Registration of Wills Bill 2016: Committee and Remaining Stages

Sections 1 to 18, inclusive, agreed to.
SECTION 19
Question proposed: "That section 19 stand part of the Bill."

It is not the Minister's prerogative to disagree. One of her Members must do that.

Question put and declared carried.
SCHEDULE
Question put: "That the Schedule be the Schedule to the Bill."
The Seanad divided: Tá, 19; Níl, 14.

  • Black, Frances.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Devine, Máire.
  • Gallagher, Robbie.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Terry Leyden and Diarmuid Wilson; Níl, Senators Gabrielle McFadden and John O'Mahony.
Question declared carried.
TITLE
Question proposed: "That the Title be the Title to the Bill."

Before proceeding to put the question on the Title, the Minister would like to say a few words.

Rather than calling a vote on every single section, which would have been a waste of everybody's time, I will put on record why the Government is opposing the Bill so that our reasons can be appreciated at least, if not understood. Before I outline our reasons, I would like to say that I acknowledge that the spirit of the Bill is incredibly well intended. We do not have an issue with the ideology behind the Bill. At first look, the establishment of register of wills is, in principle, a good idea. My colleagues agree with that. The problem is that the Bill before us today has a number of flaws, which are exactly the same flaws that existed in the first iteration of the Bill put forward in 2005 and the second iteration put forward in 2011. We are here for the third time and the Bill has the exact same flaws.

When the proposals were first mooted in 2005, the Law Society expressed concerns that the proposed registration would be voluntary and would therefore have very little effect because registration would not guarantee that the registered will was the last will and registration would not be proof of the will's validity. The Law Society recently confirmed these concerns, which we in Government share. We feel that legislation brought into operation without the support of the Law Society, particularly in this area, would not have validity.

The General Register Office, GRO, has also expressed serious concerns as to whether it would be the appropriate body to maintain such a register of wills if we were to establish one. The register would not record details of a life event, as is the case with every other register maintained by the GRO, and therefore there would not be an evidential basis for any of the details that could potentially be recorded as per the Senator's suggestions. This will have the potential to undermine the reputation of the GRO and all its existing registers, which are held in the highest regard and which enjoy the presumption of accuracy and reliability based on the independent evidence of the event they record. That would not be true with regard to this particular register.

On Second Stage a number of years ago, the then Minister for Social Protection and now Taoiseach, Deputy Varadkar, agreed not to oppose the Bill on the basis that the concerns I have just outlined would be addressed in co-operation with the Law Society and other vested interests. Unfortunately, I am not aware of that having happened. At a very basic level, a number of sections of the Bill also refer to me as the Minister for Health. Whether it is technical issues, ideological issues, or the fact that the Bill will undermine the real reputation and accuracy of the registers we have-----

On a point of correction, when the Bill was published in 2016-----

I was not finished speaking. Would it have been okay for me to finish?

The Minister did not table amendments when she could have. She is so clever now. By the way, the Minister did not even have the courtesy-----

That is not very respectful.

I ask Senator Leyden to let the Minister finish speaking.

It is no wonder Senator Leyden has no women in his party. That is all I will say.

We have fine women in our party.

That is a very backhanded comment. That is not worthy of ministerial office.

Senator Leyden's comment was not worthy of a Senator either.

The Executive should try to lead.

Question put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Question again put:
The Committee divided: Tá, 19; Níl, 15.

  • Black, Frances.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Terry Leyden and Diarmuid Wilson; Níl, Senators Gabrielle McFadden and John O'Mahony.
Question declared carried.
Bill reported without amendment.

When is it proposed to take Report Stage?

Now, by order of the House.

Question put: "That Report Stage be taken now."

I am asking the questions, not the Senators. I want no interruptions, please. I will put the question.

On a point of order, during the Order of Business this morning the House voted to take Report Stage today.

I am sorry but there are to be no be interruptions.

Question again put:
The Seanad divided: Tá, 21; Níl, 16.

  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Terry Leyden and Diarmuid Wilson; Níl, Senators Gabrielle McFadden and John O'Mahony.
Question declared carried.
Question proposed: "That the Bill be received for final consideration."

Senator Mullen indicated he wishes to speak.

I will not hold up the House. Before we move on to a final vote, it is important that we would remember that this is an important piece of legislation. Senator Leyden is to be commended for his persistence in bringing forward this legislation. This legislation has a long back story. I hope Senator Leyden's persistence will be rewarded with a landmark development this evening with its passage through the Seanad. It is important to remember that this Bill seeks to address a particular mischief or challenge relating to probating wills.

In some cases, the challenge is finding the wills in the first place. Senator Leyden's Bill is more than "well intentioned", to use the words of the Minister which are often used to patronise legislative initiatives in the Houses. The Bill is a timely and reasonable intervention. Admittedly, it will not solve all the issues and challenges in this area, but it will go some way towards making life easier for those making wills and those benefitting from them.

All Members know that wills attract considerable public interest. I am currently reading a book entitled Famous Irish Trials by Matthias McDonnell Bodkin which was written in the 1920s, the early years of this State. In it, the author tells the story of a serial will-maker in the 19th century who, as soon as he had decided to favour one party, would immediately disinherit them by making another will because the original beneficiary had perhaps cut down a tree to his annoyance or refused to donate to a charity in which a supporter of his was engaged. Lord Longford's estate was the eventual beneficiary of the will in question and that led to a famous 19th century Irish trial. I am sure most present remember the television programme "Glenroe", although Senator Warfield told me earlier that his memories of it are somewhat sketchy. Some may remember the character of Dinny Byrne, played by the great Joe Lynch, who was looking forward to benefitting from the estate of his late uncle Peter. It fell to Fr. Devereux, played by the sadly recently deceased actor, Dónall Farmer, to inform Dinny that there was no will or, as Fr. Devereux put it, "I am afraid Uncle Peter died intestate," to which Dinny responded, "I thought it was the heart."

With respect, we are not here to discuss "Glenroe".

Forgive the digression. Apologies. The Government's line on the Bill is pathetically thin. It contends that voluntary registration would offer no proof regarding the existence of a subsequent will or codicil, and is correct in that regard. Indeed, compulsory registration would not offer such proof either. The Minister also made the point that voluntary registration would not be proof of the validity of the will or that it had been prepared in the correct form. However, the idea that that would bring the registration process somehow into disrepute belongs to the Sir Humphrey school of argument.

It is the same kind of argument presented when we are told that certain proposals might have unforeseen consequences. If there is a system for the voluntary registration of wills, the public will be informed of what that means and what it does not. As I understand it, it will not mean that there may not be some other will or codicil in existence. A registered will would not necessarily not defeat any other will or codicil. People should not be led to believe that the registration of a will automatically means that that will is valid. However, the Bill would make life easier. Under the current system, solicitors doing probate must advertise, write to myriad other solicitors within the region and so on. A registry of wills will be an important and valuable first step in establishing whether there is a will in existence. That is why Senator Leyden's initiative is timely and to be welcomed.

The Government makes no strong argument other than to acknowledge the existence of the Council of Europe convention on the establishment of a scheme of registration of wills. Its best argument seems to be that Ireland has not ratified that convention, but that is no kind of public policy argument. The fact that such a convention exists bears out that Senator Leyden is not engaging in some frolic to attract a headline but, rather, is crafting good public policy of a kind that has already been envisaged in other jurisdictions. If it wishes to oppose the Bill, the Government should put forward a better argument than those it has advanced today. The Bill should pass. It will not be the end of the matter. It is important that we hear from various stakeholders such as the Law Society probate administration and trusts committee during the passage of the Bill through the Dáil. Its passage through the Seanad would advance a positive end effect and I hope it will so pass.

Question put and declared carried.
Question put: "That the Bill do now pass."
The Seanad divided: Tá, 18; Níl, 16.

  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Leyden, Terry.
  • Marshall, Ian.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Terry Leyden and Diarmuid Wilson; Níl, Senators Gabrielle McFadden and John O'Mahony.
Question declared carried.

I thank Members for their courtesy. The Bill will now move to the Dáil and I look forward to engaging further on it.

I thank the Minister for attending the House. It was not my intention to have any difference with the Minister. I am sorry if I did. It was unintentional in the heat of the battle and it certainly was not personal. I thank all those who voted for the Bill and those who voted against it. There is sufficient room in this Bill and I hope that the Dáil will pass it. Those amendments I mentioned are in the original Bill and they can be amended. Anything in this can be amended. If the Bill must provide for statutory powers rather than a voluntary regime, so be it.

I believe that the Minister and her Department can look at this. There has been resistance to this Bill from certain people in her Department for a very long time. I will say no more. There has been resistance from the Law Society of Ireland for reasons of its own. It is a protective organisation that protects its members and does not want them to take on other responsibilities. So many people have been deprived of their rights. Members have no idea. One of the great injustices in this country is the fact that we have no record or way of knowing whether a will was ever made. I will not go into any more detail. I would prefer to have much more information to hand. More than 30,000 people die every year. Only about 10,000 make wills. Perhaps people will be encouraged to make wills by this Bill. I ask the Minister personally if she will look at this in the cold light of day. I know she is up to her neck with Brexit and everything else at the moment. I ask her to look at it sometime. I would love to meet with her to discuss it. I would love her to adopt it and to take this on. If she examines the details she might decide that it is worthwhile to bring this Bill forward in government.

I thank the Senator. He can pursue that matter with the Minister outside the Chamber. I thank Members and the Minister.