Tuesday, 25 June 2013

Questions (481)

Andrew Doyle


481. Deputy Andrew Doyle asked the Minister for Justice and Equality if consideration has been given to provide for a register of wills in Ireland; if Ireland ever signed the Convention on the Establishment of a Scheme of Registration of Wills when drafted in 1972; if his attention has been drawn to any plans within the EU to draw up a directive on the administration of probate; and if he will make a statement on the matter. [30696/13]

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Written answers (Question to Justice)

Discussions between my Department and the Law Society concerning the possible establishment of a Register of Wills took place in 2005 in the context of a Private Members Bill to establish such a register. However, while such registers have been established in many countries, the discussions with the Law Society revealed a number of difficulties with the viability of any such scheme in this jurisdiction. For example, the registration of a will would not guarantee its validity, i.e. compliance with the statutory requirements concerning signature and witnessing of a will. It would not prove that the will had been property executed or that the testator had not been subject to undue influence. Moreover, there could be no guarantee that the registered will was indeed the last will of the testator. The most that registration could confirm would be that a particular will had been registered on a particular day; it could not confer any priority over later unregistered wills, nor would it provide any guarantee that a registered will had not been revoked or replaced by a later will. For these reasons, Ireland has not signed or ratified the Convention on the Establishment of a Scheme of Registration of Wills and there are no current plans to do so.

It is the case that many people die in this country without making a will, i.e. they have died intestate. The Annual Report of the Courts Service for 2011 indicates that of the 16,350 applications made to the Probate Office during that year, 12,520 (76.5%) arose from cases where a will had been made and 3,820 (23.5%) were in respect of intestacy cases. In some such cases, it may be assumed that death was unexpected, especially in cases of accidents. In other cases, a conscious decision may have been taken not to make a will, possibly because of reluctance to choose between potential beneficiaries or because the individual concerned was satisfied that the estate would be divided under Part 6 of the Succession Act 1965 which sets out clear and unambiguous rules for distribution on intestacy. An EU Regulation (650/2012) on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of successions and on the creation of a European Certificate of Succession was agreed in July 2012. In accordance with the Protocol No 21 on the position of Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland did not take part in the adoption of Regulation (EU) No 650/2012. Ireland took the decision not to opt-in to this Regulation on the grounds that, despite intensive negotiations, the final text of the Regulation would have interfered to an unacceptable extent with the manner in which estates are administered in this jurisdiction.