I suggest that amendments Nos. 1 and 2 be taken together.
Succession Bill, 1965—Report and Final Stages.
I move amendment No. 1:
In page 6, to delete lines 15 and 16 and substitute:
"This Act shall come into operation on such day as the Minister by order appoints and the Minister may by order appoint different days upon which different provisions may come into operation."
The Bill provides that this Act will come into operation on the 1st day of July, 1966. I do not think anyone will quarrel with allowing a certain period of time to elapse between the coming into operation of the Bill and its passing, because there are a number of wills and other arrangements that will have to be considered by people which if not changed would be affected by the provisions of this Bill. With all the opposition there has been to this Bill, it is in some respects a good Bill, in other respects not a bad Bill, and in other respects a bad Bill, in my opinion.
I should like to urge on the Minister that there are certain provision in the Bill which should be brought into operation immediately because they represent a lack in our law for many years which could not be remedied too soon. In particular I have in mind Part VIII of the Bill which deals with conflict of laws relating to testamentary dispositions. It introduces new legal provisions and that is something which the Minister, on thinking it over, might well decide it would be of value to bring in on, say, 1st April or 1st February. It is not the kind of thing, so far as I can see, that will cause anyone any trouble. On the contrary, I think Part VIII could be very useful. I myself have cases which have to wait until the coming into operation of this Bill.
There are other sections that are similarly valuable. Part XI deals with limitation of action and it seems to me that whatever views we may have on section 124 there are various sections in that Part which might also with value be brought into operation at an earlier date. The Minister's amendment provides that the Bill should not come into operation earlier than 1st July. My amendment would enable him to bring it into operation any time, and if the Minister considers that it should not come into operation earlier than 1st July I suggest he should have the freedom and the power not to bring it into operation, but he should also have the power to bring the portions of the Bill which are noncontroversial and useful into operation at an earlier date than 1st July. I think the Minister should take that power and if he does not want to exercise it he can do so by not making an order. I think there are provisions that should be brought in earlier and the Minister would have the freedom under my amendment to do so. I urge that on the Minister.
The official amendment goes some way to meet Senator O'Quigley's case, providing for a greater degree of flexibility whereby the Act could by order be brought in on an appointed date not earlier than 1st July. I do not think it is practicable to bring in certain Parts of the Bill at different times from other Parts. The main reason for the official amendment is the importance of having the Succession Bill become law on the same day as the Registration of Title Act comes into effect, because the machinery of succession is wrapped up with the whole machinery of registration of title. The two mesh in together, as it were.
It would obviously be in convienient to have different Parts of the Succession Bill become law at different times. Also, from an administrative point of view, it would be inconvenient to have the Registration of Title Act become law at a different time from the Succession Act. Therefore, the official amendment is a cleaner job. It provides for the synchronisation of this Bill with the Registration of Title Act, when it comes into effect. Any suggestion of different Parts coming into operation at different times would not be practicable from an administrative point of view.
For the life of me, I cannot see what Part VIII of the Bill would have to do with the Registration of Title Act. Part VIII deals with the conflict of laws relating to testamentary dispositions —"Testamentary disposition"; Validity as regards form; Dispositions made on board vessel or aircraft; Exercise of power of appointment; Joint dispositions; Effect of restrictions on capacity; Construction of testamentary disposition; Effect of testamentary disposition under Part VII.
It is tied up with Part VII of the Succession Bill itself, which deals with wills. The difficulty is to isolate any Part from another Part.
I think it could be isolated. However, I do not see any reason why the Minister should not have the power. Then, if he does not want to bring in Parts of the Bill until the whole lot comes into operation, it rests with the Minister to do so. Upon re-examination, the Minister might well come to the conclusion that he could and ought to bring in some of the provisions of the Bill. It is not very often that we want to force power upon a Minister.
It must be the cold.
That is what we are trying to do here. I think the Minister should take unto himself this discretion and he can exercise it, then, in the way in which he says he can only exercise it under his own amendment. What the Minister has to say about the Registration of Title Act is interesting. I understand that the Registration of Title Act cannot come into operation because there is no adequate building and no adequate staff have been recruited for the purpose of bringing it into operation. Judging by the present slow-down in building, I suppose we need not fear that Parts IX and X of the Succession Bill will come into operation for some years to come. I urge the Minister to take unto himself this power. I think he can well be trusted with it. If he does not want to use it until the Registration of Title Act comes into operation, he does not have to use this amendment or exercise the powers.
It will be a matter of months, not years, before this Bill becomes law and the Registration of Title Act comes into effect. I think it is a cleaner job to have the two coming into effect at the same time. It is messy to have the two Acts coming into operation at different times. I do not want that particular power. These two schemes of succession and registration synchronise and there would be no confusion on their coming into operation at the same time.
Would certain portions of the Succession Bill be postponed or delayed, in anticipation of the Registration of Title Act, to 1st July, 1966?
That is the purpose of amendment No. 2. The purpose of that amendment is to bring the two in together, at the same time and on the same date, and not earlier than 1st July, 1966, whenever it is administratively possible to bring the Registration of Title Act into force. On some date, after 1st July, 1966, when it will be administratively possible to bring it into force, I shall appoint a time for the Succession Bill to become law.
The Chair suggests that amendments Nos. 3 and 9 be taken together.
These amendments are designed to meet a point made on Committee Stage by Senator O'Quigley in relation to the definition of "full valuable consideration". The definition is being inserted in section 23, which is the only section in which the phrase occurs. The Senator said it should be in section 23, where it is relevant, rather than in the interpretation section.
I cannot but agree that it is a good amendment.
The Chair suggests that amendments Nos. 4 and 5 be taken together.
I move amendment No 4:
In page 7, to delete lines 33 to 36 inclusive and substitute the following:
"( ) Descendants and relatives of a deceased person shall, for the purposes of this Act, include children begotten before his death but born thereafter."
I think the Minister's amendment quite covers the point. However, I cannot see anything that my amendment would not cover. It brings them into exactly the same position as ordinary descendants and relatives of a deceased person as might be used elsewhere throughout the Bill. Although I have not put down in my amendment the word "alive", which I complained about on an earlier Stage, I think my amendment brings them exactly into the same position in the Bill as any other phrase of that sort in the Bill, whereas the Minister's amendment, by emphasising the words "alive" and its "having survived him", brings the idea to my mind that one would almost have to have apost mortem. Otherwise, I think the Minister's amendment covers the point and I am quite agreeable to it.
I thank Senator Cole for raising this on Committee Stage. I think it is a very good point and that amendment No. 5 meets it precisely. His concern was about the application of subsection (2) to a child who is born alive. Now, by spelling out "alive" there, we are making it plain that the child must be born alive. The object is effected by just inserting one word. We think we have met the point, which is only one of drafting.
This matter was raised on Committee Stage. By inserting this drafting amendment, we have now made it plain that the Circuit Court will have jurisdiction. It is now quite clear where exactly the Circuit Court has jurisdiction and in what respects.
I move amendment No. 7:
In page 9, line 21, to add at the end "or real estate".
This concerns another point made by me on section 6 on Committee Stage. What I had in mind was that subsection (4) provides that the jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge of the circuit. I was saying, in that connection, that, in modern times, when we have so much emigration, especially from rural Ireland, very often the actual fixed place of abode of a deceased person who has emigrated is Birmingham, London or some such place and therefore it is necessary, if you are to give jurisdiction to the Circuit Court, to relate the jurisdiction to the land or property which the deceased died possessed of. Relating it merely to his place of abode is of no value because he has died in England. Therefore, in this amendment I suggest that there should be added to "had a fixed place of abode" the words "or real estate", and that would capture all classes of property which are defined in section 4 for the purpose of this Bill. That would give the Circuit Court undoubted jurisdiction where a person died outside this country but had land situated within the area over which the circuit judge has jurisdiction. I referred to this on the last occasion and I understood that the Minister was to go more fully into it. Section 46 of the County Officers and Courts Act, 1877 seems to me to suggest that the locality of the land was the determining factor. For that reason I want to include at the end of subsection (4) that where the deceased has had a fixed place of abode within the Circuit Court area, or real estate, which would include leasehold property or any other types of land, the Circuit Court may have jurisdiction. The Minister may point to some other statute which deals with this position but I should be surprised if he could because if that were the case there should not be any question of including subsection (4) in section 6.
The Senator is mistaken in thinking that the County Officers and Courts Act, 1877, covers this point. That Act was replaced on the setting up of the Circuit Court in 1924 by the Courts of Justice Act, which provided that administration proceedings should be taken where the deceased had his fixed place of abode. The Senator's amendment would undermine the whole principle in operation in the Circuit Court since 1924. The High Court has original jurisdiction in all administration matters. In the case of a person living in England at the time of his death, one would go to the High Court for representation. The Circuit Court has jurisdiction in probate actions involving estates up to a certain value where the deceased lived in the particular circuit at the time of his death. That has been the position in the Circuit Court since its formation in 1924.
I do not know whether I heard the Minister correctly or understood the purport of his remarks. Of course, I agree that the very purpose of the Circuit Court is to bring the law to the people and that is the whole trend and tenor of legislation in modern times. What the Minister said, if I understand him correctly, amounts to this, that if a man dies with a property the valuation of which is £15 and if at the time of death he has had a fixed place of abode in England, neither the 1924 Courts of Justice Act nor any other subsequent legislation enables the estate to be administered by the Circuit Court.
That is the law at the present time.
What I am talking about is whether the Circuit Court area in which the land is situated governs where the administration shall be carried out. If the Minister is correct it means that if you want to administer the estate of a person who dies in England whose property is valued at £10 or £15 you have to go into the High Court to administer it. That certainly could not be correct, or if it is, it is an unreasonable position, because in this very Bill we are extending the jurisdiction of the Circuit Court from £60 to £100 and that in spite of the fact that land always retains its monetary value whatever the valuation. I do not think the Minister could be serious in contending that the administration must be in the High Court when it could be far better done in the Circuit Court.
He has to go there anyway.
That is the position.
The Minister cannot say that. It is not correct. Look at all the inconvenience this gives rise to. If somebody institutes an administration suit in respect of land which had been abandoned by somebody who has died in England — say a man who left his property and went to live with a married daughter in England, which is the kind of thing that can happen— then if it is necessary to institute these proceedings to ascertain the next of kin and the encumbrances to which the lands are subject this is going to be done in the High Court on a grand scale. It does not seem to be reasonable.
That has been the way since 1924. This matter is not strictly relevant to this Bill.
I think it will come as a shock to people to realise that if a man leaves land in Mayo and had a fixed place of abode in Birmingham at the date of his death and you want to ascertain who his next of kin are and have inquiries as to encumbrances and so on it has to be administered in the High Court, when it could be far better done in the Circuit Court, which could examine the position and sell the lands far better, with local auctioneers who know what the position is. I cannot think that is correct.
That is the law at the present time. There is no doubt about it.
If that is so then my amendment is more than timely. I would urge the Minister to accept this amendment now for the purpose of incorporating it into the Bill, and if he wants to, after further consideration, he can have it deleted in the Dáil. He will at any rate have had time to study it. It seems to me to be absurd to say that when you go to administer an estate of £10 valuation it must be in the High Court with all the paraphernalia of a High Court judge giving an order and having inquiries made to ascertain the next of kin and encumbrances when it could be done in the local Circuit Court just as well. He would pay on the High Court scale, which is a good deal higher. The estate could well be eaten up in costs. I think the Minister should here and now incorporate the words "or real estate" at the end of the section, and if for good and sufficient reasons he afterwards thinks it is desirable he can delete them in the Dáil. But I would urge him not to let it go through without giving this power to the Circuit Court which in no way that I know of conflicts with anything that is going on at the present time.
That is why I say it is not strictly relevant to this particular Bill in that it covers the whole position of the jurisdiction——
I wish to draw the attention of the House that we are on Report Stage and, unless the House is willing to give special permission to the Minister to reply to certain matters, I am afraid the Chair's hands are tied. Senator O'Quigley has concluded discussion on this amendment.
If it is necessary, I would ask that this section be recommitted. It seems to me that it would be a great lack in our legislation and we would be doing less than justice to the public if we did not give this more consideration.
I should like to deal with one matter. I can see the Senator's point, but what is involved here is the very basis of the jurisdiction of the High Court and Circuit Court.
I am not happy about this disruption of order in the House. I think we should keep to the Rules. I suggest we should behave as usual on Report Stage.
The only thing the Chair can do is to ask the House if it wishes this section to be recommitted.
In fairness, I think the Minister should be given an opportunity of replying.
If we are tied in that way by the rules of debate, we are tied.
It is agreed to go into Committee in respect of amendment No. 7.
The only point I wish to make is that all this goes to the very root of the jurisdiction of the Circuit Court and the High Court in this country. The law since the inception of the Circuit Court has been that it is the place of residence of the deceased which is the relevant factor in deciding whether or not the Circuit Court will administer his estate. The Circuit Court has no jurisdiction to issue grants of probate. An application for probate must automatically go to the High Court, because the Circuit Court has no jurisdiction in this respect.
In the case of a person with a fixed place of abode here and, possibly, having money in a bank in England, it is to the High Court that application would have to be made for a grant of probate. Bearing in mind the whole structure of the courts here—the Circuit Court and the High Court—it is not practicable to accept Senator O'Quigley's and Senator FitzGerald's amendment because it introduces a feature of jurisdiction which, at the moment, is under further consideration.
Could the matter be met by making it optional as regards the position of "real" estate and compulsory as regards the fixed place of abode, by changing the amendment so that jurisdiction "shall be" exercised by the judge where the deceased had a fixed place of abode and "may be" exercised where it is "real" estate? Certainly, in cases where there are not the complications the Minister has mentioned, it would be more convenient and inexpensive where a "real" estate is held. However, one can see the flaws the Minister has mentioned in mixed cases and in these cases the High Court might be preferable.
Again, I am somewhat at a loss to understand what the Minister is saying. We do not seem to be speaking the same language. I do not understand what the Minister means when he says the Circuit Court has no probate jurisdiction and that any action in relation to a probate matter would have to be fixed in the High Court.
Grant of probate.
That is an entirely different thing. Indeed, what we are doing in this Bill is that we are making every county registrar a district probate registrar. In other words, we are bringing the facilities to the people. But, as far as probate actions go, in deciding whether or not a will is to be upheld, there is no doubt that the Circuit Court would be adequate. If it is, in those circumstances, I do not see why it should not have jurisdiction in an administration suit.
Another point I should like to make is that under the 1961 Courts (Supplemental Provisions) Act the whole trend is to give the Circuit Court the same jurisdiction as the High Court, merely imposing upon it a limitation of £600 and £2,000 in equity and a £60 valuation. We have invested in the Circuit Court in this country the same jurisdiction as the High Court, except for divorce, criminal offences, murder and one or two other matters which are very rare. The plain truth of the matter is that, in law at the present time, the Circuit Court has the same quality of jurisdiction as the High Court and it certainly comes strange to me to hear that we would be offending some principle. I know of no principle that would be offended if we were to extend administration——
I hope to bring in a Courts of Justice Bill in the New Year. I think this matter is more appropriate to that Bill, where we shall be dealing with the structure of the High Court and the Circuit Court. I can assure the Senator I will look into this point.
I would urge upon the Minister that he should accept this now. It would be a very grave lack in our legislation if the Circuit Court did not have jurisdiction in these small cases.
This is more appropriate to a jurisdiction Bill than to this Bill.
I shall not dispute the matter with the Minister as he has gone some of the way to meet us but the whole of section 6 is concerned with jurisdiction and we are conferring on the Circuit Court the same jurisdiction as the High Court.
Not general jurisdiction, just jurisdiction. If the Minister looks at the Third Schedule to the 1961 Courts (Supplemental Provisions) Act, he will see that the judge by whom jurisdiction is to be exercised on the sale, and distribution on sale, of any lands is the judge of the Circuit Court where the lands or any part of them are situated. Nothing could be clearer from the whole trend of the law. In similar cases, the Circuit Court has jurisdiction. There is no difference in principle between a murder suit in the Circuit Court and an administration action. However, if the Minister would be good enough to consider that matter, I am quite happy.
I think this is a good point but it is more relevant to a jurisdiction Bill, which I hope to introduce in the New Year.
The House will understand that it is now out of Committee.
I move amendment No. 8:
In page 12, to add to section 21 a new subsection as follows:—
"( ) Notwithstanding anything contained in this Act to the contrary, it shall be lawful for an administrator to continue to act as such in any case in which he has brought an action for the purpose,inter alia, of ascertaining the next of kin of the deceased and as a result of enquiries made in such action next of kin of the deceased has been discovered who would be entitled to a grant of administration in priority to the administrator in the action, unless the Court for good and sufficient reason shall otherwise order.”
There are occasions when it is necessary for somebody to take out a grant of administration who may not be the nearest of kin to the deceased. I do not quite follow why it is the Rules of the High Court which prescribe the order and priority in which the next of kin are entitled to a grant but the fact is that Order No. 79 does prescribe the order and there it is. What I do say is that it happens, not infrequently, that an administration suit is instituted in the High Court or Circuit Court, one of the main purposes of it being to ascertain who are the next of kin. The next of kin may be abroad and it is desirable to have that ascertainment done after sufficient evidence has been adduced and established to the satisfaction of the court for carriage of the suit. As the law stands at the present time, once the next of kin has been established, and that next of kin had all along a prior title to the grant of administration, the probate office writes to the plaintiff in the proceedings and says: "You are not entitled to have this grant of administration".
Then the whole rigmarole in regard to that has to be gone through. I am suggesting in this amendment, and I hope the Minister will accept it, that where an administration suit is instituted for the purpose of ascertaining who the next of kin are if the next of kin are discovered to be nearer to the deceased than the administrator in the action, unless there is very good reason for revoking the grant of administration, the plaintiff should be allowed to continue. I think that would avoid unnecessary expense and also avoid waste of time. I see no reason why the amendment should not commend itself to the House.
I cannot accept the amendment. The general jurisdiction in section 27, subsection (4), enables the court to make a grant of administration to any person having an interest in the estate. I think this meets the point made by he Senator. That is more flexible. If there are any difficulties envisaged by the Senator, they would be met by the general jurisdiction of the court as set out in section 27.
Section 27 is a copy of section 12 of the Administration Act, 1927 and of section 78 of the Wills Act. I think the Minister misses my point. Section 4 merely applies in a case where it is necessary to apply to the High Court for leave to take out a grant. I am talking about a case where the grant is already out and in the course of administration proceedings nearer of kin to the deceased than the administrator are discovered.
The court can deal with that.
It involves application to the High Court and there is no reason why that should be necessary at all. That, to my mind, is a waste of money and a waste of the assets of the deceased. It should be possible where the administrator has entered into the bond to the satisfaction of the Probate Registrar, and the administration proceedings are before the court. There is no reason that I know of or no logic or commonsense in saying "because we have discovered new next of kin."
The court has general discretion in regard to this.
The Circuit Court has no jurisdiction in that matter. It is only the High Court.
That is right.
Subsection (4) of section 27 provides the grant of administration in the first instance. I am asking in this subsection where administration has been granted that is should be revoked because nearer of kin is found.
The discretion is still with the courts in that particular regard.
I respectfully disagree with the Minister in regard to that.
I checked with the Probate Office and they agree with me.
It would be all right if I were satisfied that that was so but subsection (4) is a repeat of section 12 and section 12 is a repeat of section 78 of the Probate of Ireland Act. There is no doubt about it that section 12 did not authorise, and would not authorise, the High Court to continue a grant which automatically lapses upon the happening of a particular event.
Amendments Nos. 10, 13, 15, 16 and 30 may be discussed together. Separate decisions may be given on each.
On a point of order, as the record shows, it seems to me that nothing was raised on section 27. If nothing was raised on this it seems, under the Standing Orders of the House, that it can be raised on Report Stage. I am not saying that we did not debate it but the point of order does apply. If for good and sufficient reasons you are prepared to rule that this is in order and to create a precedent I would recommend a specific ruling to that effect so that in future legislation a like facility will be available to ordinary Members of the House.
I thought I was meeting the House in this respect. My recollection is that I did raise this point of principle, not on the particular section referred to, but on section 2. I can quote from the Committee Stage debate of 27th October, column 22, in which I referred to this precise point. In fact, it arises out of a point made by Senator O'Quigley himself.
I am not concerned with myself.
The principle involved was first raised by Senator O'Quigley and that is why I propose this series of amendments.
There are other things which follow in the same category of things which were not raised. I do not see where it was raised.
Let me refer the Senator to vol. 60, No. 1, col. 22 in which I referred to the Senator's amendment. It is relevant to the particular point involved in these amendments.
That only arose on amendment No. 2 that we dealt with today.
I know, but it is on this point that we want to have discussion on the amendments referred to by the Cathaoirleach. The object of these amendments is to make sure that the sections of the Bill referred to in the amendments will be applicable, whether the deceased person died before the commencement of the Act. I think the Senator was on this particular point on the Committee Stage.
It seems that this position should be sorted out for the future. Other cases will arise where a point is raised on the Committee Stage and where this overflows into other sections. It is desirable that the House should be able to consider it and it would be desirable that we should have a ruling for the future.
I listened to what the Minister said on section 2. I cannot see any connection between this and the series of amendments here. What I was for was a phased introduction of the Bill with different parts and different sections brought into operation. What is sought in the amendments is quite different, and it is something which I do not think arises out of what I said or what the Minister said on section 2.
I shall say "no" in this House from now on.
I am saying that I think it is desirable that they should be brought into operation, but I think we should have a specific ruling from the Chair.
The Chair has suggested that these amendments be taken together. If the House feels they should not, the Chair is willing to hear them one by one.
With respect, that is not my point of order. My point is that these amendments do not arise out of anything that was said on Committee Stage. There was no reference to those matters on Committee Stage.
It arises out of discussions on section 2 on Committee Stage.
It has nothing whatever to do with it.
That is not true.
The Minister should read out to the House what was said as reported at columns 20 to 22 of the Official Report. I am not saying we should not deal with the amendments. I am saying that we should have a clear ruling on the matter.
The Chair, having seen the report of the Committee Stage, is now ruling that these matters properly arise out of the discussion on Committee Stage.
I have already referred to what is involved here. It is designed to clarify the position of the personal representative in the discharge of his duties. This spells out that the section applies to the discharge of the various duties under the section to which the amendment refers, whether the deceased person died before or after the commencement of the Act. It makes plain that the estate of a person who dies before the commencement of the Act shall benefit from the provisions of the Bill to which the amendments relate.
The amendments are possibly very desirable but, with respect, I cannot see that anything that was said on a previous occasion by myself or the Minister has anything to do with these amendments. These amendments remedy a defect which was found out by the Minister, and he is to be commended for doing that. I entirely agreed with the amendments.
I take it the burden of the Chair's ruling is that if on discussions on a particular section something arises which is relevant to other sections, an amendment can subsequently be introduced on Report Stage, because it arises generally out of the discussion.
The Chair has already ruled on the matter and is not to be subjected to criticism at this stage.
I was not in any way criticising the Chair. I was merely saying what I understand the ruling to imply.
The object of this amendment is to write into the Bill the principle that the calendars of grants maintained in the Probate Office and in the district probate registries are open to inspection by the public. A provision on this line was suggested by Senator Cole on Committee Stage. On Committee Stage Senator O'Quigley complained about the tattered and torn condition of the calendars and I can assure him that this has been receiving attention for some time past and the offending documents are being replaced.
I am glad to hear that.
I suggest that amendments Nos. 14 and 29 go together.
This amendment and amendment No. 29 are drafting amendments designed to clarify the position of a purchaser why buys property from a person to whom it has been transferred by personal representatives, that is, a purchaser who buys from a beneficiary. Section 59 provides for the protection of creditors and beneficiaries who are given the right to follow property into the hands of any person other than a purchaser. As these provisions read at the moment, it might appear that there is an obligation on a purchaser to satisfy himself that the person from whom he is buying is, in fact, the person entitled under the will or intestacy, as the case may be. Quite clearly the purchaser must not be placed in such a position. It is obvious that if such an interpretation could be made, it would be an unfair burden to place on any such purchaser. He must be entitled to assume that the personal representatives have acted correctly in transferring the property and that the property has been vested in the person legally entitled to it. The amendments are intended to clarify this aspect.
I think this is a desirable amendment. It sets out quite clearly that the purchaser is not concerned to establish that the claims of the person entitled to a share in the estate have been discharged. It is a useful amendment and will be welcomed by conveyancers.
The Chair suggests that amendments Nos. 17, 18 and 39 be taken together.
These three amendments arise out of suggestions made by Senator O'Quigley and Senator E. Ryan during discussions on section 114 on Committee Stage. After some discussion I said I would adopt the wording suggested by Senator Ryan. The amendments are designed also to meet the point made by Senator O'Quigley. We want to spell out that it is the duty of the personal representative to notify the surviving spouse in writing of the rights conferred by the section. I think it is desirable that this duty should be imposed on the personal representative having regard to the rights which we are introducing for a surviving spouse.
This is a drafting amendment. I prefer the word "authorise" to the phrase "consents to", in order to differentiate between the consent of the court under subsection (4) (a) and the consent of the spouse under subsection (7) (a). It is to the latter consent that we refer when we mention "consent" in subsection (9).
This is grammatical. It should be "rights" not "right".
The Chair suggests that amendments Nos. 21, 22 and 24 be taken together.
This is designed to clear up a point of ambiguity which existed in the section as originally framed and to which Senator Cole drew attention on Committee Stage. I think the phraseology, "So long as a right conferred by this section continues to be exercisable" is more definitive than the phraseology used in the original draft. The reference to the period mentioned in so-and-so paragraph was confusing. It is more definitive to say that this is applicable so long as any right conferred in the section continues to be exercisable. It is a better form of drafting and avoids any ambiguity.
This is to remedy an obvious omission. "Household chattels" should be included as well as "dwelling". I think the Seanad will agree with that.
It has been disposed of under amendment No. 21.
It is suggested that amendments Nos. 25 and 40 go together.
These amendments are designed to meet a point raised on Committee Stage by Senator O'Quigley. The main purpose is to make it clear that, where a surviving spouse of unsound mind is already a ward of court, the right of appropriation under section 56 and the right of election under section 114 will be exercisable by the committee of the spouse's estate by leave of the court which has appointed the committee. We now place the obligation on the committee to seek the leave of the court. Where there is no committee, the rights will be exercisable on behalf of the spouse by the High Court or, in appropriate cases, the Circuit Court.
I move amendment No. 26:
In page 27, to add to section 56 a new subsection as follows:—
"( ) The appropriation of a dwelling under this section shall not be subject to the provisions of section 12 of the Land Act, 1965."
In section 56, we are authorising the appropriation of a dwelling house to the surviving spouse in part satisfaction of the legal right share. It occurs to me that under section 12 of the Land Act, 1965, there is a general prohibition, in relation to agricultural holdings, against letting, sub-letting, or subdivision—we are concerned here with subdivision—without the consent in writing of the Land Commission and such consent may be either general or particular. In the case of agricultural land, where the spouse might appropriate the dwelling in part satisfaction of the legal right share and subsequently decide to sell that house, some difficulty might arise in relation to whether or not this is a subdivision of the agricultural holding. What we intend to do here is to ensure that the surviving spouse shall be given the house not merely for life but as an outright conveyance or gift of the property. It seems to me that we ought to place the matter beyond all doubt and to insert here that the appropriation of a dwelling under section 56 shall not be subject to the provisions of section 12 of the Land Act, 1965, which prohibits subdivision without the consent in writing of the Land Commission. I think that this amendment would clarify the position beyond all doubt.
I am advised that the general provisions against subdivision in section 12 of the Land Act do not apply to section 56, which stands on its own.
Would it not apply in the case of appropriation of a dwelling-house on an agricultural holding?
No. It is not a subdivision of land as envisaged in section 12 of the Land Act.
(Longford): Could it be suggested that the land on which the house sits is part of the holding and while it could be argued that the house is not part of the land on the other hand the land on which the house sits is part of the holding? That would be a thing that lawyers would argue out in court and I am sure they could do it very well.
It seems to be quite clear that you are not just going to give a dwelling, isolated from all. There will be the usual bit of land around the house. There may even be a bit of garden going with it. As I understand Land Commission law at present that would amount to a subdivision. It would involve the Land Commission maybe later, or some other authority, in having to build a house on the land.
I can foresee the necessity of future legislation to amend section 56 because merely to speak of a "dwelling" is not quite good enough without defining what is meant by "dwelling". When you ordinarily speak of a dwelling, you speak of a dwelling plus the usual out-offices, maybe a turf shed, an outside toilet, and so on, that go with it, and that may involve quite a bit of land, a bit of garden in front and back. If you want to give a widow a dwelling, I take it that that is the kind of dwelling you want to give her with the ordinary piece of land about it. If that is what we are going to give the surviving spouse as part of the legal right share, it seems to me that that would amount to a subdivision as far as the Land Commission are concerned. I can see difficulty in a purchaser accepting that, without the consent in writing being obtained from the Land Commission.
To use the Minister's words, we ought to spell out quite clearly what we are doing in this amendment, that is, that whatever appropriation of a dwelling is made under section 56 is not a subdivision to which section 12 of the Land Act would apply. I think the Minister cannot go wrong in accepting this amendment but he is very likely to go wrong if he does not accept it.
- Carton, Victor.
- Cole, John C.
- Conlan, John F.
- Davidson, Mary F.
- FitzGerald, Garret M. D.
- McAuliffe, Timothy.
- McDonald, Charles.
- McHugh, Vincent.
- McQuillan, Jack.
- Malone, Patrick.
- Mannion, John.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Quinlan, Patrick M.
- Rooney, Éamon.
- Sheehy Skeffington, Owen L.
- Stanford, William B.
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Flanagan, Thomas P.
- Honan, Dermot P.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick (Longford).
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Teehan, Patrick J.
We are getting closer all the time.
It is getting warmer.
I move amendment No. 27.
In page 27, line 22, before "any" to insert "by leave of the Court"
Section 57 enables the personal representative of a deceased person to transfer an infant's share in property to a trust corporation or any two or more persons to be trustees of the share for the infant. In the ordinary course of events, where property is held in trust for an infant, it is held in trust by somebody who had confidence in the trustees and selected them because he had confidence in them. The only other way is that the persons have been appointed by the court under the various Acts which apply to property of children. This section proposes to depart from the safeguards which exist in relation to the appointment of trustees and it enables the personal representative to appoint any two or more persons, who may or may not turn out to be trustworthy persons. There is no question of these two persons appointed by the personal representative having to enter into a bond or to give any security.
When we were discussing this on Committee Stage, the Minister made the point that the infant would always have his right to sue the person in court for the recovery of any property or moneys which the trustee might have done away with. My reply to that was, and still is, that there is no use in giving an infant the right to go to court when, in all likelihood, the reason the trustee who held the infant's money has done away with it is that he was already in financial difficulties.
In any event, I do not think we ought to entrust infants' money as lightly as that to two persons nominated by the personal representative. I should point out that, in the ordinary course, if a child is injured in a road accident or in any other way and is awarded damages in court, the money is always kept in court, until the child is 21 and invested in appropriate securities in the name of the circuit judge and the county registrar. In that way the dividends are allowed to accumulate. That is the kind of protection we have always provided in our legislation regarding the property of infants.
Under this section the personal representative may appoint a trust corporation, to which I have no objection, because the trust corporation, I understand, will normally be the nominees of banks and, in the present credit squeeze, would be good marks in the event of defalcations. I have no objection to a trust corporation but I do say we ought to provide in this section that if a personal representative wants to get rid of an infant's share in property arising out of the death of a testator or, on intestacy, of a deceased person the person to whom the property is to be transferred should be appointed by the court. This is a standard practice at the present time. It is the minimum safeguard we can provide. The persons appointed by the court may not always turn out to be the best but one can be certain that the child will have the satisfaction, at least, of knowing that before the persons were appointed to hold the money in trust, they were persons who were approved by the court. In my experience, the courts are quite searching in the qualifications of the persons they appoint as trustees for the purposes of the Settled Lands Acts and under the Trustee Acts.
I would urge the Minister to accept this amendment. I concede it entails an application to the court, but the amount of money involved in that is far less than the risk involved if a personal representative should shed his responsibilities, appointing any two people to take the infant's share. I think an infant, who may get property under a will or on intestacy, is entitled to this minimum protection and that is the purpose of this application, that the approval of the court to the appointment of the trustees should be a prerequisite of the transfer of property to the two persons.
I am afraid I cannot accept this amendment. One of the objects of section 57 is to enable trustees of an infant's property to be appointed by the personal representative. If we were to provide that a personal representative would have to apply to a court to appoint trustees, we should merely be adding to the expense of administering the estate. We are trying to avoid and cut down administration expenses. We must have regard to the fact that personal representatives are responsible people. They are appointed either by the testator himself or by the court in the case of administration. We must take it,prima facie, that they will appoint proper trustees; and the need for a court application merely adds to the legal costs of administering the estate. I think we can place the onus fairly on the personal representatives and accept that the trustees whom they will appoint will be proper people. The personal representative has a remedy in the event of the trustees not acting properly.
I am against this amendment in that I want these trustees to be appointed with the minimum amount of expense and as expeditiously as possible.
I regret that the Minister has adopted this attitude. Just a short time ago we accepted an amendment in the case of a person of unsound mind, when the exercise of discretion would be by committee, by leave of the court or, where there was no committee, upon application to the court. I have always understood the position of infants and persons of unsound mind to be similar. They all fall within the designation of wards of court. I do not see why in one case you provide that the discretion can be exercised only with the leave of the court and, in the case of the unfortunate infant, that the personal representative can appoint anybody he wishes.
That is reasonable.
The Minister, having started upon that road, should continue. The Minister should not abandon being reasonable. I do think that, especially in the case of infants, it may be just too easy to make off with the infant's money. The personal representative, of course, is the responsible person. In the case of an executor, he is the person appointed by the testator and that is all right. In the case of an administrator, he is the responsible person, because he has to be. He has to enter into a bond or get some insurance company to enter into a bond for twice the value of the sworn assets of the estate. It behoves him to be responsible but he can shed his responsibility by appointing any two persons to take the share of the infant and that may be the end of it.
It is quite undesirable and certainly not in keeping with the other provisions of the Bill, or with the existing law, to say that a personal representative can appoint one or two persons to take the property of infant children and, thereafter, be anserable to nobody. That is a reckless disregard of the well-being of infant children.
In the case of a committee, it is one, but, in this case, it is two. You have one trustee to look after the other.
Once again, I am meeting a point raised by Senator O'Quigley on Committee Stage. The amendment provides that the powers conferred upon a trustee by subsection (5) of section 58 shall be exercisable by a surviving spouse as trustee of any property appropriated in accordance with section 56 in satisfaction of the share of an infant.
I made a number of points on this on Committee Stage and I think this redraft meets the first point. I can only pay tribute to the impartiality and reasonableness of the Minister.
I move amendment No. 31:
In page 29, line 38, to add at the end "if the sale by the personal representative is made within six years of the date of death of the deceased".
This amendment seeks to put beyond doubt the stage at which a personal representative sells in due course of administration. I have consulted the conveyancers on this and it is very difficult to say when an executor sells in due course of administration. I have selected the period of six years, taking the six years from section 125 of the Bill, which is now to be the new limitation period in respect of which claims can be made in respect of deceased persons. If the House and the Minister were to accept the amendment it would clarify the position beyond all doubt that within a period of six years there will be an assumption that the sale was in due course of administration and after that it would not be.
I would suggest that the six year period is too restrictive. I do not want to encourage long administrations but, unfortunately, they occur for one reason or another. It is not unusual for administrations to go on for six, eight, ten, 12, 14 or 16 years. The amendment suggested by the Senator would, in effect, mean that, outside the six year period, the purchaser would not be entitled to purchase. He would only be entitled to do so within six years from the date of the death of the deceased. I think the existing law, as restated in the section as it stands, is better, having regard to the facts of life as they are. If we bring in a restrictive clause of this kind, it could only cause difficulties. I would like to know precisely what would happen in the event of an administration going on for longer than six years. There would be very serious difficulties for personal representatives and for purchasers.
I do not think the Minister and I aread idem as to the purpose of this. Section 61 deals with a personal representative selling in the ordinary course. The Minister speaks about administration continuing for ten, 12, or 14 years. This is the kind of case where an estate is administered under an order of the court.
It seems in that kind of a case that a personal representative is protected by the order of the court and no difficulty would arise. At present it is very difficult to say at what particular point of time an administrator is selling in due course of administration. The only reason an administration can sell in due course of administration is to pay the debts and that is the basis upon which it is ascertained whether or not the sale is in due course of administration. Certainly the law, as it stands at present, is very vague and the amendment seeks to bring some clarification and definitiveness into it.
Amendments Nos. 32 and 51 may be discussed together.
The first two subsections of this amendment are a reenactment of sections 2 and 3 of the Intestates Estates Act, 1884, which it is now proposed should go, as provided for in an amendment to the Second Schedule. Subsection (3) is designed specifically to meet a point which was raised, I think by Senator O'Quigley on the Committee Stage in regard to a grant of representation issuing to the Chief State Solicitor on behalf of the State. The subsection provides that a person who succceeds to the office of Chief State Solicitor will become administrator in his predecessor's place without having to obtain a fresh grant.
I am becoming embarrassed by the number of amendments which the Minister says he is moving to meet points raised by me. We shall let that stand. I have no recollection of dealing with subsections (1) and (2). Neither have I any intention of opposing them. I am glad that authority is being given to the Attorney General in a case of this kind to meet legitimate claims out of the estates which fall to the State. The only thing that occurs to me is this. Perhaps is is a matter which the Minister might clarify. I want to know whether or not in cases of this kind the Chief State Solicitor, acting on behalf of the State, is administrator of the State, whether it becomes necessary to get the fiat of the Attorney General in order to institute proceedings against him.
I am told it is not necessary.
If not, the section seems to be a useful one.
Amendments Nos. 33, 34 and 37 may be taken together.
I move amendment No. 33:
In page 31, to delete lines 1 to 4 inclusive and substitute the following:
"If an intestate dies leaving a spouse and issue the personal representative shall hold so much of the estate as consists of immovable property together with stock in trade and the goodwill attached thereto where such immovable property consists of a business in trust for the surviving spouse for life with remainder to the child or children or remoter issue of the intestate as the surviving spouse shall by deed or will appoint, and in default of appointment in trust for the issue of the intestate in equal shares."
This is an amendment to deal with the position where an intestate dies leaving a spouse and children. On the last occasion Senator Jessop moved an amendment to provide that all the property of an intestate should be held by the personal representative of the widow in trust for her during her life and thereafter that it would be disposed among certain of the children as she wished. I expressed sympathy with the idea of Senator Jessop's amendment on that occasion and the amendment was withdrawn.
We are asking in this amendment to provide in the case of immovable property, which in the main, as far as this country is concerned, would be farms and businesses, that the widow of a person who dies intestate should have the entire property for life with power to appoint to such of the children as she may decide and if she failed to appoint among them equally upon her death. There are many advantages in this kind of property holding. The best illustration of the advantages of this kind of property holding is to be found in the fact that—and I repeat it is a fact—the vast majority of deeds settling property in this country leave it to the husband or the wife for life, and then in trust for such children as the husband or wife may by deed or will appoint. In cases where the son on a farm is getting married and the father is handing over the property to him, it is sometimes kept by the father for life but more frequently transferred to the man and his wife with power to appoint to the children.
The test of the value of that kind of property holding and that kind of limitation on estates is to be found in the frequency with which it is employed. There is no use in the Minister or anyone else saying life estates are a feudal concept and outmoded. Historically they are not a feudal concept. Entailed estates were a feudal concept which the passage of time and enlightened legislation got rid of, but life estates are designed to keep the property in the family. Socially, I think it is very desirable that they should be kept in the family, and that they should not have to be put upon the market upon the death, intestate, of the husband in order to realise the widow's portion. The vast majority of women would prefer to have the reins over the whole property for their entire life with the right to appoint the property to one or other of the children. If she has the right to appoint to one or other of the children she can pick out the child she believes she will get on best with, and who will look after her with the greatest care and affection, and she can by will or deed appoint the property to that child after her death.
I said the best test of the value of this kind of property holding is the frequency with which it is used, and the fact that it is used by the rich, by the medium rich, by small farmers, small shopkeepers and small property-owners. This amendment relates merely to immovable property, that is, land and dwellings thereon, and businesses together with goodwill and stock-in-trade attached thereto, which would provide a useful living for any widow while, at the same time, preserving the property in the family and giving her a hold over one of her children. She can appoint it to that child in her lifetime by deed to have after her death. Where a man dies intestate and leaves children I think this is a desirable way to deal with it so far as immovable property is concerned.
I do not think I could go so far as Senator O'Quigley wishes to go in his amendment. In a great many cases in the country where the property is not vested the eldest son has been working the whole place and it would possibly create a little difficulty for him if he had to wait the remainder of another life for the place. I have the greatest sympathy with the Bill and the principle which the Minister has brought in, but I think something must be said on behalf of the children too. The Minister has gone a long way to deal with this problem but there is the problem of the children also. Someone said that 50 per cent of the properties in this country are held by women. If you have to decide between the surviving spouse and a young person starting off in life, I think there are times when one must feel a chance should be given to the younger person. That is what is behind my amendment.
The Minister said that about 50 per cent of the holdings in this country are intestacies. In those cases the widow or the widower will be told after the death of the spouse: "You are entitled to a half-share in this property or one-third share under section 110. What are you going to do about it? You have one year to decide." Supposing the person goes to see a solicitor or a friend for advice, the only advice the solicitor, the lawyer or the friend can give is: "Take it." If a person came to me and asked me that question I would say he should accept his share. The Minister says this share will not be accepted in a great number of cases, but I think it will be, because if the person goes for legal advice he will be told to accept it. That will be a great drawback in regard to farms. I am with the Minister to a great extent and I have reduced my amendment considerably since Committee Stage but in the case of agricultural land there should be the possibility that the whole place can be united again under the eldest son. That is why I put down this amendment. In certain cases the children must get precedence over the parent who has lived most of his or her life. Otherwise this would lead to fragmentation and a great deal of disturbance in farms.
We went through all this before on Committee Stage. The intestacy provisions were generally welcomed in the Dáil, throughout the country, and by the various professional groups I met. There did not appear to be any dispute in regard to the intestacy provisions until we came to the Seanad. Intestacy provisions of one kind or another, allowing for shares of the estate to go to the wife and the children, have been in existence since 1695. We are improving them and giving the surviving spouse stronger rights. The widow will get two thirds and the children one third. If there are no children, the widow will take all. These provisions are an improvement on the existing situation in which, if there are children, the widow gets only one third, and, if there are no children, the widow takes the first £4,000 and half of the rest of the estate, the balance going to the next-of-kin.
I think the new provisions in the Bill are excellent. I see no reason why we should disturb them, particularly when the suggestion is that we disturb them in the interest of a life estate which I am firmly against and which all the people whom I have consulted are against. It is an undesirable type of land holding—as I emphasised very sufficiently on the Committee Stage. It is much better to have one person with a fee simple interest in practically all the property, as will be the case in regard to the surviving spouse, whose share will be two thirds. That is a far better kind of title to property. The introduction of a life estate interest on intestacy would cut right across all the existing conceptions which we have had for hundreds of years and which we are now seeking to improve here in a logical way.
I did not have much hope of converting the Minister on this particular amendment. What we are proposing is to give the entire of the property to the widow for her life as against the Minister's two thirds. It is very much a matter of opinion as to whether it is better to have the whole of the property for life or merely two thirds of it. When we take into account the social aspects of retaining the property in the family, I think that undoubtedly the balance is in favour of this amendment.
The Minister got some queer dislike at some stage in his career for life estates. The best test of the value of life estates is the fact that every day there is a settlement, it creates a life estate. If the Minister sees, as conveyancers and chancery lawyers do see certain difficulties in the existing law in relation to powers of tenants for life, particularly powers of borrowing, there is nothing simpler than to amend the law to give them the appropriate powers. At present, they have powers to borrow only to improve the property. It could be extended in the same way as it has been somewhat extended under the Agricultural Credit Acts.
The fact that there was no comment on these provisions in the Dáil is not a reason at all for not reconsidering them here in the light of a very useful amendment put forward on the last occasion by Senator Jessop. I have very little doubt that if any woman is confronted with the question whether she would prefer to have two thirds of the property, with shares, then, among maybe five or six children, or the entire of the property and to be in a position to say to one of them "I will be able to give that to you" or "I will give that to you when you are settling down" and that she could, by deed, appoint the property to the child after her death, she would say she would get much better value from a life estate and the further power of appointing to one of her children——
That can still be done.
It cannot. If one of the sons says: "I want my money, mother", it cannot be done. That is the whole point.
It can be done prior to death.
It requires the concurrence of the other children who have an interest in the one third. Maybe one of the children is in Australia and another has not been heard of for 15 years and another may be in a convent.
It can be done by way of testation.
Not when you are dead.
Prior to death.
We are dealing here with the case where a man dies intestate. Our concern then is to make the best provision for the widow and the children. There is not a doubt at all about it. If you get one of the Telefís Éireann interviewers to take 20 minutes off and to ask 20 people in the street which they would prefer, a life estate in the lot with a power to appoint to one of their children or two-thirds absolutely and the rest of it to be divided out amongst their children, with no power of appointment, I am quite sure the result would be an overwhelming majority in favour of the life estate.
The Minister has discovered some disease associated with life estates that nobody else with whom I have spoken on this matter—people of all shades of opinion—can understand. With regard to the Minister's reference to life estate as being feudal, some pointed out that this is historically inaccurate and that what he was talking about was estates entailed, an entirely different type of estate which was very restrictive and for which the law has made adequate provision to dispose of. Nobody has this vigorous dislike of life estates that the Minister has. For that reason, I thought perhaps, having considered the matter again, the Minister might be disposed to say, where a man dies and does not look after his property, that the State, through the Legislature, should say: "We will give the entire of the property to his wife and power of appointment to her children" because, if there had been a marriage settlement or if he had been thinking of doing it himself this is probably the way he would have done it.
- Boland, Gerald.
- Brennan, John J.
- Dolan, Séamus.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Flanagan, Thomas P.
- Honan, Dermot P.
- McGlinchey, Bernard.
- Martin, James J.
- Nash, John Joseph.
- Ó Conalláin, Dónall.
- Ó Donnabháin, Seán.
- Browne, Seán.
- Cole, John C.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick (Longford).
- Ormonde, John.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Sheehy Skeffington, Owen L.
- Stanford, William B.
- Teehan, Patrick J.
- Carton, Victor.
- Conlan, John F.
- FitzGerald, Garret M.D.
- McAuliffe, Timothy.
- McDonald, Charles.
- McHugh, Vincent.
- Malone, Patrick.
- Mannion, John.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Quinlan, Patrick M.
- Rooney, Éamon.
The purpose of this amendment is twofold.
The first of the two subsections proposed in the amendment will empower the Minister for Finance, if he thinks proper to do so, to waive in whole or in part, and upon such terms as he thinks proper, the right of the State to take property as ultimate intestate successor. Under section 31 of the State Property Act, 1954, the Minister for Finance already has this power of waiver in relation to property which devolves upon the State by way of escheat or asbona vacantia. The right of waiver would, for example, be exercised in cases where the intestate left persons who were dependent on him but, not being next-of-kin, were not entitled to succeed to his estate under the provisions of this Part of the Bill.
The second of the two subsections proposed to be inserted by the amendment provides that section 32 of the State Property Act, 1954, shall apply in relation to property to which the State has a right as ultimate intestate successor. That section enables the Minister for Finance to disclaim the State's right to a fee farm interest or leasehold interest to which it has become entitled by way of escheat or asbona vacantia, respectively. A disclaimer abolishes any liability of the State to pay the rent reserved by the fee farm grant or lease and also has the effect of vesting the interest, in the case of a fee farm grant, in the person in whom the grantor's interest was vested immediately before the disclaimer, and, in the case of a lease, in the persons in whom the reversion expectant was vested. The right of disclaimer is important where the State becomes entitled to property which is not only worthless but carries liabilities for the payment of rent. I mentioned on Committee Stage that this amendment would be introduced on Report.
I am very glad the Minister has introduced this amendment. I think I mentioned something about it on Committee Stage. There are a lot of cases where the State, having regard to all the circumstances, should properly waive the right to property, and I am glad to see that that is now being extended to properties of land holdings such as the Minister has mentioned. This is a very good amendment.
This is a drafting amendment to clarify the meaning of the section. The point was adverted to on Committee Stage by Senator O'Quigley and, I think, Senator Ó Maoláin and some others.
I am glad that the Minister brought in this amendment. I think he will recall that this amendment was the joint product of a variety of people in the Dáil.
There was a consensus.
I move amendment No. 38.
In page 38, section 112, between lines 20 and 21, to add a new subsection as follows:
"( ) A renunciation by a spouse made after marriage shall be signed by the said spouse in the presence of a witness and such witness shall attest by his signature the signature of the spouse in the presence of the spouse."
I asked the Minister, on Committee Stage, to consider whether or not the renunciation should have some little formality about it. Otherwise I am afraid there will be a host of applications by spouses saying they did not quite understand what they were doing, that they were asked to do it with some sort of a promise, or a lot of things like that. If there is witnessing to it, both on behalf of, say, the widow and on behalf of the other spouse who has suggested that she should renounce or that he should renounce, I feel there is some formality about it. If there is formality about it, we must have a witness present and, at the same time, it would be a protection for the spouse without the necessity of having to go to court. Otherwise it will have to go to a court application.
If you have this formality you must have another person present and, before that other person, there will be some explanation of what it means to a spouse who might, perhaps, not be very wise in these matters. It will stop a great deal of applications to court later on, where the surviving spouse could contend they did not know what was happening and did not know they were signing away the right they are now getting under this Bill. Therefore, I think it would be an improvement to make it a little more formal.
I should like to support this amendment for the simple reason that, at this stage, the spouse has a vested contingent interest in the property and this renunciation will be the divesting by the spouse of the spouse's interest in the property. If that kind of act is to be done, it should be done with some degree of formality. Therefore, not alone should it be in writing signed by the renouncing spouse, but it is very important that it should be witnessed so that it would be surrounded by some formality.
Another very good reason for having the renunciation witnessed is that a domineering spouse could well exercise improper influence over the other spouse to get that spouse to renounce the legal right share. If that were done during the lifetime of the husband and wife, whichever of them succeeded in doing so, the person who owned the property could then go along, sell it and have this written renunciation. Of course, at that stage, it is too late for the spouse who has been obliged, under pressure, to renounce it to begin protesting because then there is a family feud, there is a marriage relationship in danger, and a whole lot of other trouble would ensue.
If a husband wants to get his wife to surrender her legal right share in her lifetime, the renunciation should be signed by the wife in the presence of a witness. That brings some formality into it and provides some kind of safeguard that, at the time the wife is doing so, there should be somebody else there to witness it, and the husband knows he must bring somebody else in to witness it. I see every reason for accepting the amendment.
I must oppose this amendment because it runs counter to the whole purpose of providing for renunciation of a legal right. The whole basis of much of the opposition to the Bill has been that the legal right should not be there at all. Here, we are providing that the legal right can be renounced in a simple way in writing without any more ado. The writing will give a clear indication of the intention of the renouncing party and that is really the root of what should be sought in the matter. We should only, as a last resort, introduce formality in regard to human arrangements. It is only, in the case of an ante-nuptial contract—which must be by deed, as provided in the section—in the case of a will or in the case of a deed signing over property, that we expect formality. But, short of that, it is desirable, in the main, to have as little formality as possible.
The main root of the matter which should be examined is what are the intentions of the parties to the arrangement? The intention of the parties to an arrangement can be made quite clear, in this instance, by a renunciation by one of the parties to the marriage contract, a renunciation in writing of his or her legal right share. The whole social purpose of this Bill is that man and wife should discuss their affairs more closely and to a greater degree than at present. There should be mutual consent and interest. They are members of a partnership and, as in the case of a business partnership, both should be interested as to how the business goes. It is not a matter of bringing two strangers together, in which case, every formality must be observed.
In the case of an ante-nuptial contract it is only right and proper that it should be, as provided in the Bill, by way of formal contract. But, in the instance with which we are concerned here, the parties are married. They are in partnership, they are man and wife, and I see no necessity for infusing into that relationship the sort of formality the amendment seeks, that witnesses should attest the signature, in addition to the arrangement between the spouse. This is a private, intimate family matter between man and wife. I do not see why we should introduce the legal formality of a witness into that situation. I can see far greater evil arising out of the provision, under statute, for such a witnessing than under the present arrangement. The requirement that a witness should be present to attest the signature of one of the parties would, in many cases deter an ordinary arrangement between man and wife. Why bring in this complication? That is the question I ask myself. I object to it from the point of view of society. We should only bring in legal formalities, where they are absolutely necessary and where vital rights are involved. But, in the case of man and wife, surely the nub of the matter is between the two parties. Our concern should be to see that it is done in the most inexpensive, expeditious and easy way. The renunciation, or any other deed, can be upset in the courts by way of ordinary court application.
(Longford): While I have some sympathy with the intentions behind the amendment, I am inclined to take the view that the intentions might easily be frustrated by the amendment itself for this reason. Suppose you had situations where the domineering spouse, as envisaged by Senator O'Quigley, or the other spouse not fully understanding the implications, would agree, a situation of injustice would ensure after the death of one of the spouses. The surviving spouse, not genuinely fully understanding the implications involved and agreeing, then, the injured spouse would, in the normal practice, have fairly good cause for action in the courts.
It is only reasonable that the court should take a reasonable view, once they were satisfied that there was grave injustice. The court would be in favour of the injured party. If you were to have the case where the testator had signed, I am afraid that the object of Senator Cole's amendment would be defeated, and what he is trying to prevent would really develop because it would be much harder then for a court to take a reasonable view, once this document was witnessed. It would be much harder to hold that the injured party, at that stage, did not fully understand the implications of the document.
I am thinking of people who now will have quite substantial rights in an estate. The surviving spouse will now have substantial rights. It has been mentioned many times that this Bill deals with perhaps exceptional cases.
These will be exceptional cases where possibly the spouse who is making the will is trying to avoid what is in this Bill. In this case you could say to the surviving spouse: "Make your will and sign that". Ten chances to one, the surviving spouse will not know what it is about and then you will have a court application or family troubles. The fact is that it will deter the spouse, who is trying to cheat the provisions of this Bill, if there is some person brought in, not alone who knows his intentions, but those of the surviving spouse. Most of the arguments against this amendment could be similarly made against witnessing the signing of a will. The arguments could all be used in the case of witnessing a will where the husband is leaving property to his wife and family.
I feel this would be a help and would stop a great many applications afterwards in cases where the surviving spouse is a little disappointed in the will. There will be this temptation to go to court and say they were induced to sign this renunciation but that they did not understand what was in it. They can say there were certain promises which were not fulfilled. I am only suggesting one witness and I do not think it would be a very difficult or public affair for a man and wife to call in one witness when an agreement is being made. Probably if there were a will, there would be two witnesses there in any case.
Amendments Nos. 41 and 42 are consequential and may be discussed together.
I move amendment No. 41:
In page 39, between lines 29 and 30 to insert a new section as follows:
116. (1) Where on application by or on behalf of an infant child of a testator the Court is of opinion that the testator has failed in his moral duty to make proper provision for the maintenance of the infant child during such child's infancy in accordance with his means, whether by his will or otherwise, the Court may order that such provision shall be made for the maintenance of the infant child during such child's infancy out of the net estate as the Court thinks just by way of lump sum payment or otherwise.
(2) The Court shall consider the application from the point of view of a prudent and just parent taking into account the position of each of the infant children of the testator and any other circumstances (including those specified in subsection (3) of this section) which the Court may consider of assistance in arriving at a decision that will be as fair as possible to the infant child to whom the application relates and to the other infant children.
(3) The Court in determining whether and in what way provision for maintenance ought to be made by an order shall have regard to the value and nature of the property representing the testator's net estate and shall not order any such provision for maintenance to be made as would necessitate charging or otherwise encumbrancing or realising all or part of the estate that would be improvident having regard to the interests of the person or persons who apart from the order would be entitled to the property.
(4) The order under this section shall not affect the legal right of a surviving spouse or if the surviving spouse is the mother or father of the infant child any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.
(5) ‘The testator's net estate' means all the property of which the testator had power to dispose of by will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, death duties payable out of his estate on his death and the value of the legal right of a surviving spouse or if the surviving spouse is the mother or father the value of any devise or bequest to the spouse or the value of any share to which the spouse is entitled on intestacy.
(6) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
(7) The costs in the proceedings shall be at the discretion of the court.
(8) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased's estate.
The purpose of this amendment is to limit the application of this right in the case of children to infant children. This section, in its present form, speaks of the moral duty of a testator to his children. The implication is that a testator has in fact a moral duty to adult children which he may fail to fulfil by not providing for them in his will. I would like to contest the existence of such a moral duty.
A parent has a duty to his children which he fulfils by educating them. He does so by providing for their education and launching them into the world adequately equipped to earn their own living. After that point, he has not got a moral duty of the kind which ought to be enforceable in law. In particular cases, there will be an obligation in charity on him,vis-à-vis his children, but there is no obligation in justice, once they are adult, capable of earning their own living and no longer in a state of infancy.
I would admit there will be special cases and perhaps those could be provided for in this amendment. We could perhaps provide for an adult child who is handicapped, mentally or physically, but outside those cases, there does not exist any moral duty. This recasting of the section is designed to secure the right of infant children to seek maintenance from the estate, but only maintenance, if they have not been provided for, and to enable them to go to court to seek that maintenance.
The Minister may reply that the section as it stands is permissive in that it does not require that children must be given this specific share but leaves it to the court to determine what that share should be. The section in its present form could be interpreted by the court to mean that the Legislature, in considering it, considered that a man may have a moral duty to adult children. The court must, therefore, work on the basis that such a right to a share in the estate exists in the case of adult children. The fact that the section is not confined to infant children, or handicapped children, could be taken to mean, in court, that the Legislature, by not confining it, maintained that such a moral duty exists and that they would be required to consider the particular circumstances of the case and what that moral duty would be.
I do not think it can be said that leaving it to the court, in the form in which it is left at the moment, leaves it completely open. It binds the court to start from the premise that, in principle, such a moral duty can existvis-á-vis the adult child and to consider merely the application of this moral duty in the particular instance. It seems to me to be quite unnecessary and an excessive infringement on the right of an estate. It is also an infringement on the relations of parents and children.
The amendment as drafted involves a number of changes in the section. Subsection (1) of the amendment is similar to subsection (1) of the section except that the word "infant" is introduced in the second line. Further down there is a provision introduced to cover the maintenance of the infant child as distinct from the section which just says what the provision for the child shall be, which of course could be a provision for his maintenance by a lump sum. Further down, in the subsection we say:
The Court may order that such provision shall be made for the maintenance of the infant child during such child's infancy out of the net estate as the Court thinks just by way of lump sum payment or otherwise.
It is open to the court to provide a lump sum payment for maintenance of the child. The change in subsection (2) is consequential. Subsection (3) is a new subsection designed to assist the courts in determining what in fact would be suitable provision as regards maintenance and it develops the point about net estates. Subsection (5) is a new subsection which defines net estates for this purpose:
‘The testator's net estate' means all the property of which the testator had power to dispose of by will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, death duties payable out of his estate on his death and the value of the legal right of a surviving spouse or if the surviving spouse is the mother or father the value of any devise or bequest to the spouse or the value of any share to which the spouse is entitled on intestacy.
The purpose is to limit the fund out of which the court should be looking to provide the money to the amount actually available. This concept of net estates is helpful in this context. I ask the Minister to look at this seriously because I do not think he can validly hold there is this kind of absolute right, in justice, by adult children to part of their parents' property. Such right does not exist in justice and such duty does not exist in justice. I would ask the Minister to consider this amendment in the light of the points I have made.
This amendment seeks to confine its provisions to maintenance of infant children. I feel that in so far as this provision is to be included in the Bill at all, it should extend to provisions other than maintenance. Nowadays one hears much about the right to further education and the fact that the State should so far as it possibly can extend facilities for higher education to most of our school-going children. In the case of a fairly wealthy family, or a reasonably wealthy family, where one or two children have undertaken a university education, I see no reason why the parents should not be regarded as having a moral duty to provide for a continuation of that education. In most university courses the student would long since have come out of his infancy before he would have completed the course. I feel a case of that nature is a very strong argument against Senator Garret FitzGerald's amendment.
Secondly, I cannot see why it should be confined to mere maintenance. So far as I am aware, no one has suggested that the moral duty of parents extends to maintenance only. The amendment provides that an application may be made to the courts and the court shall consider the application from the point of view of a prudent and just parent taking into account the position of each of the infant children. This obviously is intended to guard against people applying to the court and saying: "I want to be maintained out of the estate," when they are perfectly capable of looking after their own interests. In fact it is likely that such a person would not be entitled to maintenance.
I can see very little in favour of these amendments. I feel that to confine it to maintenance only would be inconsistent with modern attitudes towards education and the general duty of parents towards their children.
I listened carefully to Senator FitzGerald's case, and while I sympathise in general terms with it, at the same time, I think he failed to establish his case. There might well be a continuing moral duty on parents to leave something to a son or a daughter who had reached the age of 21 years. Senator O'Kennedy gave the example of the university student. A person might be half way through some period of training and in such cases it is possible that he would be placed at a disadvantage by an unjust or an imprudent testator. There is also the case of an adult daughter on the farm who has contributed very considerably in an almost unpaid capacity to the building up of the value of the farm. She might be placed at a serious disadvantage by the testator. Therefore, I would have confidence in the discretion of the court. I think the section as it stands is better and covers a wider number of cases than the amendment.
I think the case against the amendment has been well made by Senator O'Kennedy and Senator Sheehy Skeffington. I considered very carefully at the drafting stage of the Bill the question of whether we should leave full discretion to the court or have restricted categories of dependants and I came down on the side of leaving full discretion to the court. The more one thinks of this the more one can arrive at an infinite variety of cases where there is a moral duty owing by the parents to children outside whatever restricted categories one might devise. I do not agree with Senator FitzGerald's narrow definition of moral duty. A moral duty is a duty owing by one person to another and the circumstances in which such a moral duty arises can go beyond the moral duties of parenthood. However, here we are dealing with the moral duties of parenthood.
Senator O'Kennedy raised the question of education. Quite obviously in the society in which we live, and in the society of the future, this will arise to an ever-increasing extent. There will be the moral duty owing by the parent to the child for the continuation of a higher education. There is also the more usual case in rural Ireland—and anyone who has knowledge of rural Ireland will bear me out—of the daughter who remained at home to look after her parents and who, by reason of that sacrifice, has probably missed her prospects of marriage. The other sons and daughters have gone from the home. She may be over 21 years, or 31 years, or 41 years, and have lost her prospects of marriage. Surely there is a moral duty owing to her in those circumstances?
I do not want to go into the infinite variety of cases there are. I must come down very strongly on the side of the broad phraseology of the section as it stands. The section provides that, where the court is of opinion that the testator has failed in his moral duty to make provision for the child, the court may order that such provision shall be made for the child as the court thinks just, and I think that is better than the narrow category of moral duty which arises from the introduction of the test of infancy. Similarly, I think the attitude in regard to maintenance in Senator FitzGerald's amendment is again too restrictive. The mere maintenance of a child during infancy may not meet the infinite variety of cases, some of which I have mentioned. It is better to leave it to the discretion of the court.
It is a pity the Minister did not do that for Part IX.
It is a question of how far one thinks one should go to impose on people by legislation the duty of being moral. How can you define "moral"? This is a matter of judgment and opinion. One obviously goes a certain distance. There are some things in this Bill which are desirable because they impose on people an obligation to carry out a moral duty of a specific character, although I would draw the line slightly differently from the Minister.
Points made in the discussion suggest that the amendment as drafted is unsatisfactory. I was absent from the discussion here on Committee Stage. If I had been present, I would, no doubt, have learnt from it at that stage and this amendment might have been better formed. I believe that there does not exist a moral duty of a kind we should enforce between a parent and an adult child capable of earning his living and standing on his own feet. This does not seem to me to be the kind of moral duty the Legislature should enforce.
I was very interested in Senator Sheehy Skeffington's speech in favour of the system of hereditary capitalism and I was very startled to find myself to the left of him in this respect! This determination that property should pass on to the next generation seems to me something we cherish unduly and we are, in this respect, I feel, a little too bourgeois—but Senator Sheehy Skeffington might not perhaps agree with me on that!
Senator Nash raised this point on Committee Stage and this amendment is designed to meet the point to which he gave expression. It is proposed to delete subsection (1) of the section for the very practical reason that legacy duty and succession duty have been abolished in this year's Finance Act in the case of spouses and lineal decendants. There is, therefore, no need for the subsection.
There is no doubt about that.
I move amendment No. 44:
In page 40, lines 13 and 14, to delete "in chambers" and substitute "in such part of the courthouse as the judge may determine, without pleadings and in private."
This amendment and amendment No. 49 are related.
Yes; they are on the same ground. Since Committee Stage, the House may have noted perhaps that I had occasion to visit some of the courthouses in the West, and what I had to say on Committee Stage about the size of the judges' rooms in some of these establishments —perhaps Senator Flanagan can bear me out in this since he was county surveyor for Mayo for a great number of years—is still valid. There is no doubt that the judges' rooms in the West of Ireland—and I should think it applies equally to many other parts of Ireland—are such that it would not be possible to fit five people in at a time; therefore the requirement that these applications to a judge should be made in chambers is a physical impossibility.
I recognise the point raised by the Minister on the last occasion that it is desirable to have these applications with the minimum of formality and as inexpensively as possible, and in this amendment I make it quite clear that the "in chambers" type of hearing will continue, that it will be heard in such part of the courthouse as the judge may determine, without pleadings, which means there will be no formality, and in private. That gives the maximum privacy to the persons making the application. To require judges, litigants and their legal advisers to try to fit themselves into some of the judges' chambers in courts in this country is unreasonable because of the size of these rooms and indeed in some cases the condition in which they are kept.
The Minister on the last occasion said that the size of these places and their condition were matters for the local authority. That is so, but every local authority has to deal with other matters, such as the housing of the poor, improvement of hospitals, and so on, and I would think that the building or renovation of courthouses takes a very low priority among the priorities of local authorities. Consequently we may expect that in the next 20 or 30 years the judges' rooms in courthouses throughout the country will be inadequate for the kind of proceedings we contemplate should be heard here.
The Minister also said that what would happen was that the judges would take these applications half an hour before the court sat. I do not contemplate that there should be any such summary disposal of business before the judges in chamber, because these things will involve perhaps the disclosure of a fairly lengthy family history, an offer by one party justifying what the deceased has done and a submission by the other party to show that the deceased's actions were unreasonable and prejudiced.
It would be a gross mistake to think that this can be dealt with in the same way as an income tax appeal, where the matter is laid out on a balance sheet and the question arises as to whether or not a particular property or income is assessable to income tax. That will not apply in cases of this kind where you are dealing with family affairs which are always tedious and tortuous. Nor indeed do I think it would be fair to the family concerned that they would get a public hearing. Consequently, the appropriate way to deal with this is to ensure that all reasonable accommodation is given to the parties involved, and that certainly cannot be done in the numerous judges' rooms provided in courts throughout the country.
Before I conclude, may I say that "in chambers" means—according to the way it has been defined in law—"in the judge's room". It is useless to say that the judge can decide that he will hear it in any other place in the courthouse he likes. That is not the definition given in Stroud's Legal Dictionary. "In chambers" means "in the judge's room" and it would be physically impossible in a number of judges' rooms to have decisions elsewhere. If the Minister has a Supreme Court decision I certainly will feel bound by that but I have not been able to uncover such decision. The Minister has greater facilities than I, with the staff he has at his disposal, and I shall be glad to hear of it. He should have interrupted me much earlier.
I am not aware of the view the Minister may have. In my opinion the amendment, although it appears to give greater flexibility, in fact, appears to me to make the position more inflexible because I believe "in chambers" is a well-known term. It is something which can be interpreted rather loosely and which could mean in certain circumstances, for instance, in one of those remote and dilapidated courthouses which Senator O'Quigley describes down in the west on Ireland——
And which Senator Flanagan can vouch for and, perhaps, accept part of the responsibility for.
In circumstances such as these, I believe the judge could decide to sit, for instance, in a room in his hotel, if necessary. Consequently, by limiting it here, as this amendment does, to the courthouse is, in fact, making the position less flexible than it is at the moment. I am entirely against this amendment.
This discussion is largely academic. We are all of the one mind in seeking to have the proceedings concerning family matters carried out as expeditiously and inexpensively as possible and with as little fuss as possible. Senator O'Quigley seeks to define the way in which this is done, rather than using the well tried legal phrase "In chambers" to describe such a procedure. There is a danger in this very definition and it is better to rely on the definition which has been used by the Supreme Court in the case of the Redbreast Preserving Co. Limited, 91. I.L.T.R. 12. In that decision the Supreme Court defined the term "in chambers" as "a place, other than a court to which the public are freely admitted". The practice has been that the judge sits wherever he considers most convenient to everyone, in fact, any place to which the public are not freely admitted. Therefore, in his hotel room, or anywhere else convenient for the purposes of the suit, meets the case. It is a term which has been defined in a Supreme Court decision. This is the term which meets what we want here, that is, to have these proceedings conducted in private.
I shall not delay the House if the Supreme Court has so ruled.
That is very big of the Senator.
We shall take amendments Nos. 45 and 46 together. I want to draw the attention of the House to a misprint which occurs in amendment No. 46. The amendment reads:
In page 40 to delete lines 17 to 42 inclusive.
That should read as follows: "In page 40 to delete lines 17 to 19 inclusive."
I move amendment No. 45:
In page 40, between lines 16 and 17, to insert the following section:
"(1) A person who feloniously kills another and who is sane at the time of the offence shall be precluded from taking any share in the estate of that other.
(2) A person who feloniously attempts to kill another shall be precluded from taking any share in the estate of that other except under a will or other instrument made after the date of the offence."
In fact, amendment No. 46 involves the deletion of subsection (1) of section 119, if the first amendment is accepted. The second part of amendment No. 45 reads:
A person who feloniously attempts to kill another shall be precluded from taking any share in the estate of that other except under a will or other instrument made after the date of the offence.
Perhaps I should require, in the latter part of subsection (4) of section 119, that they should be precluded from taking any share in the legal right or on intestacy. But, there are cases of, perhaps, attempted murder which must be technically classed as attempted murder. Under this section we are taking away the right of—let us call him the victim—to forgive. I feel we should leave it to him. Perhaps, through some temporary lapse, which could not be classified as insanity in any way, a person attempts to, perhaps, assault or goes very nearly as far as what might be classified as attempted murder. We are, under this Bill, precluding such a person for ever from taking any gift under the will of the victim. I think such people should be allowed to forgive the person, if they thought fit, and in a latter instrument or under a will should be allowed to leave or give some of their property to that person. It should be a right left to them, and left to them alone. We should not take it away from them.
I agree that a person who murders must be precluded but I think an attempted murder might be an offence, perhaps, which can only be technically classed as an attempted murder. That is, in the case of a person who cannot be found guilty of insanity. I feel that person will, very often, be forgiven. I feel we should leave it open to the victim to forgive the offender, if he thinks fit, and give some of his property, later on by will, or by some previous instrument.
I would ask the Minister to accept subsection (2) of amendment No. 45 particularly.
Subsection (1) of section 119, as amended by an amendment of mine on Committee Stage, now reads:
A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other.
What Senator Cole is seeking to exclude is attempted murder which, to put it mildly, is a very serious offence, probably the next most serious offence after murder itself. The example given by Senator Cole related to an insane person, but, when the crime is committed by a sane person, public policy in the North and in Britain has been that that person is not entitled to benefit from his or her crime. Senator Cole's amendment would mean that if a man in all sanity sets out to attempt to murder another man, he will be allowed to benefit from the will of the man whom he attempted to murder.
But not from the crime, which is the point at issue.
Subsection (2) of the amendment says:
A person who feloniously attempts to kill another shall be precluded from taking any share in the estate of that other except under a will or other instrument made after the date of the offence.
I shall give an example which has just occurred to me. Senator Cole's amendment would mean that if one person intimidates another by attempting to murder him, and, by reason of that intimidation, secures a will in his favour from his victim, that person would benefit under that will.
The will would be invalid.
The will would be set aside easily.
In the Crippen case, the famous case of the wife murderer, it was very categorically laid down that a man is not allowed to have recourse to the courts to claim a benefit from his crime.
It only arises in the case of murder.
If a person attempts to murder another person, it has always been public policy that that person should be excluded from taking anything from the estate of the other. Senator Cole seeks to say that the person who attempted to murder should be allowed to take a bequest from the person he attempted to murder. It is fundamental to public policy that that situation should be precluded.
Did the Minister say it is the law of the land?
At the present time and for very many years the common law principle has been that murder and manslaughter preclude a person from benefiting.
What about attempted murder?
Attempted murder is a more serious matter than manslaughter. Surely it is illogical to say that manslaughter and murder will preclude a person from benefiting and that attempted murder will not?
If it is manslaughter, he will benefit from the crime; if it is attempted murder, he will not.
I utterly fail to see the logic of this. In the categories of crimes, murder is the most serious, attempted murder second and manslaughter third. Murder and manslaughter prevent a person from benefiting.
What happens if there was attempted murder and a few years afterwards the two became friends? This could happen. Is there a question of precluding that man from benefiting?
He could make a gift to him if he forgave him during his lifetime. He cannot make a gift to him in his will.
Why should a person be forced to make a gift to the man in his lifetime rather than leave it in his will?
I do not see the reasoning behind that at all. The rule is designed to meet the type of case I mentioned here where a man, in the course of attempted murder, may intimidate the person to make a will in his favour and, in the course of this intimidation, kill him. As regards the case which Senator McQuillan mentioned, that can be taken care of, if the crime is afterwards forgiven, by way of a gift during the injured party's lifetime.
It can be taken care of by gift but supposing the man cannot afford to make that gift during his lifetime and that he wants to will it after death, is he still precluded?
That is precisely what is envisaged, that he is precluded and it would certainly be illogical to have the more serious crime of attempted murder excluded and the less serious crime of manslaughter included.
What about treason?
That is not a personal crime. That is a crime against the community. We are dealing here with personal crimes, person against person. In this case we are attempting to have attempted murder included.
(Longford): Is there a clear definition of manslaughter in this context? Perhaps there is a legal definition of manslaughter. I know people have been charged with manslaughter in the case of death as the result of a motor car accident. Would a person who killed the testator with a motor car and who is thereby deemed to be convicted of manslaughter, be debarred from benefiting under the will? I want to get it nailed down whether there is a clear definition of manslaughter in this particular context.
There is one offence that is known as manslaughter in criminal law. In certain circumstances, that could include killing by a motor car but the circumstances are so remote that there have been very few manslaughter convictions over the years for dangerous driving causing death. There have been so few cases that it was necessary in the 1961 Road Traffic Act to introduce a list of offences to deal with that particular category. I would certainly defend manslaughter being introduced if a jury of 12 men brought in such a verdict. It would have to be very serious to justify such a verdict.
The Chair suggests that the latter part of this discussion would be more appropriate on amendment No. 47.
I am not sure that what I have to say relates to amendment No. 47. I am a bit unhappy about this amendment. I think the Minister would rightly say that a person should not be allowed to benefit from the consequences of a criminal act, particularly murder, attempted murder and manslaughter. This is a pretty general principle of the law but distinction should be drawn between murder and manslaughter on the one hand and attempted murder, on the other. In the case of murder, a death has been caused and the person who has caused that death cannot be allowed, in law, to benefit from the consequences of his act. He should not be allowed to benefit because of that act. Death has not resulted in the case of attempted murder, which is a very grave and serious offence. As Senator McQuillan has said, 20, 30 or 40 years could elapse and the person who attempted the murder might receive some benefit from the person whom he had attempted to murder. I would be a little unhappy if I thought the person who had been attacked was precluded from making a will in favour of his attacker of some years past.
That is where the distinction should really be drawn. Murder or manslaughter is a definite and final act which would confer immediate benefit on the person who brought about the death. I can see the Minister's difficulty in connection with the person who, by force, or by threat, attempted to kill a person, but, again, I think the difficulty there would be more apparent in that the will made in such circumstances, if there were evidence on which to challenge it, could not possibly be upheld in our courts. I feel there is a real point in Senator Cole's amendment and that it is one that is worthy of consideration.
I should like to pursue the line followed by Senator O'Kennedy. The Minister has said he cannot see the logic of this amendment. I must confess I cannot for the life of me see the logic of the Minister's argument against it. The Minister has argued that he is, in fact, giving mere statutory force to the common law principle that a person cannot benefit from his own crime. He then proceeds to argue not from the issue that there is any benefit from the crime of attempted murder to the person who attempted the murder, but rather just because attempted murder is a serious crime. The principle he has invoked of a person not being able to benefit from his own crime bears no relation to whether or not that crime is serious. If he wishes merely to give statutory force to this principle he must, indeed, convince us that there is real benefit flowing from the crime of attempted murder. As Senator O'Kennedy said there is a very clear distinction here, and I would urge the Minister to distinguish between the principle of not benefiting through the commission of a crime and the completely different matter of the degree of seriousness of the different crimes. If the Minister attempts to hold hard on this principle he is not, in fact, adhering to the common law principle. He is saying that attempted murder is so heinous a crime that it must be punished in this way. This is a new departure. This is a new sanction against the crime of attempted murder and it is not in line with the principle he seeks to invoke.
I should like to support what Senator O'Kennedy and Senator Dooge said. I wonder is the Minister under a misapprehension on this point. He started to argue that people should not benefit from the consequences of their crime and he changed feet with remarkable suddenness when he realised where that was leading him. He must have an appreciation of what is involved here. It seems to me absolutely intolerable that a man should be forbidden to forgive another. If he wishes to exercise Christian charity and decides to leave something to someone who attacked him in the past, near or distant, we should not intervene to prevent him from doing that on purely specious grounds. This is introducing a completely new principle that if a serious crime of some sort is involved a person should be precluded from leaving something to the person who committed the crime. There is also the crime of assault in which the person who was attacked might suffer more than the person who was the victim of attempted murder. There are other serious crimes such as the crime of incest. The Minister has made no case. In the course of the discussions we have made a number of points and the Minister has made a case and come down on one side or another. This is the first time he has totally failed to produce any logical or coherent defence. I appeal to him in the light of the opinions that have been expressed from both sides of the House to reconsider his decision.
(Longford): It depends on what we mean by attempted murder. It is a question of distinction. If attempted murder means what I think it means, it means murder.
If the Senator wishes to ask a question he may do so, but he has already spoken.
(Longford): I am inquiring what attempted murder means. I seem to understand that it means——
The Chair will allow the Senator to ask a question.
Despite all the legal and academic argument on this matter I think Senator O'Reilly has hit the nail on the head. Attempted murder is murder that does not result in the person's death. In order to be found guilty of attempted murder the same proofs are required as in the case of murder itself. It is an accidental sequel to the act that the person does not die.
He does, so far as the Minister is concerned.
In so far as the investigation by the law into the matter is concerned, the proof for a conviction in the case of attempted murder is precisely the same as in the case of murder.
On a point of order, is the Minister answering a question or making a speech?
I am allowing the Minister to answer a question.
I should like to support the case made so strongly on both sides of the House and put so well by Senator O'Kennedy. I appeal to the Minister even in the dying stages of the Report Stage on the Succession Bill——
Which he has attempted to murder!
——to listen to the arguments and to use his own judgment. We have appreciated the Minister's approach to the Bill. I do not think it is too far-fetched to suggest that there could be a case of attempted murder and years afterwards the victim might marry her assailant. She would be prohibited from leaving any disposition in favour of her husband as he would be at that stage. I think the common law principle which has been invoked does not hold because there is no question of immediate gain through the act. I think it would be an offence against Christian charity if such a disposition could not be made.
I think Senator FitzGerald is right when he says the Minister for the first time has been wrong.
That is not what I said.
There is a sharp distinction between the victim of an attempted murder and the victim of a murder. One is alive and the other is dead. It is quite clear that the dead victim will not have an opportunity of changing his will or signifying his forgiveness, in a material way at any rate, whereas the victim of an attempted murder quite clearly is in a very different position. With respect to Senator O'Reilly and the Minister I think this difference between being alive and dead is worthy of notice.
(Longford): The only inevitable thing in life is death.
Most of the points have been very fully answered already. This is not the case of a person who benefits as a result of his attempted murder. This is a case where the person attacked forgives his attacker. I cannot put it in any plainer terms. He forgives many years afterwards and he wishes to leave something to this man for conscience's sake, or for his own sake. He says: "I will leave him money in my will, to prove it". In any case, he decides to give this person something later on in life or in his will. I think it would be appalling that we should stop that man from doing it. That is the gist of the matter. I feel that if the Minister consulted his moral advisers or even his theological advisers, of whom we have heard, he would then accept the principle involved here. If somebody attempts to murder me and if, years afterwards, I want to leave that person something in my will, I do not think it right that this House or anybody else should stop me from so doing.
Very well. We shall delete "attempted murder" from the subsection.
It will come in, then, under subsection (4).
(Longford): If the Senator had ten or 11 years——
It will not come in under subsection (4). I have listened to the views put forward by the Seanad. I think there are two ways of looking at it. There may be something in the point that, if the victim lives and forgives the person involved, he may wish to leave him something by will. In subsection (1) as it reads at the moment—under my Committee Stage amendment—I shall simply delete the words "attempted murder"——
(Longford): After seven years.
Murder or manslaughter.
I did not mention manslaughter.
——provided the Seanad raises no further points.
I did not mention manslaughter in my amendment. It would come in under subsection (4).
On a point of order. Where are we on this? We were, in fact, having a Committee Stage debate and we shall not finish this Stage of the Bill this evening unless we preserve order.
The debate has been quite orderly. The Chair understands that it is a suggestion that the words "attempted murder" in subsection (1) be deleted. That may be done only with the consent of the House.
It is my amendment on the Committee Stage which is now part of the Bill.
To delete "attempted murder" from that.
Perhaps, with the permission of the House, we might describe this proposed amendment as amendment No. 46 (a). Perhaps we might dispose of Senator Cole's amendment first and then take on this matter of amendment No. 46 (a).
Some Senators seem to assume that I included in my amendment the word "manslaughter" but I did not do so. I purposely left that out.
I shall stick to manslaughter. The argument that most impressed me was that murder and manslaughter are final acts, that the killing takes place there and then, and from that killing, it should not flow that the person who committed the murder or manslaughter should succeed. We must stick to that principle. In attempted murder, there may be circumstances where the survivor may wish to forgive: it could arise, though only in exceptional circumstances. It is on that argument that I give way.
Will there be a consequential amendment on subsection (4)?
That is a separate principle altogether. I would not think so.
Now, with the permission of the House, we will take amendment No. 46 (a) which the Minister will now explain.
Government amendment No. 46 (a):
In the subsection inserted in Committee in substitution for subsection (1) of section 119, to delete the words "attempted murder".
This involves the deletion of the words "attempted murder" from subsection (1) of section 119, as amended in Committee, which states: "A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other." My amendment now proposes that from that subsection we delete the words "attempted murder".
(Longford): Would it be possible, in that regard, to ensure that a time——
The amendment has been disposed of.
I move amendment No. 47:
In page 40, line 39, to add at the end "provided that this subsection shall not apply in a case where the offence is one under section 53 (1) of the Road Traffic Act, 1961 or where the offence was committed more than three years before the date of death of the deceased or where the deceased by will or by other overt act forgave such person the offence.
This amendment provides that a person who has been found guilty of causing death or serious bodily harm, or against a spouse or any child of the deceased, will not be precluded from taking a share as a legal right or on intestacy where that offence was committed more than three years before the date of the death of the deceased and where the deceased, by will or other overt act, forgave such person the offence. Subsection (4) of section 119, in effect, notifies that where a person has been found guilty of an offence under section 53 of the Road Traffic Act that person shall not be entitled to take a share in the estate or on intestacy. Subsection (2) (a) of section 53 of the Road Traffic Act is, of course, designed to deal with the very serious offence of causing death or serious bodily harm to a person by dangerous driving. But there can be cases where a spouse or a child of the deceased can be found guilty of this offence and at the same time if the person affected by the accident, in the case of serious bodily harm, has forgiven that, then the person who caused the injury should not be precluded from taking a share in the estate, legal right or on intestacy.
If a father and son are driving from a football match and the son is driving and through a moment's inadventence which a jury would say is dangerous because he should not have passed out that particular lorry at that point knowing the amount of traffic on the road, and the jury would conclude that it was dangerous driving, that is not the kind of criminality that we have in mind in section 119. If the father should die intestate it would be the last thing that the father might wish. If the son has suffered the remorse of having killed him and had to undergo a trial and afterwards perhaps serve a term of imprisonment in addition why should you pile on the punishment by depriving him of a share in his estate? The same thing could apply in the case of a wife or a husband causing the death or serious bodily harm to a spouse. It seems to me and to a number of people with whom I have discussed it that subsection (4) as it is drafted at present would prevent the son or spouse in the cases I have just outlined from taking shares as a legal right in the case of the spouse or intestacy in the case of the child. The amendment should be accepted by the House to put beyond doubt that this is not the kind of criminal offence that we wish to punish.
There is another very important principle involved, and on this I am glad to see the Minister getting back to the common law. I was inclined to refer to the common law but I felt that the Minister being a progressive, forward-looking, non-feudal type of man would have no regard for the common law, and I am delighted to find we are going back upon this solid foundation of legal thinking. Under the common law it was always regarded that where a person who had been convicted of a crime paid the penalty imposed by society he should, therefore, be regarded as having purged his guilt and entitled as far as society is concerned to live without further disability. If a person undergoes a term of imprisonment and perhaps pays a fine for causing serious bodily harm to somebody such as a parent, then as far as the Legislature and public morality and society are concerned that person has paid the price of his criminal negligence, and when that has been done we should not visit any further penalties upon him or import into family relationships a penalty such as is provided in this paragraph. For that reason I would think that in order to remove this beyond all doubt the amendment which is here suggested should be accepted.
I cannot help feeling that this section could go a little bit more than was intended when this Bill was drafted. In the case of a person who merely suffers serious bodily harm as a result of an offence of this nature it does mean that he can point out to the victim, as it were, that unless the victim makes a will he cannot inherit anything from him, but of course in these circumstances the victim might be inclined to make a will so as to rectify the situation. However, in the case where a person was killed as a result of an offence under section 53 of the Road Traffic Act, then there would be no opportunity for the victim to rectify the situation, and it might be a situation where there was certainly dangerous driving but nothing in the nature of vindictiveness or an intention to harm the person or to kill him.
In these circumstances it seems to me that it is very hard that a person guilty of this offence should be deprived of the rights which he otherwise would have on intestacy or from the point of view of legal right. It is true, of course, that this may very seldom occur. It is also true that in the present situation and the present climate in regard to road traffic offences a Bill should not do anything that would tend to overlook the gravity of these offences or to play them down in any way. Nevertheless, it seems to me that this section does go a bit too far. Whether or not the amendment suggested by Senator O'Quigley is the most appropriate way of dealing with it, I think the Minister should try to mitigate it in some way.
We are concerned to a certain extent here with somewhat the same type of situation as on the last amendment. A case could arise, though it may be academic, where a husband and wife would be driving together in a car and the spouse who happens to be driving might be found guilty of dangerous driving causing the death of the other who was a passenger in the car. The husband or wife could throughout their married life have been perfectly worthy and indeed an admirable partner in every sense and because of one act which amounted to dangerous driving and which is irrevocable could thereby be precluded from the benefit which this Bill quite rightly intends to confer on husbands or wives who have lived together in proper married unions. For that reason I would support Senator Ryan's attitude that this particular case of dangerous driving causing death could deprive a spouse of the great benefits which the Bill is giving to him or her.
The Minister might draw his attention to this aspect, and he could go further in connection with dangerous driving causing serious bodily harm because in that case the person could survive and it would work greater hardship still. I do not think it is right that such a person should be precluded from taking a share as legal right or on intestacy, precluded from the new benefits which this Bill is conferring, and precluded also from the share he would have hitherto had. That would be a very severe penalty. A situation could arise many years later of an intestacy and because somebody had been found guilty of some such offence he would be precluded. Whatever about not giving the benefit of the new provisions under the Bill, I do not think he should be restricted from the benefits he would have had hitherto on intestacy.
I should like to support this. There is here a principle similar to that in the previous amendment. In certain of these cases a person must be entitled to forgive, in this case by some overt act or by will, and I do not see why we should stop him. As the last Senator said, it could in a few cases happen that where a husband and wife were driving together the wife through some lapse would be deprived of her livelihood, as it were. I think the Minister should look at that section.
There is a fundamental difference between this provision and the provision to the amendment to which I have already agreed. In the case of the murder, attempted murder and manslaughter issue which we were debating, the person so involved was precluded even from benefiting under a will. In this case the only penalty is that a legal right or intestate share shall not apply. However, the person can forgive in his will and make proper allowances for the person responsible for the type of offence set out here.
That makes the situation entirely different. I should like to emphasise that the offence envisaged here under section 53 of the Road Traffic Act is one for which a sentence of up to five years imprisonment can be given. It is one in respect of which very few convictions have been obtained since it was introduced under the 1961 Road Traffic Act. It is a very serious offence which goes on indictment to trial by jury. There are many road traffic offences for which imprisonment of up to six months can be given, but they are not included. The offence set out here is a very serious one. From reading leading articles, listening to comments and reading reports of accidents, it can be seen that the whole climate of opinion in this country is very seriously concerned about this problem of road traffic offences. It would be against public policy, particularly when the Government are contemplating further, more stringent road traffic measures, to delete this provision. The sort of driving involved here is very serious, very dangerous driving which causes serious bodily harm or a fatality. That is not the sort of driving for which a summary conviction can be obtained.
I should like to impress upon the Seanad the distinction here. I gave in on the previous section because of the plea that was made: why not allow the person to forgive? That was the plea that touched my simple heart. However, in this case the forgiveness can be implemented by the person who has suffered grievous bodily harm. The matter can be cured by way of will. Senator O'Kennedy mentioned the case of a man and wife together. Again, the sort of driving that would impel a jury to convict a man and imprison him for dangerous driving causing the death of his wife—orvice versa in regard to the wife causing the death of the husband—would have to be very serious and heinous driving.
He does not have to go to jail.
But it has to be a conviction for five years.
No. It must be an offence punishable by imprisonment for a maximum period of two years. In that instance, there would be no question of a suspensory sentence. It would mean jail, not necessarily for five years but certainly for six months, a year or 18 months. The main point is that for practical purposes the only case meriting sympathy that emerged from the discussion was Senator O'Kennedy's case of the man and wife. No jury in this country would convict a man and send him to jail, unless the offence was heinous.
I would ask the Minister to consider the case in which a man and his wife are travelling in a car and one or other is killed in a road accident where many other people are killed as well. On this account a judge and jury might well be disposed to settle for a prison sentence. Yet I do not think the spouse would want the husband or wife, as the case may be, to be without benefit of the legacy.
The legacy is not interfered with: that is the point I was making. This does not interfere with any provision made under a will. All it prohibits is the taking of a legal right share or an intestate share. However, the will stands.
Under the new legislation?
May I ask the Minister if in line 33 the word "maximum" should be "minimum"?
No. At first reading one might be inclined to say it was wrong but if one continues reading, it says: "maximum period of at least two years". Therefore, it must be two years or over.
Should it not be a "minimum" of two years?
It must be taken in conjunction with "at least": "a maximum period of at least two years".
I think Senator Miss Davidson may have a point in this because what is in the Road Traffic Act is: "shall be liable on conviction on indictment to penal servitude for any term not exceeding five years". What is sought to be established in this section is the kind of crime where the minimum punishment is two years, indeed even more than that, which certainly falls within the category of serious crime. I am not at all sure whether "minimum" is not the correct word. However that may be, it emphasises the need for reading this thing with great caution.
The Minister has spoken, and I do not disagree with him, about the seriousness of road traffic offences and the general climate of public opinion in regard to them. The truth is that there is not the same type of criminality feeling in the public mind about dangerous driving and careless driving as there is, say, about assault or rape or crimes of that kind. We dealt with murder, which we all abhor, and manslaughter, in earlier sections but in this section we are prohibiting a boy, driving his father and who causes his father serious injury or death, from sharing in the intestacy of his father. We are prohibiting a childless wife who has caused the death of her husband from getting anything on his death. You will get the man who will say: "God bless the Minister for Justice, I do not have to make a will because if I die without children my wife will get everything under the new Bill". Take the childless couple driving along. The property owner is killed and the surviving spouse is found guilty of causing death or serious bodily harm. The property owner may have felt that there was no need to make a will because under this Bill his wife would get everything.
I can see this being a good jury point.
It is a reality. It will come home to roost some day on some unfortunate spouse who will not bless those responsible for it. That person will be left destitute even for the crime of causing serious bodily harm. There is no limitation in the section. In section 53 of the Road Traffic Act, causing serious bodily harm merits punishment of up to five years. Here we determine the crime not by the amount of punishment meted out by the court but by assessing it at the level of a crime punishable by a maximum period of two years. Grave and serious injury will be done to somebody some day if we do not adopt this amendment.
I had a case of a mother and daughter driving home from Croagh Patrick, a most blessed occasion, one would imagine. The daughter was driving and going through a crossroads which she did not know because of the configuration of the houses, and right in the middle of the crossroads there was a head-on crash. She was brought up on a dangerous driving charge for causing her mother serious bodily harm. There was no doubt in the judge's mind that there was serious dangerous driving and it was touch and go whether that lady was acquitted. Thanks be to God for Mayo juries, she was acquitted. She might well not have been and who was to say that that mother, who got into the witness box to give evidence against her daughter, if she had died intestate would feel that she wanted her daughter deprived of everything? It is not in accord with experience or with humanity.
The Minister spoke about the seriousness of offences under the Road Traffic Act. The fact is that the Supreme Court does not regard the crime of drunken driving, which I regard as a more serious offence than mere dangerous driving—I regard it as a potentially greater crime—in that light. On the constitutionality of the Road Traffic Act, the Supreme Court decided that drunken driving was a minor offence capable of being decided summarily. That was an indication of the view there is on road traffic offences. I do not think anybody will want to have people deprived of their share of intestacy or legal right in this fashion.
Let us take the case I referred to of a childless couple. The property owner says he will not bother making a will because his partner will get everything on his death and the surviving spouse will be deprived of everything under the subsection as it stands. I urge the Minister to reconsider this and adopt the reasonable approach suggested in the amendment. If he does, nobody will blame him for it but many will commend him.
Is the amendment withdrawn?
The Minister may have something further to say.
I regard the debate as being closed.
I am pressing the amendment.
Unless the Minister wishes to make a special intervention——
If I delete "or on intestacy"——
I would agree with that. It would leave the legal right as always.
We are introducing a new provision here. The intestacy share is something people have had for years and there may be some merit in deleting the last three words.
The purpose of this amendment is to delete from section 119 (4) the last three words "or on intestacy" so that the punishment now for a person guilty of an offence as described in subsection (4) is deprivation of a legal right share. If an intestacy results, the intestate share or shares to which such people have been entitled heretofore continue to stand.
Would the Minister look at the maximum-minimum and see if he could simplify it? It is confusing.
It is, but I think any argument against it is an argument on grammar or drafting. When read in conjunction with "at least", it means that any person who is in peril of being convicted of an offence punishable by two years imprisonment or more is now being deprived of the legal right. I am assured by the draftsman that this is all right.
Could the Minister make it simpler?
At this stage it is rather awkward. It does not mean what it appears to mean at first sight.
That is to substitute "his" for "her".
This point, I think, was made by Senator O'Quigley and we are meeting him here.
I am glad the Minister was able to see his way to do that.
I move amendment No. 50:
In page 42, to delete lines 25 to 28 inclusive.
This is an amendment on which we had some considerable debate on Committee Stage. At one time I took the view that the section as it stood was seriously defective in that it abolished for all time holdings of tenancy in common on death intestate. The Minister seemed to have brought some light on the matter and I thought he was right. On re-reading the Bill, it seems that what we are now doing is providing that even where a person does take out a grant of administration or indeed proves a will—because subsection (2) refers to the personal representative of the deceased—the people entering upon the land, notwithstanding that they have taken the appropriate legal steps to put their title in order, will not be entitled to hold their shares as tenants in common.
On the last occasion the Minister pointed out that the defects or the abolition of tenancies in common of the holding of land upon death could be cured by taking out administration. I had some doubts about that and I referred to some statements the Minister made. I cannot put my finger on the particular column now but he made it clear that if a man died intestate, leaving a wife and children and they all enter upon the land, whereas at present those on the land acquire the shares of those out of possession as joint tenants but retain their own original shares as tenants in common, they could continue to retain their shares as tenants in common, if they took out administration. It is now clear, I think, when one looks at subsection (2), that even taking out administration does not retain the tenancies in common because it provides:
Subsection (1) shall apply whether or not any such person entered into possession as personal representative of the deceased, or having entered, was subsequently granted representation to the estate of the deceased.
That presupposes taking out a grant of administration or having entered into it, has subsequently been granted representation to the estate of the deceased. I do not quite follow how the Minister had in mind—he may be able to clear this up—that this could be cured. I understood from him that once we took out a grant of administration, whether a grant of representation or probate, the persons were entitled to hold the land as tenants in common but subsection (2) seems to eliminate that.
As I said on the previous occasion, suppose you had the case of two brothers remaining on a farm and even now if one took out a grant of representation and got married and there are four other children of the family away and living off the land, each of them originally would take one-sixth share as tenant in common and the two persons who remained on would in due time become owners of the other four shares as joint tenants. But I was instancing the case of one of the two brothers marrying and if he died, under this section as it is now drafted, even though he had taken out a grant of representation to his father, upon his death intestate, his original one-sixth share will go to the unmarried brother who has remained on the farm and the other four-sixths will pass by survivorship to the other brother who remains on the farm and he will have his original one-sixth as well so that the wife and family would have no share whatever in the holding.
That is the kind of case one meets not infrequently in rural Ireland. You do have the fellow who marries: the boy or the girl gets married and the other girl remains on. You do have this brother or sister relationship, the aunt or the uncle in the house with the married person and his or her family. It seems that under this section if the married person dies intestate, all the property upon his or her death will pass to the surviving brothers or sisters, as the case may be, who have been on the farm since the death of the father. I think that is very undesirable and consequently I think subsection (2) should be deleted to provide that where a grant has been taken out, they should still be entitled, as under the present law, to hold on to their shares as tenants in common.
I am aware the Minister can make the argument that if they take out a grant, they should then proceed to have the title registered in the Land Registry and the appropriate assents given in accordance with the provisions of this Bill. That is so. If people did what they ought to do, there would not be half the need for law and lawyers and court proceedings. Many people think that once they go to a solicitor and get him to take out a grant of administration and then keep away from him so that they will not have to pay his fees for years, once he has told them the grant of administration is out, everything is in order. That is what happens and will continue to happen. They keep away from the solicitor when the grant is out and eventually they will find themselves in the situation I have described, and instead of owning some land as they would under the present system as tenants in common, some share in the house or the property would be held as a joint tenancy, with the eventual result that the lot will pass to the survivor who in some cases may be an unmarried brother or sister and who will be in a position then to oust, as he or she wishes, the widow and children of the man who got married.
What we are concerned with in this Bill is to protect those people whose own incapacity or whose system of life exposes them to being deprived of what, in all justice, they should get. That is all we are trying to do when we introduce the legal right share and the making of other arrangements. The existence of subsection (2)—indeed I think the whole of section 124—is the kind of thing that will undoubtedly, again in that small number of cases, bring to them the kind of hardship that in other cases we are protecting people against.
It would be a serious hardship if many people who up to the present think that, having taken out administration, they are all right, find themselves in the position where they own nothing, believing themselves to own something. Consequently, I would press on the Minister the desirability of deleting subsection (2) so that in the case where a person takes the initial step to regularise his title and vest the property properly in himself, he will not find himself in the position the Minister says is good enough for the people who take no steps, pay no revenue and do nothing about putting their title in order.
I thought I had Senator O'Quigley convinced on the last occasion.
Until I saw subsection (2).
I think the Senator has come back to the stage of misconception he was at before I removed the misconception. This section does not apply to any case where administration is carried out. It is designed purely to cover any case where people are in adverse possession. Subsection (2) may appear to apply to a case where administration is taken out, but it does not, if you read it. It says:
Subsection (1) shall apply whether or not any such person entered into possession as personal representative of the deceased, or having entered, was subsequently granted representation to the estate of the deceased.
This is designed to cover the case of a person who enters into possession as personal representative—a person who may have been granted representation but has done nothing to adminiter the estate. This happens on many occasions. No administration takes place. A grant has been taken out but nothing is done about it. The personal representative can be in adverse possession just as much as those people who never took out a grant can be in adverse possession. In our system, where that adverse possession takes place for six years, it means you have much clearer title. You have two people remaining on as joint tenants, holding between themselves or between themselves and everybody else, as joint tenants. You have not a separate form of tenancy side by side whereby they hold as tenants in common. One or two sons may remain on in the family holding, the rest having gone abroad. If they remain on and make no effort in the way of administration but merely remain on for six years or more, they acquire as joint tenants.
A close reading of the section makes it plain that this applies whether or not representation was taken out or not. If they remain on for six years or more and do nothing about administering the estate, the acquisition of title by possession is as joint tenants, which I think is a good thing. If either of them makes an effort not alone to take out a grant but to administer the estate and register it, he is then registered as tenant in common and his right is preserved.
Will this section apply to actions going on at present? Will it apply to deaths intestate before the Act?
It will, yes. Where the adverse possession at the moment has begun, the section will apply.
I can see a good deal of force in the Minister's argument. I should be happier if I thought the kind of situation I feel will arise would not arise. This section will be a Godsend to the solicitors' profession, like many sections of this Bill. It is certainly going to make it obligatory on people to do things they have never done before or pay the consequences in terms of their shares in land and other property.
I do not know whether it is possible for the Minister, through any of the agencies of information he has available to him, to bring this section, which can have drastic consequences for some people, to their notice. People who are now tenants in common of particular parts of lands—if the Minister is correct in saying this applies to cases already in progress—will, on the coming into operation of this Act, become joint tenants and then section 124 applies. That seems to me to be rather drastic. I hope the Minister can find some widespread medium of communication to bring this to the notice of the wide variety of people who may find themselves in this position.
The Minister will be aware of the number of section 52 applications occuring in the Circuit Courts all over the country. This is going to change drastically the position of all those people who at present feel a certain sense of security under the old laws of distribution and intestacy, who felt they owned a real interest in the form of a tenancy in common of the lands. From now on, the situation will be quite different. I assume also if people want to sever the joint tenancy for the purpose of registration of title, they can do so?
I do not know if the section is worth so much when that can be done. I could see a great deal of logic in abolishing the system of tenancies in common in relation to agricultural holdings, but, if it can be severed, it seems to me that, while not doing a great deal of good, it can do a great deal of harm.
I shall certainly give proper publicity to these sections.
On a point of order, is the Minister entitled to speak at this stage?
Strictly speaking, no; but he is answering a question and I think he is in order.
I am trying to be helpful. I intend to give publicity to these two sections because I regard them as the two best sections in the Bill. The fact that now you can clear up title in any case—and there are numerous such cases—where people have not bothered to register or declare their tenancy in common by enabling a joint tenancy to be acquired in six years, not 12 years as heretofore, means you are going to have many more holdings than heretofore where title can be definitely established. That is the great merit in it.
Intestates Estates Act, 1884.
The whole Act.”
This amendment provides for minor consequential repeals in the Statute of Limitations, 1957. The reference to "co-parceners" in section 21 of the Statute is no longer relevant in view of the fact that coparcenary is being abolished by section 11 of the Bill. Section 22 of the 1957 Statute deals with possession by a younger brother or other relation of the heir-at-law and is no longer relevant or necessary in view of the fact that the heir-at-law is also being abolished by section 11 of this Bill.
Section 54 of the Bill repeals the Registration of Title Acts. That is not included in the list of repeals at the end of the Bill.
It is the very last one.
There was a change during the course of the Bill. There was an amendment which made a further amendment of the Registration of Title Act.
On Committee or Report?
On Committee. The first amendment passed on Committee Stage to section 54:
To add to the section the following subsection:
"( ) The Registration of Title Act, 1964, is hereby amended by the substitution of the following subsection for subsection (3) of section 61:
. . . . . . . . . . .
Although it is only a substitution, it is a change in the Bill. It should be noted at the end of the list of repeals.
I am advised that it is not strictly necessary.
The point is, it sometimes happens that there are repeals during the course of a Bill and there is a list of repeals at the end. It is most unsatisfactory, certainly for the practitioner, if repeals made in the course of a Bill are not mentioned in the list of repeals.
I understand that in this case it is not a repeal; it is an addition.
It is a substitution.
It is amended by the substitution of the following subsection. If "substitution" means what I think it means, it is a deletion.
I shall have a look at it. I cannot give any guarantee of doing anything at this stage.
The value of having this list at the end is that a person can see at a glance what Acts have been changed. If one wants to interpret the word "repeal" in a very limited way, a substitution is not a repeal but, from the practical point of view, if an Act has been changed, that is what one would want to find out. Substitution is certainly a change.
It is a practical point. I shall bring it to the notice of the Parliamentary draftsman and see what can be done. I cannot say what I will do.
I should like to make a few observations about the Bill and the debate in general. From the records I have here, we have debated this Bill over a period of five days and in the course of that time there have been 42 amendments of which 23 came from the floor of the House and the balance were from the Minister. The Seanad can take some satisfaction in that record, that we have made these amendments to the Bill on our own part and that the Minister has seen fit to accept quite a number of suggestions which were made on the Committee Stage and, in fact, accepted some of our amendments.
At this point I should like to say, from this side of the House, that we do appreciate the attitude of the Minister to the various amendments which were put down and the various points which were expressed from all sides of the House. One can only regret that the great opportunity which the Minister had in this Bill of covering himself with considerable glory was lost by him. Of course, he was riding a bad horse from the beginning. It came from the stable that bred the Bill that proposed to make it illegal for a man to leave the whole of his estate to his wife. That was the stable companion of this Bill. Of course, the Minister was carrying a great weight and was much handicapped in piloting this measure through the House. Having said that, it is as much as one can say against the Minister. He was labouring under that handicap. It is a great pity that he did not surmount it.
There was a great fund of knowledge, information and commonsense available in this House and the Bill which is now being passed bears witness to all of that. In a complicated measure of this kind, it is reasonable to expect that when it begins to operate and numerous lawyers and judges begin to look at it some defects will show up. If that does happen, and even if it happens to the sacred cow enshrined in Part IX, I do hope the Minister will take the necessary steps to amend the law in the light of experience.
I feel quite certain, judging by the open-mindedness the Minister has shown on this Bill and the generally reasonable approach he has adopted, that he will do just that and, if it turns out that Part IX is not what the form books would indicate, that the Minister will come back to the House with amendments, if it falls to him to do that. It is pessimistic on my part, I suppose, to expect that it will fall to him. I should say that a Minister for Justice will do that.
I do hope that in relation to such matters as require publicity, the kind of thing I was referring to on sections 124 and 125, the Minister will take the opportunity to bring these matters to the notice of the general public. It would be most regrettable, in connection with an enactment which is primarily designed to bring about improvements in the lot of people on the death of their relations, if their lot were to be disimproved by anything that is contained in this Bill merely for the want of adequate publicity.
I am glad that in the course of the debate the old business of this being a lawyer's approach, and so on, was knocked on the head by the Minister. Judging from this Bill, there will be more work for lawyers than ever before. That is the view of lawyers. Some of the amendments suggested here were designed to eliminate or reduce the need for legal assistance. I trust that when the Bill is launched by the Minister it will bring the rewards to which the efforts this House put into it entitle it.
I want to be associated with the tributes to the Minister for his handling of the Bill and for the very open approach he brought to the Committee Stage. What is in the Bill reflects the triumph of public opinion. It also reflects very much the willingness of the Minister to listen and learn. Both are excellent, coming after such a disastrous beginning as this Bill had. It was, perhaps, the worst exhibition of a misguided bureaucracy we have had in my period of eight years in the Seanad. Fortunately it has served its purpose. The public were awakened into an awareness and alarm, which was shown, and the alarm was shared by all sides of the House. The result is that we now have a measure passing which is almost unrecognisable from the first version printed. That is a triumph for democracy and one which we would not hesitate to use as a glorious example in the future.
It we wanted to add to that we might acknowledge the very valuable contributions made in this debate today by the front bench of the Government Party which, combined with all others, was instrumental in getting the Minister to accept a couple of very valuable amendments. All this is excellent. I would ask the Minister to continue the good work of listening and learning because they were the central features of this Bill.
The legal right provision seems to have a rigidity which may cause a great deal of trouble in agricultural and industrial circles and may cause a great deal of upset in the pattern there. The Minister should keep a watchful eye on this. He should invite those organisations, both professional and rural who helped and contributed so much over the past year and a half, to continue their watching brief and to see defects, whether they be defects in the Bill itself, or undue litigation caused by it. These defects should be brought to the Minister's notice, studied, and amended as soon as is practicable. If that is done, I think we will be will on the road to real law reform, a reform in which all sections of the community play their full and rightful part.
Again, we can do no more than congratulate the Minister on his open-mindedness and willingness. I might say it is only something we might expect from one who served a five-year apprenticeship and who cut his teeth on the PR Bill here in the Seanad with Senator O'Quigley strongly opposing him on that occasion.
I should like to add my few words, too, of congratulation to the Minister. I am a completely non-legal person and, when I put forward my views, the Minister approached them in a very reasonable manner and, if I might say so, a very human manner. He put in an amendment arising out of a suggestion of mine which will bring great benefits to widowed spouses under this Bill. We must all be most grateful to the Minister and, on behalf of myself and my colleagues, I would thank him very sincerely for his reasonable, kind and human approach to this Bill.
As one who was introduced to the Seanad round about the same time as the Succession Bill, I might say I almost regret its passing at this stage. I hope I may survive its passing for some little time. At the same time, I must say I have been encouraged by the attitude of the House towards this Bill. It was discussed from a non-political point of view. I feel that a Bill of this nature, dealing as it does with very human and day-to-day problems, should always be discussed in such an environment.
The Minister has certainly had a very difficult task on his hands, particularly on the Committee and Report Stages of this Bill. It comes very easily from me, on this side of the House, to thank him for the way in which he listened to all the amendments put to him and to the arguments, some of which he accepted and some of which he rejected.
Apart from some rather misguided remarks from time to time about the vested interests in this Bill, the House has done itself credit. Indeed, the Minister has proved that the general reform which has taken place in the administration of justice nowadays is something which leaves us all encouraged and in a position to look optimistically to the future.
I, too, should like to add my praise of the work of the Minister on this Bill. I think Senator O'Quigley deserves very great credit also for the very expert and detailed way in which he tackled this problem. He has given this Bill a real going-over. I think the public will be happy that his expert knowledge of the subject was brought to bear on it and he should have the congratulations of all the Members for the very great pains he took to ensure that every possible amendment he introduced would improve the Bill and for the very great work he put into it.
The debate on the Succession Bill, both in the Dáil and Seanad, proved one thing at any rate, that is, that law reform, or improvements in the law, are not only matters for lawyers. Lawyers, naturally, can bring their professional competence to bear on the problems involved, but these matters directly concern the ordinary citizen to a very important extent. Many of the more valuable contributions, both here and in the Dáil, came from people who were not lawyers and who brought practical points of view to bear on this matter. The law itself is concerned with protecting individual and his everyday behaviour in the community.
I should like to emphasise one point, that is, that this Bill was introduced by my predecessor precisely on the basis that it was open to public comment and public discussion. I continued his policy in that regard. I want to emphasise that point in case there were any misconceptions either here or in the other House. The whole purpose of the Bill was to enable public comment to be brought to bear on it. Both my predecessor and I felt that a Bill such as this, which will affect the rights of every citizen in our community, should be open to the most detailed scrutiny. Every suggestion put forward by the various professional bodies and by individuals in the way of representation to my Department and by all Parties in the Dáil and Seanad was given full consideration. I am very thankful for the many suggestions which came from all those quarters throughout the very lengthy discussion — now lasting over 14 months—on this Bill. I should like to thank, in particular, the Members of the Seanad for the very constructive debate we have had in this House.
I made an appeal in the Dáil to have this debate carried out on a non-Party basis. That was accepted in the Dáil but, even more so, in the Seanad, where there was a completely dispassionate and impartial investigation. That should be the first consideration in regard to law reform because one cannot in relation to law reform move too fast ahead of what people feel. We must come to grips with the 1960s in regard to improvements in our legal machinery, but, at the same time, it can be a mistake to run too far ahead of people's opinions. Reforms must secure acceptance from the community. It can do more harm than good if improvements in the law do not win favour from the people.
I feel that this Bill, due to the very lengthy discussion and the number of amendments which have improved it, will get a wide measure of acceptance from our people. I think it enshrines the fundamental principle which all of us had in mind that the surviving spouse should have a definite right under an estate, although we may have disagreed on the means of achieving that right. This Bill does it in a certain way. Senator O'Quigley and the Senator's Party in the Dáil wanted to do it in another way but we were all agreed that it should be done in some way. Our hope would be that the way which has been adopted by a majority decision of the Dáil and the Seanad will ensure justice for the surviving spouse.
Apart from that aspect, there were a number of other important technical matters in the Bill which have now been codified. Practitioners can now find in this measure the full body of law relating to succession and the rights of succession in regard to property. This is very important and I hope in the years ahead in other spheres of law where, at the moment, we have many dispersed statutes, we will achieve codification like this, so that, as far as the public and the practitioners are concerned, the law can be located in one volume.
It is important, I feel, as far as possible, that the law should be predictable and easily accessible. If we can continue this work of codification, I would like to see the body of laws easy accessible and available to the citizens where they may find their rights in one volume. That is the project on which the Law Reform Section of the Department of Justice is working hard at the moment, as well as other measures to improve the actual administration of justice itself.
I would like to say, in conclusion, there is no conflict in this sort of work or indeed in any work of Government between bureaucracy and democracy. The two can work hand in hand. I would like to pay a tribute to the selfless work of the officials in the Department of Justice, the Law Reform Section, who have been responsible to a large degree for the backroom work on this particular measure. Their work, combined with a critical examination by the public and a critical examination by the public representatives in the Dáil and the Seanad, has resulted in a measure of which we can be reasonably proud. I would like to thank the Seanad for their kind remarks to myself personally and I only hope that the justification for all of us will be an Act which will function satisfactorily in the future.
It is now 9.30. Could we get an indication of the wishes of the Seanad in connection with Item No. 4 before we start on it? I should like to know the wishes of the Seanad, if it is their intention to start on this?
It is a matter for the House to decide. On the last occasion there were a number of speakers still offering to speak on this motion. I imagine there will be a number of speakers still offering tonight and it could not conclude tonight.
I suggest, as it is so late and so cold, it would be more appropriate if we adjourned discussion of this motion until the next day.
May I suggest that from my experience, when discussion of a motion tends to drag, it is just as well to take every opportunity of using the odd half hour? Otherwise, we may not finish it next time or at any time. I should be inclined to use the odd half hour left, if the House will agree.
Could we have some indication when the motion could be discussed if we adjourned now? If it is put at the tail end of the day the next time the same thing could happen again. If time were allocated, we could be sure it would be discussed.
There is no possibility of my forecasting a time but I have no objection to continuing the debate tonight.
The Minister is available and the proposer wishes the discussion to go ahead. What are the wishes of the Seanad? Unless it is decided to the contrary, the matter has been ordered and I am now calling that the debate on No. 4, the motion in the name of Senator Sheehy Skeffington, be resumed.