Seanad Éireann debate -
Tuesday, 16 Mar 1954

Vol. 43 No. 8

Private Business. - Intestates' Estates Bill, 1953—Committee and Final Stages.

SECTION 1.

Mr. P.F. O'Reilly

I move amendment No. 1:—

Line 11, to delete "June, 1954", and substitute "January, 1955".

This Bill, if passed, will make substantial alterations in the law of succession to property on the death intestate of the owner of property. Accordingly, in order that people would become aware of the new law, the Minister proposes that the new law will not become effective until 1st June of this year. Since the Minister made that provision six weeks have elapsed and therefore the time in which people would become accustomed to the change has been made six weeks shorter. The alterations proposed are really very, very substantial and for that reason I think people should have until January, 1955, to become aware of the change in the law relating to succession on intestacy. Nothing less than a further nine months would be proper to enable people to become acquainted with the changed position. For example, as the law stands to-day, on the death intestate of a wife, leaving no children, the husband is entitled to all her property. Following the passage of this Bill, that position will be very materially altered and people should be given the opportunity of becoming aware of the alteration and I suggest it will take until January next to give people an opportunity of becoming aware of this change through the medium of newspapers and other publications. The actual difference in the amendment and the section, as proposed by the Minister, is only a matter of six months; but I think the period is an important one and I ask the Minister to accept my amendment and give people until January, 1955, to become aware of the change in the law, a law which has obtained for practically 64 years and which has been so long in operation that it is well impressed on the minds of the people and on the minds of the legal fraternity.

Minister for Justice (Mr. Boland)

This appears to be a simple amendment but the fact of the matter is that there was a request in the other House to have this made retrospective. It was a member of the Senator's own Party who suggested that. I brought in my amendment. Originally we had it fixed for 1st January this year; I amended that to 1st June. That amendment was accepted.

As far as publicity is concerned, this particular measure has received a great deal of publicity. I suppose the time at which a Bill gets most publicity is during its passage through the two Houses. An Intestates' Estates Bill has appeared on the Order Paper of the Dáil for some considerable time. When the last Dáil was dissolved there was on the Order Paper an Intestates' Estates Bill which originated in this House and the public and those interested must have known about that measure because it was actually passed in this House almost four years ago.

Professor Hayes

In 1950.

Mr. Boland

The case was made not alone by Fine Gael but by members of the Labour Party also that we ought to make this retrospective. That could not be done because, in doing so, one would deprive people of rights they had already acquired. I think what has been done is quite satisfactory because anyone who takes an interest must now be aware of the passage of such a piece of legislation. In fact, after our last debate here there was quite a big headline in the papers about widows and so on. I do not think the Senator ought to press the amendment. I do not see how the matter could get more publicity than it has got.

Professor Hayes

I got a number of letters dealing with the publicity point the Minister has made. I must say that it did certainly get considerable publicity. I got a letter from a widow, however, whose husband died within the last 12 months and she wants to know if letters of administration having been taken out, it could be made retrospective. I am inclined to agree that it could not be made retrospective because you would be taking away from people rights which they had and which they were aware they had. Her case, however, is a very hard one. I think there is an argument in favour of the earliest possible date, coupled with the greatest publicity. It is unfortunate that it cannot be made retrospective, but I think that quite clearly it could not. The best thing you can do in the circumstances is to start at the earliest possible date, although in all the circumstances, I wonder if this date will work. If not, however, the Dáil can change it.

Mr. P.F. O'Reilly

I will ask leave to withdraw the amendment if the Minister will tell me that he will do something by way of publication of some notice, say, in the daily Press, when this Bill has been passed, that it has been passed into law and that the people should note that the law as to intestacy has been considerably altered.

Mr. Boland

I will do what I can to have that done.

Mr. P.F. O'Reilly

I ask leave, therefore, to withdraw the amendment.

Amendment, by leave, withdrawn.

Section put and agreed to.

Section 2 put and agreed to.

SECTION 3.

Professor Hayes

I move amendment No. 2:—

To delete the section and substitute a new section as follows:—

() All the property, real and personal, as to which there is an intestacy, shall belong to the widow, absolutely and exclusively.

The section provides that where a man dies intestate leaving a widow and no children the widow should get £4,000 of the property and her share afterwards. I am sure the Minister will say that that covers the great majority of estates, and I believe it does. On the other hand, it seems to me, after the publicity this Bill will get now and and when it becomes an Act, that if a man dies intestate his widow should get everything he has. I should like to point out that this amendment, if it were accepted, does not interfere with anybody's rights. The Bill does not compel anybody to make any particular kind of will. A married man who has no children may still make any kind of will he pleases. Incidentally, I should like to say that I think he should not be allowed to do that, but that is not relevant.

Mr. Boland

It is another day's work.

Professor Hayes

Yes, it is another day's work. He still can make any kind of will he pleases. He is getting notice in this Bill, if the amendment is accepted, that if he does not make a will his wife will get everything he possesses; that is a man having no children. In modern circumstances I think that is an absolutely sound case. If there are legal claims by anybody on the estate this amendment does not interfere with them. If there are other claims, moral claims such as we discussed here before, then the deceased, if he has made no will, has decided not to meet those claims. That is what it amounts to. If he has so decided, then I think the property should go to the widow.

Marriage is a serious thing, and I think the husband ought either to make provision by will or otherwise for people other than his wife, or else, by default, everything should go to the widow. If he is a farmer he is in the farming tradition and he knows what the farming view is. If he does not take steps to give that view legal validity by putting it into a will, I think the woman he has married should get everything he has instead of its having to be divided with other people who are not so near to him. I think the view should be taken that the widow is the nearest person to him and, if he does not make provision for other people by will, that everything he is possessed of, real and personal, should go to the widow. Of course, that is in the case of a widow where there are no children. In the light of modern conditions, on the grounds of simple and of practical justice, I think we should adopt the amendment.

Mr. P.F. O'Reilly

I support the amendment. As proposed in the Bill, the widow will have a very substantial interest, no doubt, on the death intestate of her husband. But why should the widow be placed in an inferior position because of the death intestate of her husband? Why should a husband be in any better position than a widow? Should a woman die intestate without issue, the husband becomes entitled absolutely to all her property. When a husband dies, why should not the widow become entitled absolutely to all his property? As Senator Hayes indicated, the position can always be put right by the husband making a will or preparing an assignment of his property. There is no reason why there should be a difference between the two cases, why the husband should get more than the wife would get. Ordinary justice demands, I think, that in this age a husband and a wife should have the same rights. I think the widow should get absolutely everything on the death intestate of her husband. Who else should get the husband's property but the wife? It may be said that the husband's relatives should have a claim to the property, but who has a better claim to the husband's property than the wife, particularly as the position to-day is that the husband would get all the property of the wife should she predecease him?

Mr. O'Dwyer

I think it would be better if the Bill had been left as originally drafted, when it provided that the widow should get the sum of £2,000.

Mr. Boland

I am in a middle position between the two cases which have been stated. Senator Hayes stated that he believes the majority of people who die intestate would not have much more than £4,000. I think that would be accepted and that the vast majority of widows would get practically all of it. If a person had £6,000, under our proposal the widow would get £5,000, if there were no other next of kin. It is true that a man can make a will and provide for anyone he likes in it. I believe that farmers know what they are doing when they do not make a will. They know well what the result will be. Up to this they would say: "My widow will get £500 and my old father and mother and my delicate sister will get something out of it also." Certainly I believe that they do not bother to make a will. I suppose making a will is a troublesome thing, and it costs a bit of money, though not very much, and they deliberately do that. After all, if the widow is going to get, say, £4,000 out of the estate and half the remainder if there are no next of kin it certainly is a great improvement on the £500 which was there before. Then we have Senator O'Dwyer's point of view, which I believe is certainly held by the vast majority of the people from the agricultural community. The question of a widow being left unprovided for or inadequately provided for is a different matter. But in this the widow will have actually eight times what she has at present and half the residue, and, if there is no next of kin, the whole of it. I do not want to be taken as being against the widow getting her share, but the other things are there and, as I say, there is a reluctance among certain sections of the community in this country—I do not know why it is—to make a will at all. Perhaps it is depressing but they do not like to do it.

Professor Hayes

Nearing death.

Mr. Boland

I think so. Well, we know what is going to happen and I think that what we have done here is certainly a big improvement. I thoroughly agree with the people who say that widows and husbands should be on the same footing, but that is not for this Bill, which deals with childless widows and nothing else. Undoubtedly some Minister will very soon, I am sure, see that the laws of succession will be amended to provide for equal treatment for a man and a woman in a matter of that kind. It is all wrong, I quite agree, that the husband should get everything if the wife dies and the wife should not get it if the husband dies, but this is dealing with another matter on a very narrow point, brought in by the last Government. Perhaps in some years to come the laws of succession may be amended, but I want to remind the House that we are dealing here with one question alone and it is beside the point to consider about the man and woman having equal rights. It does not arise. I think anybody ought to be satisfied. We had a debate in the other House on an amendment put down by Deputy Norton to say £5,000 and there was general agreement there. I had £2,000 in the Bill and we compromised then and agreed that £4,000 was a reasonable figure. I believe that they have had a commission in the Six Counties and suggested £5,000. In England it is £20,000, but that is a very wealthy country, not like this. Ours is £4,000 and I think there is general acceptance of it. Everyone who considers the situation as it actually is will agree that it is reasonable.

Professor Hayes

The Minister has a knack of making himself appear reasonable.

Mr. Boland

I have tried to do it anyway.

Professor Hayes

I note that he is very unreasonable on my contention. Would he ever accept that I should withdraw amendment No. 2 and accept No. 4 in order to show how reasonable he is?

Mr. Boland

I happen to be for the present a member of the other House, and after I refused the other House £5,000 I am not going to make so little of them as to say that I would not have £5,000 and accept £6,000 here. Surely Senator Hayes is not serious in making a suggestion like that.

Mr. P.F. O'Reilly

I hold the other House in very high esteem, of course. We think that they would not be in the least bit annoyed if the Minister went back and told them that he had heard a number of people here and that they prevailed on him to say £6,000 and not £4,000 or £5,000 as was said below. I have no doubt that the Dáil would accept that as a very sensible attitude on the part of the Minister and that he should, therefore, accept it.

Mr. Boland

Surely the Senator would not expect me to do that if I was not convinced myself. It would not be fair to ask me to do that.

An Leas-Chathaoirleach

Is the amendment being withdrawn?

Professor Hayes

I am afraid so, Sir. Amendment, by leave, withdrawn.

Mr. M. O'Dwyer

I move amendment No. 3:—

In line 15, to delete "property" and substitute "personal estate".

Mr. Boland

I think I can say that my sympathy was very largely on the side of Senator O'Reilly, to give a bit more if possible and I have gone a good part of the road to £4,000. What would happen in this case would be that what the widow would get would be the ready cash more than anything else and what she would have to live on, on the farm, would be very small. To my mind that would not be adequate compensation at all. As the Bill stands she will, assuming that the estate is worth £4,000, get the whole of it. If we do what the Senator suggests all she would get is to live out of the farm. She might have to employ a man and goodness knows what that would mean. I think it would be entirely inadequate.

An Leas-Chathaoirleach

Amendment No. 11 is something similar.

Mr. M. O'Dwyer

I would like to point out that if the amendment was accepted the widow would be in exactly the same position as she was before her husband's death. If the farm was small there would be no change practically. She would have all the cash and the property, and has only to farm the land that would go to her husband's people on her death.

Mr. Boland

Suppose she were to work the farm, the man who worked it would be gone and she would have to employ somebody. But as we propose in the Bill she could sell the farm and set up in business or do what she liked with the money. If her husband is the man who worked the farm she would certainly have to employ somebody and would be in a much worse position in that case.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 5, 7 and 9, which are consequential, are not moved.

Mr. P.F. O'Reilly

I move amendment No. 4:—

In line 16, to delete "four" and substitute "six".

Would the Minister make that £4,000, £5,000? I know that what Senator Hayes says is almost correct, that when we deal with estates of £4,000 in the main we have dealt with the majority—certainly a very considerable number of estates in this country. But there will be still some which would not have been touched. I think that £5,000 should be there instead of £4,000. The widow should at least get all the estate if it does not exceed £5,000. I think I am being very reasonable in that—in fact, I am being most reasonable in all these amendments— and because this is reasonable I would ask the Minister to accept it. I agree that we are touching only one point really, but it is an important point, and it would go some distance to meet my feeling of annoyance that the husband is treated differently on her death from the way his wife is treated on his death. The Minister will have an almost perfect Bill if he makes this £5,000 instead of £4,000.

Mr. Boland

We have already discussed this point. As a matter of fact, I had great difficulty in getting even the figure of £4,000 accepted by some people. The figure was originally £2,000, and I had difficulty in getting some people to agree that it should go up to £4,000. We argued the matter out in the Dáil and there was unanimity on the figure of £4,000. I do not think I should be asked now to change a decision in regard to a matter which was fully argued in the other House. In fact, I must say that I was reprimanded and was told that I was going too far in agreeing to the figure of £4,000. I tried to be reasonable, but I simply could not go any further at this stage.

Amendment, by leave, withdrawn.

Section 3 agreed to.

An Leas-Chathaoirleach

That decision governs amendments Nos. 6 and 10 which will, therefore, not be moved.

SECTION 4.

Mr. P.F. O'Reilly

I move amendment No. 8:—

In sub-section (2), line 26, before "value" to insert "net".

Perhaps the Minister would give me some assistance on this. The Bill provides that as between the real and personal representatives of the deceased, the charge in favour of the widow, that is the amount over £4,000, to which she is entitled, "shall be borne and paid in proportion to the values of the real and personal estates respectively as to which he dies intestate." I think that should read "in proportion to the net values of the real and personal estates." I have no doubt that we shall be told that this section was taken from another Act, but that will not satisfy me. The Minister must bear in mind that in the administration of an intestate estate, certain death duties are first taken and resources is had for these to the personal estate. I think if that is so, the personal estate that is available for division will show a relatively smaller amount. That is why I think the net figure should be taken rather than the gross figure. I, therefore, suggest that the word "net" should be inserted in the section to provide that the proportions are in regard to the net value and not to the gross values.

Mr. Boland

The Senator has anticipated me in stating that this provision was taken from another Act. It was taken, from the Act of 1890, and the great value of having it is that there has been no contention about it up to the present. There have been several decisions which make the meaning of the provision quite clear. If we were to change it now, there would be many questions as to why this change was made. I am advised by very competent advisers that there is no necessity to insert the word "net". As I say, there have been several decisions in regard to it, and the Senator may rest assured that the amendment is entirely unnecessary.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Amendments Nos. 9 and 10 not moved.

Sections 5 and 6 agreed to.

SECTION 7.

An Leas-Chathaoirleach

Section 7, which is being opposed by Senator O'Dwyer, and amendment No. 11, which proposes to insert a new section, go together.

Question proposed: "That Section 7 stand part of the Bill."

Mr. O'Dwyer

I am opposed to this section. I still strongly think that we should have dealt separately with the question of personal property and that we would then follow what has been regarded as the usual custom in the country. It has been said that the reason that people do not make wills is that they are satisfied with the provisions of the existing law, but I think the real reason is that nobody ever likes to think of death, and people put off making wills.

Mr. Boland

The Senator would like to make them think of it.

Mr. O'Dwyer

They put off making wills from day to day, time slips by and finally when death occurs, the will has not been made. I think in circumstances such as those we should try to interpret the mind of the man during his lifetime and to imagine what the will would have been like had he made it. I know that in the country, in cases where there are no children, a man who makes a will usually leaves his property to his widow for the period of her life and, on her death, the property reverts to other members of his family. As I pointed out before, the widow continues to live on the farm, and she is in exactly the same position that she occupied before her husband died. Very few widows decide to go into business after the husband's death.

We must remember that the custom in the country is that the eldest son usually inherits the farm and that the rest of the members of the family get very little out of it, the intention being that the son will carry on the family name and continue farming in the old place. If that man dies shortly after marriage, it is a great hardship on the other members of the family if the farm should pass out of the family. In an endeavour to reconcile both the widow's interests and the interests of the husband's family amendment No. 11 has been drafted. She will still have all the personal property and money up to £4,000, but on her death the land will revert to her husband's family. I think that would be in accordance with the tradition that has been observed in the country down the ages. I would ask the Minister to consider some gesture of this kind. It would be much appreciated if a provision of this nature were inserted in the Bill.

Mr. Boland

I think that if farmers want that old custom, to which the Senator referred, to continue they will have to make wills. That is my attitude. If the old customs are to survive, the only way to ensure that is to get farmers to make their wills in time. Anyone down in Limerick who wants to ensure that his farm will be kept within the family had better make a will, otherwise the widow will get the whole lot.

Question put and agreed to.

Amendment No. 11 not moved.

SECTION 8.

Mr. O'Dwyer

I move amendment. No. 12:—

Before Section 8, to insert a new section as follows:—

Where a parent or parents of the deceased has or have been wholly or partly maintained by the deceased up to the date of his death, provision in default of agreement shall be made out of the property for the continuance of this maintenance.

I ask the Minister to do something to prevent hardships that are likely to arise under the Bill unless some provision of this kind is inserted in it. It sometimes happens that the father and mother of the man owning the farm are living in the farmhouse without any legal rights. If the owner of the farm dies, such people will be left at the mercy of the daughter-in-law. There is hardly any provision made for them. In fact they are kept there because they get the old age pension. I think something should really be done to protect the unfortunate old people who are placed in that position.

Professor Hayes

Is not the provision they want to make, legal provision against the State and to have legal provision made in their own favour at the same time, for the achievement of completely different objects? I hope I am not confusing Senator O'Dwyer, but, in order to qualify for the pension, they make no kind of provision for any kind of maintenance. The Senator wants to insert in this Bill a provision that will give them maintenance.

Mr. Boland

They would lose the pension then.

Professor Hayes

In any event, the real solution is for farmers to get closer to solicitors and make wills.

Mr. Boland

Senator Hayes has made my case.

Mr. O'Donnell

Surely a case can be made for this amendment? We have had it argued here already that a case could arise in which a parent could be seriously inconvenienced by reason of a daughter-in-law inheriting property which she was not prepared to share after her husband's death. I do not know that we should discuss this matter entirely from the legal angle, because there is a very grave moral aspect to be considered. We know that in certain cases of large estates property transfers are made by parents for the purpose of evading death duties, but when we come down to the case of the farmer who transfers his entire property to a son, if the property is to go to the daughter-in-law who may possibly hate the sight of her father-in-law, the law surely should do something to protect him. There is a grave responsibility upon us to ensure that no disability is created by reason of an omission from the Act and it could happen that parents because of the rights of a daughter-in-law could be caused great inconvenience—the people who created the wealth which passed to the son and then became her property. If there is any way by which the Department officials could provide for overcoming that situation, it ought to be considered from that point of view. The motive behind the amendment is a worthy motive, but whether the Senator is going the right way about solving the difficulty is another matter.

Mr. Hartnett

I agree that the motive behind the amendment is a worthy one, but when a father is making provision for his son and assigning his estate to him, he cannot, by that instrument, provide for maintenance for himself or for any other persons whom he thinks it proper to provide for. I do not see that it can be done by law in any other way and I do not see that the Department officers could provide for it.

Mr. Boland

The objection to raising the amount to £4,000 was that, by doing so, we were depriving some of these people of rights they might otherwise have got, but on the whole we thought it better to make adequate provision for the childless widow and that, after that had been done, if there was anything over, the next of kin should be provided for.

Mr. P.F. O'Reilly

The Minister is quite right in what he says and it must be remembered that what Senator O'Dwyer seeks to do is to impose on the widow an obligation that never existed on her husband who has died. The suggested new section provides that where a parent or parents have been wholly or partly maintained by the deceased, the survivor of the person owning the farm shall continue to maintain them, but that would suggest that the survivor would take on an obligation that had never been imposed on the person who had died.

Apart from imposing an obligation which never before existed, the section would be a splendid opportunity for members of the legal profession to make any amount of money. I am sure the Minister would have to bring in a new Courts of Justice Bill to set up a court to deal with matters of this kind, but, as Senator Hartnett suggested, if settlors, people settling property on a son or daughter about to be married, wish to provide for maintenance for themselves or their wives, they can do so in the deed, but, as Senator Hayes pointed out, there is a very good reason to-day for not providing for that maintenance, in that such a provision would deprive the person settling the property of, say, pension rights. The section could really not be implemented and we would have nothing but litigation to establish what rights persons had if it went through.

Mr. O'Donnell

The Senator makes the case that a new obligation would be imposed, but surely the new obligation arises out of a new set of conditions. There is no analogy at all between the two sets of circumstances. The argument put forward by Senator Hayes is that the person getting this maintenance would lose his rights to certain State aids, but surely it is a better thing to make people less dependent on such State aids than to encourage them to depend on them. Would it not be one of our real purposes here to give people a sense of decency and to encourage them not to depend on the State for everything? If we turn the obligation on to the family, who would seem to be the right people, rather than the State, Senator O'Dwyer's amendment would be all the more desirable.

Mr. Hawkins

There are serious difficulties in the way of accepting this proposal, particularly in relation to the question of old age pension applications. When a farmer makes up his mind to hand over his holding to his son or to the young couple coming in, certain conditions are laid down, but the desire of all parties, both the old people and the young couple, is that there should be children and therefore it would be necessary to have some new form whereby you would have an understanding as to whether you would have a family or whether you would not. Otherwise, you would be inflicting a hardship on the old people by depriving them of the opportunity of applying for an old age pension. Acceptance of the amendment would impose a hardship on the widow which would never have been imposed on the holding if the husband had lived.

Mr. O'Dwyer

Senator O'Reilly is confusing law with justice somewhere. Although there would be no legal obligation on the husband to maintain his father and mother, there would be a moral obligation, and in many cases we know that the father and mother remain in the house. When the husband dies without making any provision, these people are deprived of everything. It might be rather difficult to provide for it in law, but it would not be impossible to have some provision whereby the value of the board and lodging could be obtained out of the estate to enable them to be maintained in the house, as they had been maintained. It would only apply where they had been wholly or partly maintained, and I think it would be very good, if it could be done.

Mr. Loughman

There is the provision in law that people can make a will.

Mr. O'Dwyer

They cannot, when they are dead.

Mr. Boland

Before they die.

Amendment, by leave, withdrawn.

Sections 8 and 9 agreed to.

Title agreed to.

Bill passed through Committee, reported without amendment, and passed.

Ordered: That the Bill be returned to the Dáil.

The Seanad adjourned at 5.50 p.m.sine die.