This Bill will come into operation on 1st June, 1959. That leaves, possibly, only about a month until the Bill comes into operation. As I understand the position, there is very considerable delay at times in obtaining copies of Bills which have recently been enacted. Is the Minister satisfied that, if this Bill comes into operation on 1st June, a person who requires this Bill will be able to get copies of it on that date or before it, if possible?
Administration of Estates Bill, 1957—Committee and Final Stages.
Question proposed: "That Section 1 stand part of the Bill."
We will get the copies of the Act out all right in time.
Question put and agreed to.
Sections 2 to 5, inclusive, agreed to.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
On the section and, if I may, on Part II in general in connection with Section 6, I should like to say that this is a very technical Bill and I hope the House will forgive my temerity in speaking on it, but I did consult an expert on the matter in the Bill and the following points were raised by her. As you may guess from the pronoun it is in connection with the position of women under this Bill. I should like to phrase it in the form of two questions to the Minister. First of all, is there any intention under this Bill to provide for the following case? If a wife dies intestate, I understand her property goes entirely to the husband at present. I think it is felt in many quarters that that is unfair because the husband may use all that property on himself, or on a second wife, and the children of the first marriage may receive nothing whatever from their mother's estate. I believe I am correct in holding that, but, if I am wrong, I waive it. I would ask the Minister to consider whether that is a just provision. It may be completely accidental that the wife makes no will. The money, I think and many others think, should be shared in some settled proportion between the husband and her children. Would the Minister consider making provision in this Bill to meet that case if it is not already provided for? As far as I can see, it is not included in the Bill as it stands.
Here is a second case which I should like the Minister to consider. Suppose a husband dies, without making adequate provision in his will for his wife, so far as I can see she has no right to appeal to the courts for adequate provision. I believe that is the case. I confess that all the time I am speaking about matters I know only at second hand, but I am trying to improve the Bill, if it is possible for an amateur to do so. Would the Minister consider under this Bill, or by other means, making it legally permissible for the wife to go to the courts and ask for adequate provision for herself from her husband's estate? I may have misstated this: if so perhaps the Minister will correct me. Perhaps I can clarify what I want to say after the Minister has spoken.
The law at the moment is as the Senator states, but I do not know if he was here when we were discussing this Bill on Second Reading. On that occasion, I made it very clear to the House that we were bringing in a comprehensive Bill at a later stage and that matters which Senator O'Quigley, Senator Lenihan and Senator Louis Walsh raised would be considered. At the time I gave that undertaking to these Senators with a view to seeing that the matters they raised be considered for inclusion in the comprehensive Bill. I can give only the same reply to Senator Stanford now. The law, as it stands at the present time, is more or less what has been outlined to him. Matters in regard to the descent of property will be dealt with in the comprehensive Bill.
May I ask the Minister is it likely-that the comprehensive Bill will be forthcoming fairly soon? Would it be possible, since this is the matter of elementary rights——
At, the moment the Department of Justice is inundated with Bills of one kind or another, and the comprehensive Bill will just have to take its place in the queue, so to speak. The Bills which are being given priority over all others are the Bills to establish the Courts under the Constitution and, until we get clear of that, I cannot make any firm promise that one Bill will take precedence over another. Senators will also remember that we have an Intoxicating Liquor Bill, and I am being pressed right, left and centre for its introduction. There is also the Rent Restrictions Bill and innumerable other Bills, and how we are to get through them all, and please everybody who is pressing for them, will be a matter of difficulty.
In view of what the Minister said, would it be possible to work these elementary rights into the present Bill or does he not think it a suitable Bill in which to incorporate them? Women are patient by nature, but sometimes they become a little impatient, and it would be sad if we lost the good will of our women citizens if we delayed granting these elementary rights.
They will not be brought in in this Bill, and the Senator and his friend will have to be patient. As the Senator knows, the present situation has gone on for generations and another year or so will not make much difference.
Question put and agreed to.
Sections 7 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: That Section 13 stand part of the Bill.
According to the memorandum, this is a section which is designed to clarify the position with regard to the vesting of property between the date of death of a person dying intestate and the grant of administration. I am just wondering whether, in fact, this section does clarify the position, because it is easy to envisage circumstances in which the office of the President of the High Court will be vacant. I am wondering can the Minister say where there are other statutes to provide for the contingency, where the President of the High Court either retires or dies, that some other judge will be deemed to occupy the office of the President of of the High Court. If there is not, this section does not eliminate the difficulty.
I am sure that would present no great difficulty because there is always someone to succeed. I am sure there would be very little difficulty in that matter.
The section is intended to put it beyond doubt where vesting takes place between the date of a person dying intestate and the date of grant of administration. For some part of that period, the office of the President of the High Court may be vacant and, if the matter is to be dealt with at all, it seems to me there should be no lacuna which would still leave the position not clear beyond doubt. It seems to me there can be a position in which there will be nobody in whom the property will vest when the office of the President of the High Court is vacant.
A similar position obtains since 1859 in regard to personal property and no difficulty has arisen under the Act of that year. I do not anticipate any in the future.
It is purely a question of deeming the matter thoroughly settled in this section.
Question put and agreed to.
SECTION 14.
Government amendment No. 1:—
*1. In subsection (3), line 15, before "and" to insert "for which the personal representative is accountable."
This is a drafting amendment designed to ensure that the administration bond will cover only those death duties for which the personal representative is accountable. The difference between real estate and personal estate for the purposes of death duties is explained in some detail in page 2 of the Explanatory Memorandum. Estate duty on real estate (including compulsorily registered land) is a charge on the estate itself, and is payable by the person entitled to the estate under the will of an intestacy. The personal representative is accountable for the estate duty on the personal estate, and he pays this duty out of the residuary personal estate. It has recently been advanced against subsection (3) that the sub-section as drafted might be relied on to make the personal representative accountable for estate duty for which he is not at present accountable. If this were so, we would in fact be running contrary to the proposal in section 8 to leave the law as to death duties as it is. The present amendment will clarify the position. Our intention was to make no change in the law as to the incidence of death duties.
On that amendment, there are certain circumstances where the personal representative may be accountable for duty but may not be able to pay the duty because sufficient assets may not have come into his hands. So far as I understand the position, there is provision in the Finance Acts which makes the personal representative liable only to the extent to which assets have come into his hands. He might be accountable, say, for some £500 estate duty on personal property, but he may have assets only to the extent of £300. Therefore, the Revenue Commissioners could hold him accountable only for the sum of £300. It seems to me that what the amendment is doing is making the administrator, under his bond, liable for the whole amount and it seems to me that that is some change in the law.
The only reply I can give to that is that the representative enters into a bond and is responsible then for seeing that the payments are made. As the Senator knows, that is the normal position.
That is so. He will be liable now under his bond to pay the whole of his duty and the Revenue Commissioners can proceed against the bond for duty which up to now he was not liable to pay but was liable to pay only to the extent to which assets had come into his hands.
The actual position is that he is not liable to pay any more than the value of the assets he has received. He is, of course, bound to get in the assets. I think that may clarify the difficulty.
I am afraid not; I do not agree that that is so. I know that the administrator at present is liable only to the extent to which assets come into his hands. If you take a person dying with a large amount of real estate, land, by reason of the amount of land, the rate of duty may be, say, 15 to 20 per cent. but the amount of liquid assets, personal property, the administrator would have would not be sufficient in certain circumstances to meet the claim of the Revenue Commissioners in respect of that personal property. There is great difficulty dealing with this Bill because it is so complicated. This Bill is peculiarly one which can be examined properly only as it works out in practice but if hardship does result to the administrators of estates by reason of this, I am sure the Minister would be prepared to modify it in the light of experience when it has been working for some time.
He does not pay estate duty on the real estate. Is that not so? Is it that he must find the money out of real estate?
No; the person who gets the real estate is the only person who is liable.
Senator O'Quigley has raised the question of real estate, but under this Bill the real estate is vested in the personal representative and it is necessary for him to give an assent before the real estate comes into the hands of the devisee. I suggest the personal representative would have control over all the assets and would be able to pay the duty from all those assets before he vests the devisee. Accordingly, I suggest that it is only right that the bond should be given for the amount of assets that come into the hands of the personal representative.
We have covered in the amendment that the death duties are those for which the personal representative is accountable.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That Section 18 stand part of the Bill."
This is a section to which I referred especially on the Second Reading. It seems to me that the section, as worded, will give rise to considerable difficulty, so far as personal representatives are concerned. The section is intended to confer upon the personal representative power of sale over real and personal estate. The personal representative already has power to sell personal estate and has now to get power to sell real estate for the purpose of selling assets among the persons beneficially entitled. There is an obligation imposed on the personal representative apparently to consult with the person beneficially entitled, so far as practicable and to give effect to their wishes, so far as is practicable. I do not know what the position will be where a personal representative is not giving effect to the wishes of the persons beneficially entitled so far as practicable in the view of those people.
I think the Section would be far better if it were drafted in another way, but it is very difficult to see how it could be drafted in another way so as to give the power to personal representatives to sell personal property and provide that he shall endeavour to ascertain the wishes of the persons beneficially entitled and take their wishes into consideration. Here there is a direction that he shall consult with the persons beneficially entitled, so far as practicable. A number of people whom I have consulted on this section anticipate that it is likely to give rise to considerable trouble because of the direction that the personal representative shall give effect to the wishes of the persons beneficially entitled, as far as practicable.
There is another point which arises on this section, sub-section 1, that the persons who are to be consulted by the personal representatives are those who are of full age beneficially entitled. There is a somewhat similar section in the Land Transfer Act, 1897, which applies only in Britain. I think it is Section 6 of that Act. It dealt with the position where the personal representative was given certain powers but where there were minor children or persons of unsound mind and then the consent of the committee of the person of unsound mind, or of the guardian of the minor children, had to be obtained.
A difficulty would arise in cases of this kind in rural Ireland, where a man dies and appoints, perhaps, his brother as executor and he leaves his property among his children and his wife. Under this new situation, the personal representative will be entitled to sell the farm of land, by virtue of this section, over the heads of the widow and children, and then distribute, that is, lodge the money in respect of the children, apparently, in court and give the widow her share. That is a situation which is not likely to arise in many cases, but it could arise where there has been bad feeling between in-laws and where one of them has been appointed personal representative, or where they fall out after the death of the testator. It seems to me to be an extremely wide power to give to a personal representative, without any obligation on him to get the sanction of the court or of anybody else.
The Senator expressed some concern about this matter when we were discussing the Bill on the Second Stage. He may remember that. As a result, I had section 18 examined rather carefully by my advisers in the Department of Justice. The Senator felt that this section might give rise to difficulties, in so far as it provides that the personal representative must, before selling the whole or any part of the estate, have regard to the wishes of the beneficiaries of full age. The Senator seemed apprehensive in case the section should lead to litigation. As a result of the examination to which I have referred, I am satisfied that the Senator's fears are groundless.
First of all, the section says that the personal representative must give effect to the wishes of the beneficiaries "as far as practicable". If it is not practicable, he need not do so. Secondly, in case of dispute, the wishes of the majority (according to the value of their combined interests) must prevail.
The Senator raised another point on the section. He said that he did not know what the position would be in the case of beneficiaries who are minors. The answer is that the personal representative cannot take account of the wishes of minors because there is no way minors have of giving effect to their wishes. A minor in the ordinary way cannot make a binding contract and is in general under a legal disability. The personal representative looks after the interests of minors who are beneficiaries and he does so as he is a trustee for them. The present law is that, where a minor is himself the personal representative, an administrator appointed for the period of the minority may sell. This could arise where a person under 21 years is appointed sole executor by a will. I should mention that it is only for the purpose of administering the estate that the personal representative is allowed to sell. If, for instance, debts cannot be paid without selling, he must sell.
Subsection (1) of section 18 will help in a case where a farm of unregistered land descends on an intestacy to three sons. One of the sons may decide to remain on, and the other two can then come to a financial arrangement with him to prevent a sale. In a case like this, the desirability of compelling the personal representative to consult the beneficiaries is obvious. In the case of the heir at law mentioned by the Senator, the personal representative would sell only for the purpose of paying debts, paying legacies payable out of the real estate, and satisfying the rights of a widow. The difficulty in finding the heir at law could also arise in finding the next of kin, where an ordinary farm of registered land is concerned. I cannot see that the section will cause much difficulty in practice. A personal representative may always apply to the court for directions in case of difficulty.
Question put and agreed to.
SECTION 19.
Government amendment No. 2:—
In subsection (2) (a), lines 1 and 2, to delete "registered land" and substitute "property the ownership of which is registered under the Act of 1891".
This is a drafting amendment. The expression "registered land" is not sufficient to cover burdens, such as money charges, the ownership of which may be registered in the Land Registry. As is explained in the Explanatory Memorandum, where a person gets his title registered, the register is conclusive and no question of notice can arise. Such a person acquires the legal ownership, and he is not affected by anything that does not appear in the register.
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."
Subsection (4) provides that where the personal representative has dissented to the transfer of land within a year of the death of an owner, the person entitled can apply to the court for an order ordering the personal representative to transfer. Then, if he does not transfer, the court may vest the land in the person entitled. In connection with that application, there does not seem to me to be any provision under which the court can penalise the personal representative in costs for his failure to comply with the law. It seems to me to put an unnecessary burden on the beneficiary. When he has to make such an application to the court, there are always costs incurred in that connection. I wonder if the Minister is satisfied that, in such a case, the court would have power to award costs against a defaulting personal representative.
I am informed that this provision is in the existing law in regard to registered land; and we are simply extending that law to all land. The court can deal with the question of costs. Will that satisfy the Senator?
Yes.
Question put and agreed to.
Section 21 agreed to.
SECTION 22.
Government amendment No. 3:
In subsection (5), lines 19 and 20, to delete "either solely or jointly with the personal representatives".
We are satisfied on reconsideration that the last part of subsection (2) of section 87 of the Registration of Title Act, 1891, which allows the personal representative to be registered jointly with the person entitled, should not be re-enacted. Joint registration serves no useful purpose. If there is any reason why the Court should not make an order for the registration of the person entitled, there is nothing to prevent the Court allowing such person to renew his application.
Amendment agreed to.
Government amendment No. 4:
To delete subsection (6) and substitute the following new subsection:—
"( ) (a) Nothing in this Act or in the Administration of Estates Act, 1959, shall operate to require the registering authority to register as the owner of land a person in his capacity as personal representative.
(b) Notwithstanding anything contained in subsection (1) of section 17 of the Registration of Title Act, 1942, the registering authority may enter on the register a note setting out the fact of the death of a registered owner of land and the names of his personal representatives."
The object of this amendment is twofold. Firstly, it proposes to re-write subsection (6) in the light of the amendment to subsection (5). Secondly, it proposes to provide for the entry in the register of a note of the death of the registered owner. Up to the making of the 1937 Land Registration Rules, the entry of such a note was provided for in the rules, though there was no express statutory authority for so doing. The entry of a note renders unnecessary the registration of the personal representative. The present practice of registering the personal representative will be discontinued.
By the way, subsection (1) of section 17 of the Registration of Title Act, 1942, mentioned in paragraph (b) of the proposed new subsection, prevents notice of a trust in respect of registered land being entered in the register. It is considered desirable to make it clear that the 1942 Act provision does not prevent the entry of a note of the death of the registered owner and the names of his personal representatives. The policy of the law as to the registration of title is to keep trusts off the register, but the entry of a note of death will not conflict with this policy.
I just want to ask about the minutest detail. Why is there nothing inside the first bracket in this amendment? Should the figure 6 not be there?
The figure is never put in an amendment, I understand. It will be in the actual Bill itself later on.
I suggest the procedure should be reformed. No bracket should be put in in this vacuous manner. I do not wish to delay the House but it seems futile.
It is a practice for which I am not responsible.
It is useful. It has its uses and it may also have its abuses.
Amendment agreed to.
Government amendment No. 5:
To delete subsection (7).
This amendment proposes to delete subsection (7). There is strictly no need for this subsection as the Registration of Title Act, 1891, provides in sections 53 and 54 for the application of the provisions of the Act in regard to the registration of the ownership of freehold, to the registration of the ownership of leaseholds and to the registration of the ownership of rights such as money charges, rent charges, etc., mentioned in section 54 (1) of the 1891 Act. I should like to mention here that all the rules made from 1937 to 1956 are now being consolidated and amended in the light of the proposals in the present Bill. We hope to have the new rules available in print by the 1st June.
Amendment agreed to.
Question proposed: "That Section 22, as amended, stand part of the Bill."
Subsection (2) of Section 22 seems to me to differ very little from Section 21 of the 1942 Registration of Title Act. The only difference that I can detect is that the word "further" before "representation" is left out of the third last line. Is that the only change that is effected in this section, which seems to reenact Section 21 of the 1942 Registration of Title Act?
Yes: it re-enacts section 21 of the 1942 Act and extends it to all registered land.
I can see the necessity for it. That is the only change.
Question put and agreed to.
Sections 23 to 26, inclusive, agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill."
This goes very far back, does it not, to 1495? It is a long distance back and it is the first mention we have had in legislation here.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
Agreed to take remaining Stages today.
Bill received for final consideration and passed.