Succession Bill, 1965: Committee Stage (Resumed).

Debate resumed on the following amendment:
NEW SECTION.
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."
—(Senator O'Quigley.)

I thought I had covered most of the ground. There is possibly one outstanding matter and that is the query by Senator Garret FitzGerald concerning the question of estate duty as it relates to life estates. This is a matter on which I cannot, naturally, make any comment. It is purely for the Minister for Finance within the context of a Finance Bill, but, as Senator FitzGerald has raised it here, I will bring it to his notice.

On the broader question so far as it affects this particular Bill, I should like to emphasise again that the question of accepting a life estate is a matter of choice for the beneficiary, or life tenant. Assuming it is the widow—as the situation has been advanced here—if she wishes to avail of the life estate to avoid estate duty, she can do so, provided she is happy with that particular form of disposition and provided the arrangement suits her in the particular circumstances of her case. It is not a matter for this Bill to say what should and should not be done by the widow in particular circumstances or by the surviving spouse in relation to a life estate. The ball is back in the beneficiary's court, as it were. If the life estate arrangement or some other arrangement has been worked out by the testator and his wife prior to the testator's death, then the wife can participate in that particular arrangement, be it an arrangement which evades duty, to the benefit of herself or her estate, or otherwise. Under this Bill there is no compulsion, there is nothing to force her to adopt any particular attitude. The freedom is hers and the choice is hers. It is the survivor's choice to avail of whatever arrangement was agreed upon or, even in some cases, not agreed upon. I am not envisaging the husband and wife getting together in every case. Even if they do not come together, if the testator makes an arrangement which suits the widow, she can adopt that particular course or not, as she chooses. It is for her to weigh the balance of advantage between that type of estate, if it involves a saving of estate duty, as against another type of estate which might give her a more firm security from the point of view of credit but might involve extra estate duty.

I am not competent to judge on the scales of estate duty. It is a very intricate matter involving various scales of payment, perhaps, upon different sources of estate. I am, however, aware as a matter of practice that one advantage of a life estate arrangement is that you avoid having to pay estate duty twice. If that is the arrangement that suits the widow in the particular circumstances, or if the testator enters into that arrangement prior to death, she can carry out that arrangement though it might not be the best possible from my point of view or the ideal form of holding. If they wish to enter into that arrangement to avoid or not pay as much estate duty as under some other arrangement, it is open to them to do so.

I want to emphasise this voluntary aspect of the Bill. At a very early stage it got off the ground in the wrong way. The impression went abroad to the public that there was this compulsory one third share and that that was that, that there could be no other arrangement you could make, that after death your widow must get one third if there were children and one half if there were no children, and there was no alternative. In fact, every alternative in the world is open to any testator or testatrix under the provisions of this Bill.

Again, I want to emphasise the fact that I envisaged—and I am certain that it will work out this way—that the legal right principle will be the very last resort to be used by the surviving spouse to prevent himself or herself being in any way victimised. It is only in that context that I see it working, as a weapon to be used or not to be used, as something in reserve which the widow knows she has and which everybody else concerned with the property knows too, to ensure fair play for her. It is in that connection that I see the scheme operated. It leaves wide open all the arrangements in the world from the point of view of legal and revenue aspects that a testator or a solicitor or an accountant can devise for the benefit of the estate.

I should like to support the point made by Senator FitzGerald and to hope that the Minister will be able to do something on that line. On the first occasion after the Second Reading of the Bill I actually put down an amendment which I afterwards withdrew when I promptly realised that it would be out of order under this Bill. The substance of it was that an estate to the widow be her share of right here of one half, or one third where there are children, but if she subsequently gave with her estate any of the estate of the testator it would be regarded as a life estate. In other words, that if she took her share, say, one third of the estate, and subsequently passed that on on her own death to the children of the original testator that that would be valued then as a life estate and no further death duties would be paid on that portion which she passed on to the children of her spouse. That would be a reasonably fair arrangement because a husband and a wife may probably be of the same age. The husband dies and a half or one third, under this Bill, if the Minister does not amend it, will go to the wife. As they are both about the same age in a very few years the husband or the wife will die and, again, the estate becomes liable to death duties. That would be unfair. It might in some instances induce the widow to forgo her share of the estate because she might realise that the death duties will again be deducted a few years after the death of the testator. I would ask the Minister to bring this to the notice of the Minister for Finance when he is preparing the next Finance Bill. I agree that some minimum share should go to the surviving spouse. It would be unfair that the State should take a lump out of that sum on the death of the surviving spouse.

I should like to give that assurance to both Senator Garret FitzGerald and Senator Cole. We are equally conscious of this. In view largely of what both Senators said in this respect it seems inequitable that the legal right share should bear an extra penalty with regard to death duties. This is not a matter for the Bill. It is a matter for a Finance Bill. I shall bring the matter to the notice of my colleague, the Minister for Finance, between now and the next Finance Bill.

I shall accept that and I am very grateful to the Minister. I was impressed when he said that this is entirely voluntary. I do not think he appreciates the cases where it might not be voluntary. I believe his attention was drawn to what Deputy John A. Costello, whom he quoted on a number of occasions in this debate, said about the case of a man whose wife is mentally incapacitated. This man has made substantial provision to ensure that she will be looked after in a home for the rest of her life. Under this Bill she will have her legal right to one third or one half as the case may be. She will not be able to claim that because of her mental incapacity and it will go to the next of kin. This man has made complete provision for his wife but now, under this Bill, that is changed. Could the Minister help me with regard to this?

I am very glad Senator FitzGerald raised this point. Deputy John A. Costello made a very strong case with regard to this in the Dáil and I saw much merit in it. We introduced an amendment which is now incorporated in Section 115 in which we provide:

Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other than periodical payments made for her maintenance during his lifetime) shall be taken as being given in or towards satisfaction of the share as a legal right of a surviving spouse.

That will only apply to a provision made before this Act.

Any provision made after the commencement of this Act can be made the subject matter of an arrangement. I would envisage from now on that, in any arrangement that would be made between the parties, assuming they have a legal adviser, the legal right will be automatically dealt with.

What about the person in the mental home?

This particular section covers precisely the case which Deputy John A. Costello had in mind, where such an allowance has been made prior to the commencement of this Act. We provide here that in such cases the provision should be deemed to have been given in satisfaction of the legal right share.

Why only provide for a provision made before the commencement of the Act?

There is this difference. This Bill was not in the minds of the people who were party to this arrangement. It would obviously be inequitable now to bring in a legal right at this stage and upset an arrangement which the parties concerned did not contemplate. This legal right will be brought to the notice of the parties concerned in the future. There is a distinction between those two situations.

I cannot for the life of me see why the Opposition oppose this section. When I spoke earlier in the evening I was under the impression that a man had to leave one shilling or something like that before he could justify his will. I now understand if he leaves a dog, a cat or nothing at all, as long as he makes it clear in the will that he knew the spouse existed it is all right. It could be challenged in the courts but even if it was challenged it would be shown that the man was in his right senses. He knew he had a wife and he left her what he thought she was worth. Only a very small percentage deal with their wives in that way.

This Bill, when it goes through, will, as I said earlier, provide for a very small percentage of our people in the way most of us who are Roman Catholics, and Christians as well, provide for our wives. That is the way we, on this side of the House, deal with our wives. We deal with them as considerately as we possibly can. We are all fairly reasonable people and the people we represent are reasonable people as well. It is unfortunate that the people on the other side of the House appear to be arguing on the side of what does not exist at all in this country. As far as I know, there are no such people in this country. If there are such people they are probably one tenth of one per cent. I do not think you can frame a Bill on behalf of the negligible majority who do not care.

The Senator said the majority do not care. He should have said the minority.

You are only acting for a minority. There are only a few cases in this country where that happens at all, or it may never happen at all.

If it never happens, what is section 110 for?

I am not saying it never happens at all. The reason the Bill is brought in is that it does happen, but it happens in very, very few cases. As I said before, as the law stands at the moment, a man can leave his wife one shilling, or he need not leave her anything at all, so long as he clearly indicates in his will that he is sane. He can tell her to take a jump at herself, and leave her nothing. The Minister is trying to improve that position, and Senators on the opposite side of the House started arguing and telling him that is not the position.

No. The Senator completely misunderstands.

He misunderstands or he misinterprets.

Senators over there are misrepresenting themselves. If the Minister did not bring in this Bill, they would be satisfied.

No. We had a motion down in the Dáil.

The Minister is bringing in a Bill to provide that a man cannot leave only one shilling, or nothing, or a cat, or a dog, to his wife. The Minister is providing that a man must leave his wife something, without exaggerating things altogether. No one could bring in a Bill that would cover every single point. We must have commonsense. We are all ordinary Catholics and Christians and we are not a crowd of pagan desecrated lunatics. The Minister has gone a long way to be helpful. Any man with any commonsense at all does not want to be purely obstructive. Senators over there are looking for cheap advertisement.

Let us compare the present situation with what the situation will be under the new Bill. Is that not the fairest way to do it? As I said before, if this Bill proves to have faults, it will not be the last Succession Bill to be brought in here. We can be quite sure of that.

God forbid.

Maybe in a few years time, another Minister may come along——

That is the most hopeful note we have heard tonight.

The Senator is coming around to our way of thinking now.

You people are out of touch with this country——

We are not indeed.

——and out of touch with reality. You talked about the farmers. You used the farmers as your main argument and you know as much about the farmers as I do about the back of the moon. Why do you not argue the case of city people whom you are supposed to know something about?

Perhaps we were brought up in the country.

The farmers are no fools. There are very few unchristian farmers.

The Senator should come back to the amendment.

There are very few farmers who neglect their wives.

We are all agreed on that.

This Bill is a tremendous advance and should be accepted as it stands. I cannot see anything which we could put into it which would make it any better than it is. I know it will take a lot of money out of the pockets of lawyers.

I do not agree with that.

I want to congratulate the Minister specifically on that point. The last thing anyone wants is to go into court to be ballyragged and made a fool of by people who are bigger nitwits than himself or herself, by self-opinionated nincompoops trying to make the ordinary man look a fool. I congratulate the Minister on making that unlikely in the future.

As an obstructive desecrated pagan, I admire Senator Lenehan for the loyalty he is showing towards the benches he has joined. To come back to the Bill, I should like to ask the Minister about two points I raised. I asked him would he consider shifting from half in the case of the small estates, or in any provision in regard to a life interest, as an alternative to the legal right where there was a problem of alcoholism or insanity or anything of that kind. He did not go back on that, and his silence would suggest that he is not prepared to shift. I do not want to leave him in a position of not having availed of the opportunity to do so.

My trouble is that I hate saying no.

Does that indicate that the Minister will give it another thought, without committing himself?

I do not think I can. It goes to the root of the basic principle of this Bill. I am convinced that the best possible protection for the widow is to ensure that she gets her rights. I think any juggling with that would only lead to more trouble. This basic provision written in is the best possible guarantee for the surviving spouse's rights. The best way those rights can be protected is by a plain section written in the King's English that can be understood.

I should like to say at the outset that I agree with Senator Lenehan on one point only, that is, that the Minister has made a genuine effort, a very commendable effort, to improve the legal situation in relation to succession. I think we are all agreed that this is a measure of great social importance. We have seen by virtue of the amendments put down that there are varying opinions in relation to the section and the amendments. Although I think this amendments is commendable, I do not think it would be workable in practice. I think it represents an attitude which is in the interest of the spouse, if it could be worked. I expressed my view on this on the last occasion. No judge is the proper person or is properly equipped to implement an amendment such as this. Secondly, I think it is far too vague, and I believe it could lead to an overwhelming amount of litigation.

It is important that everyone should realise that there is far too much aimless and, I think, absolutely common criticism of the legal profession in relation to this Bill. I do not say this as a member of the legal profession, but I think the legal profession play a reasonably important part in society. It has been pointed out time and time again—and he himself has pointed out —that the Minister has had the benefit of the advice of eminent lawyers on the Fine Gael side in the House, as well as from the other side of the House. I object to the attitude which presents lawyers as self-opinionated nincompoops whose only anxiety is to make fools of those people who have to appear in court. That was not my intention when I took up this profession. Indeed, I think it comes badly from politicians, because there is a substantial body of people who take the same view, and say the same about politicians, and particularly about Members of this House. It is about time we adopted a more reasonable and more mature attitude on this question.

I refrained from intervening in this debate because I expressed my views on the last occasion. I think the section as it stands represents a very honest and a very commendable effort to ensure that the surviving spouse, and particularly the widow, will have a definite right which she can hold against all comers. A lot of effort and study has gone into these amendments. The amendment may be commendable in spirit, but in practice, it is not likely to succeed. It might well lead to an overwhelming amount of litigation, and I do not think the courts are the proper place to air these views.

Amendment put and declared lost.
SECTION 110.

Perhaps the Senator would agree to take amendments Nos. 8 and 10 together.

Yes. I move amendment No 8:

In subsection (1), line 11, after "estate" to add "for life."

It is a little embarrassing now to have to request the Minister again to reconsider the position after he has so very firmly put down his foot. I feel that the Minister, particularly on his Second Reading concluding speech and, indeed, on various occasions when he spoke on this Bill, came before the House with the attitude "I must do something and I think this is the best way I can do" or, if I might say so:

"Don't hit me now with the widow in my arms". Something makes me feel that he would like to compromise a little but is afraid to move one foot in case he should slip altogether.

I assure the Minister that these amendments of mine are sincerely meant to be constructive and sincerely meant to reflect opinions I have heard throughout the country. My amendments are simply that, instead of a complete estate—absolute, a half and a third—the surviving spouse takes that share for life. I spoke on previous sections and I suggested that this would cause fragmentation, particularly in farms. If I direct my remarks particularly towards farms or the countryside in relation to the application of this Bill, I hope the House will excuse me because it is for the reason that perhaps I know a little more about that section of the community.

However, I think it will give rise to fragmentation and it will make this difference. Take, for example, a son living on a farm. At present, we will take it that the testator makes a will and gives his son—this is the usual form, I think—the farm and gives his wife or widow a right of maintenance or a room sometimes, to live on that farm all her life. In other words, she practically has a life estate on that farm and that is a very common will in the country. Under this, if the Minister puts it through as it is now, the wife or the husband—and in that respect I would point out that not so long ago somebody in this country pointed out that at least half of the land in this country is held by women, so it might very often be a husband —will take an absolute estate in one third of it.

The son who is left has to wait until the widow dies, accepting that it is the widow. She may be a young woman. In the country she is very often much younger than the husband or else he gives in and says: "This is hopeless". I can think of several different situations which may arise in a case like this. Take the spouse who does marry again and has children by a second husband and who owns one-third of the farm. I wonder which child, if she makes a will, will get that third? I feel it is her youngest.

Her husband must get one-third of that.

That is a fragmentation. I feel she will probably leave the youngest child the place, if they are in need or they may be in need when she dies, if they are very young children. I fail to see where all this will lead in many cases like that.

Somebody mentioned the improvident spouse, let it be a man or a woman. Should that person get an absolute estate, supposing he falls out with the family. The family has no use for him; the eldest son or whoever remains on the farm has no use for him; and they fall out completely. She has an absolute share in one-third, less probably the house, and she accepts, within the year, and demands. I admit that these cases will be very few and far between but this is the case this Bill is legislating for. Then you have the surviving spouse with more than enough means of her own. You have a man with perhaps nothing but a small farm. The wife comes in with a fairly large dowry of her own. He wants to leave that small farm to a son perhaps who does not agree too well with his mother, and so on, orvice versa. These must get their share of the farm, if they want to take it, although they might be very well off on their own.

We have discussed already the mentally defective person who is not mentally defective enough to be put in a mental hospital but who definitely is not a person to be entrusted with a share: it may be a large or a small estate. Those are the people I am thinking of.

In replying to some points which were raised, the Minister made a point about a person who wants to raise money on the farm perhaps to make improvements. He argues that in the case of a farm owned by a son as to two-thirds and a widow as to one-third absolutely, the son can raise money more easily than a son with the whole ownership, apart from a life estate to his mother, who is probably fairly well on in years. Surely, the son whose mother has only a life estate, after which the farm will go to him absolutely, can get credit far more easily for improvements on the farm than the son whose mother has the one-third share? I think the son who has a mother with only a life estate or a father with only a life estate, who is a progressive young chap and wants to raise credit has only to say— as soon as my parent, be it father or mother, goes I have absolute estate in this farm.

I should like to make this one final point to the Minister. In the case of the surviving spouse, who elects to take one-third in one case and in the other have a life interest, what is the material difference to them? In either case if they want to realise that share they will have to put the farm up for sale. Otherwise they are simply having it there so that they will have a right of decent maintenance for the rest of their lives. I do not see any material difference to them except they want to raise financial aid. To my mind that is the kernel of the whole matter. I would think the Minister should reconsider whether a life estate would not be a more suitable way to arrange this section. Listening to the debate from both sides of the House, I feel that it would satisfy a great many people in the country and I think both sides of the House. I feel also it would be the answer to nearly all the queries which have been raised by various Senators on both sides of the House with regard to the life estate.

I agree with the Minister that a minimum estate for the surviving spouse should be kept in the Bill, that is a minimum absolute estate.

I think much of the talk we have heard seemed to be aimed at exceptional cases, whereas it is for the general good we must legislate. For me I think this addition of "for life" is a vote of no confidence in the surviving spouse. That is the main thing it conveys to me. It is a relief and I think by having it only "for life" the surviving spouse has no lever against the person who is eventually supposed to get the estate. It is a vote of no confidence.

I completely disagree with this amendment. I think the Minister's attitude to this whole question of life interest is a much more practical one. As I said earlier most men are responsible, they have some commonsense and deal relatively reasonably with their wives. We have to face this from the point of view that most people are reasonable. With regard to the life interest if we allow the widow who has a family to inherit the whole estate it could easily happen that she could treat her family wrongly. Therefore, I think the Minister's attitude towards this problem is a much saner one and ensures that the family of that marriage will at least have something rather than leaving it arbitrarily to the widow who might— again, in the one case out of a thousand—be the cause of the trouble. I think everybody's needs are met, at least to some extent, in this particular Bill. I shall not go so far as to say that everybody's requirements are met. No Bill could do that but this has gone a long way.

The question of, say, the husband dying and the widow getting the one third and the family two thirds has been brought up here in connection with the creditworthiness of the estate. It would be very interesting to know before the man died at all how creditworthy was the estate. As a result of this, would it be any less creditworthy? Where will those people seek credit? Will they go to the bank for it, will they go to the Agricultural Credit Corporation and ask one of us to accompany them or what will they do? After all, the people who will give the credit will investigate the whole position from A to Z anyway and it probably will not matter two hoots one way or the other whether it is one third in the widow's name, two thirds in the family's name,vice versa or any other way.

You find the most extraordinary things happening. For instance, you have the famous case where a fellow goes into the bank and takes in his blue cards for his cattle—we will say he has ten cows—and the bank manager gives him a loan on the position of the cows. That is a well-known fact. Now he cannot sell the cows as the bank manager has the cards. Being a Mayo man, he has brains and he says he has lost the cards. He, therefore, gets new tests, new cards and he sells his cows. That is happening all over the country. I am not giving anything away. Everybody knows it except people who have no intelligence at all. You are in the very same position in the other case. The bank manager will take into consideration the overall case, not merely the fact that the widow or somebody else owns the place. You can be sure the bank manager will not give the widow or her family any more than one tenth of what the place is worth, no matter who owns it, so it will not make much difference anyway.

I have pleasure in supporting this amendment and the very reasonable case made on it by Senator Cole. Senator Mrs. Ahern who spoke on it said this was essentially a vote of no confidence in the spouse but surely the whole Bill is designed for exceptional cases. That is why the legislation is necessary, for the one out of twenty or the one out of thirty who may act unfairly. Consequently, we have to look at this section as well as the other sections in that light; in other words, to protect the family unit against unfair action.

If we look at that in conjunction with section 112, which provides for the renunciation of the legal right, it would seem to me that a husband in making his will, or, indeed, a wife, would consult the other partner and, having agreed on how they were going to dispose of the property, then the other partner would sign in accordance with section 112 a renunciation of the legal right in favour of the provision that has been made for the surviving spouse under the will. If I am right in that it seems the logical and natural approach and one that we would all like to see adopted, that is, an agreed disposition of the property. Then there is a situation that will possibly be only an exceptional case where the husband and wife do not agree on this, where the other party is unreasonable, for instance, if the wife takes the attitude that she is going to have half the farm eventually even though she has to wait until the end of her time to realise it she can force under section 110. We all agree that adequate provision should be made, and I do not think that the provision under section 112 is completely adequate because you may get things arranged very amicably and very fairly before the spouse dies and afterwards it may turn out that that settlement does not provide the protection that the dying partner thought it would provide for his spouse, yet she has renounced once and for all the legal right by signing under section 112.

I would like to see some cover for such a person in the event of things turning out unfairly afterwards. The cover provided in section 110 is an absolute cover. It is much too severe, because it means that an old person who under section 110 has a legal right to have the property and yet has agreed on a disposition that a certain son or a nephew is going to have the place and she actually is living with that person, then it may turn out that as the person gets old and, perhaps, her faculties become impaired—we know how difficult some old people can become—then near the end of her days she is prevailed upon to have some other member of the family come along and say: "You are treated very unfairly. Why not come and live with me?" Realising that the old person has very little time left in this world, for giving a home for that little time the person concerned stands the prospect of getting half the property, that is, the legal right of that person. I think that all that will be guarded against if the person has a legal right, as is proposed in the amendment, to use the property for life. It means then that there is no incentive there to anyone to come in to make trouble within the family in the hope of gain, because the person entitled to the legal right would have a yearly annuity which is sufficient to provide for her livelihood even if she does leave the house and goes to live with somebody else. There is no incentive of property gain attached as is left under section 110. I would appeal to the Minister to reconsider this very much in conjunction with section 112.

One other point I would like to raise is the principle enshrined here of the absolute ownership of half the estate. It seems to go against the principle that was recently introduced by the Government and welcomed by all Parties in connection with the 1965 Land Act, where to encourage elderly people to hand over their places for the relief of congestion and so on there was provision for an annuity offered, and people were encouraged to avail of this. Personally, I think that there is not half enough use made of the provision of annuities for all elderly people. I meet quite a few who have a certain amount of money in the bank. In one case the person is 80 and has a couple of thousands in the bank. The interest from that is relatively meagre and provides a meagre livelihood, and I tried to persuade the person to invest in an annuity where she could get four or five times that amount, yet she would not because it would die with her and there would be no property left behind. That is surely the principle we should try to get across to our people, that at least their first responsibility is to make provision for themselves and that if they cannot do that by direct interest out of capital, leaving the capital intact, then the obvious thing surely to do is to use up some or all of the capital by means of an annuity, something that the Government are encouraging very rightly and successfully under the recent Land Act. If the amendment is met here it will be a step in that direction also.

I agree entirely with the general views expressed by Senator Cole and Senator Quinlan on this amendment, and, indeed, in passing I must remark that it is extremely odd that in an enactment as recent as the Land Act, 1965 it is right and proper for the Oireachtas to provide that old people shall surrender their farms and get an annuity on the actuarial value——

That is not a life estate.

I am talking about that kind of situation, that people should surrender their farm, retain the dwelling house and get an annuity. The Oireachtas as recently as 1965 enacts that that is good enough and that is a good situation, but if a man were to make the same kind of provision under his will for his widow that is not good enough because the surviving spouse can come along and demand the one third share. The more you go into this Bill and the more instances that are cited the more you become convinced that the provisions of section 110 are so utterly rigid that the section is all wrong in principle. Having said that, one can only highlight it as another instance of the way we are being inconsistent.

What principally brings me to my feet is to disassociate myself as a Mayo man from the reflection on the integrity of Mayo farmers which Senator Lenehan made, and, indeed, his reflection on the intelligence of bank manager.

All the intelligence that is in it is in Mayo.

Let me at least state that I come from a place where there is intelligence.

I know where you come from.

I would not agree with Senator Cole upon limiting the life interest to one third, but I am sure that he would be prepared to increase the share out of which the life interest would be paid, but, of course, again all that Senator Cole has said bears out what we have been saying all the evening and I suppose will continue to say for some further short time, that the Minister should have another look at this. The Minister has discovered a disease that life estates suffer from which to my mind no other lawyer or business person I know of has discovered.

I have held that view for years.

That may be so but you may have held it wrongly. I have yet to hear details from the Minister as to the manner in which life estates inhibit development and production.

I will give them.

If that is the case there is nothing in the world to prevent the Oireachtas from amending the Settled Land Act under which the powers of tenants are liable to be determined. It is not good enough to say, even if the Minister is correct, that because life tenancies suffer from some dissipation we must disallow them completely. If a man creates a life tenancy that is good enough. The truth of the matter is that most of the wills made by people at the present time and most of the deeds made by farmers are under marriage settlements or when they are handing property over to sons for the purpose of obtaining the old age pension. Most of the marriage settlements are made for the husband and wife for their life and to such one or other of their children who may survive them. That has been found to work quite satisfactorily. Senator Lenehan and Senator Ahern are quite right when they say that this Bill will not affect the vast majority of cases. It is regrettable that people like this should be brought into the Bill. When the husband and wife agree everything is all right but this legislation is for the small minority.

Senator Lenehan spoke about the small minority this evening. It is because of this small minority that the Bill has been introduced. I do not agree that it is beyond the wit of man to amend this Bill in such a way that it will cover everything. We are talking about improper wills and the kind of will that would not give a life estate to the surviving spouse or that would give her a fixed share. As the Bill stands the cantankerous surviving spouse could get a life interest. She is entitled to demand her one third share from the other beneficiaries under the will. The idea of paying one third the value of a small farm, a small public house or a small grocery shop is quite impracticable. It will blister the business or the farm with debts that will be a very effective brake on production.

What about section 112?

I find I cannot agree with the proposed amendment. In the ordinary course of events in the case of the father and mother with children when one spouse dies, the owner of the property, this section, as it stands, provides that one third of the estate must be left to the surviving spouse. Those children are the children of both parents. They have an obligation of filial duty, respect and affection to both parents. No problem arises whatever in the ordinary course of events if they have been properly reared. The child who the father said should carry on the business or farm, the child who is industrious and thrifty is the child who the mother also feels should carry on the business or the farm. A very serious problem arises, as most practising solicitors know, when the child marries. I have found, with very few exceptions, that while any cabin may be big enough to hold two men there are very few castles big enough to hold two women. The daughter-in-law and the mother-in-law do not agree.

The daughter-in-law is young, just married and starting in life. The mother-in-law is old, perhaps, a little impatient, a little lonely, perhaps, feeling she has come to the end of her days and she may also be a little unreasonable. You must make allowances for the failings and weaknesses in those old people. A child is prepared to do so but a daughter-in-law very frequently is not prepared to do so. If the mother has a bargaining power of one third of the estate she does not have to exercise it. It is a bargaining power that is given to her to ensure she is treated properly.

A son brings a bride into his home. His first duty is to his wife over and above his mother. He can reason with his wife if she is unreasonable. He can say to her: "Look, mother really owns one third of this place. We must be kind to her. You must try to be a little patient with her." The net result, as I see it from my own practical experience in preparing marriage settlements, is that I put in a certain provision for the father and mother. I also invariably put in a bargaining provision or penalty clause to the effect that if the father or mother has to leave home, because they are not treated kindly, the penalty which is imposed is such that the young couple can scarcely bear it. That penalty is never intended to be taken into account. It is hoped it will not have effect except as a last resort but it must be there. I have found in example after example in cases where there is a young woman with young children who, perhaps, because they have irritated her, is tired, and they are crying on her knee, is apt to be impatient. The mere fact that the penalty clause is there and her husband can remind her of it frequently makes her more kind to the old couple.

I am wholeheartedly in favour of the surviving spouse getting a definite fixed sum, whether it be capital or income of some sort provided the penalty clause is there. With regard to the one third of the estate, I do not know how you could measure it. I do not know how you could deal with it and how you could arrange a farm. If extra capital is required it would create immeasurable difficulties in that respect. I also think, in addition to the fact that it is not practicable, that giving the surviving parent one-third of the estate enables his or her child to persuade the other partner to be a little more patient with old age.

Senator Nash has largely made the case I would have made. Indeed, the points for and against life estates have been made on earlier amendments, both by me and by other Senators. Not only as a lawyer, and as the holder of my present office, but with a knowledge of rural Ireland, I can think of no worse form of estate than a life estate which ties up the estate in the hands of the surviving spouse, say, the widow. The son may want to bring in a wife and rear a family, and try to make a go of the farm, but he has only a remainder interest in the farm. He has not got any assets with which he can negotiate. He has no security to raise money, and the result is that he does not get married. As Senator O'Reilly said earlier, we often have the spectacle of the mother holding on with her life estate, which is no use to her, and the son waiting for her to die with his remainder, which is no use to him. I agree with Senator O'Reilly that this sort of situation has led to more injustices in rural Ireland, more delays in regard to marriage, and more rundown farms, than any situation I can envisage.

This is a life estate of one-third only.

That is even worse. Everything I said already in regard to life estates is magnified one thousand fold when it is a life estate of one-third. That is the sort of estate that ruins the title. Bad as a life estate on its own is, when it is one-third, it is useless from the negotiable point of view. I do not see any merit in it at all, any more than in a later section I see any merit in tenancies in common which we are, in certain respects, getting rid of in this Bill.

When the surviving spouse has a right to one-third, she can, in the last resort, protect her interests, but as I said before on numerous occasions, I would envisage that that would be exercised only in the event of victimisation taking place. In the ordinary course of events, the son carrying on the farm, after the death of the father, will be in a position to register the farm in the Land Registry, and his mother's one-third will be registered as a charge on the land. He will have an absolute freehold title registered as his own. He can extract his land certificate and go anywhere with it. A similar situation arises in the case of an industry.

I am certain a practising lawyer like Senator Nash will agree that from the negotiating point of view, this is practical so far as small businesses and small farms are concerned. Because the son is the registered owner, he is encouraged to bring in his wife and children, and all he has as a charge is the one-third which is reserved for his mother. That son is in a far better negotiating position to raise credit than a life tenant or a remainder man. I am certain any practising lawyer and any practising businessman will agree that that is the best way.

I have discussed this matter with Senator Nash and, while I do not say that he is the bible on this matter, he agrees with me and he said so here. Any experienced lawyers I have talked to who have thought deeply about the matter agree with me. I know there are old fashioned tendencies towards the creation of life estates, encouraged by the fact that in the case of large estates they are an escape or a way out. That does not apply to small farmers who do not pay estate duty because they are under the scale. Therefore the creation of life estates on small properties is incomprehensible to me.

It happens all the time.

That is why the provision advocated in this amendment would only further aggravate the situation by creating life estates in proportions of one-third or one-half of an estate, as the case may be. I do not see how it will work out in practice.

I should like to ask Senator Nash one question. He painted a very sad and somewhat barbaric picture of the settlements he made, but I wonder did he ever make a settlement where he gave the widow one-third of a small farm absolutely, not for life?

I will answer that. What I have done is that I have provided in the event of a disagreement, and the old person having to go elsewhere, that the capital sum payable to the old person would be a minimum of one-third of the value of the assets.

That is precisely what they are doing. It is not one-third of the farm or the properties but one-third of the assets that have to be attached in the event of the surviving spouse making his or her claim.

I would make a fairly safe guess as to what would happen in that case: the son and his new wife would go. I have seen it happen in two cases. I want to go back to the point raised by the Minister. He argues on behalf of the son that in the case where he has two-thirds absolutely, and his mother has one-third absolutely, his share is more valuable to him than in the case of an estate where he has two-thirds absolutely, and his mother has the remainder for life only.

I cannot understand how this is not seen. What I envisage when the legal right comes into operation—that is a legal right to one-third of the assets and, as I have already said, I do not envisage this being enforced except in the last extremity—is that this person can go to the Land Registry and get himself registered as the absolute owner, the freehold owner of the whole lot. As I have said before, 50 per cent of Irish properties descend by way of intestacy. The son will be able to go to the Land Registry and get himself registered, subject to charges in respect of the shares due. The son with the two-thirds share will go to the Land Registry and get himself registered as the absolute freehold owner, with a charge added on in respect of the one-third right reserved to the mother, and with that in his hands he can go anywhere. He could not go anywhere if he were a remainder-man waiting for his mother to die. No bank would look at him if he were hanging on to a farm where his mother was the life tenant with all the rights of management and dealing with the property entirely.

This is one-third share.

It is precisely the same situation there. You are creating a life interest which is not as negotiable as an absolute freehold, where the son can go with a 100 per cent absolute freehold in his hand, subject to a one-third charge which is covered in the folio. He can have a land certificate issued to him which is negotiable security on which he can raise money. He will not get that sort of certificate on which to get security, in respect of the other arrangement.

He owns far more.

He does, of course.

But he has no rights.

Surely he has rights as owner subject to life estate of his mother in one-third? If I were asked to lend money if I had it to somebody and one person came and said "I own this farm two-thirds; my mother owns one-third and she is not willing to go in with me or to sign a promissory note to you. But I own two-thirds" and his brother comes on the farm and says "I own this farm absolutely except for a life estate to my mother who is 65 years old now." Surely he is far better?

There is far less security for her. It cuts both ways. We are seeking to have a middle road here whereby the widow is adequately catered for by her one-third share and whereby at the same time the son can raise money if he wants to. The scheme is for the middle of the road. It does not go to either extreme in the way of hardship to either party. There is protection to the widow and at the same time there is a negotiating asset on which the son can raise money to expand the business or the farm. If you go to either of the other extremes, you prejudice one or the other.

In the case Senator Cole has mentioned, in the life estate case, the widow in this case has no guarantee beyond a life estate. The life estate is not nearly as strong an asset as far as she is concerned as the one-third outright share.

I agree.

Similarly, the position freehold-wise of the whole estate, subject to a charge of one-third is as least as strong from the point of view of security. You have the written-in rights for the widow and at the same time the freehold going to the son subject to the charge in her favour. If the objective here is to do justice to the widow and the son, you do it best by having a situation where he can negotiate on the basis of being freehold owner. At the same time, she has her weapon in the last resort to enforce if he treats her badly.

I do not want to prolong this debate. The Minister has now gone back to taking the widow in his arms again.

That is the worst of being in the middle of the road. I am trying to balance it.

A moment ago, you were arguing from the son's point of view. The Minister has now shifted over. I am not quite sure that there is any difference in the hands of the widow in that instance to her materially where she owns one-third of the estate absolutely or one-third for life because in neither instance, if she has to enforce it, she is going to wreck the family life and farm. If she has to enforce it in either way she will have to claim that and put the farm up for sale and claim one-third of the cash they get. There is no other alternative for the widow if it comes to that. In either case, I am not quite sure it makes much difference. For the son's sake I think I would settle for the life estate in the widow.

Before a decision is taken I would like to appeal to the Minister to reconsider this again. We have all got very close and intimate experience of these things. You can go too far in either direction. Senator Nash surely would not like to envisage a situation where a spouse, having been kept on a farm and having been well treated for 10 or 15 years and having reached the age of 85 and having a dissatisfied son who thought that in the original settlement he did not get sufficient and he then comes along and in the 85th year of his mother he capitalises on her infirmity and the fact that she feels they are not treating her well—something is getting on her nerves—and he says "That is right, mother, why not come and live with me and you do not have to put up with this. You own one-third of the place." Senator Nash in his bargaining power is creating a weapon there that would enable the mother to be taken from home after being treated well there for 15 years, just three weeks before she dies and then, as a reward for the three weeks, giving the whole of the one-third share of the farm over to this discontented son who felt he did not get enough originally. That is the situation you are creating. I agree with you and I know the whole thing is very complex. I have given much thought to it in practical cases with which I have been very closely connected. The more you think of it the more difficult it does become to create a bargaining power for one that is not unfair at either extremity. The one given is too unfair and is liable to be exploited at the very end of the person's life. We all know that scarcely a will is made anywhere where the rest of the children feel that the son at home who got the farm got far too much and they who got education off the farm or are in positions feel he has got everything. You can rest assured that there are many cases in the country where this would be exploited almost on the deathbed of the spouse and it would create ruin on the homefarm so I think the Minister should think again on this. Perhaps the amendment as it stands is not sufficient. It may be over simplified but the Minister should surely think on it again and try to meet the very legitimate points that have been raised.

I am thinking about this for 12 months now.

Think again on it. The Minister very convincingly tried to disprove Euclid tonight to prove that the part is greater than the whole. He tried to prove that a farmer who owned absolutely two-thirds of the place and his mother the other third was in a better position, in other words, he had more assets, than a man who owned absolutely two-thirds and was going to get the other one-third when his mother died—in other words that one-third that was to come to him had a capital value that any actuarial company would calculate in advance. They would take the parent's age. If the mother was 70 they would say the life expectancy is seven or eight years at that stage and calculate the present value or the present worth or this one-third property that, by actuarial standards, would come in seven years and that is a positive addition to the two-thirds he already holds, so that he is in a far stronger position. He has more assets and more borrowing power than the man advocated by the Minister. I could not leave that demonstration by the Minister that the part was greater than the whole, to go unchallenged. It contradicts every rule of logic that I ever heard of.

Subsection (2) of section 110 says:

(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

"Shall have a right..." It provides for cases where the will does not leave the spouse less.

Subsection (4) of section 114 says:

(4) The right of election conferred by this section shall not be exercisable after the expiration of one year from the first taking out of representation of the deceased's estate.

Therefore, I would agree wholeheartedly with Senator Quinlan if that subsection were not there. We will say the father dies, the mother stays on and the son decides to get married. Then, for the first time, they think of taking out representation or administration. The young woman comes in—and they say that sometimes a man courts a smile but he marries the whole girl—she may be kind to the old woman and no problem may arise. If she is kind to the old woman when they are taking out representation and they are with their solicitor, if the old lady is left less when they are making title, then she agrees to that. If she is not being treated kindly then within a period of 12 months from her taking out administration she must make her election. She cannot wait until she is 85. If she is being treated kindly during those two years unless she decides at that stage "I am going to have a showdown with my son and my daughter-in-law and I am not taking what is bequeathed to me in the will," she cannot decide to do so afterwards.

Surely that reveals the absolute weakness of Senator Nash's case. In other words, he is providing this mighty atomic weapon, this bargaining power to frighten everyone in saying it is only effective for one year, so they have got to be nice to the old person for one year only. After that her right to revert to the legal right is gone and you are leaving her absolutely at the mercy of this frightful daughter-in-law of whom Senator Nash has painted a picture.

No. I do not think it is frightful. It gives the widow the right, having seen her daughter-in-law and having lived with her during that year, to make up her mind within that year what bargain is fair and reasonable and will hold the scales equally between herself, her son and his wife.

This shows the difference. In other words, I am objecting to the one third right as giving too strong a bargaining power to the spouse. Senator Nash's position, as revealed here, is that he is satisfied to give bargaining power just for one year and no longer.

I think I should clear up this matter. What we are seeking to do here is preserve the middle of the road, doing justice both to the son remaining on, who will work and develop the property, while at the same time doing justice to the mother who has given the property so many years of her life in partnership with her husband. We have here in this Bill precisely what will do justice in this case. I repeat again that the son has a better chance in a situation where there is one third residing with his mother as a legal right. We have thrashed this out with the Land Registry. I would suggest to Senator Quinlan, when he speaks of examining administration when dealing with TDs and Senators, the most important aspect is to examine how the administration of these matters works out in practice. I have thrashed it out with the Registrar of Titles in the Land Registry and it is quite clear, under the Registration of Title Acts, that you cannot register a fee simple property subject to a life estate. That sort of animal does not exist. If you are envisaging a life estate on the lines proposed in this amendment, the Registrar in the Land Registry cannot give you a clear folio or a full title on the basis of that for the purpose of raising money.

In the situation where you have a one third legal right residing with the mother and two thirds with the son, what the son will do is go into the Registrar of Titles in the Land Registry and say: "There you are, under this will I have two thirds of this property, my mother is entitled to one third, and I want to keep that for her as she is staying on in the house". The Registrar will say: "You can be registered subject to the one third residing in your mother." In other words, a charge will be registered on the folio and the son will be registered as full owner subject to this charge. He could not be registered in that fashion if there was a life estate in one third reserved for his mother or anybody else.

How is that?

You cannot register a life estate on a fee simple. What would happen is that the mother, or the life tenant, would be registered as the limited owner and a limited ownership in regard to registered land is not nearly as negotiable as a full freehold. On the other aspect there is no shadow of doubt that the full one third is a far better weapon for the mother to have than the life estate, which is practically worthless from her point of view. With the life estate she is entirely at the mercy of the remainder men—she can stay on in the property but she cannot exercise her strength in any way. It is far better that there should be a clear section in ordinary straightforward language, with no complications, to do the greatest good for the greatest number of cases. I think it is beyond the wit of man to devise the perfect system in regard to testamentary disposition. You have in those two sections, so far as it is possible to devise, a system that will do justice in a marriage— on the one hand, give protection to the surviving spouse in the form of this legal right and, on the other, ensure the greatest degree of flexibility to the testator to do justice to the particular circumstances of the farm or business.

I cannot agree. It might short circuit the discussion at a later stage if the Minister would clear up this point. I cannot agree at all, even if the son gets himself registered as full owner with a charge in favour of his mother extending to one third of the assets of the deceased, that that is any kind of title on which a bank will lend money.

They are doing it every day in the week at the moment in the case of intestacies.

With intestacies it is done because you are dealing with ascertainable shares. I want to make a point which the Minister seems to have overlooked. The son, if he is going to become registered, can only become registered subject to his mother's right in one third of the assets of her deceased husband. The Minister has emphasised, and rightly so, in this debate earlier that it is one third of the assets that she is entitled to. The first thing the bank manager will say: "Here you are entitled to this property as full owner subject to your mother's right to one third of the assets. One third of the assets may be worth more than half the value of the farm. The farm may only compose a small part of the assets." If a man leaves £1,500 in cash, the widow would be entitled to an interest in one third of the land and one third of the stock—crops, implements and chattels and any money in the bank or any other kind of personal property that the deceased had. The bank manager will say: "Your mother is entitled to one third of the assets of your father. What did that amount to? If it amounted to £500 is that paid?" And, of course, the value of the property goes down immediately by one third of the personal assets. In most cases when dealing with stock and implements you are including the value of crops and all the rest of it. This is a kind of floating charge registered on the land, and no bank manager with any sense, not even the kind Senator Lenehan was talking about earlier, is going to lend money not knowing what one third of the personal property of the deceased amounted to.

It may be said that somebody can bring in a schedule of assets and say that that was the value of the personal estate of the deceased. Bank managers know about valuations in probate actions. They are not that silly. It is not at all correct to say that the personal property where the owner is registered as full owner subject to outstanding shares on intestacy in the land is confined to the land. Now it will be one third of the assets plus one third of a non-ascertainable or a not readily ascertainable sum. That is what the bank manager is up against. It is a much less valuable security in the case of the son than if he owned two thirds and the mother one third.

I do not want to appear as a legal lecturer, but the fact is that in the case of intestacy it is a one third share for the widow in regard to registered land and property. What we seek to do is precisely the same in regard to the legal right as has been done since the initiation of the Registration of Title Act, 1891.

The Minister is absolutely wrong.

Behave yourself, please. What we are bringing in here relates to the fact that, since 1891, 50 per cent of Irish properties have descended on intestacy. The more I look at the law of succession the more I think that we are doing justice in the provision we are making regarding the one third share for the widow. Fifty per cent of property is at present being dealt with on intestacy. The Land Registry deal with property on this basis in precisely the way I mentioned already, issue the folio to the person in possession of the land who has a limited interest, and if there are other interests they are registered as charges. Precisely this approach will follow in the case of the legal right interest. I can assure the Senator that there will be no legal difference between the approach of the Land Registry to intestate shares and the approach to legal right shares when this Bill becomes law. They are in both cases a share of the assets of the estate.

I am not in the slightest bit convinced by the Minister's reasoning on that. Still the whole is less than the part.

I am only telling you the law.

Obviously if the one third legal share is not going to be realised straight away by selling the property and giving over the proceeds to the person the workable arrangement that will be made is that a fixed yearly sum being the produce of the one third will be paid over to the person holding the legal right share. That has to be paid whether the legal right terminates or not. Then when the legal right does not terminate, in other words in addition to having that charge to substitute the equivalent of that as well the owner of the two thirds is liable on the death of that person to pay the whole capital sum, unless it is willed to him, consequently you do not need to rise to any flights of either legal complications or mathematics or anything else. The position of the person under the amendment proposed by Senator Cole is obviously stronger and more creditworthy, and he is more likely to make a success of the farm under the provisions of section 110.

But it cannot be registered.

Then we should have a section in the Minister's Department where this would be the first thing to which they should give attention, to ensure that this very legitimate form of bequest, a life interest, can be provided and will not interfere with the proper legal ownership rights of the owner concerned. It is elementary that if that cannot be done it should be done and the Minister should have an immediate Bill to do that. He should turn the attention of the law reform section to this.

You are a very silly man. It is an elementary principle of property law that you cannot register a fee simple subject to a life estate like you can register personal property. They are two entirely different types of estates and you cannot ever run them together in the one fashion. A life tenant has certain rights. A fee simple owner has certain rights. You cannot run the two together. You cannot have ownership registered in property where a life estate and full freehold reside at the same time. That is just elementary law. The Registrar of Titles, therefore, cannot register such a deal or arrangement and, in the absence of a land certificate issued by the Registrar of Titles, the person has no chance of raising funds for the development of his property.

I do not want to delay the House but it is quite possible to amend the Registration of Title Act. In the Bill we are repealing part of the Act. With regard to the Minister's other positive pronouncement as to what the law is on life tenancy and freehold, I will not pronounce any opinion on that tonight.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In subsection (1) to add at the end:

"but in the case of farm, the rateable valuation whereof does not exceed £20, she shall be absolutely entitled to the entire thereof together with all stock, crops, implements and machinery thereon."

An Leas-Chathaoirleach

It would appear that amendments Nos. 9 and 11 are corollaries and that we could discuss them together with as necessary separate decisions.

Agreed. I do not intend to take up very much of the time of the House on these two amendments. Much of what could be said has been said already. What I did try to do was to anticipate that the Minister would adopt the attitude which he has adopted, that he would not make any change whatever in section 110. I felt that if he adopted that rigid attitude, perhaps, we might make a little addition to it that would not interfere unduly with the principle which he regards as sacrosanct. The Minister has somewhat shaken my confidence in my legal knowledge this evening by having recourse to the Constitution. There was a time when I always read Bills with an eye to the Constitution because I felt that it was incumbent on the members of the Dáil and Seanad to have regard to its provisions so that no law shall be enacted which is repugnant to or inconsistent with any provisions thereof. I felt that the duty lay upon us to do this, and, indeed, the courts have taken their decisions on the basis that the Legislature has had minute regard to the provisions of the Constitution, and they start off with the assumption that every Act of the Oireachtas is consistent with the Constitution unless its repugnancy is clearly established. My faith in the Constitution has been somewhat shattered in recent times and I think that no Act we pass in relation to this particular measure will accord with the Constitution.

The Minister refers to Article 43 of the Constitution which deals with private property. My amendment does not conflict with the provisions of that Article of the Constitution. Further, the Article says:

The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

I think what we are trying to do, and this was very rightly and very cogently stressed by Senator O'Reilly here, is in accordance with the principles of social justice, having regard to the needs of widows and dependants and that takes into account the capacity of those who have a moral and legal obligation to look after those needs. While I say my faith is somewhat shaken, I do not think the Supreme Court, which ultimately determines this kind of matter, would find that we are trying to make a proper provision in life for the widow of a man who dies with £5,000. She should get all of that money. If the man dies leaving £3,000 the widow should get all of this, whatever way he disposes of it. The concluding portion of Article 43 of the Constitution is:

The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

That, in another way, is what Senator O'Reilly was saying this evening and what we are trying to do for the common good. That brings me to the first of my amendments which states:

but in the case of a farm, the rateable valuation whereof does not exceed £20, she shall be absolutely entitled to the entire thereof together with all stock, crops, implements and machinery thereon.

That was to give her the whole lot as a going concern. If anybody suggests that a valuation of £20 would be too much for a widow to support a family, I am quite prepared to say that it should be lower. When it is considered that there are so many farms with a valuation of under £10—there are about 120,000 in this country—it would not be reasonable to say that in the case of a farm where the husband, during his lifetime worked for the county council or Bord na Móna, which is the main source of livelihood to supplement the income from the small farms, that would be too much for the widow. It was on that basis that I thought the Minister might accept the amendment. Subsection (1) reads:

If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

I want to add to this that in the case of a farm of £20 valuation she would be entitled to the lot.

I was trying to reconcile the position of the widow of a man who makes a will with that of a man who does not make a will. Under the section, which deals with intestacy, the widow gets all of the man's estate, no matter what the valuation is. In the case of small property in the shape of a farm of £20 valuation we should equate the position of the two widows, the one whose husband dies testate and gets the lot and the widow whose husband owns a small farm and dies intestate that she should get the lot. I do not believe it would be wrong, constitutionally, to do that. When we are making that provision for the small property owner we are doing what is in accordance with the exigencies of the common good.

I am not wedded to confining this to a farm but one can take a small farm with a rateable valuation and look at that. You can then refer it to other forms of property and an amendment could easily be brought in on Report Stage. That is the position I would like to achieve in the case of a widow who has no children. Under subsection (2) I want to make provision where there are children and to provide:

but in the case of a farm, the rateable valuation whereof does not exceed £30, she shall be entitled to the entire thereof for her life or until the youngest child of the spouse shall attain the age of 21 years and upon the youngest child attaining such age the spouse shall then be entitled absolutely to one-third of the estate.

My idea was that in the ordinary course of events it would be right that a spouse who would be father and mother should try to look after the children as long as possible, that she should be given the entire estate to prepare the children for life until the youngest child was catered for. If that happened you would then give one third, which is her legal share, to the surviving spouse. Although there is no provision in this legislation for a widow in the case of a man dying with a widow and children the emphasis is on what the widow gets. Every widow who has children has to look after them and we are not making any automatic provision in this Bill which gives a widow the assets out of which to provide not only for herself but also for her family.

Amendment No. 11 meets that situation where the widow is entitled to all the property. I included a farm in the amendment in order to provide for property of particular value. I say she should be entitled to all the property until the youngest child has reached 21 years and that at that stage she should be entitled to one third absolutely. We are not making any provision in this Bill for those widows and children. We are making quite different provisions for widows and then we have provision for children under section 116. I do not like that.

It meets a point made by the Fine Gael Party in the Dáil.

What the Fine Gael Party did in the Dáil and what we do in this House are different things. The Fine Gael Party in the Dáil went upon their own lines. One of the criticisms of this House was that we merely trotted out and repeated the things done in the Dáil. I think the purpose of this Chamber should be to take our own point of view on legislation. I suppose I did not have the facilities for reading the debate in the Dáil, but I did not read the debate in the Dáil. I think that when we read the debates in the Dáil it means that we have here a rehash of what was said in the Dáil, and I do not think that is the way to improve legislation. I prefer to take a fresh approach, if it so happens that it is a fresh approach.

Section 116 merely gives a right to children who feel they have been deprived, or that they have not been properly done by, by their father in his will. That could apply to adult children who are physically handicapped, or to adult children who are mentally handicapped. The section is all right so far as it goes, but what I am concerned about is that there is a unit which is quite clear and distinct in my mind, the unit of the widow and children. There is no provision in section 110, or anywhere else in the Bill, for the unit of the widow and the children. I say we ought to bestir ourselves and make such a provision for the widow and children.

I am taking the case of a farm and saying that where the rateable valuation of a farm does not exceed £30, the widow and children should be entitled to the entire estate until the youngest child is over 21 years. Someone may say that 21 years is too old, and that he should get out and work at 18 years. In that case I would say until the youngest child is provided for. It would then revert to the legal share and the mother would get her one third share.

It would be very confusing.

I think we would not be doing our duty by the family unit which continues after the father has died if we did not make some provision for the widow and children, or for the widower and children where the widower has married into the farm. I suggest to the Minister that whatever his views may have been on the other amendments this is one amendment which should commend itself to his consideration, and I think other Senators should support this amendment.

The chief difficulty I see in these amendments is that the yardstick which Senator O'Quigley suggests should be used—£20 valuation and £30 valuation—is not the proper yardstick in the sense that £20 valuation in one county is not the same as £20 valuation in another county. I do not mean that land in Meath is worth £2 and that it is worth 10/- somewhere else. I mean that by the time—and this is brought out in the report of the Commission on Valuations—the valuations were completed, the measurements used had changed in value, with the result that the value of land is not the same in various parts of the country. So, we cannot use valuations in one place as a yardstick, and then go into other property and use the same yardstick in relation to it, in some as yet undefined way. The Senator I think is probably exaggerating when he says it would be quite simple on Report Stage to bring in an amendment which would extend this type of yardstick to other property. I think there would be great difficulty, and as I do not agree that the valuation on land is the proper yardstick for the whole country, I would not agree with this amendment at all.

I have a certain amount of sympathy with the second amendment. I am against the first amendment because, as Senator Sheldon has pointed out, £20 valuation in one place is not the same as £20 valuation in another. There is another aspect. A £20 valuation farm could nowadays have very substantial outbuildings which were not valued at all. There is very little limit to the amount of building which could go on where a farm was being intensified to produce pigs or chickens or something like that. They could be very important assets. I have great sympathy with what the Senator is trying to do in the second amendment. In the case of a widow with many young children, one feels she should have the whole estate until the children are at least 21 years, or until they are capable of taking over. I take it the widow in that case would have an interest in the rest of the property, let it be real or personal. Would that not suffice if she has the whole of the estate for life? Unless she is capable of managing the estate, I think it is useless to put it that way.

In practice she must. She must live and rear her family.

Senator O'Quigley has put forward very cogent arguments and one cannot help sympathising to a great extent with the first amendment. A man may die and leave a widow with no family, and the estate may be so small that one half is not adequate to provide for her and give her a reasonable way of life for the rest of her days. He is endeavouring to cover that case by this amendment. It does not, however, appear to me—and I think, perhaps, on reconsideration he may be disposed to agree with me— that it is practical for a few reasons. One is the reason already given by Senator Sheldon that we are adopting an uneven yardstick. Senator O'Quigley would probably be the first to agree that all people must be equal before the law, but he is legislating specially for a farmer who leaves a widow with no family.

May I interrupt the Senator? There is a division in the Dáil and the Minister wants the House to excuse him.

An Leas-Chathaoirleach

It is a matter for the Senator who is speaking whether or not he wishes to continue. Does the Senator wish to continue until the Minister returns?

Whatever the House wishes.

An Leas-Chathaoirleach

The House is in informal recess until the Minister returns.

I was saying that Senator O'Quigley will, I think, agree with me that one of the fundamental principles of jurisprudence is that all people must be equal before the Legislature and in relation to any Act of Parliament passed. He is very properly endeavouring to provide against hard cases. The difficulty I see is this. A man dies and leaves a small shop from which there is a small income. There is no provision there for that. Will you take it on the average profits for some years and make provision in such a case or will you take it on the turnover? Suppose a man dies and leaves a little house and money. The money and the house may not be adequate to provide for the widow with no family. He could have a little house and perhaps £1,000. What will you do in that case?

The only way I see in which that could effectively be met, but unfortunately it has not commended itself to the House, is that if a man with no family dies and the widow can establish to a judge in chambers that half the estate is not sufficient to provide for her, then the judge will have discretion in making for her such further provision out of the entire estate as he thinks fit. That line of approach did not commend itself to the House. I do not propose to go back on what has been said but I cannot see in what other way provision can be made. If that can be done, then you would provide for the case and it may be a serious case and there may be very grave injustices done where a man dies and leaves a widow with no family. If he leaves a widow and a family, the same problem does not arise at all because, by and large, most children in this country do follow the fourth commandment.

As I said this afternoon, we have already met the case of the widow who stays on in a house the value of which is in excess of one-third or one-half of the estate, where she might be prejudiced by reason of being ejected from it. We have decided to provide for that particular case. I saw merits in that situation—the matter being brought to my attention by Senator Miss Davidson— that there was a danger of the widow, who had been living in the house all her life, being ejected if the value of the house was in excess of the one third. We have dealt with that in an earlier amendment and I do not see any point in going much further.

I think Senator O'Quigley's amendment is very drastic in that the contends the whole lot should go to the widow. In my view, in this amendment, Senator O'Quigley tends to be riding two horses at the one time. The earlier amendment sought to drive the widow into court to prove her share of any part of the estate and now you have a complete turnabout, a situation where you suggest that in any case of a farm under £20 valuation she shall be absolutely entitled to the entire. I think that that is going too far. At the moment she is entitled to nothing. She can be cut off entirely. We are taking a long step in improving her situation by giving her one-half the estate in the event of there being no issue. That is as far as we should go prudently having regard to the testamentary right of the individual. In the case of property under £20 valuation you would have no testamentary rights, because, as the amendment stands, all the property would have to go to the widow and, therefore, the testator would have no right to dispose of even half of his property or leave it in any way he wished. I think I can see the sentiment behind it, but it is going too far.

We should preserve the middle course between extremes by going from a situation where the widow may be cut off entirely, which is the present one, to one where she is entitled to one half. That is going far enough having regard to the fundamental rights which are set out in the Constitution. I think we would be in danger in providing for a situation which would cut off a man from any right of testamentary disposition.

The second amendment is, in my view, a bit confusing, but I think I know what Senator O'Quigley is getting at. I feel that it is already met in the Bill as it stands. A widow with dependent children surviving her husband gets one-third absolutely. Under section 116, in regard to the other two-thirds of the property, she can apply to the court on behalf of the children and become a trustee of the remaining two-thirds, so that, in effect, by virtue of section 110 and a court application under section 116 she can become absolute owner of one-third and trustee owner in regard to the balance, which I feel is the situation that Senator O'Quigley is trying to get at in his second amendment, where he suggests that she shall be entitled where there are dependent, children to the entire estate for life until the youngest reaches the age of 21 and thereafter to one third.

It is a bit confusing in its drafting, but I think I am right in interpreting what the Senator is getting at as being met by what I have suggested, where the combined effects of section 110 and section 116 can give rise to this situation of trusteeship for two-thirds and an absolute right to one-third. She can, in effect, manage the whole property until the children come of age.

I want to get rid of one notion that the Minister has raised. I am not trying to ride two horses. My preference is to look at the situation as we find it and know it to be in this country, and the first amendment, No. 7, was designed to deal with that situation. That is the way I would like to go after it, but I am realistic enough to see that you cannot have it that way, so I then tried to make the best of what I have got in the Bill, and that is where the second horse appears to come in. I tried to amend what is here. I do not like this section but I am trying to improve it within the limits of the principle enunciated in it and from which the Minister appears to be reluctant to move. I am accepting the Minister on his own ground and trying to add something to make the section more favourable to the widow and children.

The Minister earlier tonight conveyed the impression that he recoiled with horror from the idea of widows having to go to court in order to assert their rights. This is where the Minister is riding two horses on this occasion, because he does not want the widow to go in looking for the one third for herself but he sees no objection in section 116 to making her go into court to look for property for her children if her husband did not look after them properly.

It is only on the basis of dependency.

What I am saying is that we should try to get rid of that in a great number of cases which would be covered by the £30 valuation and try to provide as nearly as possible to what is done by prudent fathers dealing with property and looking after their children. What I am seeking in this amendment is to provide no more than what a prudent and affectionate father would provide in the vast majority of cases. Such a father would arrange to give the whole lot to his wife for life or until the eldest child is 21, and that when the children are all done for then she gets the legal right share to one third. There does not seem to me to be anything revolutionary or wrong in that when we are providing for an entity which Senator O'Reilly correctly described as the basis of the society in which we live, the family. There is no provision of the kind we ought to make in this Bill for the widow and children.

As I have said, since we cannot have the first amendment, No. 7, then I think we ought to go this distance in relation to properties of this size and we ought not to put properties of this size to the expense of court applications. I would ask the Minister to consider this between now and the Report Stage. I am not too concerned about amendment No. 9 because there might be some difficulty about the constitutionality of it, but I would have no doubt whatever as to the constitutionality of amendment No. 11. I want to assure Senators Sheldon and Cole first of all that I am not in any way tying it to a farm. This can apply to property of all kinds and it is for the Legislature to try to work out what is the appropriate sum. That is not an impossible task. The Legislature has already done this, as Senator Boland will remember on the Intestates Estates Act, 1954 where a distinction in relation to widows was made. It was provided that the widow would get £4,000, I think, of the husband's property and then half the balance. The Legislature did work out what was the kind of figure that should be fixed and I think Senator Boland was Minister for Justice at the time. There was a fair amount of give and take in the Dáil, and, finally, £4,000 was fixed upon as the first cash sum the widow should have and then half the balance. There is no difficulty either in cases of this kind in fixing in relation to personal estate what the sum should be or in relation to a farm. You can take whatever valuation you like.

Senator Sheldon was perturbed and troubled in his mind about the unevenness of valuations from county to county, but there is no other standard by which you can judge farms in this country and no other practicable standard. If you are dealing with housing you deal with the rateable valuation, and it is the same in the case of farms, though, of course, the farm in Meath of a valuation of £50 is immeasurably richer than a farm in Donegal or some other county with the same valuation.

We have to be practical and accept the best standard available. Senator Sheldon was not perturbed when section 6 was going through and he assented wholeheartedly to including the provision to give jurisdiction to the circuit court in relation to estates the rateable valuation of which exceeds £100. It never perturbed him in that case.

An Leas-Chathaoirleach

It is now 10 o'clock and it is possible that most of the Senators are nodding.

We will dispose of amendments Nos. 9 and 11 if the Senator is nearly finished.

I am prepared to dispose of my amendments briefly. There is nothing in that particular point nor in the point raised by Senator Nash that there must be equality. Of course, there must be as far as we can give it. I am trying to provide for equity for all widows and children. That seems to be something with which this House should concern itself. It is useless and unworthy of the intelligence of this House to say that in this day and generation we cannot work out something better than that which is contained in the 41 words of section 110. Those 41 words are designed to deal with, for the foreseeable future, the whole fortune of widows and children.

It is a marvellous section.

It seems to me that it is utterly ridiculous to try to pack such a complicated problem into 41 words.

It can be done.

The Minister said this section is not perfect. Somebody else said it is crude but I am trying to deal with this complex problem. If the Minister thought he was going to solve it in 41 words, that is the biggest mistake which has ever been made for the widow and children.

Like the Ten Commandments.

Amendment, by leave, withdrawn.
Amendment No. 10 not moved.

I move amendment No. 11:

but in the case of a farm, the rateable valuation whereof does not exceed £30, she shall be entitled to the entire thereof for her life or until the youngest child of the spouse shall attain the age of 21 years and upon the youngest child attaining such age the spouse shall then be entitled absolutely to one-third of the estate.

Amendment put and declared lost.

An Leas-Chathaoirleach

Amendment No. 12 has already been met.

I was going to say a few words on it.

An Leas-Chathaoirleach

It has been discussed already with amendments Nos. 3 and 5.

In that case I would thank the Minister again.

I would like to say that this amendment, despite all the legal array of talent in this House and the other House, was one of the most constructive amendments put down in either House during the debate on this matter.

Amendment No. 12 not moved.
Progress reported; Committee to sit again.
The Seanad adjourned at 10.5 p.m. until 3 p.m. on Thursday, 4th November, 1965.