Seanad Éireann debate -
Wednesday, 3 Nov 1965

Vol. 60 No. 2

Succession Bill, 1965: Committee Stage (Resumed).

Debate resumed on the following amendment:

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.)

Minister for Justice (Mr. B. Lenihan)

This amendment relates to section 110 which is the basic section in the Bill in so far as it is concerned with bringing in a legal right system for the surviving spouse. I made it plain in the Dáil on various Stages, and in the Seanad on Second Stage, that I was open to receive amendments to every section in this Bill. Indeed, a number of amendments have been accepted both in the Dáil and in the Seanad which I think have gone to improve the Bill to a considerable degree.

However, this amendment in the name of Senator O'Quigley relates to section 110, and on this particular section, both in the Dáil on behalf of the Government, and here, I said that I intended to take a stand on the basis that the elementary principle in this Bill in regard to testamentary succession is that a spouse should look after his or her surviving spouse to some minimum extent: to the minimum extent of one-third of his or her property, if there are children, and to the minimum extent of one-half, if there are no children.

We have compromised in section 116 in regard to the original provision which provided a mandatory share of one-third for children. The reason we compromised there is that we recognised that the case of children is different from the case of a spouse who has lived with his or her other spouse over a number of years and has, in fact, due to that association, embedded at first in the marriage contract, acquired a stake in the property of the other spouse. In regard to children, the question is one of dependency which we now allow to be decided by the courts in section 116.

The principle embodied in this amendment is that a similar sort of court application should apply in regard to the surviving spouse making his or her claim for a minimum share in the estate. I do not think that principle should apply. We must remember that property has its duties no less than its rights. Senator Sheehy Skeffington and Senator Honan on the Second Reading made the point that the property of a married man is the property of his family. In particular, it is the property of the person who has been his partner over a long period of years and has contributed substantially to the development and enhancement of the property, but I should like to see it being held in common form by both parties to the contract. This is the fundamental principle behind section 110 on which I am not prepared to compromise by way of any amendment. On every other section of this Bill, I have been open to amendments and would be glad to consider——

Mr. O'Quigley

Not every other section—not on the intestacy.

Mr. B. Lenihan

I have been reasonably receptive, as will be seen if one examines the record. On this section 110, there is a fundamental principle involved. If I were to depart from it and accept Senator O'Quigley's amendment, I would be negativing that fundamental principle. In regard to arguing the case for having a legal right reserved for the widow or widower, the widow in most cases, it should be stated that this is nothing new in the Irish situation. I have already stated this on the intestacy sections, that 50 per cent of Irish properties now devolve by way of intestacy and have so devolved over a number of years during which we have had a system of a legal right where the widow was entitled to one-third and where we are now giving her two-thirds. This is no strange system as far as the devolution of Irish property is concerned. We are merely making it compulsory or mandatory on the man or the woman to give one-third in the event of children, or one-half in the event of no children to the spouse in the event of testacy.

The argument has been made that this will induce some measure of fragmentation or of trouble in regard to the management of property. This has not been the experience in regard to the 50 per cent of properties that have descended by way of intestacy. It has not been the experience in regard to farm holdings, where the proportion of intestacies is far higher. The widow has remained on the farm and she has had her right to the one-third but this right has not been enforced. Similarly, we provide under section 110 that she will have this right to one-third where her husband dies testate, but it is not mandatory on her to carve it out of the property. It is a legal right which I would envisage being used by her, as at the moment, in the case of intestacy, as a weapon in case she is, in some way, not getting her due after the death of her spouse. Therefore, she has a legal right to insist on one-third of the estate which she—or he, in the case of a widower—must enforce after the taking out of representation, and, if not enforced after 12 months, this right lapses. So the ogre of one-third or one-half being carved out of the estate, when examined closely, turns out to be, in fact, a legal right exercisable by a widow or widower but which will only be exercised in the ordinary practical way of things when he or she is being prejudiced in some way. In the normal course of events, this right will not be enforced. That has been the experience in regard to the widow's intestate share over the years. I see no reason why it should not be the experience in the future in regard to the legal right under section 110.

It was mentioned on the last occasion here that apart from the Fianna Fáil Party, nobody else appeared to be in favour of this measure. In reply to that, I mentioned that the Labour Party had supported us in the Dáil in the matter. I confined myself to mentioning the Labour Party. I met and discussed this Bill in great detail with the people who would fundamentally be most concerned with it, that is, the National Farmers Association, representing the farmers who are concerned with property rights and title to property. The National Farmers Association came to me and were in full agreement with the amendments I proposed to the 1964 Bill which are now incorporated in the Succession Bill of 1965. They saw, as Christian gentlemen, that there was nothing at all wrong in any farmer having to reserve one-third for his wife or one-half for his wife in the event of no family. They were quite happy with that.

The section of the original Bill with which they were most concerned was that which provided for a compulsory one-third for children. Once that was deleted, whereby children from America, Australia or any other part of the world could come in for their particular minute share of one-third, they saw nothing wrong—and I am sure most people would agree with them— in having in our society a system whereby the widow, the mother of the family, who had contributed to the management of the farm, for instance, over a number of years, was entitled as of right, if she wanted to enforce that right, to a certain minimum share of the property. They envisaged a situation where one son could get the farm by way of deed, as provided in the Bill, prior to the testator's death, right up to the date of his death, with the agreement of both spouses or, alternatively, where the son who had remained on the land would get the farm, subject to his mother having a one-third share, so that she, by reason of having that share, would be able to insist on certain minimum rights for herself. The National Farmers Association were fully in agreement with this proposal. The Incorporated Law Society, while not going the whole way with the Bill, and still having opposition to section 110, welcomed all the other amendments which were introduced.

Mr. O'Quigley

As we all do.

Mr. B. Lenihan

I do not regard the Incorporated Law Society or any professional group, however much I welcome their assistance in the preparation of amendments or the drafting of measures, as having a superior mind to bring to bear on this problem as compared with the mind of the plain people of the country whose letters have poured into my Department over the past 12 months welcoming this measure and this aspect of it. I do not regard them as having a superior knowledge to that of the Labour Party, the National Farmers Association or my Party, a cross-section of public opinion, as to how property should vest and how rights should vest.

Senator O'Quigley's amendment seeks in effect in a great number of cases to drive the surviving spouse into court to prove his or her right to a share in the property of the deceased spouse. I cannot agree with that approach. In my view it is not in accordance with the Christian concept of the rights and obligations created by marriage that the surviving spouse should be driven into court to answer questions and undergo mortification, difficulties, tension and trouble in order to establish her rights. In the judgment of certain people, she may have failed morally or may have been a spendthrift or an alcoholic. I would be the last person to pass judgment from any moral standpoint but I do not see why we should drive such people into court to prove their rights arising out of a partnership which has been undertaken over a number of years in a particular property which has been held in ownership by the husband or the wife. I do not see why he or she, on the death of the spouse, should have to go into court, and have family difficulties and troubles raked up in order to prove his or her right to a particular share of the property.

That is the nub of the difference between what is contained in section 110 and what is in Senator Quigley's amendment. There is nothing particularly radical in this provision in that it is a provision that dates back from the days of Roman law and is incorporated in the legal systems of most countries in the world. The notion of absolute freedom of testation in regard to property is a peculiarly English idea that has found acceptance in no other part of the world, apart from England and Wales. Even England has modified freedom of testation to some extent in the inheritance Act of 1938. It has long been accepted in Continental Europe and in most of the American states, including New York, and it is now accepted in some of the Canadian Provinces and, indeed, throughout the whole civilised world, that it is the duty of a man who has lived for twenty, thirty or forty years with his wife that, on his death, he should allocate some portion of his estate to the widow surviving him. That is all we are seeking to do in this particular section. When it is examined in that mode most of our people are behind it.

I do not agree with the legal view which has been put here, or at least a certain kind of legal view put here by Senator O'Quigley, that the problem of disinheritance of one's spouse is not a serious problem.

Mr. O'Quigley

I never said that. Of course, it is a serious problem.

Mr. B. Lenihan

A sizeable problem. I am using "sizeable problem" because these are the words used by Deputy John A. Costello. I think I have more experience than Senator O'Quigley on the political level, though we may place ourselves fifty fifty on the legal level. It has been my experience, representing a rural constituency, to hear regularly of complaints about selfish men who have lived with their wives over the years and have finally, for one reason or another, decided not to leave anything to their wives, particularly where they happened to be childless. Such men, for some selfish reason or for reasons of vanity, decide to keep the farm in the family name. I have known of cases where a woman has served a man and managed his farm for 30 or 40 years and, just because she has not borne a son of the same name as the father, she finds she is left with nothing and the family farm goes back to some relative of the father. I have known numerous such cases and, as Deputy John A. Costello says, this represents a sizeable problem. The letters in my Department bear that out.

It is all very well for lawyers to say this particular matter does not come up that often in solicitors' offices or in the courts. The fact of the matter is that many people are very chary about going to a solicitor or entering into court proceedings.

Mr. O'Quigley

Indeed, they are not.

Mr. B. Lenihan

Senator O'Quigley has a cynical view on this. I am personally aware of a number of sensitive people with rights who did not choose to insist on them and did not wish to be brought into court. If they do go, under the present law, they have to prove that the testator was insane in order to achieve their rights. These people, particularly surviving widows, who are prejudiced by their husbands, represent a very sizeable section of the community, as evidenced by the letters which I have received in my Department and, indeed, received by my predecessor over the past two years since this matter was mooted. I have had an official working practically wholetime replying to these letters. Since the Bill seems likely to become law I have had numerous letters, from women particularly, welcoming this particular matter and pointing out matter of wrong done to them or friends of theirs over the years.

I appreciate that the point made by those who oppose the section is that the mandatory system of one-third or one-half does not take into account the spendthrift widow or widower, the alcoholic widow or widower, the person who may not be able to manage affairs properly. This is the kernel of the case, the unfaithful widow or widower, against section 110. Taking the case on that basis, I would certainly prefer to see justice done, in what I think are the great majority of cases, by having a basic guarantee given, and suffer what I would think would be a very small minority of cases where the wrong sort of surviving widow or widower might get his or her share. In this connection, I do not see how any solicitor or any judge in a temporal capacity is to be the judge of who is, or who is not, entitled to a one-third or one-half share by reason of immorality or otherwise. These are matters which are beyond the ken of most people to investigate, and are not matters which should be brought into court.

On that particular aspect I would say, if we are going to have a system which will guarantee the basic rights of a spouse who has lived with her husband over the years, we can suffer the odd case where somebody who is said to be morally wrong is not entitled to the one-third or one-half share.

I do not feel there is anything more I need say in this particular connection beyond emphasising once again, and I have said it so many times now I feel it should not need emphasis, that this is not a compulsory system obliging a widow or a widower to take one-third of the estate. It merely confers a legal right. The testator is still free to consult with his spouse, to give her a life estate, give her nothing if she so wishes, or to make any arrangements he or she wishes. In effect, all it means is that the husband and wife should talk the matter over before his death. In talking the matter over, the wife might sign a renunciation saying she does not want the legal right. She might choose to enter into a deed whereby the testator gives everything to one or other of his children. Or she may decide, within 12 months after his death, not to exercise her legal right.

All that is inherent in section 110 is that the ordinary, basic, humane consultation should take place between man and wife about what they should do with their affairs. I do not feel there is anything extraordinary in a Christian country in having this basic guarantee enshrined in a section of an Act of Parliament. That is all that is involved. I feel that most reasonable people in the country see our way in this matter. Indeed, I feel that the legal view of the Fine Gael Party has rather gone out on a limb in this.

Mr. Cole

As the Minister has more or less covered the whole ground of section 110, perhaps we could take my two amendments in this debate. The Minister has gone over the ground very fully and I am quite willing if it will save time.

An Cathaoirleach

It would be better to leave amendments Nos. 9 and 10 stand on their own. When we come to the section we can deal with them. Senator O'Quigley on amendment No. 7.

Mr. O'Quigley

I knew when the Minister was making certain concessions on earlier sections of the Bill that he would undoubtedly come along on this crucial section and say: "Look, was I not reasonable throughout this Bill? I am not one of those hidebound people. I accepted amendments when I knew they were right. I am a flexible-minded man." I knew the Minister, and I expressed the view the other night that I had not any great hope in advocating this amendment. Senator FitzGerald thought there might be some hope. Over the weekend I was cheered by the thought that what was happening in Rhodesia might have some relevance here. None of us thought Mr. Wilson would come back with anything from Mr. Ian Smith but, notwithstanding his hidebound, rigid position, to the surprise of the world I suppose, there has been some little give in Mr. Smith, although a day later he said they were still poles apart. At any rate, they are on talking terms, and none of us thought that great miracle could have been achieved.

I had hoped the Minister would not absolutely close his mind before coming here today as firmly as he seems to have closed it in his latest speech. There is not that much difference between what the Minister said and what I am advocating, but I am absolutely convinced that what the Minister is advocating is wrong. It is wrong because it will not do the justice that should be done to a great number of widows who will be dispossessed by their husbands, or whose husbands might have it in mind to dispossess them.

The Minister made a statement which is quite wrong. I do not know whether he realises it. He said this is not a compulsory system, and he went on to say that a man and his wife could get together and the man could leave the whole lot to his wife, and she could renounce it. What I am concerned about—and I repeat it notwithstanding the Minister's mild sneer at lawyers, because in his concluding words he referred to the "legal limbs" of the Fine Gael Party: I thought we had got away from that—is the plight of widows who will not get sufficient under this Bill. I want to remind the House that this whole idea——

Mr. B. Lenihan

The Senator cannot have it both ways.

Mr. O'Quigley

I will deal with that in a minute. The whole idea of making provision for disinherited widows first came to public light in the form of a motion put down in Dáil Éireann by members of the Fine Gael Party. It first received publicity in that way. We have always been, and we still are, concerned about the misfortunes of widows who are disinherited.

The Minister said there is nothing compulsory in this, but it is compulsory, because if a widow is left nothing in a will she is entitled to get merely one third. Where I fall out with the Minister and part company with him is at that point. One third does not do justice to a sizeable number—to use the Minister's phrase—of widows who will be disinherited. Let there be no doubt that is where the compulsion comes in. A widow can have all the other rights given under this Bill, but she cannot get more than one third if the husband makes a will.

Mr. B. Lenihan

She can.

Mr. O'Quigley

She cannot.

Mr. B. Lenihan

He can leave her the whole lot.

Mr. O'Quigley

What I am concerned about here—and I thought we had got our minds clear on this—is the vast majority of wills which do not provide properly or make adequate provision. I am concerned with what the Minister calls that sizeable number and I am talking about that sizeable number. What I am saying is that if a husband decides to make a will he is entitled to leave his widow only one third, but if he makes no will under the intestacy provision she gets two thirds so, by making a will, he can deprive her of 50 per cent of what she would have got if he had died intestate. If we are concerned as we ought to be in this House about the position and the welfare of widows who are going to be dispossessed by their husbands, we should not try to distinguish between the widow of a man who dies having made a will, and the widow of a man who dies without making a will.

There is no logic whatever in the Minister's argument that the widow of an intestate person gets two-thirds of the estate, when the widow of a person who dies testate gets only half that amount, or one-third. There is no logic in that, and there is not one single member of the Government Party who could come here and say that it is right to give a man power by making a will to disinherit his wife of one-half of the share she gets on intestacy. That is the position and the Minister cannot deny it. That is what is at issue on this amendment.

The Minister talked about a modicum of justice. I say that if we are concerned about widows one half share, or two thirds share, is worthless in a great number of cases. I wonder if the Minister has ever had a look at the statistics that relate to this question. I have here before me the annual report of the Revenue Commissioners for 1964. In Table 92 there are some illuminating figures which show what kind of estates are left behind by people in this country, and how they are broken up. All estates are liable to death duties. They must come under the Revenue Commissioners. You cannot take out a grant of administration or a grant of probate, even on an estate of £5, without applying to the Revenue Commissioners and giving a schedule of assets. These figures show the pattern. We find in Table 46 at page 91 that the number of small estates not exceeding £300 in gross value was 480. The number exceeding £300 but not exceeding £500 was 231. In the case of small estates the Minister proposes to give the widow merely one third. Of what use is one third of £500 to the widow? Does not commonsense indicate that she should get the lot? If her husband dies intestate she gets only two thirds, and quite clearly she should get the lot. The number of estates exceeding £100 and not exceeding £1,000 is 178. The number exceeding £1,000 and not exceeding £2,000 is 38, and so on. Of 2,711 estates which were examined by the Estate Duty Office in 1963/64 we find that 2,300 were under a valuation of £15,000, so the vast majority, the overwhelming majority, of the estates are the estates of small people, and it is in that context that I am urging that merely giving one third or two thirds, as the case may be, is not nearly sufficient.

The position in relation to farms in rural Ireland shows an equally hopeless condition of affairs. According to the Statistical Abstract for 1964 the number of farms not exceeding £2 valuation is 45,004, the number of farms above £2 and not exceeding £4 valuation is 55,516, the number above £4 and not exceeding £7 is 39,577 and the number above £7 and not exceeding £10 is 32,569. The number of farms with a valuation of under £30 is 288,474, that is, 80 per cent of the farms of this country are under a valuation of £30. A farm with a valuation of £30 is quite a substantial and good farm but if you take 45,000 under £2. 55,000 under £4, 39,000 under £7 and the 32,000 under £10, I suppose about 110,000 or some figure of that order, what is the use of giving the widow whose farm has a valuation of under £4 merely one third if her husband decides to make a will and to disinherit her as to the two thirds? My view is that leaving her one third is quite useless and even if she gets the house and the farm that is quite useless and will not be sufficient.

Most farmers make their will and many of them, in fact, the vast majority, are decent farmers who make proper provision for their wives. I am concerned with, to use a handy phrase, the sizeable number who would be disinherited by husbands leaving them merely one third. That is quite senseless and useless when the valuation is under £7. There is no validity in this particular section as it stands. I am suggesting in this amendment that we proceed upon the basis that we state that a testator shall have the duty to make adequate provision in life for his spouse according to his means, whether by will or otherwise. After having made that clear statement of the law in this Bill, every solicitor, when a client is making a will, will tell him that if he does not make proper provision for his wife, if he does not leave her the lot, she will be entitled to go to court and his money will be only wasted on lawyers' fees because the court will find that adequate provision in life means in his case leaving her the entire farm. That is the way that can be achieved. I am quite satisfied that once this new idea of making adequate provision in life for a widow or widower, as the case may be, where the woman owns the property, is introduced, it will catch on and the number of cases where application to the court would be necessary will be extremely small. The Minister says: "Well, there may be alcoholics and there may be people who are bad at managing farms and all the rest of it. Which is the best thing to do, get rid of your responsibility and leave them the money?"

Mr. B. Lenihan

I did not say that.

Mr. O'Quigley

That is what it amounts to.

Mr. B. Lenihan

That is a different thing. That is what the Senator said.

Mr. O'Quigley

We will presume what the Minister says is in the Bill. The Minister says in the case of alcoholics and in the case of spendthrifts what you would do is leave them one third and that rids you of all liability after that. We should not sit in judgment on the morality or conduct of these people. That just will not do and that is what a lot of husbands or wives would not want to do.

It is well known that alcoholism is a disease and that people who are alcoholics will do anything provided they can get drink. They will set upon the business of dissipating their fortune with a tenacity and sincerity of purpose which will enable them to achieve what they set out to do in a very short space of time. Under this section, if a man had an estate of £15,000 and if it were provided that his widow be left £5,000, £10,000 or £15,000 to be held in trust, the income to be paid to her life that will not do although it would clearly be in the best interests of the surviving spouse, who is an alcoholic. That person could through the court or ipso facto, by virtue of this Bill, be entitled to one third of £15,000. How can you justify giving a sum of £5,000 to a person who is known to be an alcoholic? Mind you, the problem of alcoholism in this country is not as small as one would wish it were. I recollect reading in the Cork Examiner during the newspaper strike that there were upwards of 40,000 practising alcoholics in this country.

Mr. B. Lenihan

"Practising" is a nice word.

Mr. O'Quigley

I am saying that the practising alcoholic should not be given a lump sum to blow in the space of a year, two years or three years but that there should be a provision in the Bill, which it does not contain, whereby the spouse of the alcoholic would be entitled to have the money invested, held in trust and paid as income. That would be far better than having the whole lot blown and have the person living in the mire and living from hand to mouth.

Mr. B. Lenihan

We had that section in and the Senator's Party objected to it in the Dáil.

Mr. O'Quigley

Would the Minister introduce it here? This is a different House. There was not any provision in the last Bill.

Mr. B. Lenihan

There was, but Deputy John A. Costello and others objected to it and I agreed with them that you could not enforce it.

Mr. O'Quigley

There is some mention in section 150 which we can discuss when we come to it.

Mr. B. Lenihan

It was section 116 in the old Bill.

Mr. O'Quigley

I would want to have a look at that.

Mr. B. Lenihan

It was objected to very strongly by the Senator's Party.

Mr. O'Quigley

The Minister's interpretation of statements is not always entirely accurate. The Minister spoke about lawyers and the interpretation of the law. With respect to the Minister there are greater lawyers than ever the Minister was or it likely to be. I do not now what the future holds but he may have an opportunity of practising it far earlier than he expects.

An Cathaoirleach

The Senator should refrain from making personal remarks.

Mr. O'Quigley

The Minister earlier suggested that he had a greater knowledge of the law than I had. I will not enter into competition with him on this.

Mr. B. Lenihan

I said fifty-fifty.

Mr. O'Quigley

The plain truth of the matter is that the Minister was talking about life tenancies and so on. I am reliably informed by conveyancing lawyers in the Law Library that when making provision for husbands and wives, the answer is life tenancies. Conveyancing lawyers inform me, and I know it from my own experience but I would not rely on it as being comprehensive, that this is what is done and this is what answers the needs of families and the needs of properties and the needs of children. On the last occasion, the Minister came in here— and this is why I demur about what he says happened in the Dáil as being a correct recounting of what went on— and referred to the new Variation of Trusts Bill, 1958, in England. I thought, in my proper ignorance of English law—I do not pretend to have a knowledge of it—that it made some far-reaching change in the law in regard to life tenancies. I find it does nothing of the kind.

That was the clear impression the Minister left in my mind and the impression he intended to give this House, that life tenancies had been found unworkable in England and they had introduced a piece of legislation in 1958 known as the Variation of Trusts Act to get rid of these tenancies. It merely recognises the existence of life tenancies and the existence of the shortcomings of the settled land Acts in relation to the powers of a tenant for right and of the courts in relation to settlements and wills. The Act merely provides one further power in the courts to vary trusts, with the proviso that the trusts can be varied only when they are for the benefit of the person affected, so that completely disposes of the Minister's irresponsible statement that life tenancies were not used in England, that they were out of date and, indeed, that this Act had been brought in in England to rectify and modernise what he quite improperly and inaptly termed as a feudal concept. They have been the order of the day in England and that has been the position in this country up to now.

At present, under this section, however, a man cannot leave a life interest in all his property to his wife; he must leave her one third. Among the cases where a man would appear to disinherit his wife would be the case where she was a spendthrift or an alcoholic, or might just be a bad manager or have a bad business head. In order that Senator Mrs. Ahern will not take offence, the same applies in relation to women when making wills and according the same treatment to their husbands. I fail to see how, if the National Farmers Association, or indeed the Labour Party, understood what was involved in this Bill, they could agree that it was right that you should not be entitled to leave all your property to your wife for life so that the income out of it would be paid to her, but that, in addition she must necessarily get one-third.

From the point of view of the farmers in this country, I have always understood it to be the position that one of the reasons why there were late marriages was that fathers, and to a lesser extent, mothers, who owned farms would not hand over the farms to their children. It seems to me again that the normal procedure at present adopted, where a man settles his property perhaps on himself for life and after his death, to a particular son who can then get married, with provision for rights of residence, support, clothing and maintenance in a state fitting and proper to her condition in life to his wife—that kind of settlement has gone. I cannot see how, if this section stands, any son or any daughter can ever again, during the lifetime of both his parents, take a farm and settle down on it. That will not be possible because he will know that immediately upon the death of his father, his mother becomes entitled to one third. There are many fathers who will not allow their daughters to marry into a place upon those conditions.

It seems to me that this kind of section will put an end to the family settlement, as it is practised in rural Ireland, and, indeed, practised all too infrequently, but its practice will be still more restricted in the future. There is an old saying, an old maxim in law, lex non cogit possibilia. I suppose, in speaking on this motion at the present time, I am really offending that maxim. It is quite useless for me at this stage to try to get the Minister to accept this because he has his mind closed. It is very regettable that the Minister did not pay some regard to some of the statistical and other facts of life in this country as they are at the present time. I have no doubt in my mind that if there had not been a general election, the Minister would have come in, equally convinced about and equally eloquent in defence of the first Succession Bill as it was drafted, so I am sure there was not a squeak-out of the Minister on the Second Stage of the first Bill when it was being debated, or out of his Party. Perhaps it was not debated when the Minister was a Minister of the Government.

Mr. B. Lenihan

I brought in the first Bill.

Mr. O'Quigley

Surely it was the Minister's predecessor?

Mr. B. Lenihan

It was I. Senator O'Quigley is historically wrong. I amended the first Bill and brought it——

Mr. O'Quigley

Was it not the present Minister for Agriculture who introduced the first Bill and circulated it?

Mr. B. Lenihan

Not on the Second Stage.

Mr. O'Quigley

The Minister for Agriculture was Minister for Justice when the second Bill was circulated.

Mr. B. Lenihan

Not at all.

Mr. O'Quigley

Of course he was.

Mr. B. Lenihan

I cannot allow an historical inaccuracy to go on the record, however unimportant it may be. The Succession Bill, 1964, was introduced by the present Minister for Agriculture, as Minister for Justice, last July 12 months. It was made plain by him at that time that he introduced it as a matter for public debate and discussion, with a view to attracting the widest possible spectrum of views on it, so that everybody could contribute his views as to how it could be improved. While the House was on vacation last summer 12 months, the Minister for Justice became Minister for Agriculture. I became Minister for Justice and having considered the various views put forward during the vacation brought in, on Second Stage reading in the Dáil, proposals for an amended Bill. The Committee Stage of the Bill was due to be taken when the general election was declared. The Succession Bill, 1965, was introduced with further amendments, following on the discussions that had taken place in the Dáil on Second stage. The views incorporated in the Succession Bill, 1965, which is now before the House, are largely the views which resulted from the distillation of views put forward by voluntary groups such as the Incorporated Law Society, the National Farmers Association, the Labour Party and the Fine Gael Party, many of whose views I accepted on the Second and Committee Stages of the Succession Bill, 1964, and the Succession Bill, 1965, and these happen to be the facts of the matter.

Mr. O'Quigley

What I said was that the present Minister for Agriculture introduced this Bill, which he did.

Mr. B. Lenihan

The only discussion on this was in the presence of the present Minister for Justice and the election had nothing to do with it. Deputy John A. Costello, on the Second Reading of the 1964 Bill in the Dáil, made a particular plea that this matter be taken out of politics, taken away from the chapel gate, which, indeed, it was. I feel the record will show that the debate on this measure in both Houses has been of excellent quality and the contributions made have been very constructive and have helped considerably in what I hope will be a reasonable measure. You cannot have a measure such as this absolutely perfect, because of human failings and so on, but I feel it will stand the test of time.

I should like to refer to one other matter mentioned by Senator O'Quigley. That is the matter of life estates. I am still strongly of the view, as most practical lawyers are and people who want to see the community as a whole improved, that life estates —and this is acknowledged by anybody who thinks deeply about it—are a very bad form of tenure. They tie up property during the life of the person who gets the property and, indeed, tie it up for the remainder man as well. This type of property is not easily secured from the credit point of view. Banks tend to shy away from that sort of property because it does not offer a valuable security to them. Property which is freehold, even though it may be subject to a legal right which in the hands of the widow lapses after 12 months, is far better security as regards getting a loan from the banks or the Agricultural Credit Corporation. The sort of property which may be subject to a legal right of one third that lapses after 12 months is a far better guarantee than the life estate at which any bank manager will look askance. The life estate, not being fee simple estate, will not constitute a sufficient guarantee for any credit institution advancing money.

In fact, life estates, as I said here on the Second Reading, are the relics of the feudalistic period. Both here and in Britain life estates were utilised where people wanted to withhold land for their wives and families. Life estates are a furtherance of that sort of property holding which sought to ensure that property remained in the possession of a particular family over a long period of years. This has been the case particularly with large holdings of land in Britain. These holdings are owned by people who were never short of ready cash. As far as Ireland is concerned, I can imagine no worse form of property holding than a life estate on which a man cannot raise the money to carry on and extend his business or farm.

Professor Stanford

May I clear my mind of some confusion on this section? Am I right in taking it from Senator O'Quigley's remarks that if a widow gets one third of her husband's estate she has no right to seek more than that?

Mr. O'Quigley

Yes, there is no doubt about that.

Professor Stanford

I must say this is an iniquitous section if that is so. I should like to ask the Minister if that is so or not before I go on.

Mr. B. Lenihan

The situation in this Bill is that a male testator, if there are children, must at minimum give a legal right in one third of his estate to his widow. I repeat at minimum. He is quite free—and, in fact, this is written into the Bill—to give all his property to his widow if he so wishes.

Professor Stanford

That is not my question. Perhaps I might put the situation a little more clearly. A man is dying, his wife is in such a situation that she needs all the estate to keep alive in decent circumstances. There are no children. He for some reason does not like his wife and he limits her share in his estate to one half. Has that wife no right then to go to the court and say "I need the whole estate," or not?

Mr. B. Lenihan

I met that case to some degree on foot of an amendment put down by Senator Miss Davidson and Senator Crowley. I might say it was a most constructive amendment and it is now incorporated in a Government amendment which we passed here last week. Where a widow remained on in the house where she was living with her deceased husband and where that house was valued in excess of what would be one half the estate where there are no children—in other words, if half the estate came to £5,000 and the house was valued at £7,000—we have now got an amendment inserted that the widow has the right to remain on in that house and she cannot be ejected even if the value of the house is in excess of one haif the estate. That goes some way towards meeting Senator Stanford's point. You cannot devise a perfect system which will take care of all the isolated cases. I am trying to pursue the middle course in this matter. I am beset by the conservative lawyers, primarily of the Fine Gael Party, who say there should be absolute freedom of testation and that a man can cut his wife off with nothing. On the other side of the fence there are people such as Senator Stanford who ask why should the widow not get all the estate.

Mr. O'Quigley

That is what I say, too.

Professor Stanford

On Senator O'Quigley's amendment he can have it this way.

Mr. B. Lenihan

A court application.

Mr. O'Quigley

It is the Minister's idea that this is a lawyer's amendment and he is most reluctant to give way.

Mr. B. Lenihan

Instead of a basic guarantee to the widow of one-half the estate you will throw her into court and impose on her the necessity to consult a lawyer. She may have to enter into a contest in court with some other member of her family, have the facts of her life paraded before that court, and be put through all this in order to prove that she may be entitled to more than one-half. I prefer the system which guarantees her one-half without driving her into court to prove she might be entitled to more than one-half. I prefer the system which provides that she must get one-half in any circumstances. In many cases a sensitive woman will not bother going to the court at all to prove her right. There are people who will not have recourse to the courts but will carry on their own way because they are too sensitive to engage in litigation. I feel there is justice in having written into the statute that she must have one-half. Unfortunately, it cannot be written into the statute that she will get it all.

Mr. O'Quigley

Why not?

Mr. B. Lenihan

We cannot have it written into the statute that she get everything.

Mr. O'Quigley

Why not?

Mr. B. Lenihan

There may be circumstances that were elaborated on by the Senator's friends in the lower House when they were arguing the case for freedom of testation. It was elaborated that there were sufficiently various circumstances in which the widow should not get all the estate because other deserving beneficiaries might be there. I will not be drawn into that sideline. The nub of the issue in this matter is whether you would prefer a system whereby there is an absolute guarantee written into a statute that the widow must, no matter what happens, get a percentage—one third if there are children and one-half if there are not—a legal right which she may or may not enforce, or whether you want a system which submits her to the risk and the trouble of the raking-up of family background, and expectations good and bad, in an action before a judge, subject to his decision. The Labour Party in the other House have come down strongly in favour of what I feel is not alone the Christian way but the practical way that is operated in practically every legal system in the world. It is only in the English and the Welsh courts that you have this notion of complete freedom of testation.

The other system is operating in the United States, in parts of Canada and all over Europe. In every case you have a guarantee of this basic right for the spouse who survives the partner and who was, over a number of years, a common manager of the property with the deceased. It is in accordance with the principles that Senator Sheehy Skeffington spoke about of property having duties as well as rights. When a man and woman are married and are together on a farm or business for good or ill, there may be troubles, with rights and wrongs on both sides, but out of that partnership there should be a right, written into a statute, to the survivor of that partnership by reason of the contract which gave rise to it, an entitlement to a basic share.

Mr. O'Quigley

If he dies intestate she is given that right.

Professor Stanford

I am grateful to the Minister for that explanation. But I can see that this is just one of the kinds of hardship involved. Obviously, there will be unfortunate effects. But this is only one of the unfortunate aspects of this section: I will advert to more serious aspects of it in a moment or two. There may be many cases in which a vindictive dying spouse can get away with leaving his wife, or the husband as the case may be, one third when it is obviously unjust by every moral principle that the wife does not get the whole estate.

Mr. O'Quigley

Hear, hear.

Professor Stanford

That is an injustice, but we have to weigh it up against the other injustices. The Minister says that in any case she is entitled to one third. But if she considers that manifestly unjust is she entitled to go to the courts? For some reason which I find it hard to understand the Minister wants to check people, or save them the ignominy or embarrassment, as he puts it, of going to the courts.

Mr. B. Lenihan

——and the expense.

Professor Stanford

All right. I think he has exaggerated that. Times have changed vastly in that respect too. There was a time when for various reasons widows were, perhaps, afraid to go to the courts. That has changed. So many unpleasant things are being dragged into the open now all round us that another little action down the country will not get the great publicity it might have got 30 years ago.

Mr. O'Quigley

You can provide that it will not get any publicity if you want to.

Professor Stanford

I think that the Minister is overdoing this fear of appealing to the courts, especially when the case is heard in chambers as might well be. This is another minor unfortunate aspect of this particularly objectionable section, and I very deeply regret that the Minister is refusing to accept any amendments on this. He has dug in now, so to speak.

I must not hold up the House by repeating in detail all the objections I urged against this section on the Second Reading, but I must emphasise that I feel that very deep principles are involved here, and I must affirm that in my opinion this section introduces an unjust infringement of civil rights. It is striking at the very basis of justice in this country. The law as suggested in this amendment and to some extent as it stands at the moment is securing that injustice will not be done—the courts will look after it. This section is securing that certain injustices will be done and that, I think, is the point. It will bind certain injustices on the country while, if we leave things flexible and leave it to courts, there will be no injustices.

There are two or three cases which I mentioned before and will refer to again briefly. There are, first of all, cases where the surviving spouse is rich, well able to look after himself or herself or, perhaps, not rich but young and active and trained for a job and well able to earn a living if she is not endowed compulsorily by her husband. It is even possible that the husband or wife might say: "It would be better for my husband or wife when I die to go into a job and earn a living." I can understand this. But under the section it cannot be done. She is bound to get one third of the estate. Supposing the estate is worth £15,000 she is bound to get a nice £5,000 to keep her going for a good while.

Supposing that in the case of a surviving spouse who is rich or well able to earn her living there are other close relations of the dying testator, a mother, brother, or sister who needs this money most urgently and needs all of it whereas the surviving spouse needs none of it. The testator cannot now leave that money to the deserving relative without the consent of the surviving spouse. The Minister is optimistic in these circumstances and says that in that case every surviving spouse will say: "I do not need the money, give it to poor so-and-so." I am sorry, but I am not optimistic about this. I have heard of too many quarrels over wills to believe that in most cases the surviving spouse will not take all that he or she can get under the law. It is extraordinary how generosity and magnanimity seem to fly out the door when this arises.

Mr. O'Quigley

I agree entirely.

Mr. B. Lenihan

I do not share this pessimistic view of human nature.

Professor Stanford

The second thing that will be hit by this is charities. In similar circumstances, where the surviving spouse does not need the money, the testator might say: "The Red Cross or some other deserving charity could do with this. There are people starving all over the world. My big, well-upholstered, well-beloved spouse is well able to live for the rest of her life, and why should I leave her money in these circumstances?" The Minister will say that he will persuade this fat and jolly spouse to renounce the legacy. But she will not. I do not think she will. The result will be that certain charities which ought to get the money will not get it. That is wrong and unjust too. I have not seen any good answer to this problem.

The Minister has said that these will be only occasional cases, but they will be occasional enough to make it a serious matter, with enough seriousness in the matter to make it a genuine injustice. He says that the widow will not take her share. Quite frankly, I do not believe that. If I were a betting man I would name odds of 4 to 1 that she would take her share.

To introduce a third reason why I disagree with it, the Minister told us that the moral theologians have told him that he is right.

Mr. B. Lenihan

I did not say that here.

Professor Stanford

Did the Minister not say it?

Mr. B. Lenihan

Not here.

Professor Stanford

Is the Minister prepared to say he consulted with others about this matter?

Mr. B. Lenihan

I said I consulted those people in the matter, but they did not dictate the terms of the Bill.

Professor Stanford

We are very glad the Minister consulted moral theologians in this country. We are a Christian State. But as soon as such people use this opportunity to make their opinions compulsory then we can begin to worry. An eminent Cardinal in the USA has said that moral theologians do not seek to impose by law their moral views on other members of the society.

There is an element of paternalism in this Bill, saying "this is morally right, therefore, you must compel people to do what is morally right." I think this strikes at the very fundamental principles in civil liberties. This is a very big question. Perhaps we should have a special motion down to debate this. This is one of the reasons why I consider this section is reprehensible and objectionable.

There is one other small point which I would like to mention. Sometimes people could be tricked into marriage because the trickster or impostor knows he is going to get one third of the estate compulsorily. This sometimes could arise and will be an inducement to people to trick others into marriage in this country. They had not got this before. We do not want to encourage any kind of trickery of that sort in this country. This section will do that in some areas. All this to my mind involves both profound as well as minor objections to this section. I am quite convinced that Senator O'Quigley's amendment is the right approach. I am not going to repeat myself further but I should be very sorry, indeed, if this section, as it stands, becomes the law of the land.

Mr. Garret FitzGerald

I feel with so many references to modern lawyers and practising alcoholics, as a non-practising lawyer of some antiquity, dubious about intervening again lest I be shot down by the Minister. I should like to take him up on a couple of points. He talks about not being able to cope with isolated cases. We have had difficulties raised legitimately, where with regard to a small estate, a half was too little. The small estates comprise a very high proportion of the cases involved. In the case of the very large estates, where you insist on the legal right of a half, it may be too much. The case here is that the spouse should not be given complete control for reasons of alcoholism or otherwise. When all these are added up they are far from being isolated cases. The section, as at present drafted, will not do justice to the majority of small cases. In so far as it does justice at all it is rough justice and cut in such a crude way that it leaves jagged edges. I do not think it is satisfactory in its present form.

As I said the other day, I do not like the idea of legal discretion unless it is essential. But unless the Minister can offer a constructive solution or we can offer a constructive solution that he would acecpt, the section, as at present drafted, is so crude and in so many cases does the wrong thing, that although the intention behind it is excellent I would have, with reluctance, to support the amendment of Senator O'Quigley. It is very much less than ideal to leave such a wide measure of discretion but if no solution can be offered otherwise we are really left with no alternative.

The problem of the small estates has been referred to and the Minister refers to dwellings. It seems to me that in the case of an estate of £10,000 or £15,000, where the legal right of a half goes to the wife, it is not the dwelling, it is the actual total value of the estate that is involved. The Minister referred in scathing terms to life estates. He referred to life estates as feudalistic. This seems to me to be very much up in the air. The only reference to life estates I have heard in modern times is in the way of cases where people leave money in life estates in order to avoid the problem of death duties. This is the ordinary problem that arises. It seems to me, and I am open to correction by the Minister, that what this section is saying is that you cannot try to deal with the problem of death duties by legitimate reference to life estates. I have always felt that the burden of death duties should not be imposed on the wife at all but only on the next generation.

What this Bill is doing is, in fact, appropriating part of people's money by saying that people shall not legitimately avoid estate duty by leaving a life interest to the wife, which is the normal thing, but shall leave at least one half absolutely to the wife so the State can collect their share. The Minister must, if he resists that interpretation, be prepared to ensure that suitable legislation is introduced in the next Finance Act to avoid this. If it is the Government's intention to protect the widow it is a little bit thin when the State takes so much. It should be left open that the money can be employed to the best advantage of the wife and the children. Far from this being exclusively for the wife and children unless we have a change it will operate to the benefit of the State but to the detriment of the wife and children.

This is another strong-armed piece of legislation which, even if it will not often be employed, will involve injustice in many cases. The Minister questions the maintenance of this complete freedom. He suggests that concern about this matter is the monopoly of the Fianna Fáil Party with the Labour Party thrown in occasionally and that the Fine Gael Party are out for complete freedom of testacy. Nothing like that is suggested in the amendment but I would be very interested to see what attitude was taken up in the other House and in this House with regard to this.

The Minister speaks about Scotland, Wales and Northern Ireland. If we are so concerned about the rest of the world I hope the Government in their coming legislation on workmen's compensation will remember that.

Mr. O'Quigley

Only when they want to.

Mr. Garret FitzGerald

The other point the Minister made was in relation to the legal right. I am open to correction on this again, but I understand that the legal right lapses only if the bequest is taken up which is a very particular instance. The fact is that if a legal right is left to people—and I share Senator Stanford's pessimism, if that is the word, on this—it will be made use of. If people make use of the legal right, the Minister's point about its lapsing does not arise. I do not understand in what circumstances the thinks it will lapse to such an extent that it will represent an argument in favour of this, and against life estates or annuities.

I hope that even at this late stage the Minister will consider the necessary amendments to this section to avoid its being necessary to press the amendment. I think a case has been clearly made that the section will operate in an unjust and inappropriate way. Unless the Minister takes the necessary action to alleviate all these difficulties, or most of them, we have no alternative but to vote for this amendment which is not in itself inherently desirable. I should like him to say why he is not willing to amend the section which deals with small estates where the share of one-half or one-third, as the case may be, will be indequate, and with cases where the condition of the spouse is such that it can be shown that it would be undesirable for the spouse to have complete control.

Why is the Minister unwilling to amend the section which deals with those cases? He must advert to these cases. There is no use in saying we must either have the section or the amendment. The amendment was put down because the section is unsatisfactory, and the Minister seems to be unwilling to introduce the necessary amendment to make it satisfactory. I think the Minister should introduce an amendment to cover those two aspects in particular, which are most important.

Mr. Lenehan

If one could be expected to take seriously the arguments made by the three Senators who have contributed from the far side of the House, one would probably come to only one conclusion, that is, that the husbands in this country are all potential cannibals who want to eat their wives, or get rid of them. I do not believe that at all. This Bill will apply to a very small minority only, from the word go. Most of the people in this country are decent.

Mr. O'Quigley

Hear, hear.

Mr. Lenehan

The husbands look after their wives, and the wives look after their husbands.

Mr. O'Quigley

Agreed again.

Mr. Lenehan

The great argument against this Bill is—and let us come down to earth and face it—that it will take away a lot of business from the lawyers.

Mr. O'Quigley

Is that it?

Mr. Lenehan

That is the main argument against it.

Mr. O'Quigley

Is that the Fianna Fáil view?

Mr. Lenehan

I did not interrupt the Senator and he should shut up.

An Leas-Chathaoirleach

Senator Lenehan, on the amendment.

Mr. Lenehan

We are religious people on this side of the House and we are prepared to look after our wives and families.

Mr. O'Quigley

So are we, and we are fond of them, too.

Mr. Lenehan

The position here is the same as the position in relation to every other Bill of this type. We have set out to simplify these affairs, but when it is obvious that as a result of the passing of a Bill of this kind lawyers will lose business, the row starts. That is the main argument against this Bill. We have seen it in every newspaper in the country. I know certain people in my own area who wrote to the papers under fictitious names trying to create antagonism against the Bill.

Senators on the far side of the House shed crocodile tears about the position of the widows. Do they forget that at this moment as the law stands a husband can draw up a will and leave his widow one shilling.

Mr. O'Quigley

Or nothing.

Mr. Lenehan

The only other time we heard of this shilling was when Fine Gael reduced the old age pensions by that amount. The husband can leave his wife one shilling, and that woman will have to spend half of her life in the courts to get anything more. What is being sought in this Bill is that unless the estate has gone to hell altogether, she will get more than one shilling. That is a very important point. There does not seem to be any extraordinary compulsion about the section because it provides that if a testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

Mr. O'Quigley

I want her to get the lot in certain cases.

Mr. Lenehan

As I understood it, at present she has no right to anything at all. That has been overlooked.

Mr. O'Quigley

No; no one supports that situation.

Mr. Lenehan

It is like the woman in England who thinks more of her dog than she does of her husband. That is the kind of attitude that has been taken on the far side of the House.

Mr. O'Quigley

Indeed it is not.

Mr. Lenehan

Of course it is. The Minister has set out to improve the position of the widow and I completely and entirely agree with him. Up to now the husband could leave his wife one shilling—I do not want to be repetitive —and she would have to apply to a whole crowd of lawyers, and of course they would be delighted. Naturally all the legal profession want to keep the law the way it is so that they can get all the money possible out of it. Fine Gael should not fool themselves. They are not fooling me and they are not fooling the people. It all ties in with that. It is rather peculiar that in England we see that Queen Elizabeth knighted the Beatles——

Professor Stanford

She did not, as a matter of fact.

Mr. Lenehan

Here they would have been made masters of economics. The ordinary people in this country today are placed in the unhappy position that unless we are able to get up and defend ourselves, we have to take dictation from people who have not the slightest idea of what they are talking about. I know what I am talking about. I know that when I sit down, I will be told that I do not know anything about this but I could not say anything more daft than what has been said by the speakers on the other side of the House. It is time someone made clear the position of the ordinary man in the street. From the type of argument that was carried on, on the far side of the House, it would appear that most of the people of this country are a crowd of idiots or nincompoops. That is not true at all. Most of the people of this country are decent.

Mr. O'Quigley

That is what we have been saying all the time.

Mr. Lenehan

The Senator did not say that.

Mr. O'Quigley

I said it on the last day when the Senator was not here.

An Leas-Chathaoirleach

Senator Lenehan, without interruption on the amendment.

Mr. Lenehan

I do not think I am being more irrelevant than the people who spoke before me. This type of Bill is essential only in so far as a very limited number of people are concerned. The ordinary man in the street does his job properly. He looks after those who will come after him when he dies, and he looks after himself when he is alive. About two or three per cent, or maybe less, make mistakes and this type of Bill is necessary to guard against that.

The Minister is completely right in introducing this Bill. I am sure every Senator will realise that this is not the last Succession Bill that will come before the Lower House or this House, and if mistakes have been made— maybe they have, but I do not think many have—we will have this experience and in two or three years time we can correct anything which appears to be wrong. I suggest that the Bill should be accepted in its present form. It is definitely a step forward. It is a very important and long-overdue step forward. I want to congratulate the Minister on having the gumption to do what he has done, to make certain alterations which I and others like me regard as essential. It has gone a long way with us. I congratulate him.

Mr. P. O'Reilly

(Longford): Because I may wrongfully feel that this matter was becoming like an academic matter in a debating society rather than a practical approach I rose before Senator Lenehan to speak on the matter. We are becoming a bit unrealistic. I must take the view and I hope others will take the view on this that there is no absolutely perfect solution.

Mr. B. Lenihan

Hear, hear.

Mr. P. O'Reilly

(Longford): This measure is really just an attempt to achieve a greater degree of common good, nothing more than that. The word “crude” has been used. It may be crude but I think it is still an improvement.

Mr. O'Quigley

Agreed.

Mr. P. O'Reilly

(Longford): There is no perfect system in this matter and you cannot have a perfect system in human affairs.

Mr. O'Quigley

That is agreed to.

Mr. P. O'Reilly

(Longford): If we try to achieve a perfect system in regard to the distribution of property we would be like Don Quixote going around on his mule tilting at windmills. Can we not drop this academic approach to this very important matter? We are not dealing with a political question: it is really a social question. It is along that line that we should approach the matter. I fully appreciate that because of different mental attitudes and patterns, there is bound to be a serious clash of views on this matter.

In regard to the principle involved in section 110, in so far as it proposes to ensure that a widow or widower, or a spouse, shall we say, surviving, is entitled, in the case of a widow with no children to one-half of an estate and in the case of a widow with children to one-third of the estate and that that right is to be exercised by the person with that right within a year. That may be a crude approach. It does not make any provision for finesse in relation to people with different mental attitudes and patterns in regard to the disposition of property. All it proposes to do is to ensure that people who, for one reason or another—because of prejudice, pride or any reason you like, that they see fit; oftentimes, maybe, in advancing years or not always, I suppose, in advancing years —might desire to make a will which is contrary to good public policy, and it is good public policy that the property within a family should remain within the family as far as possible, will not do so.

If we have any regard to a social pattern at all, we must regard the family as being the basic unit in society. I feel strongly on this and although the section does not satisfy me, it certainly satisfies me better in the present form than with the proposed amendments. I have sympathy with the views put forward by Senator Stanford. He had in mind possibly real cases although he put them in a hypothetical form: the matter of the decay of the small estates. Even in those cases, it would be making provision for appeal to a court. If the estate is big, the widow is pretty well provided for. If, at that stage, she wants to dissipate part of the estate in law costs, she may do so—and I have known cases where people deliberately did so.

I have in mind a famous case of a newspaper proprietor in the west of Ireland, slightly west of the Shannon, who made his will in such a way as to ensure the dissipation of the estate in law costs. You will always have cases like that. However, in cases such as those mentioned by Senator Stanford, in the case of a big estate, the one-third or one-half share, as the case may be, would be sufficient to give reasonable security and reasonable protection to the widow. The tendency to appeal to the court is very great from a human justice point of view. Our ultimate aim should be to try to have some rough or crude method of human justice. If the word "crude" is used, I shall not dispute it because it really is crude but it is very difficult to have a finely balanced scale of justice in these matters.

In the case of the small estate, whether a small farm or a medium sized farm, the family farm or the family shop, then it is a different matter. If, under this, the widow is guaranteed a crude system of one-third or one-half share in the estate, as the case may be, according to whether there are or are not children, and if the principle of going to the court to look for more is established, I do not agree that it would be a good idea because since the whole estate is a small estate, a farm and possibly some other small sums such as national loan or securities of one kind or another, here is what would happen. Once the principle of application to the court is available, then the amount of the estate so dissipated—and I deliberately uses the word "dissipated"—in law costs would far outweigh the amount of improvement for the aggrieved person or the person who thinks himself or herself aggrieved under the principle embodied in section 110. Much more money would be used up in contesting the claim in a court: I do not want to go as far as my colleague, Senator Lenehan, went but much more would in fact be dissipated in law costs.

That is my reason for arguing that it would not be a good thing that the matter should be changed, even though it is a rough form of justice. I think a more real justice and greater public good would be achieved by leaving the section as it is. I have no doubt that the attempt to try to improve it by having applications to courts would not be in the general public interest. I have had practical experience of this matter in rural areas. When people go to law and where small estates are involved we see how much is used up in law costs and we realise that it would be far better if some sensible person had got those two parties together, as I have done once or more than once, and said to them: "So much money will be spent by you on one side and by you on the other side that if you both had commonsense and a little more charity, you would not go to court at all about this matter." I have had that experience. I argue that it is not a good thing to bring it in at this stage in this rather rough piece of legislation. Rough and all as it is, I am quite satisfied it will achieve more public good than any attempt to give this power to appeal to court.

Mr. Cole

I shall be forced to introduce my own amendments later on and there is a point which I think would probably be relevant to these amendments but I shall reserve it until then. There is just one other matter I should like to raise on this amendment. I am not quite sure that some little tinge of amendment No. 9 has not crept in, but Senator Stanford, and Senator FitzGerald in particular, I think, are implying that where estates are left out of small farms, the whole lot should go to the widow. I think they are not in touch with conditions in the country. Previous to the present time men lived and brought up families on what these people are now describing as small farms. A son getting that farm will be able to do likewise.

Another point is: supposing the widow gets this small farm, lock, stock and barrel, what is she going to do except sell it and then, probably, to annoy the whole family, she will, in nine cases out of ten, be an old woman at this time. I think that would be wrong. Had the amendment been redrafted in the form of section 116, it would have been better because, from the amendment itself, it seems to me that the testator must make adequate provision for the spouse, disregarding completely any property the spouse may already have. There is nothing in this amendment to provide that a court should take into consideration the property the spouse has already, nor is there any suggestion that the court should take into consideration children of the testator. I doubt very much if those points would be relevant if a spouse applied in court to have a will upset because she was inadequately provided for. Perhaps my knowledge of the law is not as wide as Senator O'Quigley's.

Mr. O'Quigley

Thank you.

Miss Davidson

It has been said here today that the measure before us is an improvement on existing law and I think this cannot be questioned. The amendment by Senator O'Quigley is no doubt dealing with a somewhat rare contingency, the case of a vindictive spouse wanting to do an injustice to the surviving spouse.

I agree with a lot of what Senator O'Reilly has said, particularly in regard to the big estates because a division there is quite a different thing from a division of a small estate. In the case of the small estate, one-third or one-half might mean a terribly small amount of money and stock, an amount which would be quite useless, even bearing in mind the fact that the Minister met my own and Senator Crowley's amendment very generously in regard to the house and chattels. I detest the very thought of courts. I detest the thought of anybody having to go into court but I feel that these are cases—and I should hope they would be very rare—on which a judge, either in open court or, preferably, in chambers, would hear all the facts concerned and would decide what was the best thing to do, having regard to all the circumstances. I might say it was this consideration, the fact that the judge would hear the individual details of the particular cases, that moved me to accept the Minister's amendment to section 56.

I should like the Minister, seeing that he has been so generous in other respects, to have another look at it to see if there is not something in the case made that grave hardship could arise for the surviving spouse where a small estate is involved.

Mr. Honan

When we started off with this Bill, it was generally accepted that it was a legal man's paradise. We have heard quite a number of repetitions of opinions relating to small estates and large estates. One misconception of "small estate" is probably the interpretation "a small parcel of land." Some people are probably thinking in terms of a small parcel of money.

Under the section as it stands it is intended to establish a legal right. With the establishment of a legal right, I am in complete agreement, and everybody else with whom I have spoken is in agreement with me. However, there might be a disagreement with regard to the extent of that legal right. I can think of a hypothetical case where it might appear to be very just not to give any right. I can also think of a hypothetical case—and some of them have been mentioned here today— where the full right should be given. There are so many interpretations of this that I would prefer to see it applied to general conditions as we know them.

I live in an area where most of the estates are small farms of round about £20 valuation in the case of 80 per cent of them. The people concerned are very competent in the management of their farms and in their succession arrangements. So far as I know most of the practical applications of the succession arrangements always provide that the succeeding spouse is protected in some way by giving her some rights in the house or some rights in money. The widows have always been protected. I think that when the Bill is going to be applied it will apply to a small number of cases. If you give a legal right of one third to the spouse that puts the spouse in the position of being able to bargain for her rights without having to have access to the courts.

Mr. B. Lenihan

Precisely.

Mr. Honan

Most people in the country would rather go to hell than go into court if they could avoid it because of the indignities that they are subjected to and the complete frustrations that can only be visited on you when you attempt this passage, which is worse than the North West Passage. They would rather face anything than this, and I know it.

Mr. O'Quigley

Not if they are telling the truth. Nobody has any difficulty whatever in court.

Mr. B. Lenihan

You are hearing practical commonsense now.

Mr. Honan

If I was to be as liberal in giving specific cases as have been given here I could go on for a long time. Any Bill that keeps the people out of court is a good Bill, because once neighbours and relatives go inside a courthouse it leaves a scar on their relations and the relations for generations to come that is never forgotten. Some of us could make hypothetical cases at the lower level or at the higher level but if we establish one thing, the legal right, then it is up to the people concerned, the families, relations and all the other people in the locality who usually make the best arrangements. I believe that if they get this a great improvement will have been made in this matter. I have looked through the amendments and I can only find a difference as to whether there should be more or less on the higher or the lower level. You can do just as much injustice by insisting on one side as on the other. The Minister's approach commends itself to me in view of the conditions of which I am aware.

Mr. O'Quigley

This is the last time I am going to speak on this amendment. It is now becoming more clear after the debate we had that the area of disagreement is much smaller than people thought at the beginning. I think that Senator Lenehan had something to say about a lot of nonsense being talked here by the lawyers and so on. If he reads his own speech which he made this evening and the speech that I made here the last day he will find phrase after phrase out of his own speech which corresponds exactly with what I was saying on the last day and again today.

Mr. Lenehan

Does that mean that the Senator is quoting me?

Mr. O'Quigley

That could not be the case because you had not spoken on the last day. We are not all talking nonsense. Senator Lenehan's experience, and Senator O'Reilly's and Senator Honan's and all our experiences, are the same. The only question at issue is the best way to deal with this problem of the sizeable number, to use the Minister's beloved phrase, of cases where a man disinherits his wife. Somebody said that the Minister had taken a step in the right direction. Of course he has, but I want to push him another step. Indeed, I want to say that it is not a step he has taken so much as a half-step. Under the provisions of section 109 the widow of the testator who has no family gets half the estate. Under the intestacy provisions the widow where there are no children gets all the estate. I say that under section 110 the Minister is only taking half a step that he has taken in the section dealing with intestacy.

There are a variety of ways in which to deal with this. One that I suggested is, as is agreed by everybody now, that the vast majority of husbands look after their wives properly. As I said on the last day, there was a case of one solicitor who examined 50 or 51 wills and 48 of them left all the property to the wife. That is the common experience. What we are concerned with is the widow who under section 110 can be deprived by a stroke of the testator's will of half of what she would get if the testator had made no will in the case where there were no children. Just by signing his name to a will he can deprive her of the lot. I say that that is quite unfair in the case of people where half the estate would not be sufficient to give them a decent livelihood. There is no logic in the Minister's saying that where a man dies intestate leaving a widow and no children the widow should get all, but if he is clever enough to make a will he is entitled to deprive her of half of it. There is no justification for that in the case of an estate of £5,000 or £10,000 or a small farm or business.

Senator Lenehan says that the widow would get a shilling, but he does not even have to leave her a shilling. He can leave her nothing under the present law, and that, of course, is what we all say is hopelessly wrong. We all agree on that. That is all that we are trying to achieve in this amendment. I still hope that the Minister might reconsider the amendment. It is quite clear that we cannot do more than rough justice for the widows of people who have small properties. I anticipated that the Minister's mind might be absolutely closed to getting rid of this legal share. Because of that I put down amendment No. 9 to provide that in a case of a farm the rateable valuation of which does not exceed £20 the widow would be absolutely entitled to the entire thereof with stocks, crops, implements and machinery thereon. I took the farm of £20 valuation as being the kind of farm that could support a widow on her own in some comfort, but I am not tied to the figure. Neither am I tied to merely agricultural land. If anybody wants to accept the principle I am adumbrating in the amendment and to apply it to businesses of more than £5,000 or £10,000 or where the valuation is less than £10 I am quite happy. That is what I am trying to achieve.

I would prefer if there was some kind of discretion given to a man where he could leave it to his widow for her life and then appoint it to one of his children. That might be very good from the point of view of the widow, that it would be left to one of the children and there would be no need for a settlement whereby she would appoint it to a child in order to keep the child at home on the farm and let him marry and settle down. The present section permits none of these things being done. It is because it is so utterly rigid that no matter what way you move you are going to offend the section that I put down the amendment which would give more flexibility. Once again I ask the Minister whether he would not consider some modification of section 110 which would enable the widow in the case of a small estate to get what is her due.

When we are talking about justice, and that is what we are concerned with in this Bill, we should consider the widow of the person who dies intestate. We should not enact legislation where justice for the widow will be a matter of luck, whether her husband dies without making a will or not. Justice for the widow will be a matter of luck in this Bill.

Dr. Sheehy Skeffington

I do not intend to take very long. I am sorry that the meeting of the Committee on Statutory Instruments prevented me being present during the debate this afternoon. Senator O'Quigley is correct when he says that the area of argument on this particular amendment is notoriously small. I find myself, despite the case made by Senator O'Quigley and certain attractive features of this amendment, nevertheless coming down on the side of this very important section as it stands for two reasons. One reason that has been mentioned by several Senators is that application to the courts, on the whole—this has been stated very readily by people who are familiar with the practice—should be avoided, if possible. It will be avoided by many widows and widowers, especially the most deserving ones who would be most reluctant to parade their troubles before the court.

This is one reason why I like to see a statutory right enshrined in the Bill rather than the right of appeal to the courts.

The other point I want to make is one which was made by the Minister the last time he spoke on this matter. It seems to me a very strong point that the aged partner, very often the wife who will survive her husband, will have her whole status in the family in many cases substantially heightened. This seems to be a very important point and it is a much stronger one if she merely says, when her husband dies, she will have the right to ask the court to treat her lightly. The relation between the statutory right to a portion of the estate and the status of the ageing spouse within her family before her husband dies seems to me to be a complete factor in my coming down on the side of the section as it stands rather than in favour of what is proposed in the amendment.

Mr. McAuliffe

I am in agreement with Senator O'Quigley's amendment and with what he said today. In regard to subsection (2) of section 110 the Minister should merely specify how many children. Take the case of a spouse dying leaving one child who is a minor. When the child reaches 21 years the spouse will find herself or himself in a rather invidious position. The child is in possession of two thirds of the property. The spouse who has worked down through the years since the death of the husband or the death of a wife, as the case may be, according to who owns the property, is in a rather awkward situation when there is just one child. The child, in this case, has the right to two thirds of the property.

Mr. B. Lenihan

With regard to what Senator McAuliffe has said, there is no question of the child having any legal right as a result of this Bill. The only legal right which is now written into the Bill is that of the spouse. She gets one third. The child, under section 116, can apply to the court for his proper share.

Mr. McAuliffe

What happens in the case of intestacy?

Mr. B. Lenihan

The widow has a legal right to two thirds under an earlier section of the Bill and, in the case of an only child, that child has a right to one third. If there are no children of the intestate surviving, the spouse gets the whole lot. If there are no children, in the case of a will, she gets one half. I have normally got an open mind but the more I hear in this debate and with regard to what I have heard in the Dáil, the more certain I feel that the only approach to the matter is to do what Senator Sheehy Skeffington suggested, that is, have it written in in statutory form.

I am not saying this is a perfect measure. I believe it is beyond the wit of man to devise a perfect measure in regard to something like this, to ensure that every different case can be met. I am modest enough to say that this is an improvement on existing legislation. I do not claim it is perfect or that it satisfies everybody.

There is one very important thing which I think should be emphasised here. Senator O'Quigley, although this is not strictly in his amendment, spoke about the position of the widow and suggested that, where an estate is small, she should get the whole lot of it. We are dealing here with property and the transmission of property and I would like to remind the Senator that there are certain provisions in the constitution in regard to this matter. Article 43, section 1, paragraph 2 reads:

The State, accordingly, guarantees to pass no law attempting to abolish the right of private ownership of property or the general right to transfer, bequeath and inherit property.

It would be very dangerous to make it mandatory for a man to give all his property to his wife. A number of people in the front benches of the Fine Gael Party in the Dáil attacked the Bill on grounds opposite to those on which Senator O'Quigley has sought to attack it here. The main attack in the Dáil arose on the principle that freedom of testation should not be curbed.

Now Senator O'Quigley has attacked me with regard to the one third or one half share for the widow. He wants me to give the whole lot to the widow in certain circumstances. I am afraid that this would be wrong. I feel it would be better to follow a middle course, although we have been open to attack from all sides because of this. In this Bill we are trying to follow a middle course between absolute freedom of testation, which is a Victorian notion, because property has its duties as well as its rights, and a principle of complete direction to the testator as to how he should dispose of his property. I think the middle course is to provide by statute basic guarantees which do not prevent the testator from giving over and above those guarantees. This is a misconception which many people have. Of course there is nothing whatever to prevent a testator from giving all the property, or any share he wishes over and above the basic guarantees written into the statute. That is my point and I do not think it has been adverted to sufficiently.

I will not go into the merits or demerits of life estates because my views on them are well known. There is nothing in the Bill to prevent a testator giving a life estate to his widow, or making any arrangement he may wish to provide for his widow and his children as he wishes so long as there is agreement between them. All this Bill requires is that there will be reasonable consultation between husband and wife. There can be renunciation by either spouse of the legal right by way of deed with the consent of the other spouse, or by way of the surviving spouse not exercising his or her legal right.

Senator Cole emphasised the reverse of the point made by Senator O'Quigley. He mentioned the son succeeding to the estate. Quite often in rural Ireland, particularly in regard to small properties, the person who should get the greater ownership in the farm after the death of the man of the house is the son. He should get it because he is a young man and has stayed in the home when the other children have been fixed up in occupations elsewhere. He is the man who will carry on, and probably bring in a wife of his own and start a family. He has the greater right to the property. He should get two thirds of the estate, subject to the one third statutory right residing in his mother, to make certain that he does right by his mother and treats her properly. This is a weapon —and I want to emphasise that I envisage its being used very seldom— to ensure that he will treat his mother properly. She can enforce her legal right and demand that she be given proper treatment.

Despite what Senator O'Quigley and Senator Miss Davidson said— and I speak with knowledge of rural Ireland—in many cases in rural Ireland it would not be desirable that the widow should get the entire farm— especially in the case of small and medium-sized farms—after the death of the man of the house. In many cases the right person to take hold of the property, to work it and expand it, is the young son who has stayed on the farm, is trained on the land and is bringing in a wife and family. He has an incentive, by virtue of greater ownership of the land, to expand it and improve it. It would be a retrograde step to have any scheme whereby the testator would have to leave the property in such circumstances to the wife rather than the son. The son is probably on the brink of manhood and the testator should not be debarred by some mandatory provision from leaving the farm to him. There are these cases on both sides, and I think we should seek to strike a balance, to meet the intolerable situation where a man could disinherit his wife and his children.

It is generally agreed that that situation was intolerable. It has been argued that that intolerable situation could be met by a system of court applications, but, although I am a lawyer, I am of the opinion that there are many sensitive people particularly women, who do not like the prospect of going to lawyers, and do not like the prospect of going to court. They do not like to bring their affairs before a court however private it may be. I should prefer to leave it in the form of a statutory right. There is the basic right which arises out of the marriage contract, and there is a partnership in the common property between these people over a number of years. I think, on balance, that it should be written in in statutory form. I think that is preferable to a system of driving the widow or widower into court.

On that basis I would ask the Seanad to pass the section and to reject the amendment. I would ask the Seanad to do this, not in a spirit of claiming that this is a perfect answer to all the problems in regard to testator succession, but in the spirit that this is an improvement on the existing situation. It is on analysis, the best that can be done to rectify as many injustices as possible, while not completely eliminating all injustices.

Mr. Garret FitzGerald

Much of what the Minister has said is very reasonable. The only difficulty is that it did not quite direct itself towards some of the points that were made. I see the case against leaving everything to the wife, but I do not think the Minister made a case against a larger share being left on small estates than on large estates. The Minister has not met that case, and I think there is a case for some modification in regard to a larger share being left where there is a small estate. I should like the Minister to think again about that, without being dogmatic as to what the share should be. One half share as the right in every case seems to be too rigid. There is a case for changing that. The other case the Minister did not meet is the question of life estates. He mentioned the point about the husband and wife agreeing and settling it between them.

Mr. B. Lenihan

There is nothing in the Bill to render such arrangements nugatory.

Mr. Garret FitzGerald

If she is left a life estate, does she give up her legal right and accept the life estate voluntarily?

Mr. B. Lenihan

If she does not opt for the legal right, she can accept a life estate.

Mr. Garret FitzGerald

It is a bequest for this purpose.

Mr. B. Lenihan

No difficulty arises where both parties agree. There can be cases of small estates where there will not be agreements.

Mr. Garret FitzGerald

There is this case where in fact the best answer might be a life estate. I wonder whether the Minister would consider something like: "Provided that where a life interest of at least 90 per cent is left to the spouse, the legal right shall not operate," in a case where there is a problem of alcholism or something like that. The Minister has not adequately met that case. He has not adequately met the case of the small estates, and he has not met the point about estate duty. I should like him to say whether he would consider looking again at those points to see whether something could be provided to meet these reasonable points.

An Leas-Chathaoirleach

I suggest that these points could relevantly be discussed when we are dealing with section 110 as such.

Mr. Garret FitzGerald

The difficulty is to decide on an attitude on this amendment. Some indication of the Minister's mind and the degree of openness of his mind is relevant to us.

Mr. O'Quigley

Perhaps the Minister might like until after tea to consider it?

Mr. B. Lenihan

I should like to emphasise that under section 114, which provides for an election between legal rights and rights under a will, it is made quite apparent that the testator is still free to leave any bequest to the surviving spouse. It can be a life interest or otherwise. The only limitation to that right is that the widow has the option of exercising her legal right. She also has the option of taking a life estate, if that leaves her in better circumstances than taking a lump sum out of the estate. That can be done. The legal right is forfeited by reason of her option for the life estate. The legal right goes by the board. Having regard to that, I think we are meeting that situation and providing for a more flexible approach on the part of the survivor. I could not agree to importing a compulsory life estate into the system.

Mr. Garret FitzGerald

No.

Mr. O'Quigley

If the testator left a life estate, would the Minister not agree that that would be regarded equally as a legal right, that the legal right should consist of a one half share in the case of a spouse without children or a life interest?

Mr. Garret FitzGerald

That was not quite my point. It was not so much that the wife would have the option of choosing one or the other of these but that if the testator did give a life interest in at least 90 per cent of the estate then the legal right would be forfeited to get over the difficulty of the alcoholic spouse, and so on.

Mr. P. O'Reilly

(Longford): I am afraid that if the Minister did agree with the suggestions of Senator FitzGerald and Senator O'Quigley, I should get it hard to agree with the Minister at that stage.

Mr. B. Lenihan

I am being stiffened.

Mr. P. O'Reilly

(Longford): It is no laughing matter.

Mr. O'Quigley

It is just good-humoured interest.

Mr. P. O'Reilly

(Longford): With the best of intentions, we get it hard to work out a system that will satisfy us because of the immense difficulties involved. There is a social difficulty involved in this question of life estate. It is a fact of life that may not be known either to Senator FitzGerald or to Senator O'Quigley. I see quite a lot of properties of the type we seem to be dealing with, medium-sized and small farms, where widows have life estates. The son is the person who should really take the reins because he has youth on his side and is better able to make a contribution to society, to the nation, and so on: families must go on. I have noticed, I am afraid rather too often, that the sons of widows, particularly widows with life estates, remain bachelors.

Mr. B. Lenihan

There is a lot in that.

Mr. P. O'Reilly

(Longford): It is a fact that I seem to have noticed. Maybe I am wrong. However, that is one of the arguments which I could make if I were making a case against this section in any of its forms. This is a social question. I think I should bring to the notice of the House that, as far as my experience goes, in quite a large number of cases it is the sons of widows who seem to remain bachelors. Anything that would tend rather to develop that would, in my view, be socially bad.

Progress reported; Committee to sit again.

Business suspended at 6.05 p.m. and resumed at 7.15 p.m.