(Cavan): This is a section which gives the personal representative power to appropriate certain parts of the estate specifically to a next-of-kin or beneficiaries. In subsection (3) it is provided that before the appropriation takes place notice must be served on certain persons other than the persons who may come into existence at the time of the appropriation or who cannot be found or ascertained at that time. It is with those words “who cannot be found or ascertained at that time” that I should like to deal. That is likely to lead to difficulty. Who is to decide when a person cannot be found or ascertained? What steps is it suggested that the personal representative should take to find or ascertain a person upon whom notice should be served? Something should be written into the subsection specifying what steps are to be taken to ascertain or find the person. It is left too much in mid-air and will obviously lead to difficulties in carrying out the terms of the settlement.
Succession Bill, 1965: Committee Stage (Resumed).
I think we could have a look at that between now and the Report Stage.
It is provided in subsection (4) of this section that the person, say, a widow, must give notice within a year of her desire to have the dwellinghouse appropriated in or towards the satisfaction of the share of the spouse. This seems to be an unfair restriction which in many cases will deny the spouse the opportunity of having the dwellinghouse kept. In many cases the spouse will simply remain on in the family home without consideration of her legal rights or possibly future legal losses. Rather than require that this right be exercised within a year of the date upon which representation was first taken out on the estate of the deceased, we should allow this right to be exercised within a period of one month from the date on which notice of election is served on the spouse. Some administrations take several years to carry out and before the widow would be concerned with this issue a year would have expired from the date on which representation was granted. It would be fairer and would not run contrary to good administration of the estate if the widow were allowed to exercise the right within one month of the date upon which she was notified that she had to elect or else the house would go.
A year is the period we have chosen right through for the exercise of the legal right, and this would have to be of the same duration. The reason why we have it in this case is to ensure that the period is not too long—I was under pressure to have it extended—but in the case of childrenen ventre sa mère it is obviously desirable that they would not be deprived of their right if somebody wishes to exercise it on their behalf. It is not strictly relevant to this section, but we want to be consistent in regard to the period. The widow would be remaining on in the house, and one month does appear to be very restrictive. The provision is in ease of the widow.
It is a year from the date of representation?
She might not concern herself with this issue at all until the house would be taken from her, if more than a year had gone by. To a person who lives for a long time with the other party, the house is part of them and the possibility of its being taken away does not occur to relatives of a deceased person. The danger is that they may not exercise their right to require the personal representative to appropriate the house for the benefit of the spouse. If the personal representative were to give notice that the widow had to make the decision within a month of getting that notice, then she would be put on her election and it could not be said she was taken by surprise. She could be taken by surprise at the Bill stands.
(Cavan): I should like to support Deputy Ryan on this point. At first, at any rate, the Minister misunderstood him. Deputy Ryan is not suggesting that the period should be reduced from 12 months to one month. He is quite right when he says that a widow who is residing in the house when the owner dies could in her ignorance assume she was entitled to live there and do nothing about it. All concerned might let things drift for 15 months and then the widow would have lost all her rights in the matter and she could not then ask to have the house appropriated.
You cannot have it both ways.
(Cavan): There should be no difficulty whatever in serving notice on the spouse who is actually residing in the house which it is sought to sell. It would be a comparatively simple matter to serve notice on the spouse resident in the house that unless the spouse objected it was proposed to sell the house at the expiration of one month from the date of the notice. That would put the matter beyond doubt and would bring home to a widow her rights in the matter which as the section now stands might very well be allowed to go by default through ignorance of this right.
I do not think that, in practice, this will happen. I cannot see a situation arising where, with the year up and the administrator going to administer the estate, the spouse would have no notice of it and would then find herself outside the door in a month. This suggestion, if adopted, would only add to the difficulties of administration.
The Minister has put his finger on the weakness in this Bill in a number of respects. The weakness of the Bill—I am not trying to be offensive in this—is that those responsible for drafting the Bill are divorced from the practice of the law. Assuming that the section is regarded as being desirable, there is quite a danger, from the practical point of view.
I do not see that. I am looking at it from the practical point of view. We shall examine the matter, but I think it will only encumber the administration of an estate.
If the Minister is prepared to look at it again, we can, perhaps, discuss it on the Report Stage, if necessary. I want to ask the Minister in regard to the section, precisely to what the section applies. It is not very easy to gather it from the provision itself.
As Deputy Ryan and Deputy Fitzpatrick pointed out, under subsection (4) this right will not be exercisable after the expiration of one year from taking out representation.
Secondly, it will not be exercisable in relation to the dwelling in any of the cases mentioned in subsection (5) unless the applicant satisfies the courts on certain matters. I should like the Minister to let the House know exactly what is included in the cases set out in subsection (5). The first of the cases referred to is where the dwelling forms part of a building, and an estate or interest in the whole building forms part of the estate. What does that mean? Surely from the ordinary point of view any dwelling forms part of the building, and if the building forms part of the estate, then they are out under this section.
The second case is where the dwelling is held with agricultural land an estate or interest in which forms part of the estate. The third case is where the whole or a part of the dwelling was, at the time of his death, used as a hotel, guesthouse or boarding house. The fourth case is where a part of the building was, at the time of the death, used for purposes other than domestic purposes. I am completely puzzled as to what are the type of cases required in clause (a). I am assuming the Minister will be able to tell us about that, but I want to know am I right in taking it that when one strips this of the various sections and subsections, what one comes down to is that it applies only to purely residential premises in urban areas, and that it has no application to dwelling houses which are part of the agricultural holdings.
This point has been made already and I had discussions with the legal professional bodies. In practice, this will not apply to farmhouses.
The practice will be established after this goes through.
I appreciate that. Once you have the existing prohibition against subdivision of agricultural land, and once you have the situation where farmhouses cannot be separated from the land, that cannot arise.
So long as there is the existing subdivision prohibition incorporated in the various land statutes.
(Cavan): The practice of the Land Commission at the moment is to grant consent where they are asked to subdivide the house.
They are concerned with the land and not with the holding.
(Cavan): If it is already agricultural land. As it stands at the moment, this refers to a solitary house not used as a hotel or guesthouse.
Or a dentist's room or anything like that. It must be purely residential and it must be in an urban area.
Every urban house is included.
Provided it is purely residential.
Subsection (8) provides that, "the rights conferred by this section on a surviving spouse include a right to acquire appropriation partly in satisfaction of a share in the deceased's estate and partly in return for a payment of money by the surviving spouse". Would the Minister tell us why he is confining it to the return of money paid when, in fact, there could be other services or benefits that would have been executed by the surviving spouse? Under this section such a person would have no right to require an appropriation in satisfaction of that. There should be no distinction between payment of money and any other benefit conferred by the spouse in respect of which a debt is due.
There is something in that. The administrator will be in difficulty if you widen it beyond money. He will be in difficulty in regard to what sort of disbursal to make for a service, or for anything that is more vague than money.
If they have a right to get a share in the courts——
We could consider something, but it would have to be very tightly drafted.
It would need to be tightly drafted, but it would be desirable to allow any debt to be paid.
Can I take it that the meaning of subsection (2) is that on the appointment of the trustees, the personal representativequa personal representative will not have any further liability, but if, in fact, they are trustees because no appointment was made they will continue to be liable as trustees?
That is it precisely.
I move amendment No. 15a:
In page 27, to delete lines 39 to 42 and substitute:
("(3) A person who is a sole trustee under section 57 shall be entitled to receive capital trust money."
This is a drafting amendment. Its purpose is to make clear that subsection (3) is applicable only to the person appointed, or the person who becomes, sole trustee under section 57. It is not quite clear as it stands at the moment that the subsection is applicable only to the person appointed or the personal representative who becomes a trustee. It tightens it up. Representations were made to me on that point.
Amendment No. 16 was discussed with amendment No. 1.
That is gone.
I move amendment No. 17:
In page 28, to delete subsection (2) and substitute therefor:
"(2) A letting made by the personal representative pursuant to the power conferred by paragraph (a) of subsection (1) shall be deemed to be a letting made for temporary convenience."
I am assuming, and I think correctly, that the purpose of subsection (2) is to exempt lettings which are, in fact, made for temporary convenience.
That is so.
If that is so, I suggest to the Minister that it would be preferable to put in a subsection on the lines suggested in the amendment to make the position quite clear. Subsection (2) reads at the moment:
The right of the personal representatives to obtain possession of any premises demised by them pursuant to the power conferred by paragraph (a) of subsection (1) shall be exercisable notwithstanding anything to the contrary contained in the Rent Restrictions Act, 1960.
It seems to me that that is justifiable only on the ground that the letting made by the personal representative is a letting for temporary convenience. I am suggesting that the Minister deletes subsection (2), as it stands, unless there is some other reason he can give to the House to justify its retention.
The purpose of Deputy M.J. O'Higgins's amendment is that any prospective lessee or tenant should be aware at the time of the creation of the tenancy that it is a tenancy which is protected. There is no provision in the Bill, as drafted, which would protect the tenant. It would appear only proper that tenants and lessees would have notice of the nature of the tenancy.
(Cavan): Subsection (1) as drafted appears only to bring a letting outside the Rent Restrictions Act, 1960, but it would still be open under the section as it stands for a lessee or a tenant who held the present premises for three years to get protection under the Landlord and Tenant Act, 1931. I do not know whether it is the Minister's intention to exclude that sort of application. As it is not there, there does not seem to be much point in excluding the Rent Restrictions Act and including the Landlord and Tenant Act, 1931, as amended.
I can see some merits in what Deputy O'Higgins says, but I do not think that is the way to go about it.
Would the Minister explain what is intended in subsection (2) ? Subsection (1) (a) says he may make such leases of the land as may be reasonably necessary for the due administration of the estate of the deceased owner. Subsection (2) says notwithstanding anything in the Rent Restrictions Act he will always be entitled to get back possession. I do not see why he should unless the letting is for temporary convenience.
I think it is desirable that the administrator should be in a position to recover possession fairly expeditiously.
The reason he should be entitled to recover possession is that he is doing it in the course of administration for temporary convenience. That is the basic reason.
I could visualise the situation where it might be other than for temporary convenience.
The expression "for temporary convenience" is not there. I am suggesting it should be there.
I always feel a little doubtful about writing a right in which seems to be unqualified and then going on to qualify it at a later date where a person will be taken by surprise. There is always danger that a client or a solicitor will not read far enough. It seems to me there might be a case here for providing, at the time of administration, for a reasonably long lease. You cannot assume the estate will be wound up in one year, two years or three years. There might be a case here where it might be good administration to have a longer lease.
(Cavan): I agree there is a lot in what Deputy Booth says. If a letting under this section can be terminated at any time, then it will not be of much value to the estate. If the Minister thinks it should be capable of being terminated, I suggest subsection (2) does not go far enough. I do not know if the Minister considers there is anything in the point I made with regard to the Landlord and Tenant Act, 1931. A tenant of a business premises who is in possession for three years, provided it is not let for temporary convenience, is entitled to a new lease under the power of subsection (1). If he is in possession of a business premises under an earlier tenancy for three years he is entitled to a new lease.
That will be written into the lease.
(Cavan): It is written into the Landlord and Tenant Act. If he is in possession of a business premises, and if it is on a yearly or monthly tenancy, he is entitled to a new lease. Therefore, I am not advocating the advisability of making such a letting capable of being terminated at will but I am saying if that is the Minister's intention, subsection (1) is not going far enough.
The Deputy is riding two horses.
(Cavan): I am trying to be helpful. That is what we are supposed to do on Committee Stage. I am not arguing the principle but the effectiveness of this subsection. As I see this subsection, if a letting is made of a business premises from earlier than any time up to three years, by virtue of this subsection, as it stands, the administrator can get possession of the premises. If it goes on for four years or three years and a bit, the tenant can say he has acquired the letting under the Landlord and Tenant Act, 1931, and that he wants a new lease for 21 years. He will ask the courts to fix the term.
I would have more sympathy with what Deputy Fitzpatrick suggests than what Deputy O'Higgins suggests. I feel it is important, for the purpose of correct administration, that the personal representative can move in on property and administer it.
(Cavan): Deputy M.J. O'Higgins's amendment will effect just that right for temporary convenience. As it is, he is not entitled to the benefit of the Rent Restrictions Act, 1960, nor is he entitled to the benefit of the Landlord and Tenant Act, 1931.
Deputy Fitzpatrick has stated the position correctly. I had hoped that, assuming this was what was in the Minister's mind, the wording I have proposed would make it quite clear it is possible in the case of letting for temporary convenience to have reasonable security of tenure for the tenants in that a letting for temporary convenience can be made for a specified period. It is only when this specified period is over that in the ordinary way, if the letting was not either expressed or implied for temporary convenience, that the rights under the Rent Restrictions Act, 1960 and the Landlord and Tenant Act, 1931 would arise. There is a rather difficult position here. If this power of making leases is to be of any value at all to the personal representative he might in the general sense, if it is going to be worth while for the estate, have a letting made for which he can get a reasonable rent. If the lease is terminable at will one situation arises. It makes it immediately a less valuable or attractive proposition for the tenant.
On the other hand, if the position is that the personal representative can make a lease for a definite length but that it is taken to be for temporary convenience, it means that none of the accretions which would apply at the termination of that period in the ordinary way, the rights which might arise under Rent Restriction Act or the Landlord and Tenant Act, would arise, so you would be doing a service from the point of view of the State and giving reasonable security to the tenants. I am not pressing the Minister on this. It is in the section and I think it is a matter which is worth while examining more carefully.
It is a question of how you go about it.
The Minister in his explanation says what it is intended to achieve is that it will be determinable at will. That destroys any protectiveness of a lease or letting.
We have the Rent Restrictions Act.
The Minister would also want to bring in the Landlord and Tenant Act. If the Minister has that point examined, he will find something in it.
The amendments of Deputy T. J. Fitzpatrick(Cavan) and Deputy M. J. O'Higgins are all trying to achieve the same purpose.
They are all on the same idea.
(Cavan): The only thing under Deputy M. J. O'Higgin's amendment is that it would be possible to make a letting that would be of some value to a tenant or lessee, for which one would be likely to get a reasonable rent. It would be of some benefit to the State. As we all know, a letting of convenience can be made for 12 months or for six months and the tenant will know that he will not be disturbed during that time, but that at the end he will have to get out. According to the Minister's amendment in subsection (2) the tenant will say: “I am going into this now and I may have to get out next week”.
Not under the Rent Restrictions Act.
(Cavan): It is a completely temporary letting, terminable at will.
That is not in the section. Subsection (2) deals with the recovery of possession and that can be exercised, if not at will, without having to go to the Rent Restrictions Act, 1960.
(Cavan): That is probably correct but I come back to the Landlord and Tenant Act. I say a person who remains on in possession for over three years as a yearly tenant or for over seven years as a tenant for a lesser period has acquired the benefits of the Landlord and Tenant Act and should get a lease for 21 years.
I shall have a look at it with a view to getting the best way to enable the administrator to administer properly and at the same time give some degree of certainty.
I move amendment No. 18:
To add to the section a new subsection as follows:
"(10) In the case of the estate of a deceased person who has made a will this section shall not apply to any provision or advancement made prior to the date of the will unless the testator has so directed in his will."
The purpose of this amendment is to provide that the doctrine of advancement will not automatically apply in the case where a will is made subsequent to the advancement, unless it is so expressed by the testator. It is simply a question here of deciding what is the reasonable thing to do and what is the reasonable approach. I think the ordinary person who, having made advancement to the dependant, if he then makes his will disregarding this advancement, the reasonable presumption is he intended him to take the advancement, together with what he has given by his will. If he does not want that situation to arise, all that is necessary to do is make it clear in the will that the advancement that has been made was to be regarded as an advancement. Where a person makes his will, having made advancement of the sort set out in the section, then I think the ordinary presumption would be that he intended that the benefits set out in the will would go to the beneficiaries as per the will, regardless of the fact that advancement had been made.
The section as it stands meets the Deputy's point.
It is a question of approach. Under the Bill the doctrine of advancement applies unless it is excluded. I am putting it the other way here, in the case of a will made later.
It will not apply at all then; that is the point.
How does the Minister make that out?
Because it is a case of a will made afterwards.
Is the Minister satisfied with that? How does he suggest that?
If you look at section 63 (1), it is there. The will must be first.
I am not trying to trap the Minister; I just want to be clear on it. I may be mistaken, but, with respect, I do not think I am.
Would the Deputy read the first subsection fully?
The subsection reads:
Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased,
The presumption there is that the will is in existence at that stage. That is the law at the moment.
I do not think it is sufficiently strong to be relying on presumptions when we are dealing with this section. That is one of the reasons why we should set it out in another subsection.
The section says at the top of page 30:
in or towards satisfaction of the share of such child in the estate of the deceased or the share which such child would have taken if living at the death of the deceased,
That presumes there is a share in the estate at the time of the advancement.
(Cavan): That only happens when he is dead.
No, that presumes there is a share in existence.
That may be what was intended. It is possible a presumption could arise out of the section but I do not think we should presume at this stage. Later on when it is being interpreted by the courts presumptions may have to be taken into account but now is the time to cut out the doubt.
You could not satisfy a share which is not in existence. It must be a share in existence at the time the advancement takes place and it is in satisfaction of such share that the matter arises.
The Minister says it is implicit in this that it applies only to advancement made after the will was executed.
That is precisely what the section, taken as a whole, means. This section applies to any case where a will is in existence and where there is a prospective share, a share spelled out and which is in existence. Where that is in existence, subsequent advancement deals with that situation. That is the meaning of the section.
If that is so, then I think the addition I propose would make the position crystal-clear because the position is not crystal-clear in the section as it stands.
Could it not be said, if there were an advancement made before the will, that will in itself is evidence of a contrary intention?
That is a question for the court.
If the testator meant it to be taken into account, he would say so. If he did not say so, he meant every share of the estate which had not been distributed prior to the date of his will.
That, I agree, would be a reasonable interpretation, but my point is: why should we let it rest on the basis of assumptions, presumptions and interpretations? Why not say what we mean?
I am told this is the law at present in regard to the doctrine of advancement.
The doctrine of advancement is being extended now.
You could not possibly have any interpretation of that other than the interpretation given.
Does the doctrine of advancement apply at all now in these cases?
(Cavan): This section deals with intestacies as well as wills——
That is true.
(Cavan):——and the discussion we are having now might be an understandable discussion in a court of law if a court were faced with this section as a section in an Act of Parliament, but I do not see why we should legislate arguments like that. If we can foresee them in advance, we should put them beyond doubt and beyond argument. Lawyers are sometimes accused of trying to create a situation out of which they can make a big argument and, therefore, a lot of money. Here, we are at the moment trying to put something beyond doubt which is in doubt in the section.
If subsection (1) of section 63 is read closely, it is, I think, quite clear:
Any advancement made to the child of a deceased person during his lifetime shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased...
(Cavan): The estate comes into existence only on the death of the owner.
The doctrine arises where there is a prospective share in existence. I shall try to tighten this up, but I can assure Deputies we are on the one line of argument here and it is only a question of tightening up the drafting. The purpose of the section is to deal only with thepost factum making of a will. That is the purpose of the section.
With repect, I do not think it is clear at the moment.
I shall have a look at it to try to tighten up the drafting.
It might be possible to insert after the word "lifetime""prior to the date of the will".
(Cavan): Subsequent to.
I am sorry—subsequent to.
That would put it beyond yea or nay. I will look at the matter between now and Report Stage.
(Cavan): I am not too happy with the definition of “advancement” in subsection (6). It is a long definition and it says at the end:
It also includes an advance or portion for the purpose of establishing a child in a profession, vocation, trade or business, a marriage portion and payments made for the education of the child to a higher standard than that provided by the deceased for any other or others of his children.
"Payments made for the education of a child to a higher standard": now, I have not put down an amendment to help the Minister but this looks to me like a definition which could lead to another lengthy argument in a court on a construction summons, or something like that. In this day and age, when we have higher education in various fields, it is rather difficult to say when one standard of education is higher than another. I would be inclined to cut out education there altogether. Certainly that subsection as drafted will be difficult to interpret.
I can see difficulties, perhaps, in interpretation, although, if the personal representative exercises commonsense, it should not be too difficult. The purpose there is precisely to remedy many of the criticisms that were made of the original Bill. I took the view subsequently, and I think rightly so, that it was very wrong to have included in the children's share a mandatory share of their legal right for the child who was educated, given a profession, made a priest, or a nun, while another son or daughter—mostly the son in the case of a farm—remained at home and worked the land and did not derive any benefits by way of education or other facility, or any benefits in the way of placing him in a higher station in life. That son appeared to be prejudiced as the 1964 Bill stood and it was that that made me introduce amendments and incorporate them in this Bill to ensure that situation would not arise. That is why the legal right share of the children has gone by the board.
Was not the principal objection to the last Bill the fact that the doctrine of advancement was being applied to the spouse as well as to the children?
That is right. That has gone too. Consistent with that principle, it is arguable, I think, that advancement should include any help paid out of the household pocket to people who have thereby got on well and have achieved a certain station in life, If there is any greater benefit for the person who remains at home, and who has not got the same help and advancement out of the family fortunes, I think we should leave it as it is, in ease of that particular person.
(Cavan): Suppose one member of the family is sent off to a racing stable and apprenticed as a jockey. Suppose his fees are paid there. He may be illiterate; he can still become a very successful jockey and earn vast sums of money. Suppose another boy is sent off to university or to Bolton Street College of Technology. Is the boy who has been apprenticed as a jockey to get his full slice of the estate and will the boy who has gone to Bolton Street or to the university have to hotch-potch his share? That is the sort of question I see having to be dealt with.
The only criterion one can follow is what has been paid out to set up a particular member of the household. The fellow in the racing stables may do very well, it is true, but no money will have been expended on him out of the family fortune.
(Cavan): Some of these fashionable trainers may have to get a substantial fee.
That would be included.
(Cavan): But would that be regarded as higher education?
That would be an advance for the purpose of establishing a child in a profession, vocation, trade or business. I think it is covered.
(South Tipperary): If you left out the words “for the education of a child to a standard higher than that provided by the deceased for any other or others of his children”, would that solve the difficulty?
I do not agree with the Deputy. The basic purpose of the section is to gear it in such fashion that it will not benefit the person who has been educated to a higher standard more than the person who remains at home. I think it is geared precisely to our rural conditions in which, in many cases, you have the situation of one boy in a big family being selected to remain on the land and, very often, there will be considerable sacrifices financially in order to get other children in the family placed in other stations in life. This sacrifice involves precisely what is said there—education of the children to a standard higher than that provided for people at home. I would be inclined to leave it as it is.
(Cavan): What would happen to the boy who became a politician?
What is the education required for that?
It does not cost any money. Suppose he does not become a politician and forfeits his deposit?
Is that part of his education?
It probably is.
I move amendment No. 19:
In page 30, line 44, before "entitled" to insert "beneficially".
This is to make it clear beyond any doubt that it is only property to which the deceased person was beneficially entitled.
I have no objection to that.
I think the Minister misunderstood the query put to him by Deputy Fitzpatrick on the Second Stage regarding what does or does not go to the next-of-kinper capita and what goes per stirpes. I do not think the position has been altered amongst the next-of-kin of equal degree.
They are all coming in.
Of equal degree?
That is right.
Take the situation where a man dies intestate leaving a wife and two children. Say one of the children has been married and died and, in turn, leaves children. What is the position now between the grandchildren and the children?
It is the same as it was between the two sets of grandchildren.
(Cavan) Not two sets of grandchildren. Between the child and the grandchildren.
If they are all grandchildren, there is no difficulty. If there are no grandchildren, there is no difficulty. But in the case of some of them being grandchildren——
Per stripes then. It goes back to the root.
(Cavan): Say a man dies, having had two children and his wife is also dead. One of the two children is dead, leaving four children. The surviving child takes half of the estate and the four children take the other half between them?
There is just one point that should be mentioned on this. I have no objections to the section as it stands. I think it is an improvement on the existing position where the father takes all. But I think a query should be raised as to whether it is in fact doing justice that there should be an equal division in that case. I have in mind the case of a child who has probably just finished university education and may have some money and property of his own. He then dies. The odds are that one of the parents, namely, the father, has been out of pocket in paying university fees and so on. I think it right that that should be mentioned.
Generally speaking, the section improves the position very much. To my mind, there was very little justification for the existing position where on the death intestate of a child, the father was entitled to take the entire estate. That position has been altered here and I think the alteration is good. I just have the query I mentioned to the Minister concerning the particular case where one of the parents has been out of pocket.
It assumes there is no partnership existing between them. I can see it could happen, but I think the overall effect is an improvement.
Would the Minister explain subsection (2) a little more fully?
It is a re-statement of the existing law.
(Cavan): What is it?
It means theper stirpes rule does not go on.
What is the change effected by this section?
Half-blood relations are being admitted to realty, which is not the situation at present.
I am not sure whether the Minister has given the answer to the right section or not.
I am sorry; it is the next section. This is the first time this is being written into the statutory law, although it is the law at the moment.
I move amendment No. 21:
In page 32, line 25, before "entitled" to insert "beneficially".
This is on the same lines as amendment No. 19.
I think that is a mistake. They are not necessarily the same, and I think the Minister should have another look at this. Agreed, as far as intestacy is concerned, the only estate which should be distributed on the intestacy is the estate to which the intestate was beneficially entitled. But in the case of a will, it may be that the testator or, more commonly the testatrix, has been given power by an earlier will to make an appointment under the terms of his or her will. It seems to me that if the Minister's amendment is accepted, the power of appointment, that is, the power to appoint the shares of property other than one's own, which might have been given by the husband's will, would go under this. If it is to be specified that persons can deal only with property to which they are beneficially entitled by their will, then they cannot possibly exercise the power of appointment unless they happen also to be beneficially entitled there.
There may be something in that, but I should imagine that section 78 covers it. However, we shall have a look at it again.
(Cavan): One would think that a person was entitled to dispose of all his property without qualification. That is the sort of thing Deputy Booth was speaking of some time ago. Of course, his right to dispose by his will of all his property is subject to section 110, and so on.
That is implied in it, subject to his debts. The legal right would be in the same category as a debt.
(Cavan): I think it would be better to have : “A person may be his will, executed in accordance with this Act, dispose of all property to which he is entitled but subject to what is provided in the Act,” because a very severe restriction is imposed on him under this Act.
I think it would be superfluous. The legal right will be a debt owing to the estate. Section 75 now is a re-creation of the corresponding section of the 1837 Wills Act.
(Cavan): This is very different from that.
I should be interested to hear the Minister's reasons for reducing the age limit from 21 to 18 years. I think it is probably right. I was wondering if he had any cogent information or any experience which he can relate to the House to justify this change.
It is my personal idea that this should be done. I feel that, with increasing education, with early maturity, people of 18 years now are in the situation where, in some cases, they have property. Perhaps, as the years go on, there will be more cases in which they will have property. They are sufficiently adult and they sufficiently participate in the affairs of the community to benefit by this section.
I am glad to hear the Minister say this. Just recently, Deputy MacEntee entered the House. I thought he would oppose this, in view of the low opinion he has of teenagers. I was glad to see that he left before this section was reached.
I move amendment No. 22:
In page 32, line 43, after "testator" where that word secondly occurs to insert "by subscribing their signatures".
Again, I put down this amendment for the purpose of having the point considered and discussed. Section 77 deals with the signing and witnessing of wills. Here, the Minister is reverting to the existing procedure. It was proposed in the last Bill, which lapsed, to have a very substantial departure from the position. We are getting back to it here. It is now provided that a will must be signed or executed in accordance with certain rules. The first rule is that it shall be signed at the foot or end there of by the testator, or by some person in his presence and by his direction. That is the position under the present Wills Act. I think it is accepted, certainly by us, as being a proper precaution to take, namely, that it must be signed by the testator himself or, if it is not signed by him because he cannot write or for some such reason, that it should be signed in his presence and by his direction by someone else.
Secondly, it is provided that such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest the signature of the testator in the presence of the testator, but no form of attestation shall be necessary. I think it necessary to stipulate in the rule here the manner in which the witnesses should attest the signature of the testator. We all know how they do that. They do it by signing their names or making their marks as witnesses. I am suggesting that we should tighten up the wording of this by spelling it out, by saying in the section that they attest the signature of the testator in his presence by subscribing their names as witnesses. It does not in fact mean any departure from the present position and the present practice but I think it puts it beyond doubt.
I do not think there is any need now for what the Deputy says. I shall consider doing it if he feels it would tighten it up further. We have already tightened it considerably in relation to the situation in the original Bill. The amendment is superflous, as it were. It is quite clear from subsection (2) of section 77 what is required. I do not see what the addition of the words "by subscribing their signatures" would add to the section.
Is there any definition anywhere of the word "attest"? If I see the Minister signing his will, is it necessary for me to sign as a witness? Can I not attest verbally that I saw him sign it?
"Attest", in the context of attestation in regard to a will, is signing.
Is thatex cathedra?
I have not the case law here in front of me.
Having regard to the fact that it is provided here, under the earlier Wills Act, that no form of attestation is necessary——
I shall consider adding the words the Deputy suggests, but I do not think they add anything to the section. They might not take anything from it, either.
I support the argument in favour of the retention of the old system which requires two witnesses to attest by subscribing their signatures. Cases occur from time to time in which solicitors are summoned to the bedside of some person who is dying. From time to time, difficulties have arisen in obtaining a signature. It has occurred to me that it might be desirable to amend the law to the extent of permitting one witness, if that witness be a solicitor.
I am taking a stand here on principle and I am sticking to it.
I have known cases of intestacy to occur because in some hospitals the medical and nursing staffs are ordered not to witness and people have died before a witness could be got.
After much consideration, I came down in favour of retaining this provision.
On balance, it is better retained.
(Cavan): I agree with the necessity for two witnesses and I am glad the Minister had second thoughts on it. Nearly all of his subsequent thoughts were correct, the only difficulty being that he had not enough of them. In subsection (2) it is provided that there must be two witnesses, that the testator must execute the will in the presence of two witnesses and it is also provided that each witness must sign the will in the presence of the testator. I know this is probably a complete re-statement of the law as it stands, a complete reprinting of the rule, but there has been doubt in the minds of many solicitors down the years as to whether each attesting witness must sign the will in the presence of the testator and in the presence of the other attesting witnesses. Let us take the rule as it stands:
Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest the signature of the testator, but no form of attestation shall be necessary.
I think that means that the testator can sign the will in the presence of witness A and witness B, that witness A can then sign and leave the room to go on about his business and that witness B can then sign in the presence of the testator alone. Most solicitors, in drawing wills, always insist that all three parties remain in the room while the will is being executed.
That is the best way of doing it.
(Cavan): It is the best way and it is the way we all do it. Under the rule as it stands. I do not think it is necessary for all three to remain in the room throughout the execution and attestation of the will. Now that we are embarking on reform it would be no harm to add words to that effect in the subsection.
I agree that the best way to do it in practice is to have the testator and the two witnesses present. The rule as it stands obliges the two witnesses but it does not oblige the testator in this respect.
(Cavan): It does oblige the two witnesses to be present while the testator is signing but it does not oblige each witness to be present while the other is signing.
The subsection says:
Such signature shall be made or acknowledged by the testator...
(Cavan): That is clear.
And it says each witness shall attest in the presence of the testator. I see what the Deputy means.
(Cavan): Would it not be more desirable if it were provided that the two witnesses should stay in the room?
There is no doubt the words used in the subsection are pretty well the existing words. Deputy Booth says that it is universal among solicitors drawing up wills to put in an attestation clause and in that attestation clause they provide that the will was signed, published and declared by the testator in the presence of two witnesses, both being present at the same time, at his request, in his presence and in the presence of each other.
(Cavan): There is no principle whatsoever involved in this. I do not think anybody will lose face if we go the whole hog and write into this exactly what we mean. We are all agreed that throughout the execution of a will the testator and his two witnesses should be in the room. I think the Minister accepts that, as do all of us who are interested in it, but it is also clear that under the subsection that is not necessary. It is not a mistake anybody made in the drafting of this Bill. It was made by somebody in 1837.
Deputy Ryan has been pleading for a more relaxed approach. I should not like to have it tightened any more than it is.
(Cavan): It is not a question of tightening it. I believe that had I asked the Minister or other legal people what was necessary under the present law, I would have been told the testator must be there and that the two witnesses must be there, that when the testator was signing each witness must be there and must also be there when the other is signing. That is not necessary under this subsection and I am submitting that we should add two or three words to make it necessary.
Take a room where a will is being made—a deathbed room—where you have documents coming in and going out. The three signatures may not physically be appended in the same room. There may be a man who wants to go out and he says "That is my signature" and then the other man signs it. We could make it too strictly formal.
And risk an intestacy on a pure technicality.
(Cavan): The only way you could risk and intestacy would be if the first witness were in such a hurry that he could not wait to see the second witness sign the will.
He could be running for a doctor or a priest.
If the testator signs in the presence of each of two or more witnesses who must be present——
"Acknowledged" is the word. The subsection says that such signature shall be made or acknowledged by the testator. After the testator has signed it, one of the witnesses might sign it and might have to rush out for a doctor or priest. He could indicate to the other witness : "That is my signature" and the second witness could sign under or beside the signature which the other witness had acknowledged as his. The testator is obliged to sign or acknowledge. Each signature is acknowledged by one party to the party affixing the signature.
The important thing is to have the signature of the testator seen by each of the witnesses. To my mind, that is the end of the transaction. The appending of the signatures is a comparative formality because each of the two witnesses can identify his own signature. It is only the testator, who cannot be dug up from the grave, who can say whether it is. Only the two witnesses can give evidence as to the testator's signature. but they can give evidence as to their own signature. I would prefer to leave it as it is.
(Cavan): As long as we are clear about it. I think a great many people think that all three must be present.
That is a very desirable over-precaution, if you like.
On one section, I took the trouble of consulting dictionaries and I find there is a certain amount of uncertainly but the weight appears to come down on Deputy O'Higgins's amendment which would require the insertion of the words "by subscribing their signatures".
Is the Deputy quoting the dictionary now?
The Wills Act, to which reference is made, is quoted in Wharton's Law Lexicon, which says:
It is expressly provided by s. 9 of the Wills Act, 1837 (1 Vict. c. 26), that the signature of the testator, or of some other person by his direction, "shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time", and that "such witnesses shall attest and shall subscribe the will in the presence of the testator";
That suggests that the view is held that the two things are distinct. One is the actual witnessing of the event taking place and the other is the recording by subscribing the names that it has taken place. I find in the Oxford they accept that it can have that meaning all right but the primary meaning attached to it is one of witnessing of the testament by the subscribing signatories. It may have grown up out of usage but I think it would be preferable to put it beyond doubt.
We will look at it.
The Minister said he thought that on this section he would be able to relate the amendment of section 75 to the section. He may remember that on section 75 I raised the question of a person who was disposing of property over which he had power of appointment and if the Minister's amendment applied only to the disposition of property to which a person was beneficially entitled——
I raised the point that I thought there was a danger that would extract a person's power to dispose by will of property which he or she was not beneficially entitled to but over which they had been given power of appointment. The Minister suggested that section 78——
We will look at the whole matter again.
I suppose this is all right now. It was not all right under the previous Bill.
(Cavan): This is the section which provides that gifts to an attesting witness or to the spouse of an attesting witness are void. As I understand it, a direction contained in a will enabling a solicitor-executor to charge costs is a gift. Now, if that is not so, my argument falls to the ground, but I think it is correct.
(Cavan): On that, I think that such a gift should be excluded from this.
Any trustee cannot, you know.
(Cavan): I am thinking of a solicitor who goes to a remote country place to make a will and perhaps he has arranged that somebody will be at the house to witness the will. During the course of making the will the testator says to him “I should like you to act as my executor. I have known you for a long time and I should like you to act”. The solicitor replies that that is all very well but that if he acts as executor he will have to administer the estate for nothing, that he cannot charge costs unless he puts in a direction that he is so entitled. Then you come to the signing and you have the solicitor and somebody whom he has brought out or somebody in the house. If the solicitor proceeds to act as a witness he cannot act as an executor and charge costs. An amendment should be brought in because it is not really a gift although it is regarded as a gift. The solicitor must earn the costs, he must prove the will and administer the estate. It would be something not so much in ease of solicitors as in ease of testators who want the family solicitor to act as executor. This frequently happens. You go out to the country to make a will—the problem will not arise if the will is made in a solicitor's office because there will be staff there to act as witnesses—but in the country this arises because country people very often do not want their neighbours to witness the will because they are afraid the people might get to know what is in the will.
This is the situation we wanted to defeat under the original Bill.
(Cavan): Well, that was a farce.
We were pushed off that. We are restoring the existing situation at the request——
(Cavan): If it was the Minister's idea to make one witness sufficient, then the solicitor would go by himself and the very same situation would arise. I cannot see the objection to doing this because everybody knows that a direction to a solicitor to enable him to charge costs is not a legacy or a gift, properly so called; it is a direction in a will to get over a legal difficulty. I should be very surprised if the Minister or his Department yield on this. I was interested to know yesterday that the Minister denied strenously that he attacked the legal profession.
That is true.
(Cavan): What I said to myself was that it shows the danger of using scripts.
It shows the danger of professional people reading more into a matter than was there.
If you say a man is getting too much, what else are you doing but attacking him?
(Cavan): Anyway, I think we should approach this reasonably. The situation can be got over by the solicitor saying to the unfortunate testator: “I cannot act as your executor,” and the testator will reply: “That is too bad, but I would be much happier if you were”, and then the solicitor will have to say: “That is the position because the Minister for Justice and his advisers would not let you have me.” That is what it amounts to. I cannot see what is to be lost by this but I can see everything to be gained.
I think Deputy Fitzpatrick is correct. It is not really a question of paying a solicitor as an executor; it is a question of the solicitor administering the estate through his office, which is what the testator wanted to have done. The queries which Deputy Fitzpatrick is raising are in regard to the solicitor's ordinary costs for doing that work which he would do if he were not appointed himself but if the testator's brother, for example, were appointed and came into the office and instructed the solicitor. Those are the costs that are involved. It is not a question of making payment to a solicitor because he is acting as executor.
I think it is a point that might be considered. By and large, I think it does not affect solicitors in the city in any event. I can imagine that it affects solicitors in rural Ireland who might have more difficulties and who might, first of all—and I think do very much more frequently than city solicitors—have to go out and make the will in the client's home, whereas in the city, in the ordinary course, the client, unless he is ill, would come into the office to execute his will.
(Cavan): There are umpteen ways of getting over it. You can get another solicitor to take out the grant and that gets over it.
But it is the other point that matters. The solicitor is not acting in any other capacity. We must preserve the fundamental matter that witnesses to a will shall not be beneficiaries.
(Cavan): I imagine it is due to a legal decision——
I would say it is a very fundamental matter in will-making from the year of dot that witnesses should not be beneficiaries.
(Cavan): The Minister did not let me conclude. It is probably due to the decision of the court that a direction enabling a solicitor-executor to charge costs is, in fact, a gift. That is the whole question. I think this can be got over by adding a couple of lines to the subsection as follows: A direction enabling a solicitor-executor of a will to charge costs shall not be deemed to be a gift within the meaning of this section.
That is violating something fundamental.
I do not think there is any fundamental violation there. I do not agree with the Minister for a moment. The fact that a solicitor is going to get anything—there is a certain element of benefit in it, quite obviously, but the big proportion of the amount of money he receives is professional fees for work done— might unreasonably invalidate the whole thing. As Deputy Fitzpatrick says the only alternative is to get this solicitor-executor to engage another solicitor who is perfectly entitled to charge. But that is a quite unnecessary and roundabout way of doing it. In actual fact, the solicitor acting as his own executor will be able to do it much more economically from the point of view of the estate.
(Cavan): The layman has all to gain here, not the solicitor.
An é an dlí i láthair na huaire agus faoin mBille seo freisin, má tá dlíodóir mar sheiceadóir ar uadhacht, nach acfhuinn dó táillíar bith do gnóthúas maoin nó gustal an té rinne an uadhacht? Más amhlaidh atá, cén fá ná h-ainmnítear duine eile seachas an dlíodóir mar sheiceadóir? Tá a fhios agam gur béas le cuid de na dlíodoirí bheith mar sheiceadóir i dtreo go mbainfhidís tairbhe as.
Tá an ceart agat.
(Cavan): I am not prepared to discuss technical details in the mother tongue but I feel very strongly about this particular section. I think the Minister is being misguided if he thinks the solicitor has something to gain out of my proposal. The person that is being inconvenienced and put at a disadvantage is not the solicitor because the solicitor is out in the middle of the country and he will make the will in any case. It is the unfortunate testator who is on his death bed and will not be able to attain his objective who is inconvenienced. I feel very strongly about this and I propose to put down an amendment on Report Stage unless the Minister accepts this view.
I want to put this in its proper perspective. I have no objection at all to solicitors doing well. It is a good thing to have all professions doing well and I have a certain kindred feeling for the solicitors' profession and I believe most of them do well in a very hard-working situation. But this section 81 deals with something far more fundamental than solicitors and their charges. It deals with whether we are going to allow a situation where a witness, whether solicitor or anybody else— Deputy Fitzpatrick says a solicitor could be exempt from this——
(Cavan): I do not.
Section 81 is concerned to see that any person who witnesses a will—to put it bluntly— has nothing to get out of that will and in order to have the fullest possible safety and security in respect of that matter, it is spelled out that neither of the two witnesses to the will who go along to this solemn performance cannot secure any benefit from the will. We cannot have the situation where the solicitor who comes along to assist in the making of the will— the man who has a certain professional interest in the matter—can at one time be a witness to, and also, in effect, a beneficiary out of, the will. That sort of situation, in my opinion, from the point of view of the public would be intolerable and I fear that I shall not at any stage agree to it.
The Minister is reading too much into what Deputy Fitzpatrick has suggested. It is not suggested that section 81 is wrong, that it should loosen up on the principle that a witness to a will not be allowed to derive benefit under the will —nor will his wife, for that matter. It is not suggested there should be any loosening up there. The suggestion is that it should be made clear that fees which are payable for work done are not to be regarded as a gift. I am not sure that I followed fully what Deputy Ó Ceallaigh had to say but if I did follow him correctly, I am very sorry to have heard the Minister say that he agrees with the Deputy's remarks. I do not want to repeat them——
Tá fáilte romhat.
——lest I should give publicity to them, but I suggest that the Minister read very carefully the Deputy's remarks when they come out in the Official Report. I may be mistaken; perhaps he did not say what I thought he said in regard to the solicitor-executor, but if he did, I should be very sorry that the Minister as Minister for Justice should have gone on record as agreeing with him.
My remarks about solicitors made it quite plain that I have great respect for the profession, and I reiterate that. I hold them in very high respect but I am certainly not going to forfeit a fundamental rule of law that has been there in regard to will-making from time immemorial in order to facilitate solicitors. I shall not allow a situation where a solicitor can derive benefit from a will at the same time in two different capacities. The debate on the Committee Stage has been very reasonable, as should properly be the case, but this suggestion appears to me in this day and age to be quite unreasonable.
Perhaps the Minister will discuss it with Deputy Booth a little further.
So very far from this principle not having been violated it is violated in section 82 and has been violated since 1837. A creditor of an estate may witness a will and a solicitor, acting for a testator, is a creditor. He is a person to whom the estate owes a debt in respect of the service which he performs as a solicitor.