This is very much indeed a non-Party measure, as the Minister stated. It is a Bill which not alone the House but everybody who has to do with the administration of estates of deceased persons will welcome. I have only one regret in regard to the Bill and that is readily resolved by what the Minister has stated, that this is only a forerunner to further legislation.
My regret is that the devolution of real property upon the heir at law is not completely set aside in this Bill. Considerable difficulty arises where part of the person's property descends to the heir at law because tracing the heir at law can be difficult in a variety of ways, more particularly in our country where there is so much emigration. It often means advertising in various countries to find out where the heir at law resides, and it has been known that property which has devolved to the heir at law has fallen into a state of disrepair and become quite useless because nobody would look after it knowing that at some stage the rightful owner might turn up, or, indeed, while inquiries were being made to trace the heir at law.
Other difficulties and hardship can arise in that regard. A man may die and leave a widow. That man may have been possessed of certain real property and the widow, who, in the normal circumstances, would be entitled to the property if it were personal estate, could have only a life interest in one-third of the real estate. That can cause dissatisfaction to a widow who has no children because some descendant of her husband is entitled under a medieval rule of law. That is my only regret—and it is one that will be shared by members of the legal profession and by people in trustee departments of banks— that this elusive and unique animal, the heir at law, has not been abolished altogether. However, as the Minister hopes to introduce further legislation to deal with that situation we can let the matter rest at that and express the hope that it will not be too long before the Minister introduces more comprehensive legislation than is contained in this proposal.
With regard to the main purpose which the Billl seeks to achieve, to provide that real property shall devolve upon the personal representative, that provision is overdue. There is no good reason why freehold registered land, which constitutes the bulk of the land of Ireland, and leasehold property should devolve upon the personal representative and this very insignificant property, called real estate, should not also devolve upon the personal representative.
This notion of the sanctity of real estate as against personal estate, which includes leasehold property, is preserved in the Bill. I know the Minister's reply to that would probably be that we are only consolidating what is already the law but it does seem that, in preserving the order in which property will be liable for payment of debts and other testamentary expenses, real estate has always been at a slight advantage over leasehold and personal property which is not justified but is merely a hang-over from feudal times of the sanctity which was attached to freehold property. I do not see any reason why real estate should have any advantage over personal property in general.
Very often in this connection the intentions of a testator are wholly defeated because he leaves land to one and certain legacies to another and he feels he has made equal provision for the beneficiaries under his will. When it comes to the payment of debts and other expenses the legacies which are provided for under the will are wiped out or certainly abated by reason of the fact that these debts and expenses have to be borne by the personal estate. Therefore, once we are changing the position with regard to the devolution of real property, that sanctity which is attached to it in regard to the payment of debts and testamentary expenses should go also.
I welcome also the fact that there is no change in regard to the extent to which different types of property would bear their proportion of death duties. In another section, where a person dies and the administrator or the executor under the will has not acted or is abroad, a power is given to the High Court to appoint another person in lieu of that person. I have never understood why it is that when you want an administrator appointed by the court you must always apply to the High Court. You have the High Court on the Land Registry side, in regard to the registration of title, exercising the same jurisdiction as the Circuit Court. It seems quite unnecessary that people should have to apply to the High Court when, in relation to other matters, the Circuit Court exercises the same jurisdiction as the High Court, the jurisdiction being limited by the poor law valuation of the property involved or the total amount of the assets. There should be a provision that the application should not be made to the High Court where the value of property is within the jurisdiction of the Circuit Court in the ordinary course.
Section 14 (3) seems to be a most curious provision. It puts a new burden upon administrators who must enter into a bond "for the payment of all income-tax and surtax payable out of the estate of the deceased". I had always thought that the Revenue had ample powers for compelling allcomers to pay income-tax or surtax. I do not know why it is necessary to incorporate in a Bill of this kind something which throws a further burden upon the administrator. In the ordinary course debts due to the estate are a first charge after testamentary funeral expenses upon the estate of the deceased. These must be paid in priority to all other debts. I do not know to what extent this new addition will increase the amount of money payable out of the estate in respect of the bond.
In the Dáil, the Minister remarked that this is really a Committee Stage Bill, and I entirely agree. Section 18 seems to me to present a number of difficulties. This is a new provision giving power to the personal representative to sell property, whether real or personal, for the purpose of distributing the assets of the deceased person and giving persons moneys in accordance with their entitlement to them. To my mind, the section will raise difficulties. If the personal representative is to have regard as far as practicable to the wishes of the persons entitled to a particular property, there probably will be cases in which persons who do not want a particular property sold, do not want it to go out of the family, may well start litigation. That problem will give rise to more trouble than the good sought to be achieved by this section. It would seem to me if there was some direction in the section to the personal representative to have regard to the wishes of the beneficiaries and that, having done that, he had absolute discretion thereafter to sell as he thought fit, that would be a better provision and would avoid unnecessary trouble within families, and litigation.
The section is curious in another way. It may be that I am misinterpreting it. It provides that the wishes of the persons of full age entitled to the property proposed to be sold are those to which the personal representative is to have regard. I do not know what the position will be where you will have beneficiaries of full age and beneficiaries who are minors, or whether the executor will still be able to sell property even though there are minors in the case. As the section stands, it seems to me that all a personal representative will be bound to do, where you have a mixture of adults and minors, will be to have regard to the wishes of the adults and then he is free to sell. Apparently, the minor does not come into it.
In that connection, it seems to me that the personal representative may also sell property which devolves upon the heir at law. I may not be right in that, but at the moment that is the interpretation I am putting on it. If that be the case, it seems to me that certain difficulties may arise when the heir at law is not to be found. I am merely mentioning these matters so that the Minister will be aware of them and that he may be able to deal with them at a later stage.
The only other questions I wish to deal with are the very technical matters the Minister has referred to in Part IV. Up to the new Statute of Limitations Act the position was that a person who remained on in possession of freehold registered land, and who had taken out administration, could not plead the Statute of Limitations for the purpose of having himself registered, whereas a person who stayed on for the same period, did not take out administration and did not raise representation to the deceased, could have himself registered. That position was rectified under the 1957 Act and under the decision Vaughan v. Cottingham in the Supreme Court, mentioned in the explanatory memorandum. It always seemed to me to be a peculiar twist to the law that the man who had endeavoured to comply with the law and take out administration, thereby having to pay whatever death duties were payable, was in a worse position than the person who had made no effort to comply with the law or pay any revenue. I understand the new position will also apply to the case of a personal representative who remains on in possession of real property. I think that is inevitably logical in harmonising the position with regard to freehold property and real property, which is one of the main purposes of this Bill, and a purpose which it achieves in a very admirable way.
In conclusion, I should like to say that the explanatory memorandum issued with the Bill has proved extremely helpful. It is extremely clear and will be highly useful to practitioners because it does a lot of the donkey work for people trying to understand the Bill. It will be welcomed by the legal profession and other people dealing with the administration of estates.
