This is a Bill to reform the law relating to succession to the property of deceased persons. It deals comprehensively with all aspects of the subject, including devolution, administration, testamentary disposition and distribution on intestacy. Provision is made for assimilation of the law respecting real and personal estate so that realty will devolve and be distributed in the same way as personalty. The present rules of intestate succession are highly complicated and draw irrational distinctions between real and personal estate. These rules are to be abolished and replaced by new, simple and uniform rules which will be applicable to all property. Parts IX and X of the Bill deal with the problems of the inofficious will, or the will which disinherits or makes insufficient provision for the members of the testator's family.
The existing statutory law governing success to property on death is spread over more than seventy enactments, the earliest of which dates back to 1226. These enactments are being repealed or amended in consolidated form. When the Bill is enacted, the whole of the statutory law of succession will be contained in one Act of the Oireachtas.
Part I is the preliminary and general Part. It deals with such matters as commencement interpretation, the jurisdiction of the courts and repeals. The proposed Act will apply to the estates of all persons dying after the commencement date specified in section 2, namely, the 1st July, 1966. This is to ensure that people will have a reasonably long period in which to familiarise themselves with the proposed law and to make whatever arrangements they wish to make of their affairs.
Section 5 deals with the problem which arise, where two or more persons die in circumstances rendering it uncertain which of them survived the other or others. Under existing law, there is no legal presumption as to the order in which the deaths took place. This leads to inconvenience and uncertainty when it comes to determining rights of succession to the property of the deceased, particularly where the deceased were husband and wife. I have studied the solutions of this problem adopted in other jurisdictions, including England, Scotland, and continental countries; and I have decided that the best solution is to provide that, in cases of uncertainty, the persons concerned shall be deemed to have died simultaneously. This is the rule adopted in the German Civil Code and it has been operating satisfactorily since 1900. There is a similar rule in the Swiss Civil Code.
The following example will serve to illustrate how the rule will operate in practice. A husband and wife make wills, each leaving everything to the other or, in the event of the other's death leaving everything to the members of his or her own family. The husband and wife are subsequently killed in a common accident. The effect of section 5 will be that the husband and wife will be deemed to have died simultaneously; and since the wife does not survive her husband, his property, under the terms of his will, will go not to his wife but to the members of his family, which is what he intended. Similarly with regard to the wife's property. It is, of course, true that the present difficulties may to a large extent be avoided in a properly drawn will.
Section 6 provides for the jurisdiction of the High Court and Circuit Court in matters arising under the proposed Act. The High Court, as at present, will have original jurisdiction in all probate matters. The Circuit Court will continue to have jurisdiction in contentious cases, but it is proposed to increase the limits of that jurisdiction from £2,000 to £5,000, in the case of personal estate, and from a rateable valuation of £60 to a rateable valuation of £100, in the case of real estate.
Part II of the Bill deals with the devolution of real and personal estate on death. Section 10 of the Bill reenacts the existing law and provides that all property both real and personal, of a deceased person shall devolve on his personal representatives. Section 11 provides for the abolition of all surviving feudal rules and canons of descent applicable to real estate. This section will abolish descent to the heir-at-law and will chiefly affect unregistered freehold land in urban areas. Since 1891, freehold registered land, comprising the bulk of rural land, is distributed in the same way as personalty. Section 13 provides that, where a person dies without having made a will, or where, having made a will, he dies leaving no executor surviving him, his property shall, until the grant of letters of administration in respect thereof, vest in the President of the High Court. The President is, for this purpose, being made a corperation sole.
The removal of all remaining distinctions between real and personal property for the purposes of devolution, descent and distribution will greatly simplify the rules of law and practice governing succession. So far as the existing rules distinguish between real and personal estate, they no longer serve any useful purpose, and they do make the law more confused than it need be.
Part III deals with executors and administrators and, in the main, provides for re-enactment of the existing law. Section 19 proposes to abolish the principle that an executor of an executor represents the original testator—the chain of representation, as it is called. I feel that it is unreal to impose on the executor of an executor the task of representing a testator whom he probably never knew and of administering an estate in which, in all likelihood, he has no real interest. The historical circumstances which gave rise to the present rule have long since disappeared, and I think that nowadays it is more realistic to have an administrator appointed who will have some close connection with the testator or some genuine interest in the estate.
Part IV provides for the consolidation, with amendments, of the present law relating to the issue of grants of representation. Section 27 provides that the order in which persons are to be entitled to a grant of administration shall be regulated by rules of the High Court. In granting administration, the court will ordinarily be bound by these rules, but it will have a discretion to depart from the rules where circumstances so warrant. Section 30 provides for the issue of grants of representation to trust corporations and replaces the Bodies Corporate (Executors and Administrators) Act, 1928.
With a view to encouraging people to take out grants of representation and put the affairs of their deceased relatives in order, I have had stated clearly in section 35 of the Bill the existing law under which anybody seeking to obtain a grant of representation may, irrespective of the size of the estate involved, make a personal application for the grant either to the Probate Office in Dublin or to the district probate registry for the district where the deceased lived at the time of his death. In addition, I propose to have new district registries established so as to provide a convenient service for persons wishing to avail themselves of the right to make a personal application. Each new registry will be located in a specified Circuit Court office. The County Registrar designated will be the district probate registrar for the region and he will deal with all personal applications for grants of representation. He will prepare the papers necessary to obtain the grant and will, as far as practicable, assist applicants by giving them information and directions as to the course which they are to pursue. He will not, of course, give applicants legal advice. Where a grant involves difftcult questions of law or needs a direction of the court, or where the distribution of the property of the deceased is a very complicated matter, the applicant will have to consult a solicitor in the ordinary way. The existing special probate fees for personal applications will be reexamined, and I envisage that in the case of small estates the fees will be not much more than nominal.
The present right to make personal application for a grant of representation is contained in Rules of Court and was first granted in Probate Rules made in 1879. Over the years, the tendency has been to limit the number of district registries and this has restricted the exercise of the right to make personal applications. I consider it important that the right should be preserved, on the general principle that every citizen should be free to conduct his own legal business and be facilitated in doing so. What I propose, therefore, is to reverse the present trend by establishing a number of additional district probate registries in county towns. This will facilitate the making of personal applications and will also, I may say, facilitate solicitors acting for clients. I want to emphasise that I am proposing no change in the existing law and practice under which the Probate Officer and the district probate registrar have for years been issuing grants do personal applicants. What I am proposing is that, for the sake of emphasis, the fight to make a personal application should be stated in the Bill and that existing facilities for the exercise of that right should be enlarged by increasing the number of district registries. With the increase in the number of registries, there will be no need for applications to Customs and Excise Officers. Accordingly, section 33 of the Customs and Inland Revenue Act, 1881, is being repealed.
Part V of the Bill deals with the administration of the assets of deceased persons and continues the process of the assimilation of the law relating to realty and personalty by providing that real and personal estate shall be administered in the same way. All the property of a deceased person is to be available for the payment of his debts and to satisfy any legal right under Part IX of the Bill. Provision is made for the amendment aud simplification of the law in regard to payment of a deceased person's debts.
Insolvent estates are to be administered in all cases in accordance with the rules for the time being in force in relation to bankruptcy; and in such cases the present right of retainer of a personal representative and his right to prefer creditors are to be abolished. A new order of priority is being established for the application of assets in the case of solvent estates. This new order, which is provided for in section 46 and in Part II of the First Schedule, will be simpler than that under existing law and will be common to both realty and personalty.
Section 49 proposes a valuable safeguard for personal representatives in respect of undisclosed claims against the estate of a deceased person. The effect of this section will be that, where personal representatives have issued such notices to creditors as would have been given by the court in an administration suit, they may, after the expiry of the period specified in the notices, distribute the assets without regard to any claims which have not then been disclosed. The section extends to all assets comprised in the estate of a deceased person the provisions of section 29 of the Law of Property Amendment Act, 1859, which are applicable only to personal property. Personal representatives will be able to seek guidance of the County Registrar or an Examiner of the High Court as to the number and nature of the notices that will satisfy the requirements of this section. By the way, it is not necessary to insert these notices in Iris Oifigiúil nor is it necessary that they should be elaborate notices.
Sections 52, 53 and 54 codify the law as to assents and conveyances by personal representatives. These sections provide, an the main, for the re-enactment of the existing law, but subsection (3) of section 53 introduces an important new provision to the effect that a conveyance of unregistered land by a personal representative shall, in favour of a purchaser, be conclusive evidence that the person in whose favour the conveyance was made was, in fact, the person entitled to have the land vested in him. Thus, where a purchaser buys land from a vendor who is a beneficiary, he will no longer be obliged to concern himself with the terms of the will or of the intestacy under which the vendor acquired the property, but need only see to it that the land devolved on the personal representatives and that they, in turn, vested it in the vendor.
Section 56 contains an entirely new provision to protect the interests of a surviving spouse. It proposes to give to the surviving spouse of a deceased person the right to require appropriation of the family dwelling house and household chattels in satisfaction of his or her share and of the shares of any infant children for whom the suviving spouse is a trustee. There will be exceptions to the general rule in the circumstances provided for in subsection (5) of the section. The purpose of the section is to allow the spouse to retain the family home, provided, of course, that, where its value is greater than the share to which the spouse is entitled, he or she will have to make up the balance in cash in order to exercise the option. The right granted by the section will have to be exercised within one year of the first taking out of representation of the deceased's estate, except where the spouse continues to reside in the family home. In the latter eventuality, the spouse will be able to exercise the right after the expiration of the one year period, provided he or she does so within one month of receiving a written inquiry in the matter from the personal representatives. The section will apply mainly to dwellings in urban areas.
It is proposed in section 57 that, where an infant is entitled to a share in the estate of a deceased person and no trustees have been appointed by the deceased, the personal representatives—or a trust corporation or any two or more persons appointed by the personal representatives—will be trustees of such share. These trustees will have full powers, without recourse to the court, to apply the share, or the income therefrom, for the advancement or benefit of the infant during minority. They will, in particular, be able to carry on any business in which the infant is entitled to a share.
Section 63 of the Bill enlarges and states in statutory form the doctrine of advancement and the rule against double portions. The present law requires that, subject to any contrary intention expressed or appearing from the circumstances of the case, children must bring into account any money or property they have received from the deceased in his lifetime by way of advancement or portion or upon marriage, if they wish to share in the distribution of the estate. The enlarged doctrine will apply to shares on intestacy and under a will. The doctrine is, as under existing law, being confined to children.
Part of the Bill proposes new rules for the distribution of property on intestacy. Under the Intestates' Estates Act, 1954, where a man dies intestate leaving a widow but no issue, the widow is entitled absolutely to the first £4,000 of his estate. In the great majority of cases this means that the widow takes the whole estate. Subject to the widow's right, the property of a person who dies intestate is distributed in accordance with rules which vary according as the property consists of realty or personalty.
Realty—consisting in the main of freehold property in urban areas— descends to the deceased owner's heir, who is ascertained in accordance with highly complex rules having their origin in feudal conditions. Males are preferred to females, the elder male is preferred to the younger, females of the same degree all take equally, parental ancestors are preferred to maternal ones, relatives of the whole blood take before relatives of the half blood, and so on. A surviving spouse has certain rights which are prior to those of the heir. Thus, a widower is entitled to a life estate in the whole of the deceased wife's realty, provided that she was seised in possession of an estate of inheritance and that issue of the marriage capable of inheriting has been born alive. This right is known as a tenancy by the curtesy, or, more fully, a tenancy by the curtesy of England. A widow is entitled to dower, which is a life interest in one third of the whole of her deceased husband's realty, provided that he was seised in possession of an estate of inheritance, that issue of the marriage capable of inheriting might have been born alive, and that a declaration in bar and dower was not made by the husband during his lifetime. Both curtesy and dower are being specifically abolished in section 11.
The existing rules for the distribution of personalty—which includes most agricultural freehold land and all leasehold land—are those laid down in the Statute of Distribution, 1695. They provide that a widower takes the whole of his wife's personal estate even where there are issue also surviving. A widow, on the other hand, takes only one-third of her husband's personal estate and the issue take two-thirds. Where there are no issue, the widow takes one-half of the estate and the next-of-kin take the other half. This is, of course, subject to the widow's prior right to £4,000. If an intestate dies leaving neither spouse nor issue, his father is entitled to the whole estate whether or not the mother also survives. If the father is dead, the mother, brothers and sisters share the estate equally. Children, but not remoter dependants, of a deceased brother or sister take their parent's share. If the mother, brothers and sisters are all dead, the children of the brothers and sisters take the estate in equal shares.
The new rules of intestate succession laid down in Part VI of the Bill will be applicable to all property, both real and personal. They are simple and uniform and are so framed as to accord due recognition to the important position which the wife occupies in the Irish family. The existing distinction between the rights of inheritance of husband and wife and of males and females is being removed. Section 66 provides that, where both spouse and issue survive, the spouse will take two-thirds of the estate and the issue will take the remainder. If there is a surviving spouse but no issue, it is proposed that the spouse will take the whole estate. If there are surviving issue but no spouse, the issue will take the whole estate. Where all the surviving issue are in equal degree of relationship to the intestate—as, for example, where they are all grandchildren—distribution among them will be per capita, that is, in equal shares. Otherwise it will be per stirpes, the issue of a deceased child taking their parent's share.
Under existing law distribution among issue is effected in accordance with the per stirpes rule irrespective of whether all the surviving issue are in equal degree of relationship to the deceased. The change which I am proposing where all the issue are, in fact, in equal degree of relationship was adopted in Scotland last year. It is also, I understand, the system of at least some of the American States. I believe that it provides the method of distribution which the average reasonable person would prefer in the circumstances.
Section 67 of the Bill proposes to place the father and mother of an intestate on an equal footing as regards succession rights. If an intestate dies leaving parents but no spouse or issue, the estate will be distributed between the parents in equal shares. One consequence of this change is that the intestate's brothers and sisters, or children of deceased brothers and sisters, will be entitled to share in the estate only if the intestate leaves neither spouse nor issue nor parent surviving.
Almost 50 per cent of the people in this country die without making wills, and the purpose of Part VI of the Bill is to make for these persons, so far as is possible, the sort of arrangements that they might themselves have adopted if they had made wills. For convenience, a comparison between the existing and the proposed new rules is given in Appendix A on page 12 of the original explanatory memorandum circulated with the Bill.
Under Part VII of the Bill the existing statutory law relating to wills is being consolidated with a number of important amendments. It is proposed in section 76 to reduce from 21 to 18 years the general age limit for making a valid will. A person under 21 may marry, own property and operate a bank account. He may assign certain property interests—for example, money in savings banks—to take effect on death. If he has children, he may appoint guardians of those children. Generally speaking, young people tend nowadays to mature quicker, mentally and physically, than in former times, and, on the whole, I think it is reasonable to allow persons of 18 years and upwards to make a will if they wish to do so. It is also proposed that any person who is or has been married should be allowed to make a will, irrespective of age.
Under existing law, marriage after the making of a will renders the will invalid. It is proposed in section 84 to amend the law so as to exempt from this rule a will made in contemplation of the particular marriage, whether so expressed in the will or not. No change is being made in the ordinary rules as to the manner of revoking a will.
Two important changes are proposed in the law relating to the interpretation of wills. First, under section 89 extrinsic evidence is to be admissible to show the intention of the testator and to assist in the construction of, or to explain a contradiction in, a will. In general, under existing law, extrinsic evidence may be given to explain what the testator has written in his will but not what he intended to write. Secondly, in the case of doubt as to the interpretation of a gift in a will, the interpretation according to which the gift will be operative is to be preferred. Provision to this effect is contained in section 98.
Part VIII of the Bill will amend the present rules of international private law in this country relating to wills. The main purpose of the proposed changes in the law is to enable this country to adhere to the Convention on the Conflicts of Laws relating to the form of Testamentary Dispositions drawn up at the Hague in October, 1961, under the auspices of the Hague Conference on International Private Law. It is provided in Part VIII that a will shall be valid as regards form if the form complies with the internal law either of the place where the testator made it, or of a nationality possessed by the testator, or of a place in which the testator had his domicile or habitual residence, or, in so far as immovable property is concerned, of the place where the property is situated. The existing law in this country is rather doubtful, as the Wills Act of 1861, known as Lord Kingsdown's Act, is considered to be of imperfect application, if it applies at all.
Parts IX and X of the Bill contain the provisions that are designed to protect the spouse and children of a testator from disinheritance.
There is no historical or moral basis for the view that freedom of testation is a fundamental right inherent in property. The will is an invention of Roman law, but proponents of freedom of testation conveniently overlook the fact that, at Rome, the exercise of the power of testamentary disposition was considerably restricted by the rules as to legitima portio, or the legal portion which could be claimed by a disinherited spouse or child. Indeed, it is one of the ironies of history that the right of testation was introduced into Roman law in order to enable a man to leave his property to the members of his family and so protect them from the injustice which resulted from the operation of the rules of intestate succession. A will was not regarded by the Romans as a means of disinheriting one's family or of effecting an unequal distribution of a patrimony. Rather was it valued for the assistance it gave in making provision for a family and in securing a fairer and more even distribution of property than would have been obtained under the rules of intestate succession. It is to be noted that, in all modern systems of law which are based on Roman law, the legitima portio exists in one form or another.
Old Irish law knew nothing of freedom of testation. Our present law of succession in respect of personal property dates only from 1695, when the Irish Statute of Distribution was enacted. Section 10 of that Statute is of considerable historical interest inasmuch as it provided for the abolition of the "Custom of Ireland by which only one-third, or a moiety, of the personal estate of a deceased person is subject to the party's disposition by will". The Custom is described at some length in the section. If a man died leaving a wife and children, his estate was divided into three equal parts, whereof one part belonged to the wife and another to the children. The remaining third was disposable by will. If the deceased left a wife only, or children only, his estate was divided into two parts, whereof one part belonged to the wife or to the children, as the case might be. It is not without significance that this excellent Custom of Ireland was abolished four years after the Treaty of Limerick and at the outset of the Penal Laws.
Complete freedom of testation is a peculiarly English idea which, apart from England and Wales, is only to be found in countries forcibly brought under British rule. Freedom of testation was, in fact, introduced in England at a time when there was no danger of an abuse of the power and, as at Rome, in order to protect the family. Moreover, it was introduced only very gradually and did not eventually find a place in English law until the seventeenth century. In so far as real property is concerned, rights to curtesy and dower continued to exist until 1925, and it is only since 1833 that a right to dower could be barred in a will, and only since 1882 that a right to curtesy could be similarly barred.
In Scotland freedom of testation is unknown, and the Scottish system of legal rights applicable to moveable estate has been maintained under the Succession (Scotland) Act, 1964. While I am on the subject of the Scottish system of legal rights, I should like to take this opportunity of referring to what are tantamount to accusations that I misled the Dáil and the public as to the position in Scotland. In his speech in the Dáil on the Second Stage of this Bill, Deputy M.J. O'Higgins referred to my opening statement, in the course of which I said that "the Scottish system of legal rights applicable to personal property has been maintained under the Succession (Scotland) Act, 1964". The Deputy stated that I used the same words in my Second Reading speech on the Succession Bill, 1964, except that I omitted the words "applicable to personal property". The Deputy said he assumed that it was because I was corrected by the Law Society—in a statement which the Society made to the Press last January—that I was careful to refer only to personal property.
What I had to say on the Scottish system in the course of my speech on the earlier Bill is reported at columns 340 and 341 of the Official Report of the Dáil Debates for the 2nd December last. The record speaks for itself. In point of fact, I made it quite clear at the time that the legal rights system in Scotland applies only to moveable estate. I should explain for the benefit of Senators that in Scotland they do not divide property into personal and real estate as we do in this country. The distinction the Scots draw is between moveable estate and what they call heritage. For the record, I should now like to quote what I actually said on the occasion in question. I am quoting from columns 340 and 341 of the Official Report of the Dáil Debates for the 2nd December, 1964. I said:
The system of legal rights operating in Scotland affords a good example of the legitima portio method. The Scottish system of legal rights is basically the system of thirds to which I have already referred. If a man leaves both wife and children, his moveable estate is divided into three parts. His wife is entitled to one part as her jus relictae (the wife's part), and his children to one part as their legitim (the bairns' part). The remaining third (the dead's part) may be disposed of by the testator in his will.
Then, having referred to the fact that officers of my Department had visited Scotland for consultations with Scottish experts on the law of succession, I mentioned that modifications were introduced in a new Succession Act which was enacted earlier in 1964. I then went on to say:
When the Bill for this Act was before Parliament, strenuous efforts were made by Scottish interests to have legal rights extended to the whole of a deceased person's estate, but this proposal was rejected in Westminster.
Lest there might still be any doubt on anybody's part as to the correct position, I shortly afterwards made the following statement, which will be found at column 344—
Accordingly, Part IX of the Bill provides for the adoption of a system of reserve family shares based generally on the system for moveable property operating in Scotland, but extended in scope so as to be applicable to the entire estate of a deceased person.
To complete the picture, perhaps I could mention the following two points. Firstly, the Law Reform Programme published in January, 1962, clearly stated that the Scottish legal rights system of thirds applied to moveable estate. Incidentally, prior to the 1964 Scottish Act, the legal rights of curtesy and terce were exigible out of heritage; but these rights were abolished in the 1964 Act, notwithstanding that the expert Committee on the Scottish Law of Succession under the chairmanship of Lord McIntosh recommended that they should be retained and made similar. The whole system of Scots law is not, as the Law Society allege it is, based on the Roman civil law. The Scottish law of succession is rooted in feudal law and Canon Law. The system of thirds is to be found in a number of other legal systems, including those of France, Germany, England, Wales and Ireland. And the system was not taken from Roman law in any of these jurisdictions or in Scotland.
Secondly, the Law Society in the course of their statement last January allege that the present continental system of family law is based on the Code Napoléon. This simply is not true. There is no such thing as a continental system of family law. The only countries in Western Europe, other than France, which have legal systems based on the French Civil Code are Belgium and Luxembourg. Even in France, the system goes back centuries prior to Napoleon and was found amongst the Celts by Julius Caesar.
I am sorry if I have digressed somewhat, but I think the House will appreciate that I should not allow to go unchallenged the suggestions that have been made that I in some way gave misleading or incorrect information as to the Scottish system. Incidentally, I make no apology for looking to Scots law for inspiration in dealing with the problem of disinheritance. It has been suggested by more than one English legal commentator that England itself would do well to look North of the Tweed for guidance in dealing with legal problems. Certainly so far as legal problems in this country are concerned, I shall continue to look to Scotland for assistance and advice whenever it is clearly in the interests of our people that I should do so. I think we have a lot to learn from Scotland in legal matters.
We in Ireland pride ourselves on the fact that we recognise the very special position of the family "as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". Against such a background so-called freedom of testation is a paradox which cannot be defended on any ground. Article 41 of our Constitution pledges the State "to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State". Under the same Article, the State recognises that, by her life within the home, woman gives to the State a support without which the common good cannot be achieved; and the State undertakes to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. These principles cannot be reconciled with a system of law which allows a man to ignore the mother of his family and to leave his property to strangers. It is no answer to say that most men do, in fact, provide for their wives and children in their wills, when, as we know, there are those who do not.
The evidence available to me clearly establishes that there is a problem of disinheritance in this country, and, indeed, I do not think that this is seriously disputed by any informed or responsible people.
It is obvious from the discussion on the Bill in the Dáil and from the views expressed throughout the country that there is general acceptance of the need to restrict a testator's right to disinherit his family. The only real difference of opinion concerns the choice of method to be employed to achieve this object. Basically, the choice rests between a system based on judicial discretion, involving an application to the court, and a system giving members of the family a legal right to a specified share of the estate.
In deference to views expressed in the Dáil by Deputy John A. Costello, I undertook to see if I could find some intermediate way between these two systems; and the proposals contained in Parts IX and X of the Bill represent the outcome of my consideration of Deputy Costello's suggestion. I may say that from the beginning I was myself satisfied that we should distinguish between the widow and the children. To me it appeared that a legal right share for the children could work unsatisfactorily. I shall return to this matter later on.
With regard to a surviving spouse, section 110 provides for entitlement to a legal right share of one-third or one-half, depending on whether or not there are children of the testator also surviving. I am firmly of the opinion that, in the case of a spouse, the provision of a legal right to a specific share, irrespective of dependency, is the only system compatible with the true nature of the obligations and responsibilities that bind husband and wife. Under this system, the spouse will be entitled to a share which is just and equitable having regard to his or her status as a member of the family. The degree of need of the spouse is not made a criterion. The view has been expressed that testamentary freedom ought to be restricted to the extent necessary to ensure adequate maintenance for a man's widow, but not to the extent of granting her a right that would ensure for her the share which recognises the true extent of the responsibilities that, in a civilised society, husband and wife owe to each other. I cannot accept that view. In my considered opinion, the provision of mere maintenance does not fulfil the responsibilities to which I have adverted. The enactment of legislation which guarantees only maintenance for the widow after her husband's death fails to discharge the obligation imposed on the State under Article 41 of the Constitution.
I think it ought to be remembered that in Irish circumstances the wife plays a particularly important part in the affairs of the family. More often than not she has to engage in hard physical labour. In rural Ireland she is the joint manager of the home and farm, and very often, where her husband takes to drink or neglects his duty, she is the sole manager. It may, perhaps, be axiomatic to say that the wife and mother is the very foundation of family society, but it must, nevertheless, be said. She has moral rights above and superior to any mere right to be maintained in the house, given what is called "the range of her teeth", and allowed the use of the family conveyance to take her to Mass on Sundays.
I am not going to force into court every Irish widow who is wronged by her deceased husband. I am totally opposed to any system which obliges a man's widow to go to court to obtain what should be hers as of right. Recourse to the courts can be a forbidding and even a frightening prospect for many people, and the unreasonable and capricious testator would not hestitate to compel his widow to go to the trouble of bringing court proceedings in order to enforce her rights. Above all, recourse to the courts would involve the raking-up of all sorts of embarrassing family circumstances, including acts of unkindness and unfaithfulness, which were better not resurrected, even at a private hearing by the court.
One of the vital sections in Part IX of the Bill is section 114 and I would like Senators to consider it carefully. The section will allow a spouse to choose between her legal right and her rights under the will. The choice will have to be exercised within 12 months from the first taking out of representation of the deceased's estate. On the basis of past experience in this country, I believe that the members of the family will generally settle their problems among themselves. If the widow is adequately provided for in the will, she will not elect to take her legal right share. However, if she is not adequately provided for, she will have the legal right to fall back on. The point is that she must have some bargaining counter. I should imagine that the legal right will seldom be claimed. As in Scotland, its mere existence will deter the capricious testator.
With regard to the position of children, I have recognised the force of the argument that the application of the system of legal rights in their case could impose unduly rigid limitations on the discretion which a testator should have to divide his estate among the various members of his family in the manner best suited to the particular needs and circumstances of each case. I accept that a married man should not be compelled to leave anything to his children where, in fact, he wants to leave all his property to his wife; that he should not be compelled to leave anything to adult children who are no longer in any way dependent on him and to whom he owes no moral duty; and that he should be allowed to choose between his children having regard to the position in life of each child. After careful consideration of all the factors involved, I came to the conclusion that the interests of the children can best be safeguarded by the introduction in their case of a system of application to the court under which the court will determine what constitutes dependency in any particular case and will have ample discretion to make such provision for a child as may seem proper and just in the particular circumstances. This arrangement will have the merit of avoiding the anomalies that are inevitable under a system based on any arbitrary definition of dependency.
Accordingly, section 116 of the Bill provides that any child of a testator will be entitled to apply to the court to have just provision made for him out of the estate. The grounds for the application will be that the testator has failed in his moral duty towards the child. The section makes it clear that the moral duty in question is the testator's duty to make proper provision for the child in accordance with his means, whether by his will or otherwise. The court will have to consider the application from the point of view of a prudent and just parent, taking into account the position of each of the testator's children and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the applicant and to the other children. The only limitation on the court's discretion will be that it will not in any circumstances be permitted to make provision for a child at the expense of the legal right share of the surviving spouse; and it will be permitted to interfere with a devise or bequest to the spouse only in the case of a child who is the stepchild of that spouse. I might mention that in New Zealand, the home of the judicial discretion system, the courts, in interpreting the family provision legislation, have accepted the notion of a moral duty. The question always is: what moral duty did this particular deceased person owe to this particular applicant? The duty, of course, varies from case to case and depends, among other things, on the means of the testator and the means of the applicant.
There will be general agreement that any scheme based on application to the court should be capable of being operated in as informal and inexpensive a manner as possible. Accordingly, subsection (4) of section 116 proposes that rules of court shall provide for the conduct of proceedings in a summary manner. In accordance with section 118, all applications will be heard in chambers. The time limit for bringing applications will be 12 months from the first taking out of representation of the deceased's estate. In view of the greatly enlarged jurisdiction of the Circuit Court provided for in section 6 of the Bill, I envisage that that court will be able to deal with the vast majority of applications that will arise under section 116.
The proposals in Part IX of the Bill will allow considerable flexibility to a testator in disposing of his property among the members of his family. I would particularly draw attention to the fact that, under these proposals, a testator will be able to leave all his property to his spouse. Alternatively, he will be able to leave a life estate to his spouse with a direction to her to appoint among the children. If the spouse or the children are not satisfied with this, they will be able to exercise their rights under sections 110 and 116, respectively. Subject to the legal right of the spouse, a testator will be able to leave his property to any of his children that he chooses or, indeed, to anyone outside the family. The children will, of course, have the right to apply to the court if they feel they have been treated unfairly.
Section 112 of the Bill will allow a spouse to renounce his or her legal right in writing, either by ante-nuptial contract or during the marriage. To deal with the type of case where, before the new legislation comes into operation, a testator has, during his lifetime, made permanent provision for his spouse, whether by way of separation deed or otherwise, section 115 proposes that any such provision —other than a provision for maintenance to be paid periodically during the testator's lifetime—shall be offset against the legal right share of the spouse. I want to emphasise that this is a purely interim provision designed to cater for circumstances which may have arisen before the proposed Act comes into operation. It will not apply to a case where a husband makes permanent provision for his wife after the Act is in operation. In such a case, it will be open to the husband, if he so wishes, to arrange to have his wife renounce her legal right share. If he does not do so, she will be entitled to that share in the same way as if no provision had been made for her. At the moment, separation deeds often make provision for the intestate rights of the separated parties.
In considering the proposals as to the legal right share of the surviving spouse, there is one very important provision which must not be overlooked. It is contained in section 46 (6) of the Bill. By virtue of that subsection, a claim to a share as a legal right will be a claim against the assets of the estate of the deceased. In other words, all that the spouse will be able to claim is a monetary sum representing the appropriate share of the assets. The spouse will not have a claim to any particular asset or part of the estate. This is, of course, subject to her right to have the family home appropriated in satisfaction of her share under section 56.
Part IX of the Bill will not give rise to fragmentation of farms and businesses. Those people who suggest that it will should remember that fragmentation does not occur at present on intestacy. Our present rules of intestate succession constitute a legal rights system under which the widow is entitled to one-third and the children to two-thirds. This gives rise to little or no difficulty in practice, notwithstanding that one out of every two successions is an intestacy. The fact of the matter is that, for the overwhelming majority of Irish people, all property has for years and years been distributed on death as if it were personalty. The heir-at-law was a rare institution in Ireland and the Registration of Title Act, 1891, by providing that compulsorily registered land should be distributed as if it were personalty, made, in fact, no change as far as the people of rural Ireland were concerned. The Irish tenant farmer was a leaseholder and was well acquainted with the system of distribution on intestacy —under which his wife got one-third or one-half depending on whether or not there were children. Indeed, this was the reason why the late Judge Madden framed Part IV of the 1891 Act as he did; and he has so stated. Those who may be tempted to accuse me of not knowing Irish conditions should themselves first study these conditions both today and in the past.
A major problem in dealing with the law of succession arises on the question of unworthiness to succeed. This is the subject of Part X of the Bill. If a spouse is to be given a legal right to a specified share, the testator must not be allowed to withdraw that share. The spouse should have an absolute entitlement to the share and should only be deprived of it on the same grounds as would justify deprival of an ordinary intestate share. Having carefully studied the provisions in other legal systems, I have come to the conclusion that there should be three grounds of unworthiness to succeed. These are the grounds which are provided for in section 119. Firstly, a person who has been guilty of the manslaughter or murder, or attempted murder, of the deceased will be excluded from any share whatever in the estate, whether under a will, on intestacy or as a legal right. This follows the existing law and is based on grounds of public policy. Secondly, a spouse against whom the deceased obtained a divorce a mensa et toro, a spouse who failed to comply with a decree of restitution of conjugal rights, and a spouse guilty of desertion for two years or more immediately prior to the deceased's death will be excluded from any share as a legal right or on intestacy. “Desertion” here includes “constructive desertion”, so that, where the deceased was obliged during lifetime to separate and live apart from the other spouse because of the latter's behaviour, the surviving spouse, being the guilty party, will not be entitled to succeed. Thirdly, a person who has been found guilty of a serious criminal offence—meriting two years' imprisonment or penal servitude—against the deceased or a member of his or her family, will be excluded from any share as a legal right or on intestacy. It is to be noted that, in the case of the second and third grounds which I have mentioned, the person concerned will not be excluded from a share under a will. This is because a man may wish to forgive the acts concerned and, if he does, there is no reason why he should not be allowed to make provision for the offender in his will.
Section 120 of the Bill is designed to prevent a person from disposing of property during his lifetime so as deliberately to defeat or substantially diminish the share of his spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or so as to leave any of his children insufficiently provided for. This section is essential if people are to be effectively prevented from disinheriting members of their family. I may add that similar provisions to those contained in the section are to be found in a number of jurisdictions; and the absence of such provisions in England, Scotland and Canada has been adversely criticised.
The section will apply to voluntary dispositions taking effect within three years before the death of the deceased or on death or later. In the case of a disposition to which the section applies it will be open to the court, on application by or on behalf of the spouse or child of the disponer, to order that the disposition shall, in whole or in part, be deemed to be a devise or bequest made by the deceased by will and to have had no other effect. So far as a spouse is concerned, this will mean that the disposition will be reckoned as part of the estate out of which the spouse will be entitled to a legal right share. In the case of a child, the disposition will be included in the estate in respect of which the child will be entitled to bring an application under section 116. The court will not be able to make an order under section 120 interfering with a disposition made to the spouse of the disponer except on an application made by a child of the disponer who is not a child of the spouse, that is, a step-child of the spouse. In the case of a disposition made to a child of the disponer, the court will not be able to make an order under the section if the spouse was alive when the disposition was made and consented in writing to it. The stipulation that the spouse, if alive, must consent to a disposition made to a child will provide a valuable safeguard against injustice being done to other members of the family.
Section 120 will not apply to a disposition made to a purchaser. Accordingly, a genuine business transaction involving the sale or mortgaging of property will not be affected.
Section 121 provides that applications under Part X shall be heard in chambers, as it is clearly undesirable that the issues involved should receive any publicity.
Part XI of the Bill provides for miscellaneous amendments of the law dealing with limitation of actions in respect of the estates of deceased persons. The provisions in this Part of the Bill have been inserted in an effort to meet conditions peculiar to rural Ireland. They are framed to cure difficulties that arise in regard to the title to land where, for example, some members of the family remain at home on the farm, while others leave to take up professions or to work in towns and cities at home or abroad.
Part XII of the Bill provides for the consolidation of miscellaneous existing statutory provisions relating to the Probate Office and the district probate registries. These provisions do not, I think, call for any special comment.
In framing this Bill we were fortunate to have the benefit of the expert knowledge and advice of a number of eminent authorities on the laws of succession in Northern Ireland and in other jurisdictions. All were unstinting in their help and advice, and I am extremely grateful to each and every one of them. I should also like to express my gratitude to the National Farmers' Association, the legal professions and other organisations and persons in this country who have been of invaluable assistance to me.
This Bill covers a wide and complicated sphere of private law. Although it will, I hope, considerably facilitate the task of lawyers in advising on the law, it is not a lawyers' Bill. Every person in the community with property to leave is concerned in this legislation, which is probably the most important law reform measure so far to come before the Oireachtas. I am satisfied that the proposals in the Bill will result in a system of succession which will be compatible with the principles of social justice and in accord with the values that are fundamental in Irish society.
I am sorry that, owing to certain circumstances of which Senators will not be unaware, I have been unable to have a full print of a revised explanatory memorandum circulated with the Bill. Instead, I would ask the House to accept the stencilled supplementary memorandum which has been circulated with the Bill as passed by Dáil Éireann.