Vol. 217 No. 5
I move amendment No. 1:
In page 8, to delete lines 11 to 16.
I should like to have amendments 1 and 2 discussed together. They are linked. These are drafting amendments in which we are deleting section 4 (b) and in section 10 we are substituting what is in the amendment for subsection (4) (b). If the two are read together—sections 4 and 10 and amendments 1 and 2, the intention becomes apparent.
I move amendment No. 2:
In page 10, to delete lines 16 to 18, and substitute:
"( ) The references in this section to the real and personal estate of a deceased person are to property to which he was entitled for an estate or interest not ceasing on his death, and include property over which he exercised by will a general power of appointment."
I move amendment No. 3:
In page 11, line 16, after "Court" to insert "who, for this purpose, shall be a corporation sole".
This is an amendment to section 13 with a view to meeting the point made by Deputy O'Higgins on Committee Stage when he argued that, in the event of the President of the High Court dying and no successor being appointed, a lacuna would arise in which the President of the High Court could not act. By deeming the President of the High Court for the purposes of section 13 to be a corporation sole, we ensure that he becomes a continuous legal person with perpetual succession.
I think it covers the point. It is a small point but it could be important at times.
I move amendment No. 4:
In page 24, line 30, after "cannot" to insert "after reasonable enquiry".
Amendments Nos. 5 and 6 could be discussed with amendment No. 4. They are cognate amendments.
These matters were raised by Deputy Fitzpatrick on Committee Stage. He was concerned to have it spelled out that in these cases action could be taken by the personal representative after reasonable enquiry. In my view this is implicit in the section, but it is probably more desirable to spell it out as I am proposing should be done in these three subsections.
I move amendment No. 5:
In page 24, line 52, after "cannot" to insert "after reasonable enquiry".
I move amendment No. 6:
In page 25, line 24, after "cannot" to insert "after reasonable enquiry".
I move amendment No. 7:
In page 26, line 17, to delete "or" and substitute:
"unless the spouse continues to be ordinarily resident in the dwelling and exercises the right within one month of being asked by the personal representative in writing if he proposes to exercise it, or".
Amendment No. 8 may be discussed with amendment No. 7. It is consequential on amendment No. 7.
This point was raised by Deputy Fitzpatrick on Committee Stage. I felt that there was considerable merit in the point he raised in that, where a spouse continued to reside in the family home, there was a danger that he or she could be acted against by the personal representative without proper notice after the expiration of 12 months. We now state that the spouse must be notified, and she is being given a period of a month from the date of such notice. This can arise at any stage after 12 months where the spouse remains on in the family home.
I think it covers the point.
I move amendment No. 8:
In page 26, line 41, to delete "of one year".
I move amendment No. 9:
In page 30, between lines 34 and 35, to insert:
"( ) Nothing in this section shall affect any rule of law as to the satisfaction of portion debts by legacies."
On Committee Stage there was certain discussion on this section and I made the point that the section would only operate in the case of an advancement subsequent to the making of the will. Deputy O'Higgins, in particular, argued that this was not plain on the reading of the section. That is why this amendment is proposed. It emphasises that any advancement prior to the making of the will involves a question of satisfaction which is a different rule of law from that governing advancement made after the making of the will.
The Minister's amendment probably does meet the point of view which I and others expressed on Committee Stage. I still feel that it would have been met more adequately and would have made the position crystal-clear if the Minister had decided to adopt an amendment in roughly the terms that were suggested by me on Committee Stage, if he had added another subsection to this section stating clearly that in the case of the estate of a person who made a will, this section would not apply to any provision or advancement made prior to the date of the will, unless it was so directed by the testator in his will. That suggested amendment did contain the net point here and made the position crystal-clear. The Minister's amendment probably does meet the point. I will accept it as meeting the point anyway.
I move amendment No. 10:
In page 32, to delete line 28 and substitute:
"To be valid a will shall be made by a person who—".
Amendment No. 11 may be discussed with No. 10 on which it is consequential.
There was certain discussion on this on Committee Stage. It is largely a question of grammar or drafting. The section reads more positively when "shall" is substituted for "may".
I agree with the Minister. I would have preferred that to be valid a will "must" be made. It does not make any great odds.
I move amendment No. 11:
In page 32, to delete line 35.
I move amendment No. 12:
In page 32, line 42, after "attest" to insert "by his signature".
Amendment No. 14 is related to No. 12 and may be discussed with it.
There was considerable discussion on this matter on the Committee Stage and it is desirable, as was suggested, that we should spell out the procedure of attestation so that it is made quite clear in future that a witness does attest by his signature. That is the purpose of the first amendment. Amendment No. 14, which is consequential on that, substitutes "attesting" for "subscribing" in subsection (2) (c) of section 27.
I raised this point on Committee Stage and the Minister has met it very fully. It shows the value of occasionally reviewing these Acts that are more than 100 years old. The practice had grown up —and I am sure it was in the minds of the farmers of the 1837 Act—that a person who is a witness should attest by his signature. That was invariably done, but, as the Minister recognises by this amendment, it was not spelled out in the 1837 Act that that should be done and difficulties might have arisen or even the necessity for the tendering of oral evidence as to a person witnessing a will. The Minister has met the point very fully.
I move amendment No. 13:
In page 32, line 44, to add "nor shall it be necessary for the witnesses to sign in the presence of each other".
I know that many solicitors in the drafting of wills require both witnesses to be present. I can see situations where in the rush and bustle of a death scene it would be undesirable that this formality should be required. The courts have always held the view that this was not an essential requirement of the will-making process.
I agree with the Minister's reading of the position but I am a little sorry that he has decided to put this into the Bill because I do not think we should discourage the practice of the two witnesses each signing in the presence of the testator and of each other. It is a very desirable practice. It is an added safeguard against either fraud or mistakes in will-making. I agree with the Minister that at the moment, without this Bill ever being introduced, the strict legal position is that it is not necessary for the two witnesses each to sign in the presence of the other. It is necessary for each of them to sign in the presence of the testator. With solicitors who are charged with this responsibility of seeing that wills are properly executed, it is practically an invariable rule to insist on both witnesses remaining until the entire transaction has been completed: the testator signs, the first witness signs and the second witness signs. I hope that practice will continue and that by putting in this amendment we are not going to discourage it. It is a practice that should be continued and it is a safeguard to have it continued. However, I am not objecting to the amendment.
I agree with Deputy O'Higgins that the two should normally sign in the presence of each other but the courts have already held that it would be inequitable to invalidate a will just because they do not.
I move amendment No. 14:
In page 33, line 11, to delete "subscribing" and substitute "attesting".
I move amendment No. 15:
In page 34, to delete "(a)" in line 12, "or" where it secondly appears in line 13, and lines 14 to 16.
I mentioned on Committee Stage that I was bringing in an amendment to make it simpliciter that a will would be revoked by the subsequent marriage of the testator, except, of course, where the will was made in contemplation of that marriage.
I move amendment No. 16:
In page 34, lines 25 to 27, to delete from "except" to "apparent".
On reconsideration of section 85, I agree with the view expressed by Deputy O'Higgins on Committee Stage that these words which I now propose to delete add little to the section and make it unsafe to rely on. The section is much better without the words.
I move amendment No. 17:
In page 35, line 1, after "admissible" to insert "of the intention of the testator and".
This is a drafting amendment to ensure that evidence may always be admitted to show the intention of the testator. Deputy J. A. Costello raised the section on an earlier Stage and I think the amendment will make the object of the section quite clear. There should be admission of evidence in every case to show the mind of the testator.
I think the Minister is right to ensure this. Deputy Costello and I referred to this section on Committee Stage and I certainly made the point, which I think the Minister also recognises, that we should make every effort to make the mind of the testator clear. This amendment makes it clear that the court is entitled to hear and consider evidence which will show the testator's mind.
I move amendment No. 18:
In page 38, line 2, before "entailed" to insert "beneficially".
The amendment makes it clear that section 108 is confined to property to which the testator was beneficially entitled on his death.
I move amendment No. 19:
In page 38, to delete lines 20 to 28, and substitute:
"(1) Where a devise or bequest to a spouse is expressed in a will to be in addition to the share of the spouse as a legal right, the testator shall be deemed to have made by the will an additional bequest to the spouse of a sum equal to the value of that share.
(2) In any other case, a devise or bequest to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the legal right of the spouse."
Amendments Nos. 19 and 19A which is an alternative amendment and amendment No. 20 may be discussed together.
I move amendment No. 19:
In page 38, to delete lines 20 to 28, and substitute:
"(1) Where a devise or bequest to a spouse is expressed in a will to be in addition to the share of the spouse as a legal right, the testator shall be deemed to have made by the will an additional bequest to the spouse of a sum equal to the value of that share.
(2) In any other case, a devise or bequest to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the legal right of the spouse."
The purpose of my amendments Nos. 19 and 20 is for clarification of what sections 113 and 114 mean. We had a certain amount of confusion during the Committee Stage debate as to what precisely was meant and it is now quite clear from the proposed new wording of the sections that the beneficiary may take the additional bequest or elect for the legal right share. If the testator wishes to give a bequest in addition to the legal right, the latter will be an added bequest. Deputy O'Higgins disagrees with me in this. I considered this point very fully but I do not think it desirable that what he suggests should be the case. I think his suggestion would be too much in favour of the beneficiary. We propose to say to the beneficiary: "You may take the bequest or you may take the legal right". The bequest is to be taken in discharge of the legal right, unless otherwise directed. I think that is reasonably clear.
I never had any doubt as to what was the meaning of the original section. It is because of what is in the section as it stands in the Bill after Committee Stage discussion that I was arguing this point with the Minister. I understood from the Minister's remark and from his discussion with me that he proposed meeting me on this point. The position under the Bill and under the Minister's amendment is that the presumption is going to be against the spouse beneficiary. This section deals only with spouses and, for practical purposes, we have all agreed that it deals with the position of the widow.
Under the Minister's amendment and under the Bill as it stands, the position is that if a man leaves a bequest to his widow, unless he expresses that it is in addition to her legal share, she will be put on election. I feel that is all wrong. If the fixed legal rights share system is being adopted, and it is being adopted, I think wrongly, the position is this: if a man makes a will knowing that his wife is entitled to a fixed legal right share and if he makes his will disposing of the disposable part of his property and decides to make a bequest to his wife in the knowledge of her legal rights share, the presumption should be that it is his intention that she should get that bequest, in addition to the fixed legal right share. Now presumption is against the widow and unless he expresses in the will that she is to get both, she will not get both.
I look at it from two different points of view. The first is the point of view of the testator who is drawing his own will without the assistance of a solicitor or other professional advice. It is most unlikely that he will be familiar with all the details of this legislation which runs into some 130 sections. It is most unlikely that he will be aware that, if he wants his wife to get a bequest in addition to her one-third legal right share, he must expressly state that in his will. The odds are that he will make a simple will leaving a bequest to his widow.
What is the position then? We are going to legislate, at the Minister's behest in this House, to defeat that man's intention notwithstanding the fact that only a few minutes ago the Minister introduced an amendment— agreeing with me, incidentally, that the testator's intention should be paramount—to make it clear that the court would be entitled to hear extrinsic evidence in order to ascertain the testator's intention. He comes along now and says: "But that is not going to apply in the case of a bequest to the widow. Unless he expressly states in the will that it is to be in addition to the legal right share, she will not get the bequest".
Evidence of the testator's intention is not going to matter because, under this section and under the Minister's amendment, the testator must expressly state in his will that the bequest is to be in addition to the one-third legal right share. I am talking now about the man who draws his will, as he is perfectly entitled to, without the assistance of professional advice. He will draw that will without being familiar with every one of the 129 or 130 sections in this Bill. He will draw it without being familiar with the contents of section 113. It is perfectly logical to assume, I think, that such a man, if he makes a bequest to his widow, intends her to get that bequest. In effect, we are saying now that she will not get it, whatever the testator's intentions were, unless he expressly states in the will that it is to be in addition to the one-third legal right share. That is the first case.
The second case is the case of the ordinary solicitor charged with the task of drawing up a will. I agree that it is the business of a solicitor to be familiar with the law in relation to wills, but very often solicitors are very busy men. Very often they have to draw wills in a hurry, without access to their book of statutes or any other law book. Very often they have to draw wills at the side of the sick bed of a person in hospital, who has not very long to live. It is quite on the cards, in my opinion, that in those circumstances the ordinary solicitor will not carry in his head all the details of section 113 of the Succession Act, 1965, and when he is instructed by the testator to leave a bequest to the wife, he may very well draw up a simple will leaving that bequest and overlooking the fact that, under this legislation, she will not get that bequest unless he takes the precaution of setting out in the will the exact position.
I emphasise that it must be done in the will. Evidence of the testator's intention does not matter in this regard. Unless he sets out in the will that she is to get the bequest in addition to her one-third legal right share, she will not get that. I do not believe the Minister's section will be weakened in the slightest degree by putting the presumption the other way about in favour of the widow or the spouse. It is perfectly reasonable, I think, to make the case—it is the case that would appeal to any reasonable man—that if persons make bequests, they do so because they intend the beneficiaries to take the bequests. Consequently, the reasonable way of doing this is to provide that the bequest will be operative—that the widow will take unless the testator expressly states the contrary in his will.
My amendment, which we are discussing with the Minister's amendment, is a simple one. It is just as clear with regard to intent as the Minister's is in the reverse direction. I propose that, instead of section 113 as drafted, we should put in a section reading:
(1) A devise or bequest to a spouse shall be deemed to be in addition to the share of the spouse as of legal right unless the contrary intention is expressed in the will of the testator; and
(2) Where a contrary intention is so expressed such devise or bequest shall be deemed to have been made in satisfaction in whole or in part of the legal right of the spouse.
I strongly urge the Minister to accept this amendment. I make no particular boast about it, but I am quite sure that any person with practical experience in will-making will support the case I make, and if the Minister took the trouble to discuss this with anyone who has practical experience in the matter, he would find that I am right and he is wrong. If he does not believe me, I suggest he should suspend his judgment until he discusses the matter with people who have practical experience.
Actually I considered this very closely, as I agreed to do on Committee Stage. I have had discussions with people who have practical experience and, as a result of those discussions, I am satisfied that the presumption should be as stated in the section as amended. We are now giving a one-third legal right share to the surviving spouse. This is a new provision of considerable benefit to surviving spouses. Deputy O'Higgins has opposed this at all stages so far. He is now seeking to do much more than I am doing by writing in as a presumption that, where a testator gives a bequest, the widow shall have along with that bequest, the legal right share. On top of the one-third, she will get the bequest as well. Deputy O'Higgins cannot have it both ways.
I am not having it both ways. I am saying that is the testator's intention, unless he states otherwise.
If the testator wants the widow to have a bequest, let him express that in his will. I will cite a practical example. Take an estate valued at £18,000. A man makes provision of £10,000 out of that estate for his widow. He distributes the other £8,000 elsewhere. If we accept Deputy O'Higgins's amendment, then, in addition to the bequest of £10,000, the widow could claim another one-third, giving her an additional £6,000. He had done enough for his widow by giving her more than half, £10,000, by way of bequest out of the £18,000. If we were to accept Deputy O'Higgins's amendment, we would be making it incumbent on the testator's representatives to hand out one-third of the £18,000 on top of the £10,000 which the testator had already given. That is precisely what is involved.
That would be his intention unless he said it was not. That is what is involved.
I would consider that that was doing too well for the surviving spouse. From the practical point of view, I can see the Deputy's suggested presumption leading to the situation where, contrary to the testator's intention, we would be doing too well for the surviving spouse who had already been adequately catered for. It is a more rational position to have it as I suggest, that the testator may make a bequest but that the surviving spouse has the option of the legal right to one-third. If the surviving spouse is not happy with the will, he or she may elect for the legal right share of one-third. Surely it is not the intention of the Legislature to say in such a situation that on top of the bequest which fully looks after the surviving spouse, the surviving spouse will have one-third of the total estate as well.
I looked into this fairly closely and, although at first I was inclined to agree with Deputy O'Higgins, when I examined the matter fully I decided it was better as we have it in the Bill. The Bill says that the surviving spouse gets one-third if he or she does not like the bequest. If the testator wants to make a bequest on top of the one-third, that must be said in the will.
I take it that I may reply in moving my amendment No. 19A?
No, but the Chair will not rule strictly against the Deputy.
This situation arises because of the cockeyed idea of incorporating the one-third fixed legal right share for the widow. That is what has made the whole thing into a bit of a mess. However, the Minister is not going to be convinced by my arguments and I am not going to waste time, but I should like to ask the Minister for some clarification as to what his amendment means. It seems to me that on one interpretation of it, it is just nonsense. I think I know what the Minister means but look at what it says:
"Where a devise or bequest to a spouse is expressed in a will to be in addition to the share of the spouse as a legal right, the testator shall be deemed to have made by the will an additional bequest to the spouse of a sum equal to the value of that share."
The Minister has chosen one particular case to argue; let me take under his amendment this case where the testator leaves his widow a bequest of 1/-. What does that mean in relation to where a devise or bequest is expressed in the will to be in addition to the legal share of the spouse? The 1/-is expressed to be in addition to the legal right share and then the testator shall be deemed to have made by his will an additional bequest to the spouse of a sum equal to the value of that share. In other words, by reason of the miraculous words contained in this amendment, the shilling is to be deemed to be equal in value to one-third of the estate. It seems to me that instead of making the position clear, and I thought it was crystal-clear as the Bill stood, the Minister has succeeded in making it—I was going to use the expression muddy, but that would not be——
No; this amendment will clear the matter up.
He has succeeded in making it unclear, even taking the next amendment with it.
I think it is very clear now.
Is amendment No. 19 agreed to?
I move amendment No. 20:
In page 39, between lines 3 and 4, to insert:
"(5) In this section `bequest' includes a bequest deemed, under subsection (1) of section 113, to have been made by the will of the deceased."
Amendment No. 22 may be discussed with amendment No. 21.
I move amendment No. 21:
In page 39, in line 9, to delete "and shall be," and to delete lines 10 to 12.
Amendments Nos. 21 and 22 should be read together. Again they clarify precisely what is now meant by section 115 which caused a certain amount of discussion on Committee Stage. The purpose of section 115, is that where up to now the testator during his life has made permanent provision for his spouse, under contract or otherwise, then, apart from periodic payments, such provision shall be deemed to be in satisfaction of the legal right share which would accrue to the spouse on the death of the testator. Objection was taken to the last three lines in section 115 (i), particularly by Deputy J. A. Costello and Deputy M. J. O'Higgins. I agree that those three lines should be deleted.
I know that there was a mistake originally in the lines mentioned in the first list of amendments which came out.
That is right; we have cured that.
That has been corrected.
It is correct in this?
Amendment 21 commences in line 9.
The numbering in the Bill was wrong.
Yes; that is what was wrong.
I move amendment No. 22:
In page 39, between lines 14 and 15, to insert:
"( ) If the value of the property is equal to or greater than the share of the spouse as a legal right, the spouse shall not be entitled to take any share as a legal right.
( ) If the value of the property is less than the share of the spouse as a legal right, the spouse shall be entitled to receive in satisfaction of such share so much only of the estate as, when added to the value of the property, is sufficient, as nearly as can be estimated, to make up the full amount of that share."
I move amendment No. 23:
In page 39, to delete lines 17 to 38.
I have reconsidered section 116 in view of what was said by Deputy M. J. O'Higgins and Deputy J. A. Costello on Committee Stage. I think the matter can best be dealt with by deleting the section altogether.
I agree.
Amendment No. 27, which is consequential, may be discussed with amendment No. 24.
I move amendment No. 24:
In page 39, to delete lines 55 and 56.
This is just to provide that all proceedings under this Part of the Act will be heard in chambers. Amendment No. 27 goes with this amendment.
I move amendment No. 25:
In page 40, to delete lines 1 to 3, and substitute:
" (5) Rules of court shall provide for the conduct of proceedings under this section in a summary manner."
This is to meet a point made by Deputy J.A. Costello who suggested we should delete subsection (5). I agree that the terminology suggested by him is more satisfactory and I am incorporating it in the Bill.
The intention is that when the rules are being made, they will be in accordance with the hope expressed in the original subsection?
That is correct.
I move amendment No. 26:
In page 40, to delete lines 4 to 6, and substitute:
"(6) The costs in the proceedings shall be at the discretion of the court".
This also was raised by Deputy J. A. Costello on the matter of costs. He felt it would be more desirable that this question should be at the discretion of the court and I agree that that is the proper way to deal with the matter.
I move amendment No. 27:
In page 40, between lines 18 and 19 but in Part IX, to insert a new section as follows:
"Proceedings to be in chambers.
All proceedings in relation to this Part shall be heard in chambers."
We are now about to pass a Bill which will make a very substantial alteration in the laws of succession in this country. We are asked to take away the free right of disposition which Irish will-makers have had for more than 200 years. It is the first time an Irish Government, since this State was established, have made such an attack on rights which have existed for more than two centuries.
As I have said during the progress of the Bill through the House, that attack might be justified but only, in my view, if the Government hold the belief that the majority of Irish will-makers make wills which are unfair and unjust. I do not think there is any other way in which this attack on their freedom of disposition can be justified. It is because I do not subscribe to the belief that the majority of Irish will-makers are unfair and unjust in their testamentary dispositions that I and my Party have opposed the provisions of this Bill.
Our belief is that the vast majority of Irish will-makers have a Christian sense of responsibility in deciding to make the best provision they can for their families and dependants when they make their wills. It is our belief that the vast majority of Irish will-makers go to some trouble and take a great deal of care to ensure that the provisions of their wills are proper and fair. We believe it is not right that the majority of Irish will-makers should have their rights and their wills attacked in this manner in order to solve a problem that exists with regard to a small minority—I believe it is a very small minority—of will-makers. I have stated from the start of these discussions, and indeed long before the Bill came before the House, that there was a problem that required to be dealt with, the problem of the inofficious will. That problem was spot-lighted in this House by a motion which I tabled on behalf of the Fine Gael Party seeking legislation which would protect widows and dependent children from being unfairly and unjustly disinherited. What the Minister has done in this Bill, and what his predecessor sought to do in a very much more drastic Bill, went a long way beyond seeking to solve the problem.
I would have agreed, and I do agree, that it was the duty of the Government to tackle that problem but the way to tackle it was to deal with it directly as could have been done instead of interfering with the generality of wills for the sake of remedying the ills that existed in relation to a few. On behalf of the Fine Gael Party, I hoped that a comprehensive scheme which would have remedied the ills of the few without interfering with everybody else would be introduced. The Minister has chosen to travel along another road. I am sorry he has done so. I am sorry he should have been associated in his first major undertaking in the House with a Bill which I think is unfair to Irish will-makers, with a Bill which, when it becomes law, will cause a lot of difficulty and trouble, with a Bill which, because of its provisions, will work out most unfairly for those whom the Minister honestly believes he is assisting by this legislation.
It has been pointed out that under the provisions of this Bill if a man leaves a one-third share to his wife, she cannot ever get any more and she is debarred from making any application to the courts. She must be content with the one-third share, even if that might be most inadequate and unfair and a great injustice. The Bill will stumble on that rock straight away.
The Minister claimed, when introducing the Bill, that having drastically altered the proposals of his predecessor, he had met every valid objection to the Government's proposals. I contested that at the time and still do. Since that claim was made by the Minister, possibly the most authoritative body in this country on questions such as this, the Incorporated Law Society, have made it quite clear that they disagree with these proposals, that they think they are wrong. I have already pointed out that that body are not in any way politically inspired. They have no axe to grind politically. They are concerned only for the welfare of the clients of their members. They are a body embracing all shades of political opinion and I have no doubt that at least two members of the Government and one Parliamentary Secretary are members of that body. If they are not, they should be.
In addition to the advice expressed by the Incorporated Law Society, within the past week or ten days, since the Committee Stage of this Bill began, other views have been expressed by other bodies making it clear they disagree with the Minister's proposals. A lengthy letter appeared in one of the daily newspapers from a former Supreme Court judge who, as far as my memory goes, was a candidate for the Minister's Party in at least one general election. He has gone on record as showing his disapproval of the measures the Minister has incorporated in this Bill.
I am sorry the Minister has decided, for whatever reason, to adhere to his idea of a fixed legal right share. It is a pity he has done so. He had an opportunity of bringing in fresh legislation which could have been of immense benefit to the people of the country. We were prepared to discuss it in a reasonable, reasoned, noncontroversial manner. I do not suggest that, in the course of his discussions here, he approached it in any other way but I do feel that had the Minister been free to come into this House with an open mind, and to consider the scheme that we put up with an open mind, it is much more likely that there would be general agreement both inside this House and outside the House on a Bill which would incorporate the scheme of judicial discretion which we urged the Minister to accept.
I agree with everything Deputy M. J. O'Higgins has said concerning this Bill but I should like to say just a few words on matters I touched on during the course of the Bill. I think that not only will this fail to do complete justice to the widow but indeed an injustice, in certain cases, to the actual testator because his wishes will not always or indeed perhaps mainly be carried out in spite of the safeguard the Minister has tried to put into the Bill. In this Bill, for the sake of the very few cases of injustice which have occurred, you either think it is right to upset the whole will-making of this country or you think, as we think on this side of the House, that it is more important to see that justice is done to the testator and to his widow by other means. Deputy O'Higgins and others, in the course of the discussion on the Bill, did point out various ways in which they thought that could come about.
One of the difficulties I can see in this Bill is that it cuts across our whole legal idea, or what was our legal idea up to now. We did hold in this country that a man sometimes had the right to do wrong, not to do a great wrong. We held that he had a certain amount of right to dispose of his own property in his own way. Although rights of property is not a very popular term in the century we now live in, nevertheless western civilisation, as we know it, has been built up with a great deal of respect paid to those rights.
I can see a situation arising in which, by virtue of this Bill, when enacted, the whole method of passing on property will radically be altered. I am very much afraid that, as a result, a great number of our farms will be split up. I know, in respect of a great number of businesses which exist in certain hands today, that the shares, and so on, will, by virtue of this Bill when it becomes an Act, have to be thrown on the market to provide perhaps for the widow's one-third. Up to now, most men leaving property left the widow a life interest and that worked very well. But how, now, can that be done when the widow herself is getting one-third of the estate? It cuts across a lot of the ways in which testators and men acted with the best interest of their wives in mind. It cuts across methods such men devised, and their legal advisers and financial advisers devised, which would give the widow maximum security and, at the same time, give her an income. When I say "security" I am thinking not just of the security of the income she would have but security by the fact that she would indeed perhaps be protected from fortune-hunters by virtue of the testator's arrangements that she would not have full control of her money.
It is I think an unfortunate step that, under this Bill, the State now steps in and says to a man who, perhaps, in his own lifetime made that money with his skill and his efforts: "Yes, we allowed you to make this money. To a certain extent, we applaud you for having done so. But now we do not think that your views on the disposition of your property are as good as ours and we force you to do this and force you to do that." I think that will have a very bad effect on the future of Ireland. I think it will cut across the policy of the Government in regard to industrialisation and the building up of businesses.
We are anxious to attract capital. We are, I think, anxious to have people of means living in this country, people with disposable property. I believe that, as a result of this Bill, we shall frighten some of those people away and that will not be a good step. Therefore, I regret that the Minister has seen fit, even in this somewhat modified form, to pilot this Bill through this House.
I believe that, within a few years, certain sections of this Bill will have to be altered radically. I think that is something this House will regret. It is not good to pass legislation and then, within a few years, owing to public outcry, to have to alter it. I believe that will come about as a result of this Bill.
I do not wish to repeat what Deputies O'Higgins and M. E. Dockrell have said but let me say emphatically that I agree with everything they have said. There is no doubt whatever that when we first set out to discuss the Succession Bill our sole concern was for the undutiful will, to ensure that the wife would be properly looked after on the death of her husband. What has happened? We have turned the clock the whole way round and have made provision for the widower in addition to the widow. One can imagine the case of a wealthy spinster whose only possible value on the matrimonial market is her money. One knows of such cases where a man marries a lady simply on account of the cash she has and it is only after marriage that she discovers his intentions. It is too late then. Under this Bill, no matter how big a blackguard he is, no matter how he treats her, no matter how much he wishes to discard her, she has to provide for him and give him one-third of her assests after her death. Remember, in most of these cases, the husband is the younger of the two and he is going to derive the benefit of that marriage. I hope I am not misconstrued when I say that it is a marriage of convenience from his point of view. We have not thought of that in our discussions on this Bill. Is it fair? Is it right?
Again, take the comparatively wealthy widow who marries again, possibly some wastrel, and he in turn becomes entitled to one-third of her estate. No matter how old she is or how young she is when she dies, that second husband becomes entitled to one-third of her estate and is entitled to it whether she bequeaths it to him or otherwise.
Think of the confusion that will exist along this unnatural Border of ours. The law in the Six Counties, as we all know, is the law of Britain. There the testator is at liberty to make a will and to leave his assets to whom he wishes, to the person he thinks best entitled to it. I can imagine persons in Tyrone, Fermanagh and Derry being free to make wills while their neighbours across the Border, in the next townland, are compelled to leave one-third of their estates to the surviving spouse. We people who practise on the Border know that in some cases assets exist on both sides. I wonder what is going to happen when there is a shuttle across the Border and a will is made in the Six Counties disposing of property in the Twenty-Six Counties. I presume that most of the estate will be squandered in a law suit as to domicile.
It is all very fine to laugh. We might think of the unfortunates who have to provide the cash. We may laugh here but the unfortunate solicitor who has to explain the position to his clients and explain what the Oireachtas and the Government have done to land them in that mess is not exactly in a position to laugh. It will be very difficult to explain. We have to explain to people now whose wills we have made over the past 25 or 30 years that they have to change them if they have not given one-third of their assets to their spouse. I know many solicitors who have anything up to 1,000 wills in their safes. Immediately this Bill becomes an Act, if they do not contact the people concerned forthwith, the wills will be considered undutiful wills and the law will apply to them as set out in this Bill. Despite the intentions of these testators, expressed in writing down the years, they must now come and alter their wills. Some of them, through senile decay, may no longer be in a position to alter the will. They may no longer be in a position to execute a valid will. Despite the fact that their solicitors and their families know their intentions, their wills are no longer legal wills because they do not comply with the terms of this Bill.
These are aspects that the Minister should consider. It should be explained forthwith and should have been explained to the public generally when this Bill was under consideration that they will have duties to the surviving spouse and to their families and must comply with the Succession Bill as introduced by the Minister.
That is one of the reasons I think this Bill is a bad Bill, a Bill which defeats the purpose it set out to achieve, namely, to amend the undutiful will. We have leaned over far too far. If the House had adopted the suggestion of the Fine Gael Party, there would have been no necessity for this controversial Bill, this Bill which I believe will be cursed down through the years until eventually it is amended by another Government.
I only hope that Deputy O'Donnell is labouring under a misapprehension and not distorting the facts.
So does he.
We have to try to get it across, initially, presumably to members of this House who are not aware of it, and subsequently to the public, that the sort of interpretation that we have had from Deputy O'Donnell is completely incorrect.
Of course it is.
There is no question whatsoever of a will being invalidated.
Inoperative.
Wrong again.
I am not practising at the moment but at least I understand the Bill and if Deputy O'Donnell had a look at it, he would understand it, too.
I think he is bluffing on the Fifth Stage.
The point is that there is nothing in this Bill which would cut across the wishes of the normal wise parent making a will.
That, of course, is complete nonsense.
That may be a matter of opinion.
That is assuming that the State is taking the place of the normal wise and prudent parent.
No, not for a moment. The point is that we are taking action here with the full support of many members of the Fine Gael Party and most members of the public who have any conception of the problem, people like Deputy John A. Costello, and so on, who realise that there is a very real problem which demands attention and what we are doing is simply saying that anyone who is prejudiced by an undutiful will may claim a legal right. It is as easy as that. But, if a husband excludes his wife, eventually his widow——
Or a wife excludes her husband.
——because the surviving spouse has ample funds, is it not reasonable to assume that the surviving spouse will be perfectly happy with the ample funds he or she may possess? If not satisfied, there has been a serious breach of the whole basis——
If they are not satisfied, what happens? Are they entitled to the one-third legal share?
Of course they are if they are not satisfied but that is for the married couple to sort out before either of them dies. I have received as late as yesterday a letter from a very worried constituent who said it was appalling that his will was going to be made invalid and I had the greatest pleasure in replying to him within a matter of hours pointing out to him that his will was as valid as ever it had been. The letter was a joint letter from husband and wife. They both seemed concerned and I was able to assure them—and I think they are now assured—that the situation so far as they are concerned has not been changed one iota.
While they are alive.
Exactly, because they are a happily married pair who are well able to look after their own affairs and they are not going to fight during their lives or one of them develop a sense of grievance after the other has died. Let it be clearly understood there is no question whatever of invalidation of wills or of a solicitor having to call in all clients who have made wills. I hope Deputy O'Donnell will take these words of wisdom with him. It is absolute nonsense for a solicitor to start panicking, looking through his will boxes and telling all his clients to come in and to make new wills. He is just looking for business. There is no necessity for it and it is certainly not in the interest of his clients. Nobody is going to be prejudiced in any way. The only person whose will may be upset is a person who has made an undutiful will and whose will may be varied by the court on the application of the aggrieved parties.
That would be the position if our amendment had been accepted but it is not the position under the Minister's Bill.
It will be amended if it is an undutiful will, if it does not comply with the terms of the Act.
The Deputy is very close at heart to the scheme we put up.
No. What we have done is to create a system which will make it unnecessary to bring will proceedings before the court to decide on rights of one sort or another. We have made it very simple, so simple that I do not think anybody will bother to go to court; certainly it will be very much the exception.
Apart from these contentious matters, the Bill goes a tremendous way towards clearing up the whole law of succession. It codifies the whole law on the matter of legacies and makes it a great deal more simple. This legislation deserves the most complete approval by the House. I will admit that in the early stages, and certainly with the earlier Bill, I was one of its strongest critics. However, the Minister has met us in our criticisms in a very fair way and the Bill which is now about to be passed is a very much better Bill than it was in the first stages and a considerably better Bill than it was when it was introduced a second time. It now has my full support but I would ask the Deputies not to allow Party considerations to influence them in giving incorrect information. If Deputies do not understand what the Bill actually means——
We can always go to Deputy Booth.
——they should keep quiet. If they really want to know, I suggest that everyone, including Deputy O'Higgins, might interview his solicitor.
The speech Deputy Booth has made is very largely nonsense. He described to us the communication of the two aged constituents who wanted reassurance from him, and with his cheerful insouciance, without reading the will of either of the aged constituents, Deputy Booth in a matter of hours time wrote back and said all was well. He has not the faintest notion whether all was well or ill with his two aged constituents.
Of course I have.
They have made a will and made presumably what they consider to be proper dispositions, but if they have not made the provision that is required in this Bill as it at present stands, they or members of their family, if they have any, can assert a legal right to a provision out of the estate of the deceased constituent of Deputy Booth which that deceased constituent of Deputy Booth does not wish them to have. Perhaps Deputy Booth would get on his bicycle and dash off to tell the two aged constituents that, and then ask them to go to see their solicitor, get their pair of wills out of the safe, re-read them and see whether in the light of certain sections of this Bill, their intentions will be carried out.
He should consult a practising solicitor, too.
If the members of their family have recourse to the legislation enacted by this House and not to the terms of the will of the two aged constituents, Deputy Booth might discover, by the time they have had this discussion with their legal adviser, that the opinions which he provided at two hours' notice are not as valid as he appears to think they are. The Deputy must excuse me but it is really not what he said but the smug way he said it that brought me to my feet. I like a man to get up and burst out in every direction but this profession of disinterested public spirit, which in fact is a smug hypocrisy, drives me up the wall.
The Minister got tangled up in the refuse left after him by his incompetent predecessor. His predecessor is a man who was trained as an accountant and who knows as much about the law as my foot. He got committed to the original form of this Bill and the Government had to scramble out of the original form of the Bill as best they could. The present Minister for Justice who has had some legal training as a junior barrister has some understanding of the principles underlying the law. There is an analogy, no more than an analogy, by which I believe we should have been guided in dealing with the Succession Bill. Our whole legal system is based upon the common law qualified by statute law. Over the years, centuries ago, there emerged in the common law a rigidity of spirit and practice against which society revolted. Out of the revolt against this rigidity there arose the whole structure of the Chancery law and equity and there was seconded to the Court of the Lord Chancellor and the Master of the Rolls subsequently the special function of seeing justice done even though the letter of the common law did not make provision for it, and where justice, as the common law used to be described, collided with equity, it was an accepted doctrine that equity should prevail.
That is really what we sought to do here, except that here we are dealing with the statute law. We were face to face with the Wills Act and under that Act, 99 per cent of the human race made fair and equitable provision but there did remain a microscopic minority of eccentrics who made improvident wills. I prefer to use the word "improvident" because very often these wills were not dictated by malice. Certainly the worst of them were dictated by improvidence and, not infrequently, by incompetent legal advice. There were rare cases where widows, mainly widows but sometimes families, were left with scandalously inadequate provision and where it was manifest that disaster had taken place either due to ecentricity or some other fortuitous circumstances. We ought to bear in mind that it is very doubtful if one per cent of all the wills that ever were made were in that category. It was to remedy that microscopic evil, looking at it in the global point of view, but that very acute evil, looking at it from the personal point of view, that we sought to find a way out.
If the Minister had originated this Bill originally, I feel that he would have followed the pattern of equity and left a wide discretion to the courts to say: "That is a will that is manifestly unjust to the widow and children," and he would have left to the courts discretion to make provision for them. That would simply have been to declare that we adhered to the principle of equity that those that went before us encouraged in order to correct the rigidity of the common law. Instead of that, we have clamped down on our people the rigidity of statute law which controls and restricts the fundamental right of the father of any family.
I think we are all coming to the conclusion that the family does not exist at all and that Oireachtas Éireann ought to occupy itself with the business of straightening out the family and, if necessary, breaking it up and in that way subscribing to the idea that the father of the family does not matter a damn, that he is an old fool in any case and that he and his wishes can be completely disregarded. That is a dangerous principle. There are many people in the world who are seeking to overthrow society in one way and another. I do not think the Minister is seeking to do that but I do think that he is following a pattern which is full of dangers.
That is the same path about which I had reason to comment in the Finance Bill when I said that instead of cherishing the family and recognising that its sacrosanct character is fundamental to our whole society, our Legislature is being manoeuvred into the position of trespassing within the family circle and trampling on it generally. Can members of this House imagine the minds of Deputy Booth's two aged and respectable constituents when they came to him and said that they were alarmed to hear that Oireachtas Éireann had announced its intention of breaking into their family circle and arrogating to themselves the right to say that if their wills did not conform to the Succession Bill, any interested party could come into court and claim the statutory right to set aside the dispositions of these two venerable constituents of Deputy Booth?
I am not one of those who subscribe to the widely-held doctrine that Deputy Booth is a fool. I do not think he is. I think he is anything but a fool and now I am looking at another member of the Fianna Fáil Party. They come into the Fianna Fáil Party apparently ordinary, intelligent men and a sojourn of five years in that Party reduces them to the condition of being used codfish and they believe everything they are told. They will walk into the lobby in support of any daft proposition because the Minister is in a hole and they cannot let the Minister down. They all speak and think with the same minds. I have seen the same qualities manifested by sardines and codfish and that does not qualify the sardines and codfish to be legislators for this or any other community.
There does emerge occasionally an individual who says that this is too tough even for his Fianna Fáil stomach. In that regard I wish Deputy Booth would take counsel with his two aged constituents and, having done so, allow his conscience to stir. The advice he has given to them is not defensible.
It suits me all right.
It suits Deputy Booth all right but does it suit his two aged and respectable constituents? I am sure it suits Deputy Booth. There are certain well recognised steps to the post of Parliamentary Secretary. Deputy Booth might like to become a Parliamentary Secretary but his two aged constituents do not give a fiddle-de-dee whether Deputy Booth becomes a Parliamentary Secretary or not. What they came to him for was advice. They came and asked an informed member of this House what they were supposed to do and he told them that their absolute right to dispose of their property was still intact.
I did not say that.
I wonder what Deputy Booth did tell his two aged constituents. He tells us he took only two hours to draft his masterly reply. I would like to see a copy of that reply. I would suggest that he inscribe a copy of this masterly reply to his two aged constituents on the official records of the House. We would all read it with great attention. I am sure that the Minister will see that this reply is inscribed in letters of gold in the appropriate Party documents when the question of further promotion comes up. I hope Deputy Booth's two aged constituents will inscribe it in letters of gold but they may inscribe it in different form the next time they get a ballot paper into their hands.
The long experience and practice of law corrected the rigidity of the common law and substituted for it the practice of equity which was placed originally in the Lord Chancellor's Court and subsequently in other courts. We all know the impossibility of arriving at a perfect solution to any problem. We all know that all the members of the judiciary are not what the average man would call reasonable men but we have got to assume that they had some qualifications for the positions they now occupy. If they have not got them it is the fault of the Government that put them there.
Therefore we are entitled to proceed on the assumption that they are competent people, no matter how large an assumption that may be. They are all charged with the responsibility of administering equity. I put it to the Minister that he would have been wiser, instead of providing this statutory limitation on the manner in which Deputy Booth's two aged constituents might dispose of their property, to make sure that in any case of manifest injustice equity would have been invoked to see justice done.
If that were the contents of this Bill, then Deputy Booth, with a clear conscience, could have said to his two aged constituents: "Seeing that you are virtuous, and presumably sane, and that you have access to a reputable solicitor, I can now say, with confidence, that there is nothing in the Succession Bill that will impinge in any way on the testament either of you may have made. Therefore, go in peace." He could have said that, and meant it, but I put it to him that he went too far when he told them to go home in peace; and now I am going to address myself to the two aged constituents: "Haste away to a more competent adviser than Deputy Booth and ask that competent adviser is there anything in that Bill which could be invoked to alter the disposition I have made in my will?" I think the competent adviser will say: "Poor Deputy Booth! He did not know what he was talking about. If he had known he probably would not have talked."
Mark you, there is no urgency about this Bill. God knows, it has had a pretty adventurous career up to now. Of all that appeared in it when it first came before this House everything is gone but its title. I put it to the Minister that he will do himself and his Government no discredit if, on reflection between now and the time it goes before the Seanad, with the help of Deputy Booth, he leans towards the view that our ancestors were, perhaps, wiser than he is and the appropriate way to correct excessive rigidity in the common law, or in specific paragraphs of the statute law, is to invoke the power of equity and leave things to the judgment of a reasonable man. Mark you, that is the description usually reserved for the occupants of the jury box. I exceptionally apply it to the occupants of the Bench. I contend that those who, in the judgment of a reasonable man, have been unjustly treated by a capricious testator should have access to the courts to see that justice is done.
If the Minister does that, he would, I think, have virtually unanimous approbation of the reform of the law relating to wills. In such a delicate matter as this, it is not a bad thing to have virtually unanimous agreement amongst us. Nobody will get all he wants. We may not have achieved all we would wish to achieve if we had both the intelligence and the genius to forge a perfect instrument, but, if we achieve an instrument, after our final deliberation, which may not measure up to everybody's hopes but which is universally acceptable, that is, at least, one effective step nearer the perfect achievement we sought and it will be a very much more precious achievement than a Bill carrying Deputy Booth's certificate to his aged constituents and a Bill, at the same time, which causes grave misgivings not only upon this side of the House but amongst the more intelligent members of the Minister's own Party.
We have certainly had a very constructive debate on the different stages of this Bill. We have had numerous amendments suggested. The measure which is now in course of being passed by Dáil Éireann will, I feel, prove to be one embodying an appropriate scheme of succession for Irish men and women in the future.
There is one particular aspect with which I should like to deal at the outset. I refer to the notion apparent on the Fine Gael Benches that there is something sacrosanct or basic to our democratic system in the idea of absolute freedom of testation. That is not so. At this point of time we are the only country in the world in which there is absolute freedom of testation. It is obviously undesirable that a system should operate in which a man or woman can do what he or she likes irrespective of the duties and obligations owing, in particular, to the family.
The British Act of 1938 amended the British system. Only at that late stage was an Act passed providing for a system of application to the court in respect of a wife or child prejudiced by an inofficious will. Prior to that, in the courts of equity, which Deputy Dillon has eulogised, there was no provision for the rectification of a will by a wife or child and these could be, to use the old saying, cut off with a shilling, or left destitute. This system of absolute freedom of testation emerged only at a very late stage, in the past 200 years, in Britain. It is peculiar to England and Wales and to those countries to which they managed to bring this idea of absolute freedom of testation to the detriment of the duties and obligations that a testator has, in particular to his own family.
In Scotland, the other half of the neighbouring isle, they have a system similar to the one we are introducing here, but the Scots have gone a little further in that there is a legal right for the children as well as for the surviving spouse. We have deleted the provision in regard to the children, following the discussions here on the Second Stage.
To complete that, I think the Minister should mention that in 1964 the Scots rather got away from their system.
No.
In relation to land.
In every country in the world, outside of England and Wales, and wherever they have managed to plant this idea of absolute freedom of testation, it has long been acknowledged that a specific share out of a man's estate must go to his wife and children. These shares are to be found in Roman Law. They were recognised by Canon Law and introduced into those countries to which Christianity spread. It was part and parcel of the system that one-third went to the wife, one-third to the children, and one-third according to the testator's own wishes. That system operates in Scotland, in Europe and in most of the states comprising the United States of America. In case Deputy Dockrell feels this system is a deterrent to private enterprise, may I say that the system also operates in the strongest commercial centre of the United States, the State of New York. There is a compulsory share for the surviving spouse, and a compulsory share for the children, the remainder going at the testator's wish. It is nonsense to suggest that the share system will operate as a deterrent to either investment or enterprise.
On becoming Minister for Justice, I met various interests and various bodies concerned in this matter. I met the National Farmers' Association. We had a most constructive discussion. I came to the view that there was merit in the argument that the one-third legal right share for the children would not be suitable here. In the Succession Bill of 1964 there was a mandatory one-third for the children. This has been deleted and the procedure now is by way of an application to a judge in chambers where a child who should have been provided for out of the estate, has not been so provided for. I was convinced that having a system, whereby children already provided for, who had made their way in the world, gone into business or secured professions, could extract one-third of the estate could lead to a lot of trouble. In regard to the surviving spouse, the widow, there is a very distinct difference. Here we are dealing with a situation in which a man and his wife have been in partnership over the years, have reared a family, lived on a farm, or participated in a business. In that situation, arising out of the very nature of the marriage contract in our society, it is right and proper, having regard to the indissolubility and sacred nature of the marriage contract, that the survivor should have as a first charge on the testator's estate a legal right to one-third of that estate in the event of the survivor being in any way wronged in the testator's will.
This is where Deputy Booth was correct in the remarks he made earlier. This particular provision of the legal right which now stands in the Bill in the case of the widow in no way invalidates any existing wills, nor will it invalidate any wills of the future that may make alternative provision by way of life estate, or bequest or other arrangements appropriate to the particular circumstances of the survivor of the marriage. I want to emphasise that this one-third is not a compulsory share which must be extracted out of the estate by the widow. It is a right she must exercise within 12 months of the death of the testator, and she may exercise and probably will exercise that right only if she has been wronged under the will. If the wife and husband make their own arrangement, as apparently Deputy Booth's aged pair did, among themselves as to how best their property should be disposed or managed after the death of one, that arrangement stands.
I am satisfied that in the future many wills will continue to be dealt with on that basis. Where a couple come together and decide how best to arrange their property in the event of one surviving the other, their decision in the form of a will suitable to their own circumstances will not be upset. There is nothing in this Bill to invalidate existing wills or future wills where certain arrangements are, or will be, made for the benefit of the surviving partner. This Bill guarantees that the widow who may have been victimised or prejudiced by reason of the inofficious will of a capricious husband will have a legal right to one-third and can insist on it, no matter to whom the property is left—whether it has been left to some charity or to somebody in Honolulu. That charity or that person must first of all deal with the widow of the dead man and she must be catered for properly out of the estate within 12 months of the death of the testator. She can insist on her legal right to one-third and secure a proper deal for herself.
That is the way in which this Bill is going to operate. It is only proper that property should go to the son or daughter, more often to the son of the testator's choice, to be managed. This applies particularly in the farming areas of the country. It is only right that we should seek to encourage that a father should decide on one son to run the land. He may make a priest of one son and perhaps a nun of a daughter and perhaps set up others in business, but there will be a son who will remain on the land. I was disturbed about the manadatory one-third provision for children but now as the Bill stands the father can say to one son "John, you are the man for the land; I am giving the farm to you". But John's mother, after the death of the father, has her legal right to one-third and she can use that and hold it as a guarantee that she will be properly treated by her son after her husband's death. In the event of her husband not looking after her in the will, she can insist on her son looking after her out of the property. That is a reasonable situation.
Deputy J. A. Costello on the Second Reading debate last December on the Succession Bill, 1964, pleaded that we should get some marriage between the legal right system we had in that measure, the two separate one-thirds for wife and children, and a system of judicial discretion. He did not go the whole way with absolute judicial discretion nor with our scheme of one-third for the wife and one-third for the children. I think that the Succession Bill, 1965, represents what he had in mind in seeking a marriage between the two systems. The Bill says that where a child who is economically dependent on the testator has not been properly catered for, he can go into court; but we are not going to drive the widow into court. There is a very real difference between a child going into court to prove economic dependency and a woman going into court to be met, perhaps, with evidence of marital troubles, rows, matters that need not and should not be raked up, tensions and problems between a man and wife stretching over 20, 30, 40 or even 50 years, matters that are best left buried. These are the things that would be raked up, no matter how private the hearing against some unfortunate woman who is seeking to establish her rights. In the case of a widow, who has been a partner all her life with her husband, we feel that the proper solution is to give her a legal right which will be a guarantee that she will be fairly treated after her husband's death.
Deputy Costello also said last December that this problem of the inofficious will was quite a sizeable problem. That was precisely Deputy Costello's wording, the wording of a man who has spent years in the courts. He said that in his experience over these years this was a sizeable problem and, mark you, I agree with him. In the case of solicitors like Deputy O'Higgins who have argued about the occasional nature of this type of case in their offices, I cross swords with them. There are many hidden cases and I know of them as a public representative in a rural area. I know of widows who have seriously been wronged and who do not want to take it further, and who at present cannot take it further because, as things stand, if they are to upset the will of a misguided spouse they must prove some form of insanity or that some form of force was used on the husband to make the will. These are the hidden cases where wrongs have been done to people over the years. There is nothing about these cases in solicitors' offices or in the records of the courts. The legalistic people say this is no problem at all. As Deputy Costello said, it is a sizeable social problem. It is particularly a problem where a man and wife have lived together and unfortunately have had no children. Too often I have seen instances of jealous-minded, proud husbands in that situation, full of a stupid desire to keep the farm in the family name. Where the woman who has laboured for him has not produced a family, the farm is passed to some cousin or relative of the same name as the testator. These are things which can and do go on in our society and we are trying to remedy them in the Bill. This is a sizeable problem. Far from ramming the Succession Bill through this House, we have had the support of the Labour Party at every stage and we have only had certain legalistic people in the Fine Gael Party to oppose it. Labour have voted with us on every stage.
Would the Minister quote one of them on the Committee Stage, even one?
I am not here to quote what has been said but I am going to say that at every stage when a division was challenged——
We can read.
At every stage in this House where a division was challenged by legalistic people in the Fine Gael Party, who are probably lacking in social conscience, we have gone into the Division Lobby in favour of this socially desirable measure to deal with, as Deputy Costello said, a sizeable social problem. We have gone into the Division Lobby along with the Labour Party because they have seen, as I have sought to explain, that we are making an honest attempt here to grapple with a social problem. I think Deputy Dillon stated that it is very difficult to get a perfect measure in a matter of this kind. Deputy Dunne, speaking on the Second Stage, said the same thing and expressed the view that, while the Labour Party might not go the whole way with this measure, it represented, in a very difficult situation, the best that could be done. That, I feel, is a just comment.
We have had here a very constructive debate. Personally, I have met all the organisations associated with the legal profession who are concerned in a matter of this kind. I might say that, at these meetings, I did not hear any constructive case against the widow getting her one-third. Ninety-five per cent of the argument by the Incorporated Law Society and the National Farmers' Association and on the Second Reading of the Succession Bill, 1964, was directed at the mandatory share for the children. I felt myself that this provision was wrong and would have to go because it might involve, as I thought, the break-up of property and estates. At no stage did I hear anybody raise a shout against the widow getting her legal right of one-third. I was a critic of the Bill as it stood originally. However, to me, it was a fundamental principle that the widow should be entitled to one-third if there were children and to one-half if there were no children. As I say, I could see dangers in the situation of a legal right share for the children.
We have gone a long way to meet the views that have been expressed. We have had constructive discussions. I do not think the sort of speech made by Deputy P. O'Donnell on the Final Stage helps very much in the matter. There is no point in confusing people on it. We have here in this document, for the first time, a comprehensive law relating to wills and relating to succession generally. We now have a document which the practitioner or any member of the public may consult on this important matter of the transmission of property. We have in the Bill a judicial discretion in the case of child dependants and a share in the case of the widow which is not a fixed rigid share but a right which she may or may not enforce. The Bill represents a very Christian and human approach to this problem and an approach which has been adopted in most civilised countries. It is different from the approach which has been adopted in England and Wales but it is the same as the approach which has been adopted in Scotland.
I do not see why we, in an Irish Parliament, should not look at the legislation of other countries when we seek to bring in this legislation and also look at our own circumstances. I do not see why we should slavishly follow the legislation in England and Wales without examining other ways of dealing with the problem as well. For the information of some Deputies, I should say that the English system has not worked at all well owing to the caprice and the interpretations of the various judges. I think we now have here a system that will work well. The best evidence I have that it will work well is that, for a great number of years, in regard to 50 per cent of the properties in Ireland, we already have had a system of a legal right share of one-third operating in case of intestacy,
I would say that, in the case of farms, particularly medium-sized and small farms, 70 or 80 per cent go by way of intestacy. Over the years, in these cases, this particular legal right share has not been exercised by the widow to the detriment of the children, as has been suggested will be the case when this Bill becomes law.
There are many other sections in the Bill which have not aroused the same discussion but have given rise to constructive debate. It will generally be welcomed that we now have this comprehensive measure. It will generally be welcomed that we are eliminating feudal and other rules as to estates. We now say quite clearly that land devolves on the personal representatives. Wills may be made but the property will be subject to a legal right residing in the widow and an application to the court by a dependent child. A new system has been spelled out for the first time in legislation. It is legislation that does credit to us as a Christian nation with a social conscience. The Divisions indicate that the substantial majority of this House believe this to be so and they have shown it as their belief. I am convinced that a substantial number of people in this country believe in this measure and that more people will be convinced when it is operating. I feel that the only reason for opposition to the measure has been the befogging nature of much of the criticism, criticism such as we heard tonight, in particular from Deputy P. O'Donnell who should know that this sort of wild-cat criticism can do no good.
We can do good if the legal profession interpret this Bill in a proper way and advise their clients in a sensible manner without play-acting with politics and seeking to bemuse and befog the people about a Bill which is an excellent Christian and social measure and does not represent any form of State control. It is a good measure. What it seeks to do is simply to achieve a fulfilment of the indissoluble contract of married partners and to create an insurance whereby the surviving partner is provided for.
