendment we proposed in relation to applications. I would think six months is probably sufficient, but if the Minister wishes to have it at 12 months, let that be, but provision should be made for cases where a reasonable degree of urgency exists to have an estate administered, or there might be a question of urgency in regard to a particular beneficiary getting his or her benefits under the will.
Some provision must be made for distributing the assets in cases of urgency without having to wait the 12 months provided for in the section. The most convenient way of doing that is to provide that the executor serves a notice on all parties interested in the estate, the next-of-kin, children or beneficiaries, through the Probate Office that he proposes to administer the estate and to distribute the assets in accordance with the terms of the will after the expiration of, say, 30 days. In the cases where such a notice is served, anyone who wants to bring an application or has a right of election to exercise should bring that application or exercise that right of election within a given period which will be shorter than 12 months. I would suggest that one month would be adequate after the notice has been served and the urgency has been demonstrated.
I would think it is of considerable importance that the Minister should do something about this; otherwise, there will be a complete slowing down in the administration of all estates, not only large estates where delays of one sort or another might be encountered, but in the smallest of estates when a grant of probate is involved, where a person dies testate. It would be placing an intolerable burden on executors generally and on the beneficiaries who are waiting for their share in that they should be held up, even though there might be urgency, for 12 months.
I think I take a different view from that advanced by Deputy M. J. O'Higgins on subsection (7) of this section. I should like to deal, first of all, with the question of the moral right referred to in section 117 (1). It is stated in that section that "Where... the court is of opinion that the testator has failed in his moral duty to make proper provision for the child". If Deputy M. J. O'Higgins's suggestions are accepted, I am afraid that there will be great difficulty in working this subsection in court. I can imagine questions being put to me, as one was put to me within the past fortnight in court by a certain judge, such as: "I got no direction from the Legislature as to how I should carry out this subsection; how do you say I should carry it out? Where is the moral duty? Can you tell me what this section refers to when it refers to the moral duty?" My answer would be that it is stated in the subsection. A judge might say: "It merely says it is the moral duty". "Tell me what the moral duty is of a parent to provide for his children". "Is it the natural law?""How am I to start doing this?" A judge who wants to be difficult may go along these lines with considerable effect. I think it might be preferable to state that there is a legal duty to look after the children. We can then go on with the section as it stands. I am afraid there will be play made with the words "moral duty". I am in favour of the section and what is behind it straightaway and generally in favour of what is intended.
On subsection (5), which has been referred to by Deputy M.J. O'Higgins, it might not be necessary for the Minister to do what Deputy M.J. O'Higgins suggests but it might possibly be the best thing to do. There are many precedents in matters of this kind on the Statute Book where words like those have been taken: "Rules of court in relation to the procedure on applications shall be made so as to ensure the hearing and the determination of the matters herein in a summary manner." Rules of court will be made on the words "in a summary manner". I think that would be enough here.
Certainly subsection (6) appears to me to be quite inconsistent with subsection (5). Having said there would be low costs the person who makes the application in all cases has to pay costs except in exceptional circumstances. I think one could suggest that subsection (6) should leave it to the discreation of the court. What is intended here is to safeguard a child who has been badly treated by his father. A lot depends on the attitude of the particular judge before whom the application comes. If he takes the view and says to a child: "You should have stuck it out with your father; he died worth £10,000 and did not give you anything; you should have acted differently; you are, therefore, not entitled to anything". That is a possible point of view by a judge of Victorian ideas. That unfortunate child must pay costs unless there are special reasons, and special reasons are few and far between in the matter of costs.
I suggest to the Minister that he should leave the matter of costs to the discretion of the judge. It is putting it too strongly in my view to say that the applicant in all cases shall be liable for costs. That is the general rule in all cases in court except in jury actions. In jury actions the judge has no discretion and, except in matters of penal character, the applicant must bear the costs. The normal practice is that, if you lose your case, you pay the costs. In cases covered by this section a judge, although he would have to refuse the application, would have to do it with some reserve and, therefore, he should have power to deal with the matter of costs at his discretion.
As regards 12 months, it is strange how a section impinges on different minds. I thought that the 12 months was too short and I was going to ask the Minister to extend it.
That should be done. That is what we proposed in the amendments—a fixed time with power to extend and also power to telescope in urgent cases.
The whole of this section deals with a testator, who according to the child, has not treated the child properly. That child may have been put out of his home. He may have had to go to Australia, New Zealand, America or anywhere else, and may not hear of the will after his father dies. He may be trapping rabbits in the wilds of Canada in the winter and go back down south in the spring or summer, and may not even then hear of it. I am thinking of a child who does not know his rights. Anyhow I have no great belief in solicitors taking out the administration of any estate inside three months.
I was going to make that point.
General experience is quite the contrary, and it is not always the fault of the solicitor.
No, because they often have to consult counsel.
Because they often get themselves into a mess and have to get counsel to get them out of it. It is very often the Estate Duty Office which is at fault, if you can call it a fault. When an estate, however small, goes into the Estate Duty Office for the assessment of duty, it is kept for months. They give it the most thorough and searching examination. They send out all sorts of queries. Very often that is what causes the delay. I had a case in court today in which that has happened. There was urgency about it and the Estate Duty Office was holding it up. That is why 12 months is right, I think, for an executor to pay legacies. It is the abnormal thing for an estate to be wound up in 12 months. I know of very few cases in which that has happened. There is consequently a case for giving the court power to extend the time. My experience of statutory inflexible times is that they create injustices. I do not think there should be any time limit at all. Certainly, it should be a reasonable time limit and there should be power in the courts to extend the limit because of special circumstances.
I am not arguing that all estates should be wound up or administered within 12 months. Possibly Deputy Costello has missed my point. I am talking about cases which should be distributed as a matter of urgency, even if it is only a percentage of the available assets to a particular group of beneficiaries; it might be vital to distribute some part of the assets speedily. As anyone who is familiar with the administration of assets knows, it is often possible now, where there is no question of a residual account having to be filed, to make an advance to beneficiaries out of the assets. As long as this provision remains I do not think that can be done in future. No executor will be safe in distributing any of the assets for 12 months.
Deputy Costello has spoken, quite rightly, from the point of view of the deserving child who has been unfairly treated and unfairly disinherited. I agree that the Legislature should show every consideration in such cases. There is, however, another side to the picture. There is the person who has been a bad son and the person who has not been badly treated by his father's will, but who is a bit of a rotter and wants to get more. He will use this section to blackmail the executor, who may be his mother. He will say: "Very well; you administer the estate and distribute the assets at your own risk. I am going to bring an application to the court". He can keep that up for 12 months and, so long as the 12 months' limit is here, the mother, who is the executor, or any other executor, will not be safe in dealing with the estate.
We suggested in our amendment that there should be a period of six months. If notice in writing were given by the executor through the Probate Office to the people interested so that there could be no question of a person not knowing his rights, then the application would have to be brought within a month of the giving of that notice. That would have the effect of telescoping the whole procedure in cases of urgency. We also provided in our amendment that the court should have power to extend the period of six months. The actual wording of the amendment proposed by us was:
The period of six months may be extended if the court thinks fit and is satisfied that at the time of the application for extension a substantial part of the assets of the deceased is still under the control of the personal representative or in the hands of a beneficiary but in the event of any such extension being granted the personal representative shall not be held liable or accountable for having distributed any part of the estate of the deceased after the expiration of the said period of six months.
I agree with part of Deputy Costello's argument in so far as it relates to the deserving child who has been unfairly treated. We should, I think, lean over backwards to facilitate that person and I do not mind whether there you take six months or 12 months but, whatever the period you take, you should give discretion to the court in the circumstances outlined in the amendment to extend the time.
I am genuinely concerned with the other side of the coin also. I am concerned with the case of the undeserving person who can hold up the distribution of any portion of the assets until the 12 months expires. In the case of large and complicated estates it is probably the exception rather than the rule to have them fully administered inside 12 months. I am not talking now about fully administered or fully wound up estates. I am talking about distribution which can take place in the course of administration. In any event, the 12 months runs from the taking out of the grant; in other words, the 12 months starts running only after the estate has been dealt with by the Estate Duty Office, estate duty has been paid, probate papers have been presented, probate fees assessed and paid, and the grant issued. There is plenty of room, I think, for the Minister to look at this section again from the point of view of giving power to extend the time and from the point of view of having machinery under which in urgent cases the time can be foreshortened.
I appreciate the point made by Deputy O'Higgins. He answers my objection. If the notice he seeks is given then, of course, the matter will be all right. The person will be put on notice. It has occurred to me whether it would not be possible to put in some power for the executor to move the court if the other person does not move within a certain period.
I shall take the subsections seriatim. First of all, with regard to moral duty in subsection (1), moral duty is, I think, sufficiently well spelled out there. It is the moral duty which the testator fails to discharge by making proper provision, in accordance with his means, for the child. We are now making it a legal duty subject to court interpretation. The reason why we use the phrase “moral duty” is because there is already a core of precedents along this line in New Zealand. That was where this idea of moral obligation was first initiated. Moral duty is read into the New Zealand legislation by the courts there. The British Privy Council have also taken decisions along these lines.
There is, as I say, a core of decisions in an equivalent jurisdictional system of law which can be adopted for our use if questions of interpretation arise. This is in New Zealand law. I do not see anything wrong with transposing it here especially as we have spelled out what moral duty means. This moral duty now becomes a legal duty. This enables the courts to make a legal decision on the moral duty to make proper provision. I would not be disposed to changing that, having regard to the fact that we have this interpretation in New Zealand and in decisions of the British Privy Council. This concept has, as I have said, been read into the New Zealand Act.
In regard to subsection (5), with regard to the making of rules of court, I am adopting Deputy J. A. Costello's suggestion to simply say "...to ensure that the proceedings are conducted in a summary manner". That appears to be better than the present phrase "as informally and inexpensively as possible".
The thought behind subsection (6) is to discourage frivolous applications by children who may be well done for—the child Deputy O'Higgins referred to who comes back again at the mother and who has already been amply provided for during the course of the life of the testator. I think it is more desirable to discourage that type of application rather than to meet Deputy J.A. Costello's point of view, which was to provide that such an applicant would get his costs at the discretion of the court.
Not get his costs, but that he would not be liable to costs at the discretion of the court.
In my view, the more likely sort of case in practice— the case we have to lean against, so to speak—is the case of the wrong headed son or daughter who makes a claim although he or she has no real ground for doing so. We must have a certain amount of certainty in this matter. It is important, from the point of view of the proper administration of estates, that there be a degree of certainty and that you cannot have frivolous claims being brought. There should also be a a definite time limit. Indeed, what has been said by Deputy J.A. Costello and Deputy M.J. O'Higgins strengthens my view that 12 months does not lean unduly harshly in any direction. In practice, most estates are not fully administered in anything like that period. At the same time, to extend it, as Deputy J. A. Costello seems to have a predeliction towards doing, would hold up administration unduly. We are giving a new right here and I do not think we should be too liberal with it. There has been criticism of the introduction of legal right for the widow and spouse and the system of court application for the children. As I say, these are new rights and I think 12 months is fair enough when we are bringing in a new system. I would be disposed not to be over liberal by extending it, and I certainly would not be disposed to reducing it. In practice it is not an unreasonable period of time. The actual administration of estates will not be held up. because preliminary details in regard to the administration will be going on during the 12 months. I do not see, therefore, any serious hold-up occurring or wrong being done. I could see Deputy O'Higgins's point if there was any question of extending it beyond the 12 months, but I think 12 months is about the right sort of period for a matter of this kind.
Could I give the Minister an example? Only this morning I got instructions to make a will for a person who is leaving property to two out of five children. Portion of the property is a house. After this Bill comes into operation it will not be possible to vest the house in the beneficiary until after the 12 months is up. Although it could, in fact, in the particular estate I am talking about be done, ordinarily speaking, within a week of the grant issuing, because all that is necessary is the assent of the executor. That will have to be held up now for 12 months.
I will grant the Deputy that. This period of time will in specified instances hold up the administration. But it is in ease of the children of the testator. It is, if you like, part of the penalty that must be paid for a measure of this kind. All that is between us is six months.
Every other country has six months and they seem to be satisfied with it.
I would not be disposed to depart from 12 months. I feel 12 months represents a reasonable balance between the views expressed by Deputy J.A. Costello and Deputy O'Higgins.
The Minister will know from his research that in Northern Ireland and Great Britain the period is six months, but there is provision for an extension.
Could the Minister meet Deputy O'Higgins's point of view by putting in something to the effect that within six months from the notice being served by the executor on the person he must exercise his right or else he cannot make any claim?
I shall consider that.
I am only anxious to make this work. I think the provision in the section regarding children is good.
I am looking forward to arguing the question of moral right if this Bill becomes law and I am still alive.
I move amendment No. 29:
Before section 119, but in Part X, to insert a new section as follows:
"(1) A sane person who has feloniously killed another shall be precluded from taking any share in the estate of that other.
(2) A sane person who has feloniously attempted to kill another shall be precluded from taking any share in the estate of that other except as regards a bequest or devise in the will of that other made subsequent to such attempt."
The point in this amendment is one that was raised by Deputy T.J. Fitzpatrick of Cavan on Second Reading. Section 119 is the section which, according to the marginal note, deals with the exclusion of persons from succession. It provides that people falling into certain categories will not under any circumstances be entitled to take a share by succession to the deceased. One of the classes is referred to in the following subsection:
A sane person who has feloniously killed or attempted feloniously to kill another shall be precluded from taking any share in the estate of that other.
It is abundantly clear that where a sane person feloniously kills another it would be entirely wrong that that person who so killed the other should be entitled to benefit by his action of murder. But the section goes on "or attempted feloniously to kill another" Deputy Fitzpatrick raised the point on Second Reading that while that is the existing law on the subject it precludes any question of forgiveness. If a person makes an attempt on another's life and that other person afterwards, in the course of time, decides he will leave to the person who attempted to kill him something under his will, why should the Legislature interfere with that action of forgiveness? Why, in the circumstances where the will is made subsequent to the attempt, should we step in and interfere?
My amendment seeks to enable the argument advanced by Deputy Fitzpatrick (Cavan) to be considered further on Committee. There does seem to be something in it. In the last section but one we were talking about moral duties and surely we should have some room for moral virtues also in this Bill and the virtue of forgiveness is one that we should not, by our legislation here, completely rule out in these cases.
I think this is a very serious offence, an attempt to——
Quite.
——Kill another person.
There is no minimising it.
I would not be disposed to allow a person to benefit from a bequest made subsequent to the attempted killing. A person who is capable of doing that is also obviously capable of influencing a person to make a bequest and, perhaps, of forcing somebody to make him a bequest on the basis that what he had attempted to do once he could attempt to do again, and possibly more effectively.
The Minister has already pointed out that the courts can deal with undue influence in making wills. However, I am not pressing it. It is a point that should not be overlooked.
I move amendment No. 30:
In page 40, line 31, to delete "leaving" and substitute "separating".
This is a drafting amendment. The word "separating" is the better legal term in this case. If the Deputy looks at page 40, line 31 in subsection (3) he will see that it reads that "a spouse who was guilty of conduct which justified the deceased in leaving and living apart from him ..." and so on. The word "separating" is the legal word that has been used heretofore in case law on this subject.
I move amendment No. 31:
In page 40, between lines 43 and 44, to add to the section a new subsection as follows:
"(6) A person who is precluded from taking a share under subsection (1) or (4) shall not be entitled to make an application under section 117."
This is sensible.
I move amendment No. 32:
Before section 120 to insert a new section as follows:
"120. (1) This section applies to a disposition of property (other than a testamentary disposition or a disposition to a purchaser) under which the beneficial ownership of the property vests in possession in the donee within three years before the death of the person who made it or on his death or later.
(2) If the court is satisfied that a disposition to which this section applies was made for the purpose of defeating or substantially diminishing the share of the disponer's spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for, then, whether the disponer died testate or intestate, the court may order that the disposition shall, in whole or in part, be deemed, for the purposes of Parts VI and IX, to be a devise or bequest made by him by will and to form part of his estate, and to have had no other effect.
(3) To the extent to which the court so orders, the disposition shall be deemed never to have had effect as such and the donee of the property, or any person representing or deriving title under him, shall be a debtor of the estate for such amount as the court may direct accordingly.
(4) The court may make such further order in relation to the matter as may appear to the court to be just and equitable having regard to the provisions and the spirit of this Act and to all the circumstances.
(5) Subject to subsections (6) and (7), an order may be made under this section—
(a) in the interest of the spouse, on the application of the spouse or the personal representative of the deceased, made within one year from the first taking out of representation,
(b) in the interest of a child, on an application under section 117.
(6) In the case of a disposition made in favour of the spouse of the disponer, an order shall not be made under this section on an application by or on behalf of a child of the disponer who is also a child of the spouse.
(7) An order shall not be made under this section affecting a disposition made in favour of any child of the disponer, if—
(a) the spouse of the disponer was dead when the disposition was made, or
(b) the spouse was alive when the disposition was made but was a person who, if the disponer had then died, would have been precluded under any of the provisions of section 119 from taking a share in his estate, or
(c) the spouse was alive when the disposition was made and gave her consent in writing to it.
(8) If the donee disposes of the property to a purchaser, this section shall cease to apply to the property and shall apply instead to the consideration given by the purchaser.
(9) Accrual by survivorship on the death of a joint tenant of property shall, for the purposes of this section, be deemed to be a vesting of the beneficial ownership of the entire property in the survivor.
(10) In this section `disposition' includes a donatio mortis causa.”
This amendment provides for the re-drafting of section 120 in order to meet certain points made by Deputy O'Higgins and other parties who made representations to me on the matter. One of the criticisms made by Deputy O'Higgins on a previous occasion was that, by allowing dispositions other than those for full valuable consideration to be upset in certain circumstances, the section would give rise to substantial title difficulties. The point was made that it would be difficult for a solicitor investigating title to prove that full valuable consideration was paid in a particular transaction and that, if the consideration fell short, even by a small margin, of what could afterwards be shown to be the full market value of the property, the transaction might be upset. Having considered the matter, I am satisfied that there is some substance in this criticism and I have attempted to meet the situation by deleting the reference to "full valuable consideration" and providing instead that the section will not apply to a disposition made to a purchaser. The term "purchaser", as defined in section 3, means a person who in good faith acquires an estate or interest in property for valuable consideration; and "valuable consideration" means consideration in money or money's worth. If, therefore, a disposition has been made for money or money's worth to a person acting in good faith—in other words, if it is a genuine business transaction— the disposition will not come within the terms of section 120. I think this meets the point made by Deputy O'Higgins.
The Minister has met my point fully in his amendment. I suppose it would be churlish not to acknowledge that and possibly more churlish to raise another point, but while the Minister has dealt with my point of full value and the question of the conveyancing difficulties that would have arisen, there is another point that has been brought to my attention today by a country solicitor and I think I should bring it to the Minister's attention for consideration. It is the case, we will say, of a father who gives a field or a building plot on his land to a son to enable him to build a house. He may do that obviously if he has the consent of his wife, but in order to prove title, it would be necessary for the spouse actually to join in the conveyance. Supposing a man does it even by way of advancement to the son to enable him to build a house and gives him a small plot of ground with it and supposing he does it during his life without the consent of his spouse, a case arises then where it is going to be extremely hard for that man to prove his title, particularly in dealing with solicitors for, say, building societies or banks or people of that sort. I do not fault them for this: it is their job and they must go into all these cases of title with a magnifying glass.
I should like to draw the particular case put to me to the attention of the Minister. This solicitor writes to me:
The real point that occurred to me, however, was in relation to the situation where a father wishes to give a site for building purposes to a son, perhaps without the consent or approval of his wife. Under subsection (2) (a) of section 120 the title would be, to an extent, perfected by having the spouse sign a consent but without the consent of the spouse the title would be wholly unacceptable for three years because it would be impossible to establish that the disposition was not part of a larger transaction which would have the effect of disinheriting the spouse or children. This type of transaction is very common, particularly in the country, but I believe the title would be unacceptable to either a Building Society or a County Council Law Agent who would be giving a small dwellings loan. It may be difficult to draft a provision which will protect Building Societies or lending bodies while still providing that the legal right shall attach to some tangible property because the mortgage moneys would form part of the property which would be available to the mortgagee to sell if the sum due on foot of the mortgage were unpaid.
He goes on to suggest that an amendment might be introduced to deal with it. That was a viewpoint concerning the section as it stood previously but it is equally true in respect of the Minister's amendment. I do not know whether the Minister can surmount it but it does seem to be the kind of case where it might be desirable to leave some freedom. Obviously, it is not the intention of the Legislature to discourage any man during his life from giving a building site or a plot of ground to members of the family, perhaps to a son who is getting married and wants to stay in the neighbourhood and possibly continue helping on the farm, and at the same time have his own home. It is not desirable to discourage that. At the same time, even under the amended section, it would be difficult for that man to use the place as security.
I have a certain amount of sympathy with that type of case because I know it could arise where people make loan applications to a building society or other body. If the Deputy gives me the details again, I will see if the matter can be surmounted. I am sympathetically disposed to help to relieve that situation.
I had tabled an amendment to oppose this section. It was discussed with section 119 and as both hang together, I shall not move the amendment.
I do not intend to start a discussion here, but in a codification Bill, would it not have been better to have put in the actual rules rather than leave it to the bankruptcy rules?
The desirability of amending bankruptcy law is being considered at the moment. It is quite an enormous volume of law.
I do not profess to be familiar with them.
Next Stage?
I suggest we take the next Stage on Tuesday next. We have already a number of amendments prepared.
I do not wish to appear unco-operative, but this Bill, by its very terms, will not come into operation before July, 1966. It does not seem to me, therefore, that there is any great urgency to take the Report Stage before the Summer Recess. The Minister, all credit to him, has given the Bill very searching consideration in Committee and has possibly gone out of his way to meet a number of the points raised which he has agreed to consider. I cannot see the Minister giving the consideration they deserve to those points if we are to take the Report Stage this day week.
We have been burning the midnight oil.
The House has settled the principle on this and I have to accept it, even if I do not like it. As the Minister knows, it is not my form to try to obstruct, but I am anxious to get as good a Bill as possible. If the Minister insists on taking the Report Stage next Tuesday, I shall not stand in his way.
As I have told the Deputy, we already have a number of amendments to meet many of the points made by him and by Deputy Ryan on Committee Stage last week. We can prepare drafts of the suggestions made today before the end of the week and have them ready for Report Stage next Tuesday. There is no administrative difficulty.