I should like to start this evening where I left off before the debate was adjourned. I was just beginning to comment on section 37 of the Bill, and I should like to deal with it in greater detail now. The Minister said he attached great importance to the need to provide adequate facilities whereby grants of representation might be obtained easily and quickly, particularly in the case of small estates. I think there is a very considerable misapprehension in this regard. It is not an unduly difficult or expensive job to get a grant of representation in the normal way through a solicitor. I feel that the way in which this matter has been approached is in itself indirectly and I hope unintentionally a slur on the legal profession and in particular on the solicitors' profession.
The Minister stated it was desirable on social grounds to ensure that the procedure should be as simple and inexpensive as possible for the ordinary person. In many cases, it is a simple matter but, for all that, even in a small estate, there may be unexpected complications. The suggestion has been made that this section should be amended by increasing the facilities for personal application for grants of probate or administration through local district registries. Figures have been given for the total number of cases where representation is raised. In 1962, the total number of grants issued was about 13,000: probably a very high proportion of the estates involved in those grants was small.
I cannot see how the Minister could set up an economic organisation through district registries which would deal with a large number of grants. Applying for a grant of probate of a will is not a matter of sheer mechanics. There has to be a very detailed interview between the client who is then the executor or administrator and, in normal circumstances, a solicitor and the solicitor must be and usually is a man experienced in such matters, a man who can ask the right questions and make sure that nothing has been overlooked.
The completion of the statement or schedule of assets is not an easy matter and it is all too easy for a lay person to forget to ask a question of the administrator or the next-of-kin as to the total amount of assets available in the estate. There are other matters to be dealt with such as the debts due against the estate, gifts made within the prescribed period before death, and so on.
I cannot feel, for the moment, that this sort of consultation, which is properly carried out at present between a solicitor and his client, can be substituted by a district registrar of probate. Quite apart from anything else, if you set up a man in such a post he will need a considerable staff and already, in the Probate Office, there are delays of two months or more. We have every reason to suspect that, far from this procedure resulting in increased speed, it will do the exact reverse. If the district registrar is to be available at a moment's notice to deal with every executor or administrator who may wish to see him, he will have to employ a very considerable staff and the rate of applications will not be steady. There will be peaks and valleys, as it were, in the rate of application, and we shall find that if the staff is sufficient to give prompt attention to anyone who may come into the office it will be far too great in the valley periods. I am sure, in the general way in which Civil Service staffing problems are tackled, that the staff will not be large enough. It will be slightly on the small side, at the very best, and will very shortly become increasingly in arrear.
Apart from the question of the time delay, I do not feel that people would ever have the same confidence in a court official as they would have in their own solicitor. This very personal cross-examination of an executor or the next-of-kin is something which can be very trying especially after a bereavement. It is a job in which a solicitor is well experienced and is able to be of maximum help. It is not that I have any particular grudge against civil servants. There are jobs which they can do far better than anyone else—the routine administration of the law, the routine interpretation of what the law means. All these matters are very proper to be dealt with by civil servants and right well they do them but where questions of discretion come in, where questions of confidence arise, I do not feel that any person, especially in a country area, would ever have that same confidence in someone who is merely an official of the court, however kindly he might be or however well qualified.
In his speech, too, the Minister stated that if people showed themselves unable or unwilling to comply with the law, that is, the law about taking out representation, it is the clear duty of the State to come to their assistance by providing the requisite facilities. I do not agree for a moment. I think it is laziness that stops people from taking out grants of representation. I do not think this proposal would alter that in the very slightest. If people are unable or unwilling to do what they should do, I do not think it is the clear duty of the State to come to their assistance in this way. I think it is a grandmotherly approach which I should like to resist to the very limit. People must be allowed to stand on their own feet and to carry out their responsibilities in their own way without having State officials taking them by the hand all the time.
There is a delay at present of eight weeks in the Probate Office and there is no sign, that I know of, of the arrears being overtaken. I was speaking to a solicitor only last night. He told me that this is the latest position. He told me, further, that he had been asked to act for an administrator in an estate of a total value of just over £500. He said to the administrator that he should make a personal application for a grant. When he found that it would be eight weeks before he could have any hope of getting an interview, he came back to the solicitor and said: "I shall have to get you to act for me or I shall never make any progress." The total fees in that case, as far as the solicitor is concerned, would probably be about 10 to 12 guineas. I realise that 10 or 12 guineas, out of £400 or so, is a fairly high percentage but the alternative would be an almost indefinite delay which could be a very great burden on the possible beneficiaries from the estate, particularly a widow who is urgently in need of funds and who could not get at the money in the estate until a grant is taken out. In a case like that when a solicitor takes over, he is in an entirely different position from that of a civil servant. A solicitor can go down to his own bank and say: "I wish to open an executor's account—or an administrator's account—in the name of the estate of AB. I have checked the assets and the total assets will be approximately £400. I should like immediate overdraft accommodation for the benefit of the widow up to, say, £150." No banker would refuse such an overdraft as long as the application is made properly by a solicitor with full knowledge of the facts, but you could not expect the District Probate Registrar to go down and raise overdrafts on that basis.
Another case which came to my notice recently was where an estate was being wound up with the assistance of a solicitor. The estate was not very large. The deceased had been an old age pensioner, but the solicitor was an experienced man and, as most solicitors do, he had retained custody of the executor's cheque book. As matters arose for payment, the solicitor drew the cheque and then handed it over to the executor with the advice that it should be signed. The amount of available assets was being reduced as the distribution continued, but the solicitor, by reason of his experience, had a sort of suspicion that somehow some debt might have been overlooked and he advised the executor not to distribute any further funds at the moment. He had almost decided that everything was in the clear when suddenly an inspector from the Department of Social Welfare arrived with a claim for £250 for overpayment of old age pension. Now, that is the sort of thing which a solicitor with his long experience can get a suspicion of in good time before an executor has disposed of the assets and created an almost intolerable position by having to try to get some money back to pay a just debt which has been overlooked.
There are many matters which can arise in a case of administration where a solicitor is obviously a better person to act than a registrar. Apart from anything else, the solicitor has many other jobs upon his hands apart from the administration of estates and consequently he can keep his office going on an economic basis during the valley periods when there are no estates for him to work on. That, however, is not the position with the District Probate Registrar. He will have times when he will not have half enough to do and other times when he will have far too much. A solicitor can and will give immediate attention to the estate of someone immediately death has been notified. A solicitor can step in at that stage and be of inestimable help to the family of the deceased and to the administrator or executor, as the case may be.
I should like to make a very strong appeal to people not to be afraid of going to solicitors. They are not the sharks they are made out to be. They are the butt of many jokes, but so are dentists and mothers-in-law, but people are very glad to have a dentist when they have a sore tooth and people are very glad to have a solicitor when they are out of their depth in legal technicalities of one sort or another. I appeal to them to leave their estates in the hands of qualified, responsible solicitors who will do the job properly for them.
Quite apart from anything else I have said so far, there is a great danger in the issue of grants direct to an individual. Granted, he may have bondsmen who are standing surety for him, but they may turn out to be men of straw, if the executor misappropriates the funds. There are numerous cases on record where people have realised the assets of the estate of a deceased person and disappeared. If a solicitor is engaged in this matter and if he defaults, there is an indemnity fund set up by the Incorporated Law Society which will indemnify the beneficiaries. If a man is acting on his own and defaults, there is no remedy. There is a tremendous temptation to a man if he is executor of an estate and finds his is the sole name in a bank account which has swollen to £800 and he suddenly thinks: "I could do a lot with that £800", and he cashes a cheque and is gone. We must protect the beneficiaries, the widows, the dependent children and so forth, and I would strongly recommend that we re-consider this whole question of facilitating the personal applicant for grants of probate or administration.
We should do everything we can to encourage people to do that through the legal profession in the normal way. The legal profession, through the Incorporated Law Society, should try to give better publicity to the fact that their fees are reasonable and people should always remember that solicitors' fees have to be agreed on by this House. They are scale fees and any increase in scale fees must come before us for approval, so there is no question of exploitation.
The Minister did try to differentiate between the machinery of applying for grants of representation and the subsequent administration of the estate. He pointed out that in his view the District Probate Registrar would simply prepare the papers necessary to obtain the grant of the will but he would not, of course, be able to give applicants legal advice. I feel that as so much of the work is done by the Registrar, people will be even more reluctant to go to a solicitor at that stage.
Another point that was made by the Minister is one with which I disagree. He says that it is important that the right of personal application should be preserved, on the general principle that every citizen should be free to conduct his own legal business and be facilitated in doing so, but the executor of an estate of a deceased is not conducting his own legal business at all; he is conducting the legal business of the deceased and in that capacity should be independently advised by a professional person. Therefore I would ask the Minister to reconsider this whole question. It may be that in the case of very small estates, some small extension of the rights of personal application might be advisable, but, in my view, any move in that direction is suspect, reflects on the legal profession and is something which I rather resent and which I hope will not go further.
On the question of intestate succession, and generally throughout the Bill, there is a very important matter which I feel is not being given quite sufficient attention. It is that these new rules as laid down in Part VI will remove the discrimination that previously existed between the husband and his wife. There has always been a tendency to regard the wife only as a member of staff with a very limited right and this Bill has gone a long way to putting the wife in her proper place as a joint manager with her husband of the family's affairs. The insertion of new rights of inheritance equally between husband and wife is an excellent move in the right direction.
Section 77 makes provision in regard to the execution of wills. The Minister has stated he will be interested to hear what Deputies might have to say on the matter. It is difficult enough to get a man to give instructions in the first place for the drawing up of a will and then to steel himself at the appropriate time to sign it. Somehow it often seemed a little difficult to have two independent witnesses, who would not be beneficiaries under the will, present while he signed it so that they could append their names as witnesses in his presence and in the presence of each other.
I should like to know how it has been suggested "while it is supposed to prevent fraud, it probably facilitates far more fraud than it prevents"? That is a quotation made by the Minister from a work entitled Reform of the Law. I cannot see how it possibly can facilitate fraud to ensure there can be two witnesses present at the same time as the will is being executed. I feel it is a generally accepted rule, one which is a protection to the testator, and something which makes the execution of a will something rather more solemn than the execution of a contract in the ordinary form. I would be sorry to see this go.
I would be very sorry, indeed, if we agreed to the new suggestion about the revocation of a will. It is always possible that a man in a fit of temper may write "revoked" across a will; but he may well have, and probably has, at the back of his mind that he is going to rub out that word very shortly as soon as his wife has been nicer to him or his son more dutiful. Just as the execution of a will is something very solemn and formal, the revocation should be equally formal. Apart from anything else, it could give rise to endless litigation to try to see whether the writing "revoked" was, in fact, the deceased's writing, whether the signature was his and so on. There are only two ways of revoking a will. One is by destroying it utterly, preferably in the presence of witnesses, and the second is by a completely new will. That has always been our tradition and law up to now, and it is far better that it should remain that way.
Now we come to the contentious part of the Bill, Parts IX and X. This is the part to which Deputy John A. Costello confined most of a very able speech indeed. It has been stated there was no demand for such a new breakthrough in the law reform. Deputy J. A. Costello was quite categorical about it. At column 480, volume 213, No. 4 of the Dáil Debates he stated:
I do not agree that this problem is a small one; I think it is a sizeable problem and it is a problem that does call for some remedy.
At column 481, he went on:
There are wills made and a considerable number of inofficious wills, as they are called, that is, they do not carry out the obligations to the family.
There has been no public demand for it because the public has been unaware of the situation. But when you get a man of the experience of Deputy J.A. Costello stating this quite categorically —that there is a problem here, that it is a sizeable one and that there is a considerable number of inofficious wills—that ought to satisfy everybody, both Government and Opposition, that some legislation on these lines is absolutely essential.
Deputy J.A. Costello said he did not think our people were yet ready for such legislation. I would agree with him there. But unless we introduce legislation along these lines, they never will be ready either. We have gone along in the same old way far too long already. This is the time when we have got to try to snap out of it and make sure our law is made really just, so that people cannot be left destitute owing to the prejudice of a father of a family.
I feel, however, that this is a very difficult problem to solve. There are two schools of thought. One favours a very strict code, which lays down fixed proportions which must be distributed among the various members of the deceased's family. I am not in favour of that. Then there is the suggestion that it should all be left for final decision by the courts—that a man should be free to make any will he likes on the strict understanding that his behaviour may be questioned subsequently in the courts, without giving the courts any definite yardstick by which they can decide whether the will is officious or inofficious, just or unjust.
These are matters which have already received a tremendous amount of consideration in other countries. The Minister in his opening speech referred to a lot of the history of the developments in other countries. I feel we have not had nearly enough time to consider this matter. When we pass the Second Reading I would hope the Minister would still feel free to reconsider Parts IX and X altogether. I am not satisfied that the proposed amendments are by any means the best. I feel it might be as well, if we cannot make further progress during the recess, if he would consider on Report Stage deferring the succession provisions dealt with in Parts IX and X—excluding them from this Bill and including them in a subsequent Bill, which would deal with succession only, leaving this present Bill deal much more with wills, grants of administration and so forth.
That might be the best solution. I know such a decision on the part of the Minister could be misinterpreted, but he has shown himself so willing to consider any reasonable suggestion I hope he might be willing to consider this under that heading. I personally would feel much happier if we were not thrust into the Committee Stage without further very careful consideration of the possible alternatives which may still be open to us. I do not know whether the Minister feels he has already committed himself too far, but I do not think he does.
If we decide at this stage we will defer consideration of Parts IX and X, it can only be on the strict understanding that it is a temporary deferment and that some legislation along these lines will have to be introduced at a very early date. There should be no question of this going into cold storage. This matter must be kept constantly under review and all possible sources of information must be tapped to get the very best suggestions possible.
There is a lot to be said for Deputy J.A. Costello's suggestion of a marriage between the two systems. How far we should go towards granting increased judicial interference is something which needs very careful consideration. If this were a matter to be bandied across the House in a Committee Stage, the chances of our getting a real solution would be greatly reduced. Therefore, if he sees it possible, the Minister in his closing address on this Stage of the Bill could state that he would feel free to reconsider Parts IX and X altogether and, if we cannot easily achieve agreement on or before the Committee Stage, that he would consider deferring them and deleting them from this Bill on the strict understanding that he would get down to it and introduce a separate Bill dealing with these Parts only at a very early date.
Generally speaking, the Minister has made a very good job of a very difficult Bill. I still feel that the Bill was introduced in a very hamhanded manner and that some of its provisions were quite clearly out of sympathy with general public opinion, but I have every confidence that the Minister will be able to overcome the initial difficulties and steer this Bill through so as to make it something which will be a real addition to our legal system. I wish him the best of good luck in his work and I am sure he will receive all possible co-operation on both sides of the House, such as he has already received from Deputy John A. Costello in particular.
