Succession Bill, 1965—Committee Stage.
Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill".
I move amendment No. 1.
Before section 2 to insert a new section as follows:
2. This Act shall come into operation not later than the 1st day of July, 1966, but the Minister may by order or orders fix an earlier day or days for the operation of different provisions of this Act.
The general intention was that this Bill should not come into operation until 1st July, 1966 and I think that was the intention when it was expected that the Bill would be law by this time. Because of the far-reaching changes made in regard to the legal right issue in Parts IX and X it has, of course, been necessary that some time should be allowed so that testators who have made their wills could have an opportunity of revising them in accordance with whatever will be the law when this Bill comes into operation. It occurs to me—and I think the Minister might give this sympathetic consideration—that there are certain sections of the Bill which would be immediately beneficial and which would cause no inconvenience to anybody. I have in mind, in particular, Part VIII which seems to me to clarify the law considerably in regard to the wills of persons made abroad and the wills of foreigners. There does not seem to me to be any reason why this particular Part should not come into operation almost on the passage of the Bill; it certainly could on the 1st January next. I think, therefore, that section 2, as it stands, should be amended so as to enable the Minister to bring that Part of the Bill into operation if he thought it proper to do so. There is constant difficulty about the wills of people made abroad and Part VIII of the Bill brings some clarity into the law in relation to these wills.
It also strikes me that Part XI of the Bill could equally be brought into operation without creating any inconvenience to anybody. There might also be other sections of the Bill which might be brought into operation at different times. From the point of view of the legal profession it seems to me that a new measure of this kind will require a great deal of study and if it is brought in in different phases it will give them an opportunity of getting down to study one part now and another again and not have it all coming in at the one time. I think a phased operations of the Bill would be useful. I am immediately concerned with Part VIII of the Bill which deals with the conflict of laws relating to testamentary dispositions. That Part seems to me to be non-controversial and it would be desirable that it should come into operation at the earliest possible date.
Since receiving Senator O'Quigley's amendment I have given it certain consideration. While not agreeing to the precise terms of the amendment, as submitted by him, I have considerable sympathy with the points advanced by him and the ideas behind the amendment. No doubt it would facilitate the legal profession and be in the public interest if certain non-controversial provisions were to come into operation and be applicable to estates of persons dying before the commencement date of this section. I can assure the Senator that between now and Report Stage I shall consider putting down an amendment, but not precisely incorporating his terms.
Amendment, by leave, withdrawn.
Questions proposed: "That section 3 stand part of the Bill."
Section 3 is to my mind an extremely important one because it contains the definitions of certain words and phrases used throughout the Bill. I confess I speak with a certain amount of diffidence on this particular section and, indeed, on the whole Bill because there are so many shades of meaning and so many different definitions that it is impossible to have them all present in one's mind at any particular time. The first definition with which I am concerned relates to the expression "full valuable consideration" which is defined as meaning "such valuable consideration as amounts or approximates to the value of that for which it is given". That is fair enough as far as it goes but, in a Bill of this kind, it seems to me that once you introduce a phrase of that kind the phrase should be continued throughout the Bill. That seems to me to be a simple canon of draftsmanship. It may be that there is an explanation for a departure from that particular phrase in the definition of "purchaser" that is on page 7. "Purchaser" means a grantee, lessee, assignee, mortgagee, chargeant or other person who in good faith acquires an estate or interest in property for valuable consideration."
I confess I do not know why in the one case you have a definition for full valuable consideration and that then you have, under the definition "purchaser" merely the phrase, "valuable consideration": why is the "full" left out? One could take it that an assignee of the property would be buying it for full consideration. Perhaps the Minister would deal with these definitions one by one. I wonder why the difference exists, why "full" is left out in the definition of "purchaser".
"Full valuable consideration" is referred to in the Bill only in section 23, which deals with the liability of a person fraudulently obtaining or retaining the estate of the deceased. In the context of that section "full valuable consideration" must be related to the aspect of fraud.
It is only in that section that we have it so as to pin down the fraud aspect.
I would have thought that if the expression were used in only one place in the Bill it would be defined in the section in which it occurred.
That might be the better way.
It is misleading to have it is the first section. I thought it was also used in those later sections of the Bill where if a testator had assigned his property to one of his children the question whether or not there was full consideration or full valuable consideration might arise.
This is only in section 23 to pin down the fraud aspect.
Another matter arises on the definition of "full valuable consideration"—perhaps the Minister has explained it in a way— as to whether or not in the ordinary course marriage will continue to be regarded as valuable consideration. Am I to take it that "full valuable consideration" applies only in the one place and that marriage will continue to be "valuable consideration"? It would be very regrettable if that were not so. Perhaps I should deal with that—"valuable consideration" is, in fact, defined at line 30, page 7. It is merely defined there as meaning "consideration in money or moneys worth." In defining it in that way, are we not excluding marriage which has always been regarded as "valuable consideration"?
Do I understand the Minister to say that marriage is no longer "valuable consideration"?
I think this would certainly create something of a revolution.
It is a point worth considering.
Under the general law, a contract made in consideration of marriage has always been regarded as "valuable consideration": land assigned in contemplation of marriage or settled in contemplation of marriage has been settled for valuable consideration.
I shall consider the matter for the Report Stage.
It would certainly be rather a revolutionary thing but we may be able to clear it up later. Another matter arises. It is not contained in the definition section, and it has caused me some thought or, perhaps, I should say I have given some consideration to it: how valuable it has been, I do not know. In looking at other provisions of the Bill, "property" includes all property both real and personal. That is defined at line 19. Then, when you come to section 4, you have real estate defined as including "chattels real, and land in possession, remainder, or reversion,...". "Land" itself is not defined in the Bill. The ready explanation for that, of course, is that land is defined in the Interpretation Act 1937 but it seems to me that land as defined in the Interpretation Act means "messuages, tenements, and hereditaments, houses and buildings, of any tenure" that seems to indicate that what is in contemplation in the Interpretation Act is freehold land, held in fee simple or under a fee farm grant because "tenure" is used in the definition and the use of the word "tenure" in the law of property to me, connotes a freehold interest. I am wondering whether or not when we use "land" simpliciter in various sections of the Bill we are referring to land which is freehold land, whether it is registered land, or ordinary fee simple, fee farm grants, and so on, or whether we intend to included in the term "land" leasehold property.
Yes, leaseholds are included. I do not think the Senator is correct in his interpretation of the definition contained in the Interpretation Act.
When you speak of land held under any tenure, as I understand the law of property, in that kind of context you are dealing with freehold land. I do not put this forward now with any force; I do not state it as the rule but it would be my understanding that you are dealing with freehold land.
"Land" is defined as including "messuages, tenements, and hereditaments, houses and buildings of any tenure." I do not think anybody can properly say leasehold property is tenure of any kind.
"Tenure" has a wider interpretation.
One always associates "tenure" with land which is freehold. In section 4, you get "real estate" defined as including chattels real and land in possession, remainder, or reversion,...". Therefore, a distinction seems to be drawn up between leaseholds or chattels real and land which one would have thought, if "land" includes chattels real, there does not seem to be any good reason for singling it out in section 4. The matter is, of course, technical and, perhaps the Minister might have a look at it between now and Report Stage and I will have a further look at it myself and have a word with the conveyancing lawyers.
Very well. We shall pursue our rival paths of technicality.
Again on the definition section, subsection (2) reads:
Descendants and relatives of the deceased person ... thereafter ... having survived him.
Will the effect of that definition make a difference under sections 66 and 110 as to the share the widow takes? A child might be born, perhaps, prematurely or miscarried, perhaps, after the husband's death, in this case. Is that regarded as a child under that definition as having survived the testator?
Yes, that is the intention.
Is it on any issue at all that the surviving widow would, in that case, take only one half?
Two-thirds, on intestacy.
Question put and agreed to.
Section 4 agreed to.
Question proposed: "That section 5 stand part of the Bill."
This is a very desirable section to clarify the position where people die in an air crash or get drowned at sea. This is one of the things which has created a great deal of trouble but I am not so sure it solves the problem. The section now provides that where people die and the circumstances are such that it is uncertain which of them survives the other, for the purposes of the distribution of the estate of any of them they shall all be deemed to have died simultaneously. This would be particularly important in regard to the payment of death duties. If a person has property for his life and then it goes to somebody else on his death, and if the death takes place within a specified period, there is under the death duties code a quick succession allowance so that the property will not have to bear the full rate of death duties upon the two deaths. If, in fact, the section is going to provide that they died simultaneously it seems to me that you cannot have a quick succession allowance because you cannot say in respect of which death the allowance should be made. I consider that will create a genuine problem under the Finance Acts but I consider that it is more proper to be dealt with here.
Of course, the Revenue, Commissioners really anticipated this section. This is precisely the way the law operates administratively as regards succession at the moment.
Would estate duty be payable? Would a quick succession allowance be applicable at all? A quick succession allowance is made where people die within a certain period of one another but that presupposes one of them predeceases the other. If they both die simultaneously I do not see how a quick succession allowance can be made because we cannot say who predeceases the other. The Minister may have the answer to that.
I have no answer because it is really a matter for the finance code. The Senator is correct in stating that there is no quick succession allowance. You cannot apply it if they die simultaneously. This is really a matter for the finance code. At the present moment that is the precise way it is interpreted by the revenue people and the allowance is not paid.
No allowance is made. It seems to be misfortune upon misfortune. I wonder would the Minister, between now and the Report Stage, take the matter up with the Revenue Commissioners and see what can be done and whether an amendment can be introduced?
Question put and agreed to.
Question proposed: "That section 6 stand part of the Bill."
What is the position with regard to subsection (4) which reads:
The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode.
What is the position if the deceased did not die within the Circuit Court judge's circuit?
I want to make the same point as Senator Cole. As I understand the Courts (Supplemental Provisions) Act the position is that a Circuit Court judge has jurisdiction only within his particular circuit in relation to land situate within his particular circuit. He has jurisdiction in relation to a person who resides, within that circuit. That principle is carried through in minute detail in the Third Schedule to the Courts (Supplemental Provisions) Act, 1961. In the Third Schedule the particular type of action is first defined and then the jurisdiction is shown. One finds that in connection with an action in relation to the contract for example, that the Circuit judge who has jurisdiction is at the election of the plaintiff (a) the judge of the circuit within which the contract was made or (b) the judge of the circuit where the defendants or one of the defendants resides or carries on business must plead. Locality is extremely important in determining jurisdiction. The Circuit Court or Circuit Court judge, normally speaking has no jurisdiction outside his own territorial area. The provisions as to jurisdiction in relation to the kind of action that would come close to this Bill—proceeding for the administration of the estate of the deceased person—are laid down: the jurisdiction of the Circuit Court is to be exercised by a judge of the circuit wherein the testator at the time of his death had a fixed place of abode.
That is the position under the 1961 Act and that is repeated in section 6, subsection (4) of this Bill: that the jurisdiction of the Circuit Court shall be exercised by the judge of the circuit where the deceased, at the time of his death, had a fixed place of abode. The position, certainly up to 1961, was that the jurisdiction was exercisable by a judge not only if the deceased had a fixed place of abode within his jurisdiction but if he had no fixed place of abode but had land within his circuit area. That kind of situation is arising all the time where you have somebody who has land and who is working in England. His permanent place of abode is in England. He may, in fact, have no house at all on his land or he may have let it fall into a state of disrepair. Up to the 1961 Act, at any rate, because the land was situate within the locality of a particular circuit then that circuit judge had jurisdiction over the administration of that estate. That provision seems to still apply under the County Officers and Courts of Ireland Act, 1897, section 40, but it seems to have been repealed in relation to administration proceedings.
It seems to me that in this Bill we would want to go further and not alone provide that the jurisdiction of the Circuit Court shall be exercised by the judge of the area where the deceased at the time of his death had an abode but that if the administrator resides within the circuit area or if the deceased had assets there the Circuit Court should have jurisdiction. There might be an explanation for this limitation but I do not readily understand it any more than Senator Cole and I thought that the Minister might answer the point.
In this particular case there is a certain validity in what Senator O'Quigley and Senator Cole have stated. I will have the position examined before the Report Stage and try to bring in something that will meet the point. Certainly there is a lacuna here, but I will devise something to deal with it.
Question put and agreed to.
Sections 7 to 10, inclusive, agreed to.
Question proposed: "That section 11 stand part of the Bill."
Since we are abolishing the tenant at law, dower, and tenancy by the curtesy and escheat I would like to know something more about them before they die. I see that while escheat to the State is being abolished, under section 72 the State will succeed upon death intestate as ultimate successor where there is no next of kin. In relation to leasehold and other property as well as freehold will all go to the State?
Will the Minister indicate what is the present position in relation to non-freehold land, ordinary leasehold interests or money where the deceased has died and no next of kin can be found? I am interested in this because I have had this kind of case where the Attorney General had to be named as a defendant and the deceased merely had leasehold property and a few shares. It seems that the State has claimed them.
That is the situation. The State is the ultimate successor under the present law.
We are preserving that under section 72, that the State will take as the ultimate intestate successor?
Question put and agreed to.
Section 12 agreed to.
Question proposed: "That section 13 stand part of the Bill.
I think that this point was mentioned before either in the Dáil or on Second Reading, that there should be something added to the end of this section like "person acting as such" or something like that. I do not know if there was any adequate answer given. I have some recollection of reading at Dáil debate on the subject and the point being raised that if the President of the High Court was not available nobody could take his place.
Precisely this point was made in the Dáil by, I think, Deputies O'Higgins and John Costello. I have met it by an amendment which I had brought in on the Report Stage in the Dáil and which is now in the section, that the President of the High Court, for the purposes of this section, shall be a corporation sole. This ensures the continuity of the office irrespective of death.
A very neat way out of the difficulty.
Question put and agreed to.
Sections 14 to 20, inclusive, agreed to.
Question proposed: "That section 21 stand part of the Bill."
The position is that where administration is granted no person shall have power to bring any action or otherwise as successor in respect of the estate until a grant has been recalled, revoked or has expired. The situation could and frequently does arise where a person applies to the court and obtains a grant of administration because there are no known next of kin, or none available. There may be in a case from 20 to 40 cousins who might be entitled on the death of the deceased intestate, and it quite frequently happens that when the appropriate advertisements are under order of the court inserted in the newspapers a nephew or, perhaps, a brother or sister of the deceased turns up. Under the present law and the rules of the High Court relating to probate and administration it seems that at that stage the grant becomes, if not void, certainly a grant which it is improper for the applicant to retain any longer. The very purpose of the suit would have been to ascertain what next of kin there were, but immediately the next of in are discovered the grant is gone and further expense and unnecessary delay is incurred in lodging that grant to be cancelled or revoked and in somebody else being appointed to take out administration. I wonder whether, perhaps, in cases of this kind instead of recalling or revoking the grant where the proceedings are taken for the express purpose of ascertaining the next of kin the original applicant would be given a prior right to continue the proceedings, because he has been acting bona fide all the time and he will be administering the entire estate under an order of the court. I wonder if this section could be amended in this way.
There is some merit in what the Senator has said. I shall have a look at it between now and the Report Stage.
Question put and agreed to.
Section 22 agreed to.
Question proposed: "That section 23 stand part of the Bill."
This is a minor matter. I see that we are abolishing the executor de son tort and substituting “executor in his own wrong”.
One must regret this has happened because "executor de son tort” is a term that has been used for so long in the legal text books, and law reports and our legal text books are so infrequently revised that it seems a pity to have to translate it for the new students.
Even the Church of Rome is getting away from classicism.
I agree, but if the Minister were consistent I would not mind. I notice that in section 29 he speaks of a grant de bonis non. For the sake of consistency we should take out de bonis non and call it “of goods not”.
We will get rid of that, too, if the Senator wishes.
I prefer to leave it in. I think these terms, whether in English, French or Latin, which have a long established meaning and are capable of being understood by everyone should be left alone.
On the question of plain English what about "executor in his own wrong". That is not plain English and it will not be intelligible to anyone reading the section.
Question put and agreed to.
Section 24 agreed to.
Question proposed: "That section 25 stand part of the Bill".
This section gives the personal representative power to do what he likes in the administration of an estate. Suppose we had an estate where a legacy of, say, £1,000 was left to X. The residue which might be a residence and various other things was left to Y. Supposing there was £999 in cash towards the legacy of £1,000 to X, but there was £1 short. Cannot the personal representative sell the dwelling house to realise that £1, if he is a spiteful man, and there is no redress?
This section merely continues the law as it is at the present time.
It is down here as a new principle. Is there no redress or appeal to the courts in a case like that?
All we are doing in this section is restating the law. To meet that sort of very exceptional case the court has got, and will continue to have, superior equity jurisdiction in matters of administration.
In that case one can rely on the old maxim: De minimis non curat lex. The courts will not take cognisance of minor matters such as this, and I think also they would be very slow to be used as vehicles of spite, particularly where such small amounts are concerned. I think this maxim can be relied upon in such cases.
Question put and agreed to.
Sections 26 to 33, inclusive, agreed to.
Question proposed: "That section 34 stand part of the Bill."
It has always been something of a surprise to me that to administer an estate, people have to enter into bonds and have to go through all classes of solemnities in order to become administrators, and very frequently have to spend quite substantial sums on premiums from insurance companies, but when they get a grant and become subject to the court in the administration of the estate in accordance with the law, and the courts appear to have no further function in relation to the administration of the estate which they have taken such adequate safeguards to prevent from being wasted, and to ensure that it gets in the proper hands.
I should hate to see a position reached where we would have more court functionaries examining the affairs of private individuals, and have more official inspections, but a great deal of injustice has been done by the failure of people who take out grants to take any further steps to administer the estates. The estate is left there, and perhaps years later administration proceedings have to be instituted in court, with a great loss to the ultimate beneficiary, because the person who got the grant of administration had not administered the estate in accordance with his oath and his duty. I am wondering to what extent consideration has been given to that kind of situation.
It seems to me that it would not be unreasonable after a year or two years had passed, for the Probate Office to write to the administrator and ask him had he administered the estate, and tell him to file an account indicating that the assets had been distributed in accordance with the law, and to produce receipts. That would seem to be the logical outcome of entering into administration bonds, and it would ensure a great deal more justice for people who on an intestacy had come into some property.
I considered whether I should put down an amendment to this section to have some kind of rule like that introduced. I did not put down an amendment because of my abhorrence of extending what I regard as interference by State authorities in the affairs of private individuals, but it is, to my mind, something that could properly be done. It would leave the administrator of an estate without any grievance, because if he is doing his job he will have administered the estate at the end of two years, unless some insuperable problems have arisen in which event it would probably be the subject of administrative proceedings. I should like to know the Minister's views on this. Has any consideration been given to failure by administrators to administer estates in accordance with their oath?
I think Senator O'Quigley answered his own point when he referred to the undesirability of extending inspection into the administration of people's estates. There is also the fact that administrative complexities would arise if there were an attempt to enforce such a scheme. The best thing that can be done is to have an administration bond, and the next of kin, the legatee or the beneficiary who feels that he is not being properly dealt with has a right of action in the courts to compel the personal representative to administer the estate.
I do not see how much further you could go beyond this. If one does attempt to go further it becomes very difficult to avoid the question of State interference in the affairs of the individual. We have provided in section 125 a limited period of six years in the case of anybody remaining on in the estate so that anybody claiming under an estate has six years in which to do so and after six years the title resides in the person who has remained on in possession. I think that this is desirable in certain circumstances, particularly in rural Ireland. Any attempt to go further would be an extension of State interference in administration activities.
Question put and agreed to.
Question proposed: "That section 35 stand part of the Bill."
This section deals with the application for grants which may be made either in the general Probate Office or in the District Probate Registry and the application may be made either in person or through a solicitor. I do not know why in this day and age and at the state of literacy we have reached an individual with or without the aid of a solicitor in making application for a grant cannot do so through the post. It seems to me that he will be required to attend at all times.
I think it is desirable in dealing with matters of this type.
I do not see in what respect it would be desirable. The oaths and so on have to be taken before a Commissioners for Oaths and it would seem to me that that should safeguard the position sufficiently.
Actually, under this section of the Bill we are extending the right of personal application by making it specific that this right may be exercised by the individual irrespective of whether or not he or she has a solicitor. At the present time an application can be made only in the Central Probate Office or in a limited number of district probate registries. We are now extending this right of personal application to every Circuit Court office in every town and county so that each person will have the right to go into his own county town and make the application in person. I think it is desirable in this type of case that the matter should be dealt with personally by the applicant. We are extending it considerably to apply to every county in the country which, in my view, is a very progressive measure.
Do I understand from the Minister that every county registrar will become a district registrar or will he be functioning as a suboffice of a District Probate Registry? In other words, there will be a District Probate Registrar attached to every county registrar's office.
County registrars will, in fact, be District Probate Registrars for their own county.
No doubt that will be followed by a status claim.
The Senator is being prescient—it is already under way.
Is the county in each case the probate district?
Question put and agreed to.
Sections 36 to 38, inclusive, agreed to.
Question proposed: "That section 39 stand part of the Bill".
On the question of calendars of grants, some years ago when a time and motion study became the rage and procedures of that kind came into vogue the Department of Justice apparently carried out a survey of the Probate Registry. In the course of their survey they apparently came upon the calendar of grants and this, which had stood the test of time being thumbed over day after day, they converted into some kind of calendar with sheets that did not stand the test of even a few years but became all dog-eared and torn. That was the last I saw of them in the Probate Registry. This apparently was the result of some inspection by a methods officer or somebody like that from the Department of Justice. In general there were complaints about the difficulty of thumbing through these calendars of grants in order to ascertain whether or not a grant had been extracted in regard to a particular case. I am wondering what is the present position in regard to these because the complaints I heard at that time were numerous and loud. When I looked up the matter myself I could see it was quite impossible to get through these calendars of grants. These ought to be prepared in such a way that they can readily be used by members of the public and the legal profession who may have to have recourse to them.
There is another matter which I should like to ask the Minister about. It is a matter of practice with which I am not familiar but I should like to know whether there is any procedure whereby a person, wanting to ascertain in respect of a person who died intestate whether or not a grant was taken out, can get an official certificate from some person in the Probate Office. One often sees in the course of one's practice that a search has been made but it may not be correct: it is not like the searches in the Land Registry where, if you pay a fee, you can make an official search, and everybody accepts that practice. I wonder if such a search could be made to ascertain whether or not a grant had been taken out in the Probate Registry.
On both of these matters I shall have a word with the Probate Officer between now and Report Stage and I shall either communicate with the Senator or mention the matters again.
Under this section would it not be as well to put in that these calendars could be inspected? There is specific mention in section 42 of other documents and I would have thought that these calendars might have been mentioned also.
Question put and agreed to.
Sections 40 to 45, inclusive, agreed to.
Question proposed: "That section 46 stand part of the Bill."
This is one of the more important sections of the Bill.
Subsection (6) of this section provides that: The position now will be that whereas at the present time, upon intestacy, a widow, where the deceased leaves her and the children of the marriage surviving, becomes entitled to one third and the other next of kin a two third share, under the provisions of this subsection, she will become entitled to something different on intestacy merely to a claim against the assets of the estate to a sum equal to the value of her share. It seems to me that this is not a wise provision and I believe it will give rise to a great many complications when this section comes to take effect. At the present time, in the case of a farm or a shop, the widow is entitled to a one-third share as tenant in common and this gives her an estate in the property. She is the owner of an undivided one-third share. Under this provision, under subsection (6) of this section, she will not be an owner. She will have no estate in the property but she will have a kind of claim which is nebulously defined as "against the assets equal to the value of what her one third share amounts to." I can see some difficulty in administering estates. Supposing a widow and children decide, when the widow takes out a grant, that she assents to her own share under section 66, of two thirds and also that of the children who, presumably, would also be entitled to a claim, against the assets, at that stage, if that assent is made it does not seem to me that then any asset is vested in anybody; that can happen and at the time that might suit everybody concerned for the time being. If, then, somebody wants to get a grant in order to build a house and one of the children has gone away or cannot be traced or located, it will be extremely difficult to make title.
We saw here this evening that we had to pass a special piece of legislation to deal with the position of labourers cottages under the Labourers Act in relation to a small plot of ground held under the Labourers Act and to which proper title could not be made. Banks are always extremely sensitive about this kind of thing. If the widow is to be undoubtedly entitled, as everybody agrees she should be, to a definite share, it would be better if she held that particular share as a tenant in common with other persons entitled because then she has vested interest and she and the others can deal with it. I think, furthermore, that the claim against the assets to a sum equal to the value of the share necessarily involves either a sale of the assets or, if that is not done, getting some valuation from auctioneers or maybe two auctioneers or an agreed auctioneer and this, again, involves more expense. When it comes to sales of property if a person wants to protect his or her right, they will perhaps have to charge the property with the amount of the value of the legal rights share and, frankly, I think it will create a considerable difficulty. In the ordinary day to day business of raising loans, selling land, people who have been accepted as guarantors, have been able to go into a bank and show they are a tenant in common as to one third. They go in and say: I am entitled to a one third share as tenant in common. In future they will only be able to show a claim to a legal right to the value of one third, whatever the value of that is in money. They will not go in as an owner of property but as somebody with a claim upon it. The difference between the two is quite substantial in the eyes of anybody who wants to deal with a property owner. Would the Minister reconsider subsection (6) of this section? Whatever consequential amendments are necessary in the remainder of the Bill could be dealt with on the Report Stage because this subsection governs intestacy and the legal right share in Part IX. It would be far preferable that the person entitled to a share in property, certainly land or houses, where there are documents of title—I do not mind the position in regard to personal estates that can be sold and realised readily but, in relation to the purpose of this Bill, they would have an estate in it corresponding to a share as a tenant in common. It would be far easier for all interests to deal with the estate and it would involve them in a great deal less expense. I do not see any justification for making it a claim against the assets of a sum equal to the value of a share when you can equally well give them the same protection by giving them an estate corresponding to the legal share in the property itself.
On this particular aspect, I have very strong views. In section 124, we are abolishing tenancies in common. They have been a confusion in the law so far and we are providing for acquisition under the Statute of Limitations on the basis of joint tenancies: the Senator has an amendment on that. I fail to see how giving the surviving widow a tenancy in common would add anything to her creditworthiness. The present subsection is a restatement of the existing law in regard to intestacy. The purpose of the subsection is to define or to spell out that the existing law in regard to intestacy will also apply in the case of the legal right and that, just as at the moment a claim to an intestate share is a claim against the assets of the estate, so also will a claim to a legal right share be of a similar nature in the future. Half the successions in this country arise on intestacy. So far, there has been no development such as Senator O'Quigley fears in regard to creditworthiness or ability or capacity of people to raise money on property passing on intestacy.
I think the scares in regard to the legal rights system will not come about, and that, in effect, the legal rights system will operate very much as the intestate system operates at the moment except that you have spelled out here, in this and other sections, that, irrespective of how the testator may feel, the surviving spouse is provided for. It is only proper that it should be in this form rather than complicated by giving the survivor a tenancy in common. The simplicity of the present system, which we are continuing, is that this legal right is a claim against the assets of the estate and may or may not be enforced as the person requires. That is a neater, a simpler and a more proper procedure than giving an actual tenancy in common in the estate to the person. A person may not wish to claim his or her legal right. That is his own business. Our view is that what arises here is a legal right, a right to claim against the assets which may or may not be enforced by the beneficiaries. That is a far better way of dealing with the matter than creating a tenancy in common which only gives rise to complexity of title.
I would not at all agree with the Minister that this is a restatement of the existing law. The financial effect of this particular provision is no different from the financial effect to the beneficiaries of the existing law but it is the legal consequences that follow from having an estate which apparently nobody really owns but against which all of the persons entitled on the intestacy have a claim which is different. At the present time when a person dies intestate each of the next of kin equally take their shares as tenants in common. There is no difficulty about that. That just arises automatically and when a grant is taken out these shares can be vested in due course by the administrator. As matters stand at the moment if a mother dies leaving two sons and a daughter behind and one of them takes out a grant and then if they are advanced in life they can remain on the land, work it and live there. They are advanced in life and at the present time each of them would hold as tenants in common in equal shares and could be so registered in the Land Registry.
Under this new situation they can never become owners of any estate in the land without executing some formal instrument under which the property can be vested in them as tenants in common in equal shares. It seems to me that that procedure may well involve them first of all in the cost of preparing a deed and also in stamp duty upon the transfer by the personal representative to them, this being not a transaction that arises on the intestacy but a rearrangement by way of family settlement. It seems to me that in a case of his kind you will have the three of them enjoying but none of them owning the property. None of them may become registered in the Land Registry as owner. It will be necessary to have a further deed to make them joint tenants.
I am afraid I cannot agree with the Senator.
It seems to me in subsection (2) the right of retainer of personal representative is absolutely abolished and cannot be exercised where the estate is insolvent or there is nothing in the Act which affects the right of retainer. I would like to ask the Minister a question on that point. Supposing a person dies intestate or dies testate and he owes somebody a lot of money and appoints him as executor, if the sum should be statute barred will the executor, because he is executor, still be able to pay himself? It sometimes happens that an arrangement is made in the lifetime of a man that he will not pay a debt because he cannot pay it but he arranges to appoint his creditor as executor so that the executor could proceed to have the estate administered. I wonder whether or not that right is debarred by subsection (2) of this section?
The right of retainer is only being abolished in the case of insolvent estates. In the case of insolvent estates the personal representative takes his place in the queue behind the creditors.
Is that the case even if he is a creditor?
He takes his place equally with the other creditors if he is a creditor, but if he is not a creditor he takes his place behind them.
Under subsection (1) the debts of the estate of a deceased person are to be paid according to the rules set out in Part 1 of the First Schedule. I regret that in a comprehensive piece of legislation such as this all the rules are not to be found in the First Schedule because the first thing one finds in rule (2) of the Schedule is that the debts are to be discharged in accordance with the rules for the time being in operation in relation to the law of bankruptcy. This means, instead of having the whole law relating to the administration of an estate in one Act, you have to refer to other Acts.
There are over 300 sections in the main Bankruptcy Act.
That, of course, raises the point I am coming to. It seems to me to be quite absurd to say you would have to refer to all of these rules when we ought to be in a position, in this kind of situation, to lay down rules for the purpose of administering the estates of deceased persons. That is more regrettable especially because at the present time the whole law relating to bankruptcy is under consideration by a special committee. It introduces an element of uncertainty into this particular section. Whereas one would have thought that the law was now being defined quite precisely in the Bill for some time to come we have to wait some time for new rules that will be laid down in the bankruptcy code. The Minister has said that there are 300 rules in relation to insolvent estates but one would have thought there were only about ten rules that would apply in the case of this Bill.
Ten different sets of rules, and they have never been stated at any great length. I should be surprised to think that there are 300 rules relating to the distribution of a bankrupt's property upon his death.
This is a very complex field and it is being examined at the moment by a commission. I do not think that any purpose would be served by incorporating the bankruptcy rules in a schedule to this Bill.
I agree that it is complex but I think that in this Bill we could lay down all the rules that we think should be applied on insolvency.
It is a practical difficulty.
Question put and agreed to.
Sections 47 to 50, inclusive, agreed to.
Question proposed: "That section 51 stand part of the Bill."
This is the section which provides that the purchaser from the personal representative would not have to inquire into whether or not the personal representative is properly exercising his powers, and the purchaser would be protected. It is a restatement of the existing law, and is all right as far as it goes. The personal representative selling property is presumed to be selling in due course of administration and consequently the property is transferred to the purchaser freed and discharged from all debts and liabilities of the deceased. The difficulty which arises—perhaps the Minister might consider it before the Report Stage—is as to what is the stage at which the personal representative should be deemed to sell in due course of administration. Should it be the new period of six years which is apparently going to be the statutory period within which a claim can be made against the estate under section 125, should it be 12 years, or should it be, say, outside a year? It is desirable that some clarity should be brought into the law because this is a matter which conveyancers from time to time find difficulty about. There is no doubt that the power of the personal representative to sell property and the title he can give and the protection he can afford to the purchaser are very valuable from the point of view of conveyancers, but there is an area of uncertainty as to when he ceases to sell as personal representative or to act in due course of administration. The Minister might be able to say that the section as it is now phrased deals with that position. I do not think it does, but I should be glad if he would clarify the law so that one of the troubles people experience may be satisfactorily answered.
There is something in what the Senator says and I shall have it examined.
I am grateful to the Minister.
Question put and agreed to.
Question proposed: "That section 52 stand part of the Bill."
This has some relation to section 51 and deals with the assent by a personal representative which when the assent is made vests the property in the devisee or the person entitled to share on intestacy. It implies that the assent must be in writing.
This is a thing that sometimes troubles a conveyancer, that when a person may be selling and the personal representative may already have made an assent in writing it does not seem to me—or indeed to some of the conveyancers with whom I have discussed this—that there is any means by which it can be ascertained beyond any doubt whether or not an assent in writing has been made by the personal representative. It can become very important, because once an assent in writing is made by the personal representative then he is divested of the estate in the lands. The practice is not to register that particular assent in the Land Registry or in the registry of deeds. I wonder whether it would be desirable to provide that an assent in writing would be invalid unless noted on the Land Registry or in the Registry of Deeds in the case of nonregistered land.
I think the point is met by the following two sections, 53 and 54, particularly 54 where we say that it must be registered.
Does that apply equally to unregistered land?
Section 53 deals with unregistered and 54 with registered land, and in each case we make it mandatory that the registration process be carried out.
I am sorry for delaying the time of the House. I should have seen that.
Question put and agreed to.
Section 53 agreed to.
Government amendment No. 2:
To add to the section the following subsection:
"( ) The Registration of Title Act, 1964, is hereby amended by the substitution of the following subsection for subsection (3) of section 61:
‘(3) (a) An application for registration made by a person who claims to be by law entitled to the land of a deceased registered full owner, accompanied by an assent or transfer by the personal representative in the prescribed form, shall authorise the Registrar to register such person as full or limited owner of the land, as the case may be.
(b) On the determination of the estate or interest of an owner who is registered as limited owner of land pursuant to such an assent or transfer, the assent or transfer shall, on application being made in the prescribed manner, authorise the Registrar to register, as full or limited owner, as the case may be, the person in whose favour the assent or transfer was made, or the successor in title of that person, as may be appropriate.
(c) It shall not be the duty of the Registrar, nor shall he be entitled, to call for any information as to why any assent or transfer is or was made and he shall be bound to assume that the personal representative is or was acting in relation to the application, assent or transfer correctly and within his powers.'"
This amendment is designed to clarify doubts which have been expressed as to the position of the Registrar of Titles in certain circumstances. The object of the proposed amendment is to relieve the Registrar of the onus of examining the will as a document of title. This is really to make the administrative process carried out by the Registrar more simple and to relieve him of this responsibility.
Amendment agreed to.
Section 54 as amended agreed to.
Section 55 agreed to.
Government amendment No. 3:
In subsection (5), page 26, line 30, to delete "applies" and substitute "and paragraph (d) of subsection ( )* apply".
(*This subsection is the second of the subsections proposed to be inserted by amendment No. 5.)
It is suggested that amendments Nos. 3, 5 and 12 might be taken together. Is that agreed?
I put down amendments Nos. 3 and 5 to meet the points of view expressed by Senator Miss Davidson and to meet the amendment put down in her name and that of Senator Crowley—amendment No. 12. Perhaps we might take the three together.
Yes. As the Minister has said, he has put these amendments to meet the case I made on the Second Stage because I feared that the surviving spouse might be left homeless because of the fact that the home might have to be sold to meet the legal right claims. That is a situation which I feel constitutes a very grave hardship for the surviving spouse. The Minister very kindly said he would look into the situation. I should like to thank the Minister very sincerely for his sympathetic consideration of the point I raised, and for putting down this amendment which appears to me, so far as I can judge, to remove the dangers I have in mind.
I have nothing further to add. I was convinced, after examining the point raised by Senator Miss Davidson, that there was merit in what she said. It is obviously desirable in this legislation that the surviving spouse, the widow, for example, should be able to remain in the house, which may have a value put on it which would exceed her legal right share. She should be allowed to remain there. The courts would take the equitable view that she should remain in the house and that it should not be sold over her head. I think the amendment meets the point raised by Senator Miss Davidson.
This amendment meets the difficulty that the two-thirds share to the surviving spouse may not be equitable and she should be entitled to retain the house. I regret that the Minister has found it necessary to include in this amendment that the spouse has to apply to the court in order to have this right secured to herself. I think I am right in that. She will have to apply to the court?
That is right. It is an application in chambers.
I am not concerned about the application being in chambers. What I am concerned about is that while ordinary commonsense and humanity would dictate that she should have the house to live in, she has to undergo the expense of applying to the court, and she has to undergo whatever worry is entailed, with perhaps consequential delays. It seems to me to be very regrettable that the worry and expense involved in an application will arise.
I was going to say Senator O'Quigley has a terrible neck. The amendments put forward by Senator O'Quigley and by the Fine Gael Party in the Dáil all seek to extend this system of court applications.
My main purpose is to ensure that widows or widowers —particularly widows—get their legal rights without the necessity of going to court. The amendments proposed in the Dáil by the Fine Gael Party and here by Senator O'Quigley are designed to push the widow into court.
No. We shall be dealing with that later on. Within the context of this Bill, and because of the way it is wrongly framed, it is necessary to do this kind of thing. Here again the amendment arises because of the limitation of the widow's share to one-third. The one-third provision takes no account of the fact that a great many of us when we die will leave merely a dwelling house, and perhaps a small insurance or some cash in the bank if we are fortunate. A dwelling house will be the only asset a lot of people will leave behind them. I would have hoped that in the case of an estate of that kind it would follows as a matter of law that it would all go to the widow and that it would only be in the case where she did not get it—and such cases would be very, very few—that she would have to go to court, but this will apply to a great number of cases because she is limited to one-third, and she must go to court to get the house appropriated to herself.
In practice, this is the way this will work. If the widow stays in the house and has this right written into the section it means that no one will try to put her out because she cannot be put out. I envisage that the number of cases in which the widow or widower would have to apply to the court would be very few. This is designed to apply to the case where a widow or widower stays on in the house and another beneficiary seeks to eject him or her. Under this provision as it stood before Senator Miss Davidson raised this point, such a person seeking to eject the widow might succeed on the basis that the widow was only entitled to one-third. We are now spelling out that she has the right to remain.
It appears that if the widow does not make application within the period mentioned the right under this amendment might be lost by her. Even allowing for goodwill on the part of all concerned it might be necessary for her to make application in order to ensure that she will have this right.
I shall look into that aspect of the matter. There may be something in that.
While the Minister is looking into it and perhaps amending it, will he also consider that the proceedings shall be "in chambers"? The Minister was talking earlier about good plain English. I should like to know how many of us who know good plain English understand what is meant by "all proceedings in relation to this section shall be heard in chambers". I am certain that no one here could state categorically what is meant by "in chambers". I take it that what the Minister wants to convey in plain English is that the application will be heard in private. If that is what we want to say, that is what we should say.
The public will be excluded.
The Senator is a legal practitioner and he knows what this means. It means that such an application shall be heard privately in the judge's rooms. Under the revenue code and the lunacy code there are special hearings by judges in chambers. It is an expeditious and private way of dealing with these matters in an inexpensive fashion. It means, as the Senator is well aware, that the judge comes to his rooms half an hour before the public sitting and hears these applications in his rooms prior to the public sitting of the court—without any wigs or gowns.
We are not concerned with wigs and gowns. This supposes that judges' rooms all over the country are spacious places, but all I can say is that the Minister should travel to Westport and have a look at the courthouse there. You could not fit three people into the judge's rooms. He could go to Ballina which is a more opulent port town and he will see that you would not fit three people in the judge's room there either. Or he can proceed to Castlebar, although Castlebar has a fairly decent one. I would have thought the position would be that they could be heard in the ordinary court room in private. There is certainly no virtue whatever in bringing people into a room. It seems to me that if this is to be heard in the judge's room it certainly is not fair, having regard to the state of the courthouses round the country as I know them, to a widow or anybody else seeking justice to have to sit in these places which the judges are constantly protesting about. They are unventilated, cold and certainly not of a size conducive to a proper hearing. It may be that any case for hearing in Mayo would be heard in Castlebar but I do not see why a person living in Westport should not be entitled to go into the courthouse at Westport or why a person living in Belmullet should not be entitled to go into Belmullet when the courthouse is erected there. At the present time the idea of conducting a case in some of these judges' rooms is a gross absurdity. I had thought the Minister should amend that to provide that it can be heard in private.
I do not envisage cases being conducted in that manner. We want them to be dealt with expeditiously.
I think we ought to alter the terminology: “in camera” has a different meaning again. I think that “in private” may have a different meaning to “in chambers”.
If the Minister were to take Senator O'Quigley's point seriously, which I do not think he should, he could bring in an amendment to say that "any suitable room shall be deemed to be chambers for the purposes of this section."
Would it not be a good idea in cases of this kind to take up the judges' plea for better accommodation?
That would go unheard in the Department.
Surely in circumstances such as Senator O'Quigley has referred to a judge would decline his court; he would use a certain amount of commonsense. We must at least assume that our judges have some understanding and some commonsense.
I must say that Senator Nash's interpretation of this was really my own.
There are affiliation proceedings which are never heard in open court.
I think it should be left to the commonsense of the judge to deal with it. I do not think anybody is suggesting that the judge should be compelled, expected or required to hear a particular case in his room.
That is what the section says.
This phrase "hearing in chambers" is a phrase which has been used over the years and is incorporated in various statutes, particularly those dealing with lunacy. It is well accepted that the judge sitting informally can deal with a case expeditiously and privately with no cost where there is no formal hearing in the sense Senator O'Quigley might wish it to be. In cases of this kind where intimate family affairs may be raised one can envisage a situation where a row might have arisen between a widow and one of her children—the matter would obviously be dealt with "in chambers" by a judge. A widow may be in her home and a bad son or daughter may be seeking to get her out of the house and the facts in a case such as that should not be revealed in court. There might also be the situation where a widow might be reluctant to go into court and that sort of situation can be dealt with by a judge "in chambers". It means that the judge, it does not matter where he sits, can deal with the matter in a practical commonsense way.
I would not agree at all. What we all want and what we agree we want is to have a hearing in private and we ought to say that. I do not know what the Minister is talking about when he says that certain applications are heard "in chambers" with regard to lunacy because all the lunacy applications I have heard are made in the open court. This may be by virtue of a provision in one of the Courts of Justice Acts which I cannot recollect but at the present time all proceedings are heard in open court. That is why I think this phrase "in chambers" is vague. There is no judge going to sit in court when he knows that "in chambers" means that he must hear it in one of his rooms. This brings me back to accommodation; there just is not accommodation in Westport for——
That is a matter for the local authority.
The Minister cannot just brush it off in that way. There is a problem here. If we want to provide that people are entitled to have the law administered in their regard, they are entitled to have it administered in comfort and you cannot do that, say, in Westport. The simple thing is to put in an amendment, accepting the physical fact, whatever our views are on "in chambers", that this cannot be done in quite a number of courthouses around the country; not, indeed, that it is the responsibility of the Minister nor that he is to blame for it because, as he said, it is the local authority's job. Incorporated in this amendment we could have that these hearings shall be heard in private. In private seems to me to mean "in private". That means that only those parties interested would be included and everybody else excluded. That is done in affiliation orders and some other business.
"In private" in so far as court proceedings are concerned means something different to what the Minister has in mind. If proceedings are heard "in chambers" there is no formal fight as you have in court. That is what the Bill envisages and that is what the Bill wants. "In chambers" does not necessarily mean the judge's robing room. The judge is not sitting formally in court—he can even hear the proceedings in his hotel sitting-room if he wishes. It is a completely different form of application. If you have it heard “in camera” you are hearing a formal fight.
Amendment agreed to.
I move amendment No. 4:
In subsection 7 (a), line 44, before "mentioned" to insert "first".
The section could be read in two ways—as one month or as one year. Two periods are mentioned in the subsection.
I have already considered this but I shall have a look at it again between now and the Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 5:
*5. To delete subsection (8), page 26, and substitute the following subsections:
"( ) The rights conferred by this section on a surviving spouse include a right to require appropriation partly in satisfaction of a share in the deceased's estate and partly in return for a payment of money by the surviving spouse on the spouse's own behalf and also on behalf of any infant for whom the spouse is a trustee under section 57 or otherwise.
( ) (a) In addition to the rights to require appropriation conferred by this section, the surviving spouse may, during the period mentioned in paragraph (a) of subsection (4), apply to the court for appropriation on the spouse's own behalf and also on behalf of any infant for whom the spouse is a trustee under section 57 or otherwise.
(b) On any such application, the court may, if of opinion that, in the special circumstances of the case, hardship would otherwise be caused to the surviving spouse or to the surviving spouse and any such infant, order that appropriation to the spouse shall be made without the payment of money provided for in subsection ( )* or subject to the payment of such amount as the court considers reasonable.
(c) The court may make such further order in relation to the administration of the deceased's estate as may appear to the court to be just and equitable having regard to the provisions of this Act and to all the circumstances.
(d) The court shall not make an order under this subsection in relation to a dwelling in any of the cases mentioned in subsection (5), unless it is satisfied that the order would be unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration.
( ) All proceedings in relation to this section shall be heard in chambers."
(*This subsection is the immediately preceding subsection of this amendment.)
Amendment agreed to.
Question proposed: "That section 56, as amended, stand part of the Bill."
Take the position of a spouse who on her own behalf or on behalf of an infant for whom she is trustee maintains, say, the dwelling house. Would it not lead to difficulties on behalf of the infant in relation to what would be the infant's share? Let us take it that the widow wants to retain, under this section, say, the dwelling house and that her share would not be the full value of the house so that she can also retain it on behalf of an infant for whom she is trustee. Is, then, the infant part owner and in time, can there be a split?
It could lead to difficulties when you bring the infant into it and the part of the property for whom she owns the trust.
It is desirable in that situation that the child would have rights, and that the mother, naturally, would be the trustee for the child. The Senator is getting at a situation where there would be a split between the mother and the child, with the child seeking to enforce his or her right against the mother.
Supposing there are two or three small infants and they all have a share. Does the widow own the trust on behalf of one or on behalf of all of them?
She would act as trustee on behalf of all the children living in the house.
It might be only a very small share that would be taken on behalf of the children. I think it will lead to difficulty in those few cases to which it would apply. The title to that house later on would be a difficult thing to make out.
I have often thought that it is quite unfair under the present law of intestacy that a mother who looks after her children over a period of from ten to 12 years, from the ages, say, ten to 21, 14 to 21, and so on and who has taken out a grant and is personal representative and acts not alone as mother but, in relation to the property she owns, should have a duty to account to her children for the administration assets when they become 21 years, if they look for it. The plain truth of the matter is that here is a mother who is trying to carry on and to do the best she can. If she makes something out of the estate more than the one-third, that would be attributable to herself, by way of profit, of course all of that is spent on the children. In cases of that kind there should be no obligation whatever on the mother to render any account to a child in respect of the management of the property during the child's infancy. It seems to me that that accords with commonsense and that what happens in a great majority of cases where a man is fortunate enough to make his will leaving his property to his wife knowing she will look after the children is that the children get nothing. It is an added misfortune to a widow where her husband dies intestate that she should ever be bothered with this fear that at some stage one of the children may become sour and apply to the court for the administration of the estate.
I think, when introducing this proposal contained in the amendment we have just passed, that we should go the further distance and free the widow in a case of that kind from all liability to account to the child in respect of anything she may have done with the property. If she chooses, as part of her means of rearing the children and as one of the means of keeping herself alive and providing herself with a livelihood to let the property in flats then she should not be under the obligation when all that has been done during the infancy of the children, to render any account to them when they come of age. If her husband had the good fortune to make his will she would not be doing it and, equally so, I think that the Legislature, acting in the place of the husband who has not made his will, should make this kind of provision to free the widowed mother looking after children during infancy from all liability to account to the children for any profits she may have received or for the administration of this kind of property during their infancy. It is certainly a problem and I think it would be appreciated by all the widows of the country.
The Senator does appreciate that these amendments are all in ease of the widow. I think we have gone a good distance in this respect, but, of course, you can go too far. You can have a situation where a spendthrift widow might proceed to deprive her own children of their share. That is an exceptional case where a mother may go wrong. We are providing for that exceptional eventuality by ensuring that she is the trustee of the share or shares of her infant child or children.
In regard to the administration of the trustee share of the estate, section 58 (5) spells out that persons who are trustees under this section—for instance, a widow who is trustee for her infant children—may at any time or times pay or apply the capital of any share in the estate to which the infant is entitled for the advancement or benefit of the infant in such manner as they may, in their absolute discretion, think fit and may, in particular, carry on any business in which the infant is entitled to a share. There, we have fully covered the situation where a widow, in the ordinary course of administration, proceeds to deal with the infant's share in a proper way. It is an improvement on the present situation where she cannot buy a bicycle for her child without first going to court and engaging a solicitor and counsel for the purpose. We are now spelling out here as a matter of right that she can operate the estate for the benefit of the children for whom she holds a trusteeship.
It is regrettable that the Minister should say a widow cannot at present buy a bicycle for her child for whom she holds a trusteeship.
She cannot legally do so.
It is completely wrong to say so except in the very few cases where the infant's property is in court and very often she is made an annual allowance by the court and she has to account for it. It is quite irresponsible for the Minister to try to enlist sympathy by making statements of that kind which are quite unworthy of the Minister and his position. The fact that we are permitting, under section 58 (5), the trustee or any person who is trustee for an infant to apply the benefit for the advancement of the estate and the infant in such manner as they in their discretion think fit and in particular to carry on a business does not relieve the widowed mother from accounting to her child for the profits out of the business. This all gets back to the question as to whether or not we are going to trust mothers and fathers and husbands and wives in the disposition of their property after their death and in making provision for their dependants after their death. We cannot, of course, legislate morality into people. That is a truism. Neither can we legislate for every possible contingency but what we can do is to survey the situation and see how we find it. One will find that the overwhelming majority of mothers are not spendthrifts. They could never survive in the economy in which they have to live and be spendthrifts. Every mother and every housewife has to bear a constant burden in order to make ends meet. The woman in the small estate we are dealing with has a constant struggle to make ends meet and she is not the type that will dissipate the assets of her children. Of course, there will be the odd woman who will over drink and spend money foolishly and there is nothing in this world that this legislature or any other legislature can do about that. We ought to have regard for the vast majority of good widowed mothers all over the country and we should do our best to relieve them of the strain of having, at some stage, to account to their children for the management of the property during the children's infancy. It happens more frequently than one would wish it to happen. The children, at some stage or another, begin to look for their shares. If they do not they always have the grouse or grievance that they did not get what they were entitled to from their father's estate. If they do not get it they will think their mother has cheated them out of something they thought they ought to have. I would seriously urge the Minister to give further consideration to this matter and accept an amendment on the Report Stage to free the mother of all liability in a case of this kind.
I do not know whether Senator O'Quigley refers to the various small estates where the interests or profits from the estates barely keep the family alive. The small shop or small farm where they live from hand to mouth barely keeps the family alive. If the Senator is referring to that kind of case the child cannot in practice look for account from the mother. I have never known of such cases and I am quite certain that Senator O'Quigley has never known of such cases which came before the court. If such cases came before the court the judge would take the ordinary practical view that the profit went to maintain the family. If the amendment the Senator wants goes in and applies to every estate, you would have an estate with a large amount of investments, a large amount of spare capital and a large amount of spare income and if the mother in the case of infant children dissipated those assets it would be a very serious matter for the children. It would be a very great injustice in the case where an estate is very large if the assets were dissipated. This would be very serious if the woman became a spendthrift and the amount involved could be quite enormous. The mere fact that the woman knows she must use a certain amount of common-sense and that she must apply a certain amount of practical application to the administration of the estate is a brake in itself. It would be a pity if it was otherwise.
Question put and agreed to.
Progress reported; Committee to sit again.
Business suspended at 6.5 p.m. and resumed at 7.15 p.m.
Question proposed: "That section 57 stand part of the Bill."
This section envisages the appointment of trustees in the case of an infant who is entitled to property. The power to appoint trustees will reside in the personal representative of the deceased, and he may appoint a trust corporation of any two or more persons at the discretion of the personal representative whom he shall think fit. The thing that concerns me is that in the ordinary course where there are applications to the court for the appointment of trustees for the purposes of the Settled Land Acts to exercise the powers of a tenant for life on behalf of an infant, that always provides a certain safeguard for the infant's wellbeing because the courts, as a matter of practice, take very good care to satisfy themselves that the persons appointed are trustworthy and creditworthy and have not an interest inimical to the infant's welfare. This is a departure from that kind of procedure in relation to property which the infant would be entitled to on the death of an intestate or under the legal shares right under the later provisions of this Bill in Part 9.
I am not too happy that the personal representative can appoint two persons over whom there is no further control, because if the two persons are appointed by the personal representative then the personal representative, having vested the property in the two persons so appointed, is relieved by subsection (2) of all further liability. We all know the kind of situation where trustees make off with the trust funds. There is no provision here as to what is to happen if the trustees appointed under this section by a personal representative in the personal representative's anxiety to get rid of his own burdens are not trustworthy, creditworthy and reliable. There is no supervision after that over the persons appointed trustees.
I am wondering whether the Minister would give thought to that particular aspect of the situation. In the case of a trust corporation as I understand it it will probably be the executor or trusteeship section of a bank or one of the trust companies established by the various banks. They are always liable and will be good marks in the event of a default, if there were default. In the case of the two individuals who may be appointed trustees, I think there should be some sort of bond to be entered into, some security to be given by them, so that in the event of their making away with or dissipating the property of an infant there would be some assets against which the infant could claim. I wonder has the Minister given any consideration to that?
It might be said that such a requirement would, perhaps, create certain difficulties for the personal representative, or for the persons appointed, but in the ordinary course up to the present time at any rate, in a case where the deceased has made a will, he has appointed a person or persons whom he trusts to be executors and trustees of the will, and these persons selected by him will act in a prudent manner on behalf of the infant. On the other hand, in a case of intestacy the administrator will hold the property on behalf of the infant and he is always answerable to the court and what is more important is the bond to administer the estate properly, and if the administrator made away with or dissipated the assets there is the bond to go against.
We are creating a new situation here in which the personal representative can shelve his responsibility by appointing two persons as trustees. They can be good, bad or indifferent, and if they dissipate the assets the infant has no right of redress. I would be extremely slow to agree to a provision of this type, and I think the Minister should have second thoughts about it.
This is precisely the sort of section which we envisage in this legislation as trying to secure a service for citizens at reasonable cost. I feel very strongly that in this sort of procedure there is no need for a court application.
I am not suggesting that at all.
There is no need to go to that expense. The personal representative has a legal obligation to the estate, and it is only proper that he should be in a position to appoint trustees, if he thinks it necessary, without going through the process of a court application, thereby incurring cost to the estate. If the beneficiaries are harmed in any way by reason of the operations of the trustees, they have their redress by way of action against the trustees or the personal representative. I think the section is merely providing a streamlined system which I feel should be welcomed.
I was merely sketching in the background of what has happened and the precautions taken by the law up to the present time, and pointing out the great consideration given by the courts when they appoint anyone to receive capital moneys on behalf of an infant and to act and exercise the powers of tenants for life on behalf of an infant. Great care is taken, and not infrequently the courts have refused applications because they were not satisfied that a person proposed to be appointed was a fit and proper person because of possible inimical interests as between the person proposed and the infant. One sees that happening regularly. I did not say that I disagree with the idea of appointing trustees to hold the property of the infant in trust. I agree with streamlining as far as possible. What I am concerned about is that the personal representative can appoint trustees who may turn out to be persons who will dissipate the assets of the infant. The Minister then comes along and says that the beneficiaries if they are harmed in any way have a right of action against the personal representative or the trustee. They have not because subsection (2) of section 57 provides that:
On such appointment the personal representatives, as such, shall be discharged from all further liability in respect of the property vested in the trustees so appointed.
If the trustees were wrongly appointed.
No. Once the trustees are appointed then the personal representative's responsibility ceases. What happens to the property after that is no responsibility whatever of the personal representative.
If the personal representative were in the wrong, then the beneficiary would have the right to make a claim against him. I agree that, as a rule, it would be against the trustees, but it could arise the other way.
A person might be appointed who was a decent man up to that as far as the personal representative was aware but if he were given to gambling and gambled with the infant's assets and in that way dissipated the assets, the only right of action the infant would have when he comes of age, or, indeed, before that, would be against the trustee who has dissipated the assets. In all likelihood the reason for the dissipation of the assets is that the trustee himself has got into difficulties. It is not an uncommon experience. Anyone who has regard to what goes on in the world around us will see, as far as solicitors are concerned that our present law requires that solicitors who are responsible and trustworthy people have a load of sanctions hanging over them such as ordinary people do not have, that any breach of professional conduct or any indiscretions are always likely to be censured by the Incorporated Law Society or by the court. Solicitors are, at all times, officers of the court and at all times subject to the discipline of the court. In spite of all that, the Legislature has found it necessary to enact that solicitors shall keep accounts because of the human failing not to do so. Not alone that but the Legislature has created a fund from the contributions of the members of the solicitors' profession against which a person who has been deprived of his assets by the defalcations of a solicitor may claim. In the case of people who have all this professional training and all these sanctions surrounding their everyday activities, the Legislature has thought it proper to have a fund to which people can go in the case of solicitors making away with money. I do not think the infant taking proceedings against a trustee who has got no assets is a remedy. I certainly think the Minister should give some consideration to this provision and provide that where trustees are appointed they should enter into some kind of bond which would be available in the case of their making away with the assets of the infant.
Question put and agreed to.
Question proposed: "That section 58 stand part of the Bill".
We were discussing earlier the situation in relation to the widow who would be entitled to have the house appropriated to her. Before we adjourned for tea we were discussing the liability of a widow to account for the management of the property, or profits she had made, during the infancy of the person for whom she held the property in trust. I think the Minister suggested that it was being provided in subsection (5) of section 58 that the widow in the case contemplated by the amendment to section 56 was being granted absolute discretion with respect to the advancement or benefit of the infant. Therefore, in effect, what I was contending for if she had any liability to account for profits was covered by section 58 subsection (5). On looking at it again, it seems to me that subsection (5) does not apply to the widow in the case we were discussing and—it applies to her only if she is also the trustee appointed under section 57 which we have just discussed. Accordingly, the widow who is not a trustee appointed by the personal representative does not have the discretion I thought should be vested in her. Perhaps, the Minister might have a look at that and make this type of provision applicable to the widow in subsection (4).
That is a good point and we will do it. It should cover her but, as it is worded, it does not.
Question put and agreed to.
Sections 59 to 61, inclusive, agreed to.
Question proposed: "That section 62 stand part of the Bill".
I cannot but express my appreciation of the Parliamentary draftsman for enlightening me and, I am sure, tens of thousands of others like myself as to where the "executors year" came from. We now know that it comes from some Act passed in 1695; that was in the reign of, I suppose, Elizabeth——
You are wrong in your history there.
At any rate, I am glad to know that this is the origin of the executors year which we have all accepted but few of us ever knew from whence it came.
Question put and agreed to.
Section 63 agreed to.
Question proposed: "That section 64 stand part of the Bill".
I should mention at the end of section 64, that is in relation to Part V of the Bill, that there are certain provisions of the Intestates Estates Act of 1884 which it may be desirable to have re-enacted in an amended form in this Bill. This matter was discussed earlier on. I shall consider this further between now and Report Stage and I shall have amendments introduced on Report Stage.
Would the Minister state what is his problem?
It is in regard to estates reverting to the State.
What would become of the money?
I am bringing in amendments in relation to the matter on Report Stage.
On the matter of personal estates as distinct from real estates, I should be glad if the Minister would give us the authorities.
It is under the common law. There is no statutory authority for it. We are putting the law in statutory form and I will have amendments on it on Report Stage.
Question put and agreed to.
Section 65 agreed to.
I move amendment No. 6:
To delete subsection (2), page 31, and substitute:—
( ) If an intestate dies leaving a spouse and issue the personal representative of the intestate shall hold the estate in trust for the surviving spouse for his or her life with remainder to the child or children or remoter issue of the intestate as the surviving spouse shall by deed or will appoint and in default of appointment in trust for the children of the intestate equally.
This is a Bill which is not readily comprehended by non-legal minds or by this non-legal mind at any rate. However, it appeared to me that there was a very considerable problem running right through it, certain sections particularly, the problem of giving as much security as possible to the widow and children of a deceased person without at the same time breaking up the property of that person, at least avoiding the breaking up of it as much as possible. This has been commented on on various Stages of the Bill in the other House and in the Press and, in looking through the Bill, I thought that, in this particular section, this problem had not been very well resolved.
It seems that in subsection (2) of section 66 there is a hard and fast direction that a remaining spouse who dies intestate shall take two-thirds of the estate and that the remainder of the estate be distributed amongst the issue. This might, I think, lead— particularly in the country districts, farms, and so on—to the danger of breaking up property and this might lead to the rendering of this property useless in the case of small estates because the fragments might be so small as to make the result very poor. I am not quite clear about how this and other sections which have been amended already and for which amendments have been suggested by Senator Miss Davidson impinge on each other. I suggest this amendment now at this stage.
I should like to hear the opinion of other Senators, particularly those who are versed in legal matters, as to the desirability of having this amendment. In discussing this matter, I hope somebody will tell me whether the word "issue" relates to all issue, in other words, issue by another marriage, for instance. Is that included in the word "issue" as used in this section and, indeed, in other places in this Bill?
I should like to support this amendment. Indeed, a lot of what one would have to say about later sections of the Bill could also be said upon this because it seems to me to meet the kind of situation that exists to a small degree, that, as I said before is a very important and pressing situation for the people whom it affects and is one which everybody wishes to resolve. The idea behind the amendment proposed by Senator Jessop appeals to me for the reason that in the vast majority of married settlements made in the country—and this applies not only to rural Ireland but to the country as a whole—either the husband holds the property for his life or jointly with his wife for life and then the survivor holds it after the death of the other spouse and then there is always a provision that the property is to go to such one or other of the children as the surviving spouse may by deed or will appoint. There can be no doubt that that is the way in which many farms of land and many businesses have been settled. In fact, at any time where there is a marriage setlement that is almost invariably the means for settling the property and it has been found to work well. It provides continuity for the particular piece of property whether it is a farm or a business. It is continued as an entity. At the same time, by virtue of the wide powers which a tenant for life has under the Settled Land Acts, the property can be managed to the very best advantage.
What, I suppose, is our chief concern here is the case of a surviving widow and this amendment ensures that she has the full value of property for her life in the same way as she had it during the lifetime of her husband. I suppose no woman or man can expect more from her husband or his wife than that he or she should enjoy the property for life in the same way as the predeceasing spouse has only enjoyed it under the marriage settlement, taking a life interest in it. For that reason, I think the amendment gives legislative effect to what is the all but invariable practice in the marriage settlements made up and down the country.
If one wished to confine it to immovable property—and here there may be a variety of opinions—if the principle of the amendment were accepted, it might be desirable to say that we will confine this merely to immovable property such as a farm or a business and provide that the wife would have a life interest in it, and then, if one wants give her a half share or a one-third share in the personal estate consisting of money or securities. That could readily be done. I think the principle which is involved here would provide the kind of security for the widow that we all want to give her and at the same time, would ensure that the property would be left in the family because she would be able, under this, to leave it to one of her children. When you look at the section which this seeks to amend you find this kind of a situation that the widow will be entitled to take two-thirds of the estate and the remainder of it is to be distributed among the children. In the case of a small property, a small farm or a small business and, of course, in the case of the salaried or wage earner who dies leaving only a house and a relatively small amount of money, two-thirds in many instances will not be enough to keep the widow going. It would be much better that she had the whole for her life rather than be given the two-thirds.
If that were done, it would eliminate all questions of children who have grown up, who have got their education or their start in life from the home, having any claim upon the property that was left and it would be available for the widow entirely. As I say, if you take the small farmer under £10 valuation, under £20 valuation, the under £10 valuation, farm in the west of Ireland or in Donegal or in Kerry will not give a good livelihood even to the widow. One may ask how did the husband get a livelihood out of it during his lifetime. He got a livelihood out of it plus work with the county council or with Bord na Móna or the odd day's work for farmers here and there and for other people. The plain truth of the matter is that two-thirds of many of the small farms of this country are quite inadequate to support a widow without some further means. It seems to me that if she got the whole lot she would not be getting too much. In many cases she certainly would not be getting enough. It also seems to me that the provision in this amendment accords with the general policy of the Legislature, not alone since the establishment of this State but for long before that, that small farms should not be fragmented. Indeed, under the Land Act, 1965 as, indeed, under previous Land Act legislation since the foundation of the State, and before that again, there has always been provisions against subdivision of holdings bought out under the land Purchase Acts. It seems to me, if the children of a deceased person wish to obtain their share of the small farm or small business that, inevitably, in order that that share should be paid, the property must be sold. I do not know how that can be done and at the same time how the widow can be entitled, under the amendment passed here this evening to subsection (4) of section 56, to retain dwellings, having regard to the provisions of the Land Act, section 12. I wonder how that will be achieved?
It seems to me that the simple straightforward and easy remedy is to say the holding will continue and that the widow will have it for her life and that she can appoint it among such of her children as she thinks right to have the estate after her death. That, to my mind, offends no principle which the Minister seeks to establish in this Bill. It gives a much greater measure of security to the widow on the small farm or the widow in a small shop than would be given to her by merely giving her two-thirds interest in the property. If the amendment is not regarded as entirely practical in respect of giving her life interest in all the property of her husband, then I should hope that Senator Jessop would be prepared to withdraw the amendment and confine it to immovable property which would embrace the farm or business with the goodwill attached to it.
If the Minister were to take a gallop poll of married women in the country as to whether or not they would like to have the whole of their husband's farm or shop for the rest of their lives with the power to appoint it to one or other of their children, as they should decide, to get the estate after her death or get two-thirds and have the property sold over their heads, I should think that the vast majority would prefer to continue on in the security that they could live out their lives in the homes they were married into and in which they brought up their families in the knowledge that after their death they could give the property to such one or other of their children as looked after them best during their lifetime. That would conform better with the views of the people in this country than with what is contained in section 66 of this legislation, which, be it said, is only a modification in relation to the share which the widow gets, two-thirds as compared with one-third under the Intestate Estates Act enacted when women had virtually no vote, and were regarded as chattels of their husbands and certainly had none of the rights they have in a modern democracy.
This amendment has much to recommend it, if one takes it in isolation. The idea behind it and the purpose which it would achieve would in many respects be good. My objection to it is that it undoubtedly runs counter to other provisions of the Bill and to the general principles which underline Part IX.
Part IX of the Bill provides that the widow should get a very definite share, a third share, and this suggestion now departs from that principle. It is provided that, instead of getting a definite share as she would under the Bill as it stands, she should merely have a life interest and the power to decide which of her children should take the estate after her death. This to my mind, introduces a completely different principle. You would have the position, if this amendment were accepted, that one principle is being adopted in this Part of the Bill and an entirely different principle in another Part. I see no reason, if we were to accept this amendment, why, when we come to Part IX, section 110, it would not be logical to be consistent so that we would have to amend that section also and set out that the one-third share which the widow is to get under it should be held by a personal representative or by a trustee for the benefit of the surviving spouse during her life and afterwards to the children as she might direct.
You cannot adopt two entirely different principles in the Bill. Consequently, as I am completely in agreement with the principle adopted in section 110, I could not agree with this amendment. Although, as I say, in isolation, the amendment has much merit I could not agree with or support it.
First of all, with regard to what Senator E. Ryan has just said, when you put down an amendment to a section of a Bill knowing that the amendment, if accepted, would entail amending some other sections you would get the amendment passed first. You would not go through every section of the Bill requiring amendment and put down amendments to each of those sections. The principle would be accepted first and when the principle was agreed it would be very easy to amend the other sections of the Bill.
I put down an amendment to section 110 and many of the comments I intended making on that section would equally apply here. I preferred, at the time, to leave my remarks over for section 110. I feel that the principle behind Senator Jessop's amendment is the right principle. I should like to suggest one small amendment to the wording by the addition to "in trust for the surviving spouse for his or her life with remainder to the child or children" of "or failing such, to the remoter issue". However, that is only a small matter that perhaps the Seanad will consider.
On this business of the half or quarter or one-third share, as Senator O'Quigley mentioned in the country districts at any rate it could do a lot of harm and it is completely contrary to what we are trying to do in the country, that is, to get farms undivided to go as soon as possible to the elder son or whoever is going to succeed. We have had it in the old age pensions code where we tried to get the old man to take the pension as soon as he could and give his farm to his son. We had it in the Land Act, which possibly we know by heart, in which under section 6 we were giving pensions to old people to try to get them to leave the bit of land to one of the family.
Here we are going back again. In most of these small farms in the country the widow has probably no other assets. She will probably be a much younger person than her husband, and here we are saying that for her life she is going to be the owner of a half or one-third of that farm. It is a pity that the Minister could not accept the principle of for life. For one thing you might consider—and it does happen—that this might even encourage the widow to marry again, and under the Bill there is going to be a very difficult situation on that farm. I do not know whether statistics can be produced of the number of intestates there are in the country. There must be a considerable number of small farmers who die intestate or die saying: "I leave the farm to my eldest son" or something like that, and in these cases under this section and section 110 you are going to run into that difficulty in the country.
I think the amendment I have put down to section 110 would apply here. The gist of these amendments is to leave it to the widow for life. A will is very commonly made where a man especially with young children will leave his farm or all his property to his widow for life because at that stage he does not know in what way his children are growing up or whether they will have any interest in the land whatsoever. I would be sorry if the Minister could not see his way to accept a life interest. It would probably be just as valuable a safeguard to the widow, and I cannot imagine the widow in that case renouncing either before or after she gets it within a year or whatever time it is because there would perhaps be no alternative and she would feel at that stage "I will not do anything now." I imagine that that would be the attitude she would take up.
Under this section when half the farm belongs to a widow the person who works it, makes a good job of the farm, and improves it beyond all measure does not know what is going to happen. It is not his own and might never be his own.
That is one reason why I would support this. The other reason is one which I feel is very important, too, that this breaking up of any property, even a large farm, this dividing into two sections, would not happen very often. I agree with the Minister on that, and that the whole Bill perhaps is dealing with exceptional cases, but you will have a case where there is a large farm and the owner has worked all his life to get it the way he wants it and there is sometimes perhaps not a son but a nephew to whom he will leave the place who will take an interest in it. These people have that terrific interest in the land not so much as property but in that place that they want to see whoever succeeds them make the best of it. Those people are not patriots in the ordinary sense of the word but they are people from whom patriots are bred. It is very important that this sort of place should not be broken up. You will have a case where there is no will and nothing is done about it and half of it goes to somebody else who may be far better off than the owner of the property—half must go to such a person—and something happens then, there is some falling out in the family, and it has to be divided or sold. It would be a pity to go as far as that when the other thing is much more safe and possibly a much more valuable asset for the widow. I am accepting that it is a widow in most cases here. She is looked after by the son or whoever may be managing the place and the full value of the half share is hers for life. The possibility of her selling it when she is absolute owner is small and, therefore, it is not of any more value to her as an income to sell. It would be far better for her as well as for everybody else that it should be managed properly and that half the income or one-third or whatever it was should go to her.
These are matters that are important and they apply to section 110 just as much as to this section. I would ask the Minister to see again whether he could not accept a life interest instead of the total interest under these two sections.
I have a very definite view personally, apart from as Minister for Justice, about life estates. I think they are a very bad form of land holding. This has been the experience in Britain and in 1958 they introduced a Variation of Trusts Act to enable the court to vary those trusts or settlements where property is tied up in such a way that it becomes immobilised. You get a situation in which neither the life tenant nor the remainder man can make any use of the property or raise money by way of loan on the life tenancy or the remainder estate. I have always strongly held the view that this type of arrangement is not suitable in our conditions, and the only exception is that, in very rare circumstances where a life estate could be more value, there might be an argument for it; but in Britain they have introduced the Variation of Trusts Act, 1958, to enable the court to break up these trust settlements. I intend also to introduce shortly a variation of trusts measure here. It is desirable that the courts should be empowered to vary trusts in a way that will be to the greater financial and economic advantage of beneficiaries. Indeed, Senator Garret FitzGerald raised this very point on the Committee Stage of the recent Finance Bill and I agree fully with the point he mentioned. He advocated this idea of introducing a variation of trusts measure here which would deal precisely with the situation advocated in this amendment by Senator Cole and Senator O'Quigley, this situation of leaving property with remainder immobilised and having no way of dealing with it economically to raise money by way of security to improve the business, property, farm or whatever it may be.
This amendment seeks to introduce an entirely new principle. For many years now we have had intestacy provisions guaranteeing one-third to the widow and so on. We are now improving this position to guarantee two-thirds to her on intestacy and one-third to the children should she have surviving children; and in the event of there being no children she will get all the property.
These intestacy provisions have been widely commended both by the various professional groups who are concerned with this measure and by the Dáil itself. It surprises me to see it being raised here, because intestacies in this country are roughly 50 per cent of total successions, and that 50 per cent would, under the amendment, automatically give rise to life estates. I would regard that as a highly retrograde step. As it is, we are providing improved intestacy provisions for the benefit of the widow. In 50 per cent of the farms and properties there is no sell-out. There is no difficulty of that kind. There is no fragmentation. Indeed, in a later section we are abolishing tenancies in common which lead to fragmentation. At the moment these intestacies do not lead to fragmentation or sell-outs.
I was at pains to emphasise here and in the other House that what we are proposing in the way of a legal right—this is not strictly relevant to this section—is a legal right to a share. The widow will have this right which she can enforce if she wishes or if she feels she is being wronged in any way. She need not enforce it at all. Indeed I am convinced that she will seldom enforce it. It is a legal right which the widow may use as a last resort to ensure that she gets justice.
Another misconception in the criticism of this measure—and it is implicit in what Senator Jessop and Senator Cole said—is that we are in some way doing away with life estates or the possibility of life estates being created. As I have indicated, I do not agree with life estates, but, if a testator wants to create a life estate for his wife with remainder for his children or any other form of settlement, he can still do that. There is nothing in this Bill to prevent it. He can create a life estate if his wife is happy to accept it, and he can make any other arrangement for his children or for anyone else. We are not seeking to debar anyone from making that sort of an arrangement. Of course, if the widow is not happy about it and if she thinks it is a bad arrangement, she can, in the ultimate, exercise her legal right.
What Senator Jessop seeks in his amendment in relation to intestacy provisions would have a very serious consequence. We are altering the present intestate rules for the benefit of the widow. Are we now to import into the situation life estates which will tie up property to the extent that the owner will be unable to raise money to expand production and unable to get the money which one could normally get on any property? This is a very dangerous situation. It is an innovation and I think the Seanad should think very seriously about it. I would certainly oppose any amendment along those lines for the reasons which I have mentioned. It is against the progressive trend of thinking which leans against life estates. If I were not Minister for Justice and if I were asked for my advice as a legal adviser—and I have done this—I would advise people against life estates. As I have said, the trend in Britain, too, is against that. Consequently, I ask the Seanad to reject the amendment.
I cannot see the Minister's argument at all. If A tries to get a mortgage or to borrow money on a farm and he says: "My mother is a widow and she has half a share in the farm"; and B says: "My mother is a widow and she has a life estate in the farm", would it make any difference whatsoever to the lender?
Again, this is relevant to a later section. The legal right must be enforced within a year. It lapses after a year. At the end of the year the property will be better from the point of view of raising a mortgage than a property with a life interest.
Because after a year the widow has relinquished her legal right.
She can accept her legal right.
Then it is entirely different. I envisage the widow enforcing her legal right as a last resort. In 50 per cent of the bank transactions on Irish farms, the property has descended on intestacy and the widow is entitled to a one-third share.
I wonder where the Minister gets his figures.
I wonder where does the Minister get his figures.
What is the authority for those figures?
We have records in the Probate Office and in the Land Registry. The farms in these cases are in a better position creditwise than life estate property.
Are these figures published or will the Minister table them?
I can give full details in reply to a question in the House.
I should also like to mention that in section 120 we have further provision whereby right up to the day of his death with the consent of his wife the testator can assign property to the son of his choice by way of deed. If he decides during his lifetime that one son or daughter should manage his farm he can make that assignment by way of deed. There is also the legal right provision for the widow but the testator can assign or will the property to the child of his choice subject to the child looking after his mother to the extent of the one third legal right share which she has and which she may or may not enforce.
You can get clear title by way of will or by way of deed subject to one third, as the legal right share, residing in the mother. In most cases that right will not be enforced, but if it is to be enforced it must be enforced within 12 months. That sort of situation gives rise to far better title than the situation of a life estate with remainder over. I certainly would regard it as detrimental to embody the principle suggested in the amendment in the Bill. It is against the whole scheme of the Bill; it is against the intestacy provisions which have lasted over a long number of years in this country and which we are improving here for the benefit of the widow and which, mark you, both outside and inside the Dáil, found approbation on all sides. The adjusted provisions, as I have said, are generally welcomed by everybody with whom I have discussed the Bill.
The Minister has said that the improvement provisions in the share of the intestate's property have won approbation both outside and inside the Dáil. That may be so but they do not have the benefit of Senator Jessop's amendment. Of course, everybody agrees for the simple reason that it is giving the widow more than she has at the present time; it is increasing her share from one third to two thirds. We say that she should be given the lot for life. The Minister has been eloquently unconvincing but he is obsessed with what goes on in Great Britain. On the last occasion he was able to tell us what went on in Scotland and we also heard of Switzerland——
I was taking a point of Senator Garret FitzGerald's.
We shall leave that to Senator Garret FitzGerald with great confidence. Of course, the position of a life tenant is remediable if it suffers from the defects the Minister thinks it suffers from. Apparently they thought that in Britain and they have introduced a new law to vary the trust under which the property was held. The Settled Land Acts were brought in to remedy a state of affairs which was detrimental to the land owners and property holders in 1872, or whenever the Settled Land laws were brought in.
If a new situation has arisen in this country which would make it desirable that life tenants, persons with life interest in property, should have further powers and if the Minister thinks that they cannot borrow as effectively as full owners then, of course, the very obvious and simple remedy there is to give them further power by statute. There seems to me to be no reason why we cannot enact a new variation of the Settled Land Acts to enable a tenant for life to borrow money on the security of the property for which he is tenant for life and to charge it on the property for the purpose of improvement. That having been done, if it is borrowed for the purpose of improving the property, then he who takes it afterwards will take a better property with, perhaps, an encumbrance but he will get a better property. All this argument about the disability from which a life tenant suffers goes by the board when you realise that the powers of a life tenant are such as are given to him by statute.
I shall go further than that and say that if the Minister is correct about the terrible disabilities from which life tenants and so on suffer the truth of the matter is that under the Land Project there must have been hundreds and hundreds of estates where somebody took out a grant of administration and went along to the Land Registry and then the lands were charged with the Land Project payment in the same way as the land annuity. The administrator in that kind of case was no different in practice from the life tenant we are seeking to establish under this particular amendment. My recollection is that under one of the amendments of the Agricultural Credit Acts we made provision to deal with this kind of situation; that grants could be made and charged on the property irrespective of whether or not the person who was applying for the grant had a valid legal title to it. Once the property was being improved by the grant the person getting it or the Agricultural Credit Corporation was entitled to create a burden upon the land. Again, that kind of difficulty was resolved by statute.
Senator E. Ryan, has a great desire for consistency and likes, and is, indeed, tempted by this particular amendment. Again apparently on the grounds of consistency, he finds himself reluctantly compelled to resist it. He says he is wedded to section 110 which will give the surviving spouse a legal right share and he will not have anything that will depart from that. If we are interested in looking after the welfare of a widow then it does not seem to me to be consistent to say that a widow of a testator will get only one third where there are children and the widow of an intestate with two children will get two thirds. I fail to see where the consistency is there.
These are not mandatory provisions.
We are dealing here in the main with the welfare of widows. We propose that if the husband does not like his wife and disinherits her then she be entitled to one third but if the husband dies intestate, whether he liked his wife or not, she will get two thirds. There seems to me to be no logic whatever in that. If what we are concerned about is the widow who will be disinherited, the widow of a man who is crafty enough to make a will should get at least as much as one who dies intestate.
On the grounds of consistency there is no argument for retaining subsection (2) of section 66 as it stands. But there is an argument for giving the widow in both cases a life estate so that she has the entire of the property and if it becomes necessary without awaiting an amendment of the Settled Land Acts—such as the Minister contemplates bringing in— there is no reason why in this legislation we should not confer upon the widow the necessary powers to manage the lands properly and for that purpose, to borrow whatever money is necessary for the proper utilisation of the lands. I cannot for the life of me see how the position will be improved under this Bill where as against the life tenant the widow will be entitled to this floating one third interest in the assets of the deceased. Practical difficulties will always arise where a person is either selling or mortgaging land as to what one third of the assets of the deceased was. It is perfectly straightforward to say that a widow is entitled to one third share in the lands comprised in folio 100 of County Dublin; that is perfectly clear and understandable. It is another thing to say she is entitled, amongst other things, to one third of the assets of her husband. Who is to say whether or not she has been paid the full one third or what is to be the consideration for her releasing her one third share over the land? I anticipate the greatest difficulty arising when it comes to the practical application of the one third share. Whoever is lending money to her, will not know what she owns.
It is entirely vague. I can see banks, the Agricultural Credit Corporation and other institutions of that kind being very sceptical and raising all classes of impossible requisitions before they part with their money on the security of a person who has no vested estate in the land but who apparently would always have a right to sell it. This is relevant, I think, on this section and I should like the Minister to indicate his view upon it. As I understand the section we were dealing with earlier, section 46 (6), the widow is entitled to take, on death intestate, a two thirds interest in the property, and that interest, that legal right, as I understand it, will prevail over every other interest except charges on the land prior to the death of the deceased.
If a widow refuses to release her legal interest or to join in it and somebody is getting a loan from the Agricultural Credit Corporation then the Agricultural Credit Corporation as legal mortgagees would seek to be entitled to sell the property at any time to realise their security. Will the legal right of the widow be prior to the right of the Agricultural Credit Corporation? Will she be entitled to look for an order to enforce the same over the head of the Agricultural Credit Corporation or what will the position be? If she merely has a legal right that she cannot enforce under some power of sale it seems worthless but if she has a legal right that entitles her to sell I cannot see any banking institution lending money on the security of a farm where there is somebody else who has a prior legal right to them to sell the property for whatever they like without any regard to whether or not the security is realised. All that kind of difficulty can be got rid of straight away as far as intestacy is concerned by giving the widow a life interest in the estate with all the present powers of a tenant for life and any further powers that may be desirable or necessary to vest in the tenant for life.
The issue is whether it is more for the public good that when a man dies intestate his widow gets two thirds and his children have a legal right of one third or that when he dies intestate that his widow gets a life interest in her estate and that when she dies his children get everything equally between them. She has no right to make a will. Her estate finishes when she dies. Then all the children become equally entitled.
Let us apply that to the ordinary practical case where we meet a man, with a shop or a man with a farm who has a wife and four or five children. By the time the widow dies her children have grown up. One stays at home and works and manages the farm with his mother or works and manages the shop with his mother. The others go away, get positions here or emigrate. If that widow has only a life estate, immediately she dies that entire estate is liable to be fragmented. The boy who has gone to England or to America and, if she lives long enough it may be difficult to trace that child if he has not been corresponding with home, has an equal right not only to the entire estate but also to any profits made on it in the meantime. Surely in those circumstances there is no encouragement whatsoever for any child to stay at home, for any child to help to work a farm, knowing that his mother cannot even will it, that she can give him nothing whatsoever, that his brother who has gone to England and has become a carpenter earning £12 or £14 a week while he is slaving at home for a packet of cigarettes will have as much when the mother dies. That would be a most unhappy state of affairs.
If, on the other hand, the widow gets a definite two-thirds, that is, two-thirds of the estate that she can bequeath, the remaining one-third belongs to the children as of right but, if they do not exercise their right within 12 years—if one emigrates to America, another to England, and so on—then the boy who stays at home and is on the farm for 12 years after his brothers and sisters have gone, and his mother have acquired by prescription a legal right to the estate, and she can will her two-thirds to him and he has the entire estate. He is encouraged, therefore, to stay at home and keep his father's farm or business going. The most important factor of all in the public good is that the family should be kept together and that somebody should be kept in this country to maintain his father's farm or business and not to have everything dissipated. Otherwise there is no encouragement to anybody. Otherwise, with great respect to the powers of mortgagees, it is completely impractical and theoretical. The personal representative can mortgage the farms.
Under this Bill the real estate as well as the personal estate vests in the administrator or in the administratrix. He can mortgage the farm, go to the bank, to the Agricultural Credit Corporation, and so on; the question of mortgaging or credit does not arise at all. What is very important is that there should be an encouragement to one child or to two children as the case may be—if the mother is old there should be an encouragement for a daughter to stay at home as well—to stay there to manage and to keep that farm and the business going.
Senator Nash cannot have read the amendment because this is exactly what the amendment says.
I will deal with that now.
I think at least this is what the amendment was meant to say.
I agree with Senator O'Quigley. I cannot accept the logic of Senator Ryan's principle.
——that sections 66 and 110 are identical. They are two quite different situations. One deals with the situation in which the owner dies intestate; the other in which he is presumably intending to disinherit his wife and children— and we are trying to prevent him from doing that. I thoroughly agree that he should be prevented from doing that. Therefore, I agree with the principle of section 110 although I did think of pointing out that it is rather regrettable that we should be passing a piece of legislation which provides an inducement for a woman to see that her husband, if he predeceases her, does not leave a will.
They are not the same principles in sections 66 and 110 as far as the situation is concerned and I think that this amendment does give a better guarantee against fragmentation than is provided in the existing section 66.
From his practical knowledge, Senator Nash put the position very cogently. Precisely what would happen in the event of this amendment being adopted is that you would have a life estate on which no credit could be raised and then a situation where a child remaining on, the important child for the farm or small business, would have no guarantee of being the child on whom the life tenant mother would settle the property. This is precisely the difficulty which would arise in this case. The child who had gone to America or Africa or elsewhere could be the child appointed by the life tenant mother and the person who had remained on in the property and who had looked after the business might be completely debarred. That is the kind of situation we do not want to arise. We want a situation where, on intestacy, it occurs, as happens in 50 per cent of the cases in Ireland, that the widow with two-thirds has got substantial assets on which to raise credit, on which to improve a farm and on which she can go into the bank and obtain credit. The son who remains on the farm or in the business will, in due course, by way of deed, receive that property. He could also receive it by way of a will. That son would receive one third by right.
If he remains on for six years he acquires one third absolutely. Twelve years is the period under existing law but we propose in section 125 of the Bill to change that to six years. This will ensure that the sort of practical situation outlined by Senator Nash will be catered for, which is in fact what happens where a widow stays on a farm or remains in a business and one son remains there to manage it and——
Live horse and you will get grass.
——six years after the testator's death that son will have a right to one-third of the property and the mother will have a right to two thirds. That, in practice, is what will happen if the son remains on for six years. I think I have said enough on this matter at an earlier stage and I do not think I can say anything further on Senator Jessop's amendment. I would ask the Seanad not to accept this amendment.
It is extremely difficult to follow what the Minister has to say because the last lifeline he is grasping on to is the new provision under which title will be acquired after a lapse of six years, that is after a lapse of six years provided a second child has not remained at home. If that happens the statute will not run and if there is any question of monetary payment the statute will not run. The Minister's argument is as absurd as any that was ever made, that you say you base the section of an Act and the wellbeing of a family on the possibility that people will go away from the farm and that those remaining on will acquire the whole title in six years or twelve years.
Six years, if the section is passed.
The Minister assumes a great deal. The idea of founding the wellbeing of a family on this kind of possibility is just a sheer gamble. I am sure Senator Nash must know that many and many a time people have come into his office and have said they want to get their name down on the register or get their name down for land and he has taken full particulars to see whether they could apply for registration under section 52 of the Registration of Title Act, 1891. He has had to send them away and tell them to wait for another few years. Senator Nash knows it is quite difficult to acquire title to register land.
What happens when one member of the family of a deceased is in a mental home? This happens quite frequently. No title can be acquired as against the person who is mentally incapacitated and no title will run in the case of an infant until that infant comes of age. So, if one son was aged 19 and another seven when the father died it would be fourteen years plus another three years until the son of 19 and the mother would acquire title. You can take six years from that under the proposed new limitation and it would be eleven years until infancy, which prevents the Statute of Limitations from running, is eliminated from the case. Therefore, with the contingency of disability in the form of insanity which happens in a small number of cases, with the possibility of an acknowledgement in the case of some of the claimants and the possibility of some monetary payment being made to prevent the statute running, this is a great way of getting a boy to remain at home and get one third! It is quite absurd.
It is working in 50 per cent of the cases at the moment.
It is not. What is happening at the present time is that many applications for housing grants and numerous applications that have to be made under section 52 of the Registration of Title Act, 1891 just stop short because there is somebody whose estate or interest is not accounted for.
I remember in 1958 I had an application under section 52 of that Act and the solicitor was very wroth with me because I did not send back the papers in time. That was in 1958. Seven years later the papers came to me because it took all that time for the title to mature. The solicitor was not dissatisfied but he accepted the position. He thought in 1958 the application was right for a section 52 application. One meets this kind of thing quite frequently. This is a great way to encourage a son to remain at home so that he and the mother will acquire title under the Statute of Limitations.
When the widow is left the property for life and a particular son remains at home she does not have to wait for the passage even of six years. She can, within that time, settle the property on her son and that is an inducement for him to stay on. That is a straightforward way to deal with the matter and no difficulty at all arises with regard to credit. I would like to inquire from Senator Nash, if in his wide experience, he ever had a case where a widow had her one third share and maybe a child remained on but who had not acquired title to the remaining two thirds because one of the brothers or sisters was under disability? There is nobody who would give a halfpenny credit on a farm with a title of that kind. I am sure Senator Nash has had experience of that kind of predicament. Under the section the widow will get two thirds and her children will get the balance but for a period of six years she will be bound hand and foot and unable to obtain the moneys that might be necessary to set the farm in full production. I think that Senator Jessop has done great service to the House in putting down this amendment and that great service would be done to the people of the country if it were accepted. I have no doubt whatever that it exactly meets the situation, and had it been incorporated in the Bill when the Minister was consulting those outside bodies he spoke about they would have approved of it even more than they did the present meagre increase from one-third to two-thirds, and likewise there would possibly not have been half the opposition to this Bill if this suggestion had been incorporated.
When I met the solicitors' representatives they were of one mind about this. That was the one point that impressed them over others.
Of course, because they did not have any other suggestion. They did not have Senator Jessop's amendment.
In these cases and I presume in other cases where there is a little bit of friction amongst the family and the widow is left with two-thirds she is the real influence and I do not think that any member of the family will stay on that farm.
I want to emphasise again that in over 50 per cent of the cases at the moment property is descending by way of intestate succession in Ireland. The sort of thing that has been mentioned here just does not arise in 99.9 per cent of those cases. Secondly, if a testator does, I think misguidedly, want to give his property by way of life estate he is fully entitled to do so. He can do it under this Bill. The widow can take a life estate and the children can be appointed by her. There is nothing in the Bill to prevent that happening. Of course, if she is not satisfied with that, that is another day's work. She can enforce her legal right. But there is nothing to prevent a testator leaving an estate for life or entering into any other form of arrangement provided his wife agrees with it. That is the situation, and that is a thing I would like to emphasise here.
It would be disastrous in my view if we made it compulsory in regard to 50 per cent of Irish property that life estates would be created. That would be importing into the structure of property holding a completely new conception, that you would make it mandatory in 50 per cent of cases of succession to property that a life estate be established with remainder over. As I said earlier, that is the type of estate and the type of arrangement which is completely out of touch with the modern world. A life estate with remainder was a feudalistic conception which belonged in England particularly where estates were held in this manner and tied up in a family for generations. It is now going in Britain; it is gone throughout the world. It is common cause for lawyers in every country of the world and for progressive lawyers here to advise their clients against tying up property in this fashion. These are the facts of life in 1965.
Amendment, by leave, withdrawn.
Question proposed: "That section 66 stand part of the Bill"
I would like to ask the Minister why he insists on maintaining the antediluvian phrase "per stirpes" in this section. What does it mean? Why not use plain English?
We have it defined in the definitions section.
Why do you not use plain English?
On subsection (4) of section 66 all the issue are of equal degree. The children of the testator under this subsection and probably, too, under section 116 share equally. There might be a younger child who would want education while the other children would be grown up and away in positions. Could we not bring into this the system in section 116 of a court application on behalf of the infant child?
We are giving the mother two-thirds in the case of intestacy out of which if the normal mother-child relationship exists she should be able to look after the child.
That is if the property is big enough.
As regards section 116, in the Bill prior to this you had the situation where there was a compulsory legal right for the children as well. I decided to delete that for some of the reasons already mentioned by Senator O'Quigley and to provide that the only mandatory share would be the widow's and that a child who felt prejudiced would have a right to apply to the court. That is a different situation to this. In the case of intestacy the child gets his legal right, his share of one-third, but in the case of testacy he has no legal rights under this Bill and must apply to the court if he is prejudiced. There is that distinction.
It is very difficult to amend this Bill in a way that would meet the kind of cases one would want to meet. When the original Bill was before the Dáil there were certain amendments put down which dealt with the kind of cases I am going to mention now. Very often one finds in a family that there is one child who will never earn a living because of delicacy in health or physical or mental handicap. It seems to me that if we are solicitous for the well-being of a widow who is in the whole of her health we ought to show equal solicitude for a child of an intestate, and, indeed, of a testator, who will never be able to earn a living or at least a good living. Our solicitude should be directed to providing that if you are going to leave two thirds to the widow where you have a child who falls into any of the categories I have mentioned it is unreasonable to say that you can give one third of one third to a fellow who has a good job with the Government, as the phrase has it, or the county council or elsewhere, or give another third to a girl who is married and may already have got a fortune out of the place, and that you have no solicitude for the unfortunate who is never going to be able to earn a proper livelihood.
I wonder whether all that Senator Cole has been saying would not make an impact so that it would be possible to amend section 116 to provide that an application on behalf of the child of a testator would apply equally to the child of an intestate where the court would be satisfied that the moral duty lay upon a deceased intestate person to leave whatever property he could leave to a physically or mentally handicapped or delicate child who will never be able to earn a livelihood. I think Senator Cole's point is well founded and perhaps if we do not amend it on this section, on section 116 we might consider applying this beneficial provision to the case of the child of an intestate who falls into one or other of the categories I have mentioned.
I am not claiming that this Bill is perfect. I do not think any scheme in regard to intestacy can be perfect. I think the best thing is for the mother or father to make a will providing for the child. That is the obvious answer. I do not think it would be desirable to further extend the system of court applications. If we bring in a system of court administration on intestacy there will be trouble and there will be wholesale insecurity in regard to title. There will be a large number of applications. I think court applications should be restricted as much as possible. The less the courts intervene in this matter the better. The only reason why I brought in court applications was to meet the point advocated in particular by Deputy John A. Costello in the Dáil, a point of view I hold myself. The original scheme provided for a mandatory one third in the case of the children in addition to the mandatory legal right of one third for the widow which would lead to fragmentation. It was felt that children who were already settled in life in a profession or in business, or had departed from the country, would come in for the mandatory one third share. Reluctantly I decided to bring in the system of court applications in section 116. It is the lesser of two evils compared to the danger of fragmentation which could arise where a number of children would come in for their share. I would be very reluctant to extend the court application system to intestacies. As I said, 50 per cent of succession cases would then be open to court investigation and administration.
This is the case of a minor or a very young child.
It could be limited to the case of a minor or where there was some specific cause like mental or physical handicap. We could make provision of a minimal character.
I think the Minister should not be so afraid of the courts as he is. They are not as bad as all that. Application to the court is a security and a protection for the unfortunates we all want to assist. Certainly it is the lesser of two evils. It is not an evil at all because in the case of the unfortunates we want to assist it is a benefit. If a person is just being awkward there is always the sobering remedy to deal with that kind of person. We can provide in the Bill that we will have to pay the costs if he fails. When a solicitor is advising his client if he said: "You have not a chance; you would not be regarded by the courts as being physically handicapped or as suffering from a delicate state of health and the court would not give you the one third; you may have to pay the costs out of your share", this would greatly restrain unwarranted applications. The Minister should think about this again and he should dissipate his fears of having fragmentation of title by providing that this application should be made within a year. If the application must be made within a year the title would be uncertain for a period only. The estate would not have to be administered for a year anyway and no harm could be done. Our paramount consideration should be for the child who needs all he can get from the father. We should not draw back from giving that advantage to the child simply because it involves court applications. As regards the question of title we can provide that the application should be made within one year of the grant being issued. The Minister would do very well, having accepted the principle in section 116—
I know that. We are all very reluctantly accepting a great deal in this Bill because we have to. I would urge on the Minister to think about this again and not to close his mind against it completely. He could bring a great deal of comfort and solace to a great number of hardship cases.
I will think about it but I am against it.
Question put and agreed to.
Sections 67 to 71, inclusive, agreed to.
Question proposed: "That section 72 stand part of the Bill."
I said earlier that I was considering an amendment here. I will have it on Report Stage.
There is one question that comes to my mind on this section which provides that in default of any person taking the estate of an intestate, whether under this part or otherwise, that estate shall become the property of the State as bona vacantia. I want to ask the Minister at what stage of relationship will the State take as ultimate intestate successor?
The procedure as it is at present will continue. The Chief State Solicitor applies in court and takes out a grant of administration.
I think the Minister must have misheard my question. At what degree of relationship do you stop short and say the State shall take as ultimate intestate successor? Is it second cousins or third cousins?
It goes the whole way to the nth degree. It is only at the stage where there are no relatives of the whole or the half blood.
I am grateful to the Minister for that information. The side note states that it restates the substance of the existing law. Is that existing statute law or is it based upon common law to be found in a variety of cases?
That is a thing that troubled me.
As the law stands at the moment if a woman dies leaving an illegitimate child that child's estate is forfeited to the State if the child subsequently dies unmarried. Likewise, if an illegitimate child dies unmarried, only the mother, if surviving, is deemed to be a lawful relative of the child. It that corrected in any way under this Act?
The succession right of an illegitimate child is very much in my mind. I hope to bring in a separate measure to deal with the question of illegitimacy.
Question put and agreed to.
Sections 73 to 76, inclusive, agreed to.
Question proposed: "That section 77 stand part of the Bill."
Section 77 is exactly the same as the existing law in regard to the execution of wills.
That is right; I have reinstated the existing law.
Yes, I am very glad that you did.
Question put and agreed to.
Sections 78 to 82, inclusive, agreed to.
Question proposed: "That section 83 stand part of the Bill."
I should like to make one point on this section. At the moment a solicitor who is an executor theoretically is not a beneficiary under the will. That means that such a solicitor cannot witness the will. At least if he witnesses, he has to take out administration and he cannot even charge out-of-pocket expenses for so doing. I should like to direct the Minister's attention to that.
There are difficulties in changing that procedure, of course, but I shall look at it.
It does mean that if a client wants the solicitor to witness a will in such circumstances the solicitor has to send out or maybe call in somebody from next door to witness the will, especially if he has a small office with only one typist. Therefore, he has got to send out for somebody to witness the will and very often the client does not like it. The solicitor does not benefit under the will and he charges the normal fee for taking out probate.
I should like to support what Senator Nash has just said. There are some dangers, of course, but the position of solicitors is such that they have got to free the way for what they do. In any event, the stage has been reached where the solicitor who is required to act or, as executor, is required to witness the will will explain the legal position with regard to costs to the client and a clause can be incorporated in the will providing that the solicitor will be entitled to charge his normal and proper costs. Since that is valid, I do not see any reason why we should not enable him to sign a will without this kind of penalty and to act as well without the penalty.
I should like to draw the Minister's attention to the fact that no solicitor may incorporate a clause in a will at the moment; if he does the will becomes void.
I will have a look at that between now and Report Stage. It was mentioned in the Dáil as well.
Question put and agreed to.
Sections 84 to 88, inclusive, agreed to.
Question proposed: "That section 89 stand part of the Bill".
On section 89, I am not quite certain as to what is meant. Certainly, it is a very badly drafted section. It reads:
89.—Extrinsic evidence shall be admissible of the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.
I do not think that achieves the Minister's desire for clear simple English. I take it what is meant is that "extrinsic evidence of the intention of the testator shall be admissible to assist in the construction of, or to explain any contradiction in, a will" but that is not what is stated in this section. It is very badly drafted.
It seems simple and straightforward enough.
I would ask the Minister to have a look at that again; it is just a matter of the good English he wishes to have incorporated in it. I think it should read "extrinsic evidence of the intention of the testator shall be admissible to assist in the construction of, or to explain any contradiction in, a will."
It was amended in the Dáil and Deputy John A. Costello approved.
Question put and agreed to.
Sections 90 to 109, inclusive, agreed to.
I move amendment No. 7:
Before section 110 to insert a new section as follows:
"(1) It shall be the duty of a testator to make adequate provision in life for his spouse according to his means whether by his will or otherwise.
(2) Where, on application by or on behalf of a spouse the Court is of opinion that the testator has failed to make adequate provision for his spouse in accordance with his means, whether by will or otherwise, the Court may order that such provision shall be made for the spouse out of the estate of the testator as the Court shall think just.
(3) Rules of Court shall provide for the conduct of proceedings under this section in a summary manner.
(4) The costs in the proceedings shall be at the discretion of the Court."
Much of what we have been saying on section 66, on Senator Jessop's amendment, is probably relevant to this and succeeding amendments. These are the provisions of the Bill which have created the greatest controversy both in the Dáil and among various callings in life in this country and, indeed, among the people generally. It is quite clear that the original misconception as to what ought to be done to deal with the disinherited widow, that what was sought to be done originally was not the correct remedy for the problem that was to be dealt with. As I said before, because of the way this Bill is constructed it becomes very difficult to amend it in a way that would meet the situation in the kind of way that one wants to. I have anticipated that the Minister may adopt a particular attitude in relation to this particular amendment and, consequently, I have put down other amendments in case the first was not acceptable. But I want to say quite clearly that I understand —if I am incorrect, the Minister should correct me—the Minister to say on the Second Stage that the Incorporated Law Society, among other groups, had now approved of the Bill as it stood. I understood him to mean that sections 109, 110 and the whole of Part IX had received the approbation of the Incorporated Law Society.
No. I met a number of specific points which they raised.
On the Second Stage. I understand that that is not the position. The situation in relation to sections 109 and 110 and the whole of Part IX is that we are trying to deal with a small problem which is very important and very acute for those whom it affects. The way that the problem was first tackled was manifestly wrong and the Minister has gone away from it. The experience of the solicitors in this country is an enormous body of experience and it does not really make a great deal of difference to their fortunes—I do not suppose it makes any difference to their personal fortunes—whether or not these particular sections go through. One of the difficulties of lawyers dealing with a Bill of this kind is that there is always the underlying suggestion that the amendments they are proposing are designed to put money into their pockets.
I want to face fairly and squarely this underlying kind of suggestion.
The Senator must have a complex.
The Minister this evening threw the sneer across the House that this will be without wigs and gowns and without counsel. I do not care what anybody has to say about my practice as a barrister. It does not affect me. I take a crack as good as the next. Barristers have their faults and failings and are as fond of money and dissipate money as much as anybody else. But there is an underlying suggestion that the legal profession in offering opposition to these provisions of the Bill were doing so with the ulterior motive that other provisions they advocated would bring them more.
I would reject any suggestion of that kind.
I am glad that that suggestion is rejected. It was thrown across the floor of the House this evening and I had to say I did not think it was worthy of the Minister.
I have no recollection of saying anything of the kind.
This is the usual kind of situation we are up against. It does not make any difference to me personally whether or not these sections go through in this or any amended form. It will not affect the legal profession: I do not see how it will. They have practical experience. They meet people day in, day out, the small shopkeepers, the distressed widows, the unfaithful husbands. They go out to the country house at any hour of the day or night to draw up a will under all classes of conditions. They make the marriage settlements, arrange the transfer of property, try to make the title. They have an incomparable body of experience. There is no other group in this country which can equal the experience they have. To a lesser degree, the barrister end of the profession has experience in these matters. I would not claim for a moment to have anything like the experience in these matters that Senator Nash has because a solicitor, in his daily contact with these kinds of problems, can meet and resolve them and they go on quite successfully. Having got rid of the idea that the Incorporated Law Society, barristers or people of that kind have a vested interested in what is happening in this legislation, I would then ask the House to pay some attention to the great volume of experience which the legal profession in this country bring to bear upon this problem.
Precisely. Deputy J.A. Costello was very helpful.
That experience should not lightly be cast aside. It is quite true to say that there was not a single Bar Association in any of the 26 Counties or in the city of Dublin that approved of these sections of the Bill as originally introduced or at the present time——
Deputy J.A. Costello approved.
You did not always approve of him. It is a pity you did not.
The Minister mentions the name of Deputy J.A. Costello to intimidate me about disagreeing with him. I will not follow that line at all. Deputy J.A. Costello has his view and other people have their views. I am sure Deputy J.A. Costello would resent his name being dragged in to prevent the proper discussion that this House should give to this very important measure.
It is a tribute to his legal knowledge and high standing.
It is a better tribute than to the last Minister for Justice and his legal knowledge.
This is another side-wind the Minister has introduced in order to get over the difficulty in which he was placed by his predecessor.
There can be no doubt at all about it that the intervention of the General Election released the Minister's predecessor from the dilemma from having to make the radical alterations that his successor has had the courage to make and which I would hope he would have the courage to continue to make in this particular Bill.
As I said on the Second Stage, irrespective of what has been done in Scotland, England or the Continent we have to look at this problem from our own experience. The truth of the matter is that most men in this country, having wives, when they come to make their wills make adequate and proper provision for their wives. That is the experience of the solicitors of this country. Indeed, one solicitor went to the trouble of looking up something like fifty wills he had where the testator had a wife and in 48 out of the 50 cases all the property of the testator was left to the wife and in respect of the other two it was not because of disinheriting, but because of other financial provisions that had been made, that the widow did not get the entire property but got a share.
That is the kind of situation we are up against. It is a small problem. No doubt the Minister and certain people will say it is a sizeable problem. I cannot say what is meant by a sizeable problem. The Minister cannot say it occurs in 1 per cent, 1.5 per cent or 2 per cent of the cases. We all know a problem exists but it is quite wrong to try to foist upon the population, male and female, who have property to dispose of by will, a solution which is appropriate and designed to catch the spouse who wants to disinherit his partner. No matter what way one looks at the provisions of section 110 they do not work out right.
Two thirds, as we had in section 66, is no good in the case of a testator owning a small amount of property. One half is no good either. In many cases the whole lot would not be sufficient. If a man has an obligation in his lifetime to support his wife he has an equal obligation to make the best provision he can after his death. An objection to section 110 is that merely to leave half of a small estate to a widow is not good enough and does not meet her situation. She should get the lot. It is in that way that the first difficulty arises with regard to section 110. A half of a small business, a half of a small farm or a half of a small insurance that a testator has left will be quite inadequate in a great majority of cases to enable the widow to live properly. Of course, it ultimately means, from the point of view of public policy, that she more quickly goes on to public funds if she is not entitled to a contributory pension. Therefore, section 110, in so far as it is intended to deal with small property owners' widows, does not measure up because it does not give her half enough. That is the first objection one has to the section.
It may be quite wrong, in the case of large property owners, to give one half. It may be a very damaging thing to a large family business. You could have the husband as the principal owner and the other members of the family working in it and deriving a livelihood from it. This would happen in quite a number of cases and if the widow could be given an annuity, say £1,000 a year, out of the business she would be well provided for. If one wanted to make adequate provision it could be increased by, say, four per cent or by so many pounds per annum, having regard to the inevitable decline in the value of money. If the widow got £1,000 a year it would be much more desirable and easier to bear than if she were given one half of the family business which, if she insisted on taking it and moving out to reside with her favourite daughter, or something of that kind, would leave the business completely crippled. In most cases the business would have to be sold.
It does not meet that kind of situation or the situation where the man may leave less than a half share to his widow. He may do so because he thinks she is what Senator E. Ryan described earlier this evening as a spendthrift. There are some wives, but they are a small proportion in my view, who are spendthrifts, who have no idea of handling money or of the value of money. It may merely mean, if you give such a person so much money into her own hands, that she will spend it all and will then have to be kept out of public funds. Half, in that case, does not meet the situation The prudent husband, having affection for his wife and regard for her capacity and her faults and failings, would make such provision in the will as would be suitable to her particular circumstances. The only person who can know those circumstances is the husband and wife of the person, as the case may be.
The provision of one half does not meet the small estate. It does not meet the case of the big estate and, equally, it would not meet the case of the medium-sized estate, whatever value you would like to put on these estates. It is because of this absolute rigidity and because it is unnecessary in so many cases to make this kind of stipulation that the section is opposed.
The Incorporated Law Society, in May of this year, issued a document and they have pointed out a variety of ways in which this particular part of the Bill does not meet the situation. They point out, among other things, that there are undeserving spouses who have absolute right to a share in the estate of their partner. For instance, at the present time, I know of a case of a man and his wife who have not lived together for years. They just did not hit it off. One of the partners is extremely wealthy and the other is not. It means that £30,000 or £40,000 is going to the partner who has not a care at this time and has not had for the past 20 years.
That may be for better or for worse but it seems quite unreasonable to say in cases of that kind that the partner can come in and claim, as an absolute right, one half share of the estate of the partner who has been deserted for a number of years. The Minister may say that the provision in section 110 of the Bill deals with the spouse who has been deserted. We will be dealing with this later. I am suggesting in section 110, by way of the insertion of a new subsection, that we should recognise the existing conditions in this country, that the vast majority of testators who are survived by their spouses, make adequate provision and declare in the first part of the amendment that it shall be the duty of a testator to make adequate provision in life for his spouse according to his means by will or otherwise. Then if any surviving spouse feels that such provision has not been made that spouse would have a right to go to the court where she or he would establish a case and that the proceedings would be conducted in an expeditious and summary manner. There is no use in the Minister saying that this is an approach from a lawyer's point of view—that this creates more expense, more applications to the court and by implication could put more money into the pockets of lawyers.
I am not suggesting that.
We have had that innuendo throughout the debate in one form or another. There is the suggestion that the widow is being driven into court. What we are dealing with here is a small number of widows, and that where such a widow has a justifiable grievance she will have the right to go to court. It happens every day in administration proceedings and probate actions that people look soberly at the situation as they see it. They are advised by their legal advisers, and not infrequently in relation to actions to set aside improvident deeds or to have wills declared invalid because the testator was not of sound mind, memory and understanding, those who are entitled to benefit settle the cases out of court. Might I say that that is always what the legal advisers of people engaged in this kind of litigation seek to achieve. Very often it is quite impossible to get some unreasonable people to accept a compromise, but I have no doubt that, once it is laid down in a statute that a testator shall make adequate provision in life for his spouse, everybody will know what adequate provision in life means and the number of applications to the court would be minimal, because people have enough wit to see that if a widow is left nothing maybe one third or one half of the estate would be what she should get, or in cases maybe the lot.
Once you provide, as is provided in this amendment, that the costs of the action shall be at the discretion of the court you introduce a sobering element which induces great judgment in people when they are dealing with court actions and they will have to pay for the costs if they fail. If a man left all his property to a son or a brother, disinherited his wife, and the donee under the will was not prepared to see reason, that person would quickly realise that in the first place the widow was going to succeed and get something in court, and, secondly, he would have to pay his own costs and the widow's costs. In that way you would ensure that many applications will never reach a hearing in court. Having done that, you have then provided all the possible safeguards that a widow can require under the law. Let it be remembered, too, that every solicitor advising a husband making a will will tell him: "You must provide under the law adequate provision for your widow, and if you do not she will be entitled to go into court once this statute is enacted." It seems to me that when you are dealing with people of commonsense who have ordinary regard for their duties as husbands the number of cases where widows would be disinherited would be very few. The great advantage of this kind of scheme would be that while providing the necessary protection for widows who might otherwise be disinherited you leave a man entirely free to dispose of his property as he thinks best.
It may be that instead of giving the widow half of an estate an annuity for life would be given to her out of it. The advantage as far as the Minister is concerned would be that here we do not raise this horrible ugly ogre that the Minister is terrified of, the life estate. We would not have anything of that in this situation. All the property might go to a son with a provision to pay an annuity of say £500 or £750 or whatever the property would bear to the widow, and he would be able to develop the property as he thought best with the annuity charged upon it. The widow under this provision would get all the benefits she requires. The number of court applications would be absolutely minimal, and at the same time the rest of the population who at the present time make adequate provision for their widows would not be hamstrung by this rigid provision that she must in all events get half of the estate. When you have regard to the fact that there is not a single group of people in this country to my knowledge that has come out in favour of the earlier provision——
They have an amendment down on this subject.
That may be so, and if it is I regret it, but apart from the Labour Party if that be the position there is not a single group in this country in favour of the provision as set out in this. It is not because of any social theories or any kind of prejudice that people have opposed this but because of practical knowledge and experience that this makes a situation hopelessly unfair to all those who provide properly for their wives and makes it quite impossible to work.
I have no great faith in urging the Minister at this time to accept this amendment, but what I have said— and a great deal more could have been said but for the lateness of the hour—should be said and placed upon record.
I am glad that the further discussion of this Bill can proceed upon the basis that those who like myself derive their livelihood—a very small part of it—from the administration of estates and from this kind of thing will be taken at their face value de bene esse and that when these underlying currents are got rid of all the proposals will be debated upon that basis.
I think that small farms and small estates are covered by the two amendments here today. As regards bigger properties why would not a woman be entitled to use it and do what she likes with it any more than a man? I strongly object to all the insinuations about widows being spendthrifts when people know all the time of widows who have been left to deal with a business or farm and have made a far better job of it than a man.
I am sorry that you are rebuking Senator E. Ryan in that way. I was merely quoting him.
I can find little or nothing to recommend itself in this amendment as proposed by Senator O'Quigley. I think that first of all the phraseology of it both from the point of view of what it says and of being interpreted by the courts is far too vague.
That could be remedied by the Parliamentary Draftsman.
The courts are there to interpret the law and not to wander around vaguely and try to interpret what is meant by "adequate provision" in this instance. The law has to be administered by various judges and there is difficulty if they have not clear terms to guide them. In this case those particular people would be left in grave doubt as to how an individual—and a judge is an individual the same as anybody else—can interpret such a vague section as this, were it incorporated into the Bill, to mean what is adequate provision. We must have some finality and some clarity and this type of section, were it incorporated, would only confuse the issues the Minister is trying to resolve at this stage.
Will the Senator say that on section 116 also?
I am speaking on this amendment now. I may have my own views on section 116 also. I think the courts should be asked as little as possible to stand as moral guardians in cases where they have no clear terms of reference.
Why should the Legislature be asked to do it?
The Legislature can speak with authority.
The sacred marriage contracts of the country.
A particular judge would be asked without any clear terms of reference to decide what is adequate provision and different judges would come to different conclusions as to what is adequate provision and the law would be left open to disrepute.
I think Senator O'Quigley is blowing hot and cold when he says the provision as to costs would discourage applicants from using a section such as this. The courts might look on both sides and say that the applicant also might not readily be able to bear the burden of the costs. They might not ask him to bear that burden. They might ask him to share the costs or they might make no order as to costs. They might decide to levy the costs out of the estate if there was a reasonable case. This cost restriction is one that would not readily apply. I feel that from the point of view of reason and clarity this particular amendment has little or nothing to recommend it.
Senator O'Quigley said he had no faith in the Minister. I am not entirely without hope and if he is charitable he will be reasonable even on this section.
I do not think he had no faith in the Minister.
Perhaps I am exaggerating his despair. The Minister interjected something about sacred marriage contracts. If this section stands the wording will be: "with half my worldly goods I thee endow." There is a case against the amendment but the case against the amendment is not a case for the section as it stands. It is a case for changing the section to make it do what we want it to do.
I was very impressed with the case made against the section on Second Reading by Senator Nash. That case was developed here this evening very effectively by Senator O'Quigley and it has not, in fact, been answered. When we come to legislate in a matter of this kind, I do not think we should simply decide to take an arbitrary figure and say it will meet all the cases. It was clearly pointed out that there are many cases this will not meet and that injustices of one kind or another will be involved. The best remedy for that is not necessarily an amendment of the kind now before the House.
We have not been able to decide the method of laying down precisely what should be done to meet a variety of conditions. The first task of a Legislature should be to try to lay down in a precise way what needs to be done to meet certain conditions. There is one way in which the Minister could effectively reject this amendment. He could put to the House a constructive suggestion to meet the objections to the section. He has said the amendment is too vague. Some attempt should be made to offer other amendments to deal with this particular point and then the amendment could be withdrawn in good conscience. Perhaps this amendment could be developed. For instance, I do not think a figure of £5,000 is sufficient for this purpose and I think the wording of the amendment in some respects is too vague but I think other amendments could be made to meet the case of small estates.
There is also the case where a woman has left her husband but is not technically guilty of desertion. There are some cases in which people have to be protected against themselves. A woman may be a spendthrift or for other reasons—perhaps an illness of some kind—she may be incapable of handling money or it may be thought unwise to leave money to her. I have used the word "she" deliberately because that is the term which has been used throughout the discussion by the Minister and others. This section also covers widowers and, of course, there can be spendthrift husbands. I do not really think it is necessary to make provision for widowers who should be capable, in general, of looking after themselves. I think we should insert the word "female" before the word "spouse". This section as it stands, if it stands, deals with widowers as well as widows, so we need not be rejected on the grounds of being anti-feminist. I see no reason why a woman should have to leave half her money to a drunken husband, for example, to spend it on drink—and I would be prepared to admit that in the case of drunkenness, it is more likely to be the widower than the widow, who is a drunkard.
This section needs amendment and possibly the answer might be to make provision—I am putting this forward for what it is worth—that the man could go to the court in his lifetime and make a private application in chambers if his wife is, for example, an alcoholic. It could also be the husband who is the alcoholic. However, if the wife is an alcoholic the husband could leave her an annuity of some kind. Perhaps he could be required to make the annuity two thirds of the full amount. The court could examine into whether the money should not be left absolutely to her so that it would not be wasted. Some such amendment might meet the case. Surely it is not beyond the wit of the Seanad to devise an amendment to meet the case so cogently put before us by Senator Nash and Senator O'Quigley. In default of anything else the amendment now before the House must be accepted. If the Minister is prepared to say he will look at the question of amending the section in concrete ways to meet these cases and that he intends to do so, I certainly will support him and will support the withdrawal of the amendment. I still have the hope in him, although Senator O'Quigley has not, that in the cause of clarity he will be prepared to agree to amendments of this kind to make it possible, in good conscience, to withdraw the amendment before the House.
Progress reported; Committee to sit again.
The Seanad adjourned at 10 p.m. until 3 p.m. on Wednesday, 3rd November, 1965.