Succession Bill, 1965—Report and Final Stages.

An Cathaoirleach

I suggest that amendments Nos. 1 and 2 be taken together.

Mr. O'Quigley

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.

Amendment, by leave, withdrawn.

Government amendment No. 2:

In page 6, lines 15 and 16, to delete "the 1st day of July, 1966" and substitute "such day, not earlier than the 1st day of July, 1966, as the Minister by order appoints".

Amendment agreed to.

An Cathaoirleach

The Chair suggests that amendments Nos. 3 and 9 be taken together.

Government amendment No. 3:

In page 6, to delete lines 28 to 30 inclusive.

Mr. B. Lenihan

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.

Mr. O'Quigley

Yes.

Mr. Garret FitzGerald

In fairness, I think the Minister should be given an opportunity of replying.

Mr. O'Quigley

If we are tied in that way by the rules of debate, we are tied.

An Cathaoirleach

It is agreed to go into Committee in respect of amendment No. 7.

Bill recommitted in respect of amendment No. 7.

Mr. B. Lenihan

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.

Mr. Garret FitzGerald

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.

Mr. O'Quigley

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.

Mr. B. Lenihan

Grant of probate.

Mr. O'Quigley

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.

Government amendment No. 9:

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.

Government amendment No. 10:

In page 14, to add to section 27 the following subsection:

"( ) This section applies whether the deceased died before or after the commencement of this Act."

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Mr. Garret FitzGerald

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.

An Cathaoirleach

The Chair has already ruled on the matter and is not to be subjected to criticism at this stage.

Mr. Garret FitzGerald

I was not in any way criticising the Chair. I was merely saying what I understand the ruling to imply.

Amendment agreed to.

Government amendment No. 11:

In page 19, to add to section 39 the following subsection:

"( ) Calendars and copies may be inspected in accordance with the directions of the President of the High Court."

Mr. B. Lenihan

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.

Mr. O'Quigley

I am glad to hear that.

Amendment agreed to.

Government amendment No. 12:

In page 20, line 2, to add: "This subsection applies whether the grant was made before or after the commencement of this Act".

Amendment agreed to.

Government amendment No. 13:

In page 21, to add to section 49 the following subsection:

"This section applies whether the deceased died before or after the commencement of this Act."

Amendment agreed to.

An Cathaoirleach

I suggest that amendments Nos. 14 and 29 go together.

Government amendment No. 14:

In page 22, to delete lines 34 to 41 inclusive and substitute the following:

"( ) A purchaser of any property to which this subsection applies, being the whole or any part of the estate of a deceased person, which has been conveyed by the personal representatives to any person shall be entitled to hold that property freed and discharged from the claims of creditors of the deceased and from any claims of the persons entitled to any share in the estate."

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Amendment agreed to.

Government amendment No. 15:

In page 22, to add to section 51 the following subsection:

"( ) This section applies whether the deceased died before or after the commencement of this Act."

Amendment agreed to.

Government amendment No. 16:

In page 24, to add to section 53 the following subsection:

"( ) This section applies to assents and conveyances made after the commencement of this Act whether the deceased died before or after such commencement."

Amendment agreed to.

An Cathaoirleach

The Chair suggests that amendments Nos. 17, 18 and 39 be taken together.

Government amendment No. 17:

In page 26, between lines 14 and 15, to insert the following subsection:

"( ) It shall be the duty of the personal representatives to notify the surviving spouse in writing of the rights conferred by this section."

Mr. B. Lenihan

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.

Amendment agreed to.

Government amendment No. 18:

In page 26, to delete lines 16 to 21 inclusive and substitute the following:

"( ) after the expiration of six months from the receipt by the surviving spouse of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the later, or".

Amendment agreed to.

Government amendment No. 19:

In page 26, lines 28 and 29, to delete "consents to" and substitute "authorises".

Mr. B. Lenihan

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).

Amendment agreed to.

Government amendment No. 20:

In page 26, line 42, to delete "right" and substitute "rights".

Mr. B. Lenihan

This is grammatical. It should be "rights" not "right".

Amendment agreed to.

An Cathaoirleach

The Chair suggests that amendments Nos. 21, 22 and 24 be taken together.

Government amendment No 21:

In page 26, lines 44 and 45, to delete "During the period mentioned in paragraph (a) of subsection (4)" and substitute "So long as a right conferred by this section continues to be exercisable".

Mr. B. Lenihan

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.

Amendment agreed to.

Government amendment No. 22:

In page 26, line 48, to delete "that subsection" and substitute "subsection (4)".

It is suggested that amendments Nos. 25 and 40 go together.

Mr. B. Lenihan

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.

Amendment agreed to.

Mr. O'Quigley

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

Would it not apply in the case of appropriation of a dwelling-house on an agricultural holding?

Mr. B. Lenihan

No. It is not a subdivision of land as envisaged in section 12 of the Land Act.

Mr. P. O'Reilly

(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.

Mr. O'Quigley

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.

Question put.

The Seanad divided: Tá, 18; Níl, 19.

Tá

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.

Níl

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.

Tellers: Tá, Senators Carton and McDonald; Níl, Senators Browne and Farrell.

Amendment declared lost.

Mr. O'Quigley

We are getting closer all the time.

Mr. D.J. O'Sullivan

It is getting warmer.

Mr. O'Quigley

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Mr. B. Lenihan

That is reasonable.

Mr. O'Quigley

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.

Mr. B. Lenihan

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.

Amendment put and declared lost.

Government amendment No. 28:

In page 27, to add to section 58 the following subsection:

"( ) The powers conferred by subsection (5) may also be exercised by the surviving spouse as trustee of any property of an infant appropriated in accordance with section 56."

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Amendment agreed to.

Government amendment No. 29:

In page 28, to delete lines 1 to 12 inclusive and substitute the following:

"( ) Property which has been conveyed by personal representatives to any person (other than a purchaser) shall, so long as it remains vested in that person, or in any person claiming under him (not being a purchaser), continue to be liable to answer the debts of the deceased and any share in the estate to the extent to which it was liable when vested in the personal representatives.

( ) In the event of a sale or mortgage of the property by a person (not being a purchaser) to whom it was conveyed by the personal representatives, or by any person claiming under him (not being a purchaser), the seller or mortgagor shall continue to be personally liable for such debts and for any share in the estate to the extent to which the property was liable when vested in the personal representatives.

( ) This section applies whether the deceased died before or after the commencement of this Act."

Amendment agreed to.

Government amendment No. 30:

In page 29, to add to section 60 the following subsection:

"( ) This section applies whether the deceased died before or after the commencement of this Act."

Amendment agreed to.

Mr. O'Quigley

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

I do not think the Minister and I are ad 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.

Mr. B. Lenihan

Not necessarily.

Mr. O'Quigley

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.

Amendment put and declared lost.

An Cathaoirleach

Amendments Nos. 32 and 51 may be discussed together.

Government amendment No. 32:

In page 30, between lines 43 and 44, to insert a new section as follows:

"(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.

(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.

(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant."

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Mr. B. Lenihan

I am told it is not necessary.

Mr. O'Quigley

If not, the section seems to be a useful one.

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 33, 34 and 37 may be taken together.

Mr. O'Quigley

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.

Mr. Cole

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.

Mr. B. Lenihan

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.

Tá

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.

Níl

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.

Tellers: Tá, Senators Browne and Farrell; Níl, Senators Carton and McDonald.

Amendment declared lost.

Amendment No. 34 not moved.

Government amendment No. 35:

In page 32, between lines 3 and 4, to insert in section 72 the following subsections:

"( ) The Minister for Finance may, if he thinks proper to do so, waive, in whole or in part and in favour of such person and upon such terms (whether including or not including the payment of money) as he thinks proper having regard to all the circumstances of the case, the right of the State under this section.

( ) Section 32 of the State Property Act, 1954 (which provides for the disclaimer of certain land devolving on the State by way of escheat or asbona vacantia) shall extend to the grantee's interest under a fee farm grant and the lessee's interest under a lease, where the State has a right to such interest as ultimate intestate successor.”

Mr. B. Lenihan

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 as bona 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 as bona 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.

Mr. O'Quigley

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.

Amendment agreed to.

Government amendment No. 36:

In page 35, line 1, to delete "of the intention" and substitute "to show the intention".

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Tomás Ó Maoláin

There was a consensus.

Amendment agreed to.

Amendment No. 37 not moved.

Mr. Cole

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.

Mr. O'Quigley

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.

Mr. B. Lenihan

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.

Mr. P. O'Reilly

(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.

Mr. Cole

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.

Mr. O'Quigley

Hear, hear.

Mr. Cole

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.

Amendment, by leave, withdrawn.

Government amendment No. 39:

In page 39, to delete lines 6 to 8 inclusive and substitute the following:

"( ) It shall be the duty of the personal representatives to notify the spouse in writing of the right of election conferred by this section. The right shall not be exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the later."

Amendment agreed to.

Government amendment No. 40:

To delete the subsection inserted in Committee before subsection (5) of section 114 and substitute the following subsection:

"( ) Where the surviving spouse is a person of unsound mind, the right of election conferred by this section may, if there is a committee of the spouse's estate, be exercised on behalf of the spouse by the committee by leave of the court which has appointed the committee or, if there is no committee, be exercised by the High Court or, in a case within the jurisdiction of the Circuit Court, by that Court."

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 41 and 42 are consequential and may be discussed together.

Mr. Garret FitzGerald

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 exist vis-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.

Mr. O'Kennedy

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.

Dr. Sheehy Skeffington

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

It is a pity the Minister did not do that for Part IX.

Mr. Garret FitzGerald

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!

Amendment, by leave, withdrawn.

Amendment No. 42 not moved.

Business suspended at 6.5p.m. and resumed at 7.30 p.m.

Government amendment No. 43:

In page 40, to delete lines 4 to 8 inclusive.

Mr. B. Lenihan

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.

Mr. O'Quigley

There is no doubt about that.

Amendment agreed to.

Mr. O'Quigley

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."

An Cathaoirleach

This amendment and amendment No. 49 are related.

Mr. O'Quigley

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.

Mr. E. Ryan

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——

Mr. O'Quigley

And which Senator Flanagan can vouch for and, perhaps, accept part of the responsibility for.

Mr. E. Ryan

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

I shall not delay the House if the Supreme Court has so ruled.

Dr. Sheehy Skeffington

That is very big of the Senator.

Amendment, by leave, withdrawn.

An Cathaoirleach

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."

Mr. Cole

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.

If it is manslaughter, he will benefit from the crime; if it is attempted murder, he will not.

Mr. B. Lenihan

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.

Amendment, by leave, withdrawn.

Professor Dooge

Will there be a consequential amendment on subsection (4)?

Mr. B. Lenihan

That is a separate principle altogether. I would not think so.

Amendment No. 46 not moved.

An Cathaoirleach

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".

Mr. B. Lenihan

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".

Amendment agreed to.

Mr. P. O'Reilly

(Longford): Would it be possible, in that regard, to ensure that a time——

An Cathaoirleach

The amendment has been disposed of.

Mr. O'Quigley

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.

Mr. E. Ryan

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.

Mr. O'Kennedy

Mr. B. Lenihan

It must be taken in conjunction with "at least": "a maximum period of at least two years".

Mr. O'Quigley

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.

Mr. B. Lenihan

I can see this being a good jury point.

Mr. O'Quigley

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.

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.

Amendment, by leave, withdrawn.

Government amendment No. 47 (a):

In page 40, lines 35 and 36, to delete the words "or on intestacy".

Mr. B. Lenihan

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.

Miss Davidson

Would the Minister look at the maximum-minimum and see if he could simplify it? It is confusing.

Mr. B. Lenihan

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.

Miss Davidson

Could the Minister make it simpler?

Mr. Lenihan

At this stage it is rather awkward. It does not mean what it appears to mean at first sight.

Amendment agreed to.

Government amendment No. 48:

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.

Government amendment No. 51:

In page 47, after the reference to the Settled Land Act, 1884, to insert the following:

“c. 71.

Intestates Estates Act, 1884.

The whole Act.”

Amendment agreed to.

Government amendment No. 52:

In page 48, in the third column, at the reference to the Statute of Limitations, 1957, to delete "sections 45 and 46" and substitute the following:

"In section 21, ‘co-parceners'. Sections 22, 45 and 46".

Mr. B. Lenihan

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.

Amendment agreed to.

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.

Mr. B. Lenihan

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.

Mr. O'Quigley

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.

Professor Quinlan

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.

Miss Davidson

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.

Mr. O'Kennedy

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.

Mr. McDonald

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.

Mr. B. Lenihan

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.

Question put and agreed to.

Tomás Ó Maoláin

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?

An Leas-Chathaoirleach

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.

Seán Ó Donnabháin

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.

Dr. Sheehy Skeffington

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.

Mr. Garret FitzGerald

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.

Tomás Ó Maoláin

There is no possibility of my forecasting a time but I have no objection to continuing the debate tonight.

An Leas-Chathaoirleach

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.

Seanad Éireann debate - Wednesday, 1 Dec 1965

Succession Bill, 1965—Report and Final Stages.

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Níl

Seanad Éireann debate -
Wednesday, 1 Dec 1965