In every country in the world, outside of England and Wales, and wherever they have managed to plant this idea of absolute freedom of testation, it has long been acknowledged that a specific share out of a man's estate must go to his wife and children. These shares are to be found in Roman Law. They were recognised by Canon Law and introduced into those countries to which Christianity spread. It was part and parcel of the system that one-third went to the wife, one-third to the children, and one-third according to the testator's own wishes. That system operates in Scotland, in Europe and in most of the states comprising the United States of America. In case Deputy Dockrell feels this system is a deterrent to private enterprise, may I say that the system also operates in the strongest commercial centre of the United States, the State of New York. There is a compulsory share for the surviving spouse, and a compulsory share for the children, the remainder going at the testator's wish. It is nonsense to suggest that the share system will operate as a deterrent to either investment or enterprise.
On becoming Minister for Justice, I met various interests and various bodies concerned in this matter. I met the National Farmers' Association. We had a most constructive discussion. I came to the view that there was merit in the argument that the one-third legal right share for the children would not be suitable here. In the Succession Bill of 1964 there was a mandatory one-third for the children. This has been deleted and the procedure now is by way of an application to a judge in chambers where a child who should have been provided for out of the estate, has not been so provided for. I was convinced that having a system, whereby children already provided for, who had made their way in the world, gone into business or secured professions, could extract one-third of the estate could lead to a lot of trouble. In regard to the surviving spouse, the widow, there is a very distinct difference. Here we are dealing with a situation in which a man and his wife have been in partnership over the years, have reared a family, lived on a farm, or participated in a business. In that situation, arising out of the very nature of the marriage contract in our society, it is right and proper, having regard to the indissolubility and sacred nature of the marriage contract, that the survivor should have as a first charge on the testator's estate a legal right to one-third of that estate in the event of the survivor being in any way wronged in the testator's will.
This is where Deputy Booth was correct in the remarks he made earlier. This particular provision of the legal right which now stands in the Bill in the case of the widow in no way invalidates any existing wills, nor will it invalidate any wills of the future that may make alternative provision by way of life estate, or bequest or other arrangements appropriate to the particular circumstances of the survivor of the marriage. I want to emphasise that this one-third is not a compulsory share which must be extracted out of the estate by the widow. It is a right she must exercise within 12 months of the death of the testator, and she may exercise and probably will exercise that right only if she has been wronged under the will. If the wife and husband make their own arrangement, as apparently Deputy Booth's aged pair did, among themselves as to how best their property should be disposed or managed after the death of one, that arrangement stands.
I am satisfied that in the future many wills will continue to be dealt with on that basis. Where a couple come together and decide how best to arrange their property in the event of one surviving the other, their decision in the form of a will suitable to their own circumstances will not be upset. There is nothing in this Bill to invalidate existing wills or future wills where certain arrangements are, or will be, made for the benefit of the surviving partner. This Bill guarantees that the widow who may have been victimised or prejudiced by reason of the inofficious will of a capricious husband will have a legal right to one-third and can insist on it, no matter to whom the property is left—whether it has been left to some charity or to somebody in Honolulu. That charity or that person must first of all deal with the widow of the dead man and she must be catered for properly out of the estate within 12 months of the death of the testator. She can insist on her legal right to one-third and secure a proper deal for herself.
That is the way in which this Bill is going to operate. It is only proper that property should go to the son or daughter, more often to the son of the testator's choice, to be managed. This applies particularly in the farming areas of the country. It is only right that we should seek to encourage that a father should decide on one son to run the land. He may make a priest of one son and perhaps a nun of a daughter and perhaps set up others in business, but there will be a son who will remain on the land. I was disturbed about the manadatory one-third provision for children but now as the Bill stands the father can say to one son "John, you are the man for the land; I am giving the farm to you". But John's mother, after the death of the father, has her legal right to one-third and she can use that and hold it as a guarantee that she will be properly treated by her son after her husband's death. In the event of her husband not looking after her in the will, she can insist on her son looking after her out of the property. That is a reasonable situation.
Deputy J. A. Costello on the Second Reading debate last December on the Succession Bill, 1964, pleaded that we should get some marriage between the legal right system we had in that measure, the two separate one-thirds for wife and children, and a system of judicial discretion. He did not go the whole way with absolute judicial discretion nor with our scheme of one-third for the wife and one-third for the children. I think that the Succession Bill, 1965, represents what he had in mind in seeking a marriage between the two systems. The Bill says that where a child who is economically dependent on the testator has not been properly catered for, he can go into court; but we are not going to drive the widow into court. There is a very real difference between a child going into court to prove economic dependency and a woman going into court to be met, perhaps, with evidence of marital troubles, rows, matters that need not and should not be raked up, tensions and problems between a man and wife stretching over 20, 30, 40 or even 50 years, matters that are best left buried. These are the things that would be raked up, no matter how private the hearing against some unfortunate woman who is seeking to establish her rights. In the case of a widow, who has been a partner all her life with her husband, we feel that the proper solution is to give her a legal right which will be a guarantee that she will be fairly treated after her husband's death.
Deputy Costello also said last December that this problem of the inofficious will was quite a sizeable problem. That was precisely Deputy Costello's wording, the wording of a man who has spent years in the courts. He said that in his experience over these years this was a sizeable problem and, mark you, I agree with him. In the case of solicitors like Deputy O'Higgins who have argued about the occasional nature of this type of case in their offices, I cross swords with them. There are many hidden cases and I know of them as a public representative in a rural area. I know of widows who have seriously been wronged and who do not want to take it further, and who at present cannot take it further because, as things stand, if they are to upset the will of a misguided spouse they must prove some form of insanity or that some form of force was used on the husband to make the will. These are the hidden cases where wrongs have been done to people over the years. There is nothing about these cases in solicitors' offices or in the records of the courts. The legalistic people say this is no problem at all. As Deputy Costello said, it is a sizeable social problem. It is particularly a problem where a man and wife have lived together and unfortunately have had no children. Too often I have seen instances of jealous-minded, proud husbands in that situation, full of a stupid desire to keep the farm in the family name. Where the woman who has laboured for him has not produced a family, the farm is passed to some cousin or relative of the same name as the testator. These are things which can and do go on in our society and we are trying to remedy them in the Bill. This is a sizeable problem. Far from ramming the Succession Bill through this House, we have had the support of the Labour Party at every stage and we have only had certain legalistic people in the Fine Gael Party to oppose it. Labour have voted with us on every stage.