Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 2 May 1951

Vol. 39 No. 12

Intestates' Estates Bill, 1951—Second Stage.

I move that the Intestates' Estates Bill be now read a Second Time.

This is a very short Bill. It comprises only a few sections, but it is rather important. It is fairly technical—up to a point, at any rate. For that reason, I thought it desirable to have an explanatory memorandum circulated with the Bill. I presume that Senators will have read the explanatory memorandum which sets out the present position under the law and what is proposed to be done in the Bill before the House.

Perhaps the clearest and the briefest way in which I could explain the Bill to the Seanad is to refer Senators to what is stated in the White Paper itself:—

"In the existing state of the law, the devolution of the property of a man dying intestate leaving a widow but no children depends on whether the property consists of real or personal estate and may also depend on the nature of the intestacy.

If the net value of the estate, both real and personal, is not more than £500, it passes to the widow absolutely.

If the net value exceeds £500, the widow gets—

(i) £500 absolutely, and

(ii) one half of the remainder of the personal estate, which for this purpose includes freehold land registered under Part IV of the Registration of Title Act, 1891, i.e., land purchased from the Land Commission and paid for by a land annuity.

The other half of the remainder of the personal estate is distributed among the deceased's next-of-kin (of whom the wife is not one) and, if there are no next-of-kin, it escheats to the State.

Real estate (exclusive of freehold land registered under Part IV of the 1891 Act) passes to the deceased's heir-at-law (or to the State if there is no heir-at-law) and, in no circumstances, can the widow succeed to it. She has merely a right of dower, namely, a life interest to the extent of one-third of the real estate.

In the case of a partial intestacy, the Act of 1890 has been held not to apply and the widow has, consequently, no right to the first £500. She gets only one-half of the personal estate (including again the freehold registered land mentioned above) as to which her husband died intestate, the other half being distributed amongst the next-of-kin."

The Bill proposes to remedy the situation I have just outlined, as follows:—

"Section 1 of the Bill provides that the Act shall come into operation on the 1st January, 1952. This is to allow persons concerned an opportunity of making their wills if they do not wish their property to be dealt with in accordance with the terms of the new legislation.

Section 2 provides that the widow shall have the whole of her husband's personal estate (including freehold registered land to which Part IV of the 1891 Act applies) if he dies intestate leaving no children. Similarly, if he dies intestate as to part of such personal estate, the widow will succeed to all that part of the personal estate.

Section 3 deals with real estate other than freehold registered land to which Part IV of the 1891 Act applies. Under the section the widow will have a life interest in the whole (instead of the present one-third) of the real estate which, by reason of her husband's intestacy, descends to his heir-at-law."

I should make it quite clear that there is nothing in the Bill, nor is there any intention to have anything in the Bill, which would in any way deprive a person of disposing as he may wish of his property. The point is that if the man dies without issue and leaves a widow, in the absence of a will the personal estate should devolve upon the widow, and not as it is at the moment.

I think that all fair-thinking persons and members of this House will welcome a measure of this kind. As the Minister has said, the Bill is more technical than it might seem. Nevertheless, it removes what, to my mind, has been an injustice as between different classes of persons. The Minister states that where a man dies intestate and leaves a sum of not more than £500, all his assets go to the widow whereas, in regard to assets exceeding £500, there is an involved distribution.

I think that is most unjust. While the Bill does not go as far as many of us would like to deal with the whole law in relation to the transfer of property, death duties and all that arise therefrom, still it goes a good distance and I welcome it. It was of very little use in the past for a widow to know that she had a one-third interest in her holding because that interest could not be sold and she could not raise any money on it. That is now changed to a life interest and that may mean a big change in her livelihood during the years she is in possession of the holding.

I would like the Minister to draw the attention of the Department to the law in relation to the transfer of property and death duties, having regard in particular to the present value of money. A case was brought to my notice recently where a person had £100 invested in the post office. If the deceased person had drawn out £1 10s. 0d. or 10/- before he died his heir would not have to undergo the expense of taking out administration and other legal formalities. I do not wish to delay the House beyond asking the Minister now that he has taken the first step to simplify and bring up to date the law in relation to death duties and transfer of lands and property, particularly in rural Ireland, having relation to present-day values.

I do not wish to delay the House, but these Bills dealing with law reform are so very important for the ordinary citizen in the country and the law of the country is so seldom discussed in the Houses of Parliament that I propose to say something about the principle involved in the Bill.

Reform in the law of intestacy is long overdue. In this respect and in many other respects the law in this country has remained in the same position as it was in 1922 at the time of the Treaty, while the law of England has changed in many respects for the better. As I said when dealing with the Tortfeasors Bill, owing to the very close legal and contractual connection between the two countries, there is something to be said for keeping the law as far as possible identical apart from where there is some good reason for not having it so. This Bill, while good as far as it goes, does not go nearly far enough with regard to changes in the law of intestacy in this country. I do not expect any suggestions I make to be incorporated in the Bill but, as part of the general programme of law reform which the Minister for Justice has told us here in the Seanad is in progress, I want to draw attention to some cognate matters necessary——

So long as they are not outside the scope of the Bill.

If you think they are I will stop. One of the points to which I wish to draw attention is the distinction between real and personal property in this State. In England, which is the home of the distinction— it is the only code of law in the world where such a distinction exists—this distinction has been abolished. It is a curious thing that, although an attempt was made in this country in 1860 under Deasy's Act to replace status by contract in relation to the land law, this is the only State where the full distinction between real and personal property still exists. Where most land has passed under the Land Acts and has been registered under the Registration of Title Acts and devolves as personal property I think that this distinction is entirely obsolete and out of date. The fact that real property should still go to the heir-at-law, who may be a very distant person and in some cases no kith or kin of the deceased, is something that should be looked into. This Bill preserves the right of the heir-at-law in real estate subject to the life interest of the widow and that is a matter which should not be allowed to pass without question in the Seanad.

Another question with regard to intestacy is that although the Bill deals with the rights of the widow where there is no issue, the position of widows where there is issue also seems to me to require a certain amount of attention. The present position is that the widow gets one-third of the personal estate and the children divide the other two-thirds between them. In the case where there is one small child that is a very inconvenient form of distribution and may lead to very anomalous consequences. The English law was completely reformed in 1925, and I suggest to the Minister that there is need for some more comprehensive statute than the one introduced here in regard to the administration of estates and the whole question of intestate succession could be dealt with on its merits. In the case of widows with or without issue——

This is an intestacy Bill.

I am dealing with intestacy; I am dealing with succession by intestacy.

There is no issue.

I will obey your ruling of course. I will put it this way: This Bill is good as far as it goes but there are a very large number of questions dealing with the law of intestacy about which the legal profession is very dissatisfied. This Bill barely scratches the surface of the question. I think I am entitled to say that the whole law of intestacy is obsolete, out of date and not in line with the law of intestacy in other countries.

There is one other point which I will put very shortly, which I suggest I am entitled to say, arising out of what the Minister said. The Minister was at pains to assure the House, as if it were a matter of concern to all of us, that this Bill does nothing whatsoever to limit the right of testamentary disposition. In this country just as the distinction between real and personal estate has survived, the right of unlimited testamentary disposition has been retained although it has gone in every other country in the world. I would suggest to the Law Reform Committee that this is a principle of English common law which is not self-evident. It was never accepted on the Continent of Europe nor in Scotland, and in outlying areas where the common law prevails it has been departed from. Even in England widows and dependent children have the right to be maintained out of income in the case where testators attempt to disinherit them.

I do not wish to delay the time of the House, but I would suggest that there are a number of such anomalies. If you say, Sir, that they are irrelevant, I will not say any more. I can say that this is a very small instalment of what is due, and that the legal profession, members of which have spoken to me about this matter, think that the whole law of succession testate and intestate should be put on a new footing. It is an extraordinary state of affairs that Ireland should be the only country in the civilised world where the anomalies, not the good points, of the English legal system still survive fully.

It is the subject of congratulation especially for a woman Senator when the Seanad initiates legislation designed to remedy a state of affairs which pressed very heavily on many women. I know of one case. There were three sisters who by their personal efforts and hard work built up a flourishing business, a shop and restaurant. One of the sisters married and brought her husband into the house with the approval of her sisters. He lived with them in harmony and they all worked together and made a still greater success of the business. He fell ill. He had made a will but it was invalid as it was not properly signed. The consequence was that the law up to this applied and the woman got only £500 and the portion of the estate that the law allowed and the sisters got nothing. A nephew of whose existence they hardly knew turned up, the case went to the courts, the place had to be sold and the poor woman had to start all over again. That is not a solitary instance. That is why I am very glad to be here to hear the Minister introduce a Bill to remedy the state of affairs which is capable of inflicting such hardships and such injustice on innocent women.

This is a very important measure which requires careful consideration and which should not be passed hurriedly, as it contains a big change. The main purpose of the Bill is to provide that if a man dies intestate without children the whole of his ordinary property will go to his wife. It would be well to consider the effect of that. There is something in what Senator Mrs. Concannon said that no matter what provision is made there will always be some hardships and anomalies. We have to see, therefore, which provision would cause the greater hardship. This Bill creates a revolutionary change. We should consider its effect on the population in general but more particularly on the agricultural population. This is an agricultural country and every law must be considered in relation to its effect on agriculture.

This proposal goes against the whole tradition in agriculture. In rural Ireland, the hereditary claim to land has always been the prevailing thing. Families regarded the land as their hereditary right, the same as a duke or earl regarded his estates, passing from father to son. That strong principle has been of inestimable value to the country, as it keeps people on land which, from a business point of view, they would long since have left. I would like to examine the effect of this measure on the ordinary farmers. Take a very common case where there is a large family. Only one son can succeed, so the family goes out into the world, into business or to America, and they do it very willingly in order to leave the farm to the eldest son and continue the name. The eldest son gets married when the rest of the family has gone. After a short time, that son dies. Under the provisions of this Bill, the wife immediately succeeds to that farm. That would be a great hardship on the people who left their father's place without anything. Very often the father and mother would be on the farm and they would have the mortification of seeing that farm pass away from the family and not only that but perhaps a strange man brought in a short time afterwards. That would be quite common under this Bill and it is something that should make us pause and think.

Let us look at another side. Let us say that the husband and wife live for a considerable time and when they are advanced in years the husband dies. Under this Bill, the wife immediately claims all the farms. What would she want the farm for? Clearly, to give it to her own family. It becomes a question as to who should have got the farm—the family of the husband, the hereditary owners, or the family of the wife. One would say, naturally, the husband; but the law at present makes a wise provision in that it practically divides it between the husband's family and the wife's family. I would agree with one kind of Bill, that where an estate or property is estreated for want of any relatives, that property should go to the wife. I do not see any reason why, when the widow is there, the State should take over the property and I think it is very wrong. I agree also that in the case of, I think, real estate, where it is entailed and the heir-at-law succeeds, it is only reasonable that the wife should get a life interest in that also.

I do not think it would be wise, in face of the general position, to bring about this proposed change in the law under this Bill. It may be asked what injustice is done, as a man always has the right to make a will if he does not wish it to go to his wife. It is well to face facts and remember that the majority of men do not like to make a will. The last thing a man thinks of is preparation for death—even spiritually. No matter how foolish or bad it may be, the fact remains that that is human nature, not only amongst farmers but every class of people— men are very slow to make a will. It is a thing they always put off from one day to another and consequently there is a great number of cases of people dying intestate in those circumstances. There is no use in saying that the effect will be to make everyone make a will. It will not. If this Bill is intended for the legal profession, I am afraid it will not help them. I do not think we should agree to the proposal as it is at present, as it would require some more consideration.

Senator O'Brien should be congratulated upon having raised on this Bill certain general matters which, since we are amending the law with regard to intestacy, might, perhaps, be regarded as arising on the Second Stage. I do not intend to follow him, as I am not as skilled as he is in that respect. It is true that our intestacy laws, combined with the matter which Senator O'Dwyer mentioned, the reluctance of the Irish farmer to make a will—I suggest the superstitious reluctance to make a will—combined with our existing intestacy laws, do result in grave hardships, particularly to widows, as Senator Mrs. Concannon said. This is only part of what should be done. Not only is it true that when a man dies intestate his widow ought to get the main portion of his estate, but it could be argued—it is not my purpose to argue it now, as it is scarcely relevant—that a man should not be allowed to leave his wife completely destitute by a will. Having heard Senator O'Brien on the legal difficulties, Senator O'Dwyer presented us with a very faithful picture of the agricultural community, which he knows so well and represents so well. I suggest that this Bill is not intended for sensible farmers like Senator O'Dwyer who, no doubt, has made a will——

I have not.

——or superstitious ones like those who do not make a will.

I have myself known of an example where a man on a farm held under land annuity died intestate and a search had to be made in America and Australia for relatives, all that cost coming out of the comparatively small place where the widow was unable to work the land because of the existing law. It seems to me to be fair to make this provision in the Bill which is nothing more than simple justice.

In some parts of the country there is a desire to keep the family name on a farm, but I suggest that when a man marries and takes on responsibilities of marriage we should make him fulfil, by law, those responsibilities to his wife. That is what this Bill is doing. I know cases in parts of rural Ireland where because a woman's name is not the original family name there is a feeling that she should not enjoy the land and that some fellow who is away in a job in Dublin, New York or elsewhere should be able to enjoy some of the fruits of the farm which he left when he was quite young and with which he had nothing more to do.

I am prepared, by means of legislation of this kind, to see that justice is done in such cases. I think it is most unjust to the woman concerned that such a thing could happen, and this Bill does nothing but simple justice. The Bill does not interfere in any way with the rights of a man to make a will, if he pleases, but if, for any reason, he does not make a will, then most certainly the widow should not be put in the position that instead of being allowed to work the farm herself, someone else, in America or elsewhere, should have a claim to an interest in the land. I think the Bill is an excellent one and should be passed.

Not only should these people make wills but they should leave them in safes with solicitors rather than in places where they might be destroyed. There are many evils in these matters. I know of cases where nephews have worked for as long as 16 years on a farm and because the old fellow took some whim he left the farm to another nephew who had never worked a day on it. A farmer is entitled to do that if he wishes and there is no method of taking that right from him, but there should be legislation to prevent him from not fulfilling the responsibilities of marriage.

I find myself in entire agreement with Senators George O'Brien and Hawkins with regard to the necessity for law reform and I think it is understood that that view has been accepted by the Government and that steps have been taken to bring about a very necessary reform in laws which are being dealt with at the moment. I should say this is a second project towards these reforms. You had the Tortfeasors Bill some time ago. It is quite true that this Bill is not going as far as some people would wish, but the wider it would be made I think the wider people would want it to be made. The result of that would be that you might not get any Bill for a number of years.

This Bill sets out to deal with a specific point on which I think Senators have agreed. I, as a person who has lived mainly in rural Ireland, can see no danger in this Bill. While there may be a possibility of certain hardship arising under this Bill, there is no question in the minds of any of us who know rural Ireland of the tremendous injustices that have been done under the present state of the law. It is all right to talk about nephews or sons who left the farms 20 years previously, leaving behind them derelict farms or out buildings. What actually happens in rural Ireland in 19 out of 20 cases when a marriage is contracted is that the woman who comes into the farm becomes almost a slave and brings very often a handsome sum of money with her for the privilege of coming in and being married. She comes in there and works night and day in the house and farmyard, dealing with pigs, feeding calves and other jobs. Very often the money which she has brought in, on her marriage, is used to send off a son or daughter to New York or Dublin, as the case may be. That is a fact and all of us know quite well that there have been very considerable hardships in such cases when a husband dies intestate. We all know that in such cases the farms have gone to somebody who never contributed 1/- towards them.

Only half of it.

Why should half of it go to them? Take the case of a man who marries into a farm where the woman is the owner and she dies. What happens then? I would like Senator O'Dwyer to think that over. I think it is generally agreed that there is a great need for this measure which deals out justice, and widows of the type we are discussing are entitled to the full protection of the law of this country. The farmer can himself determine what is to be a division of his estate by making a will. If he does not elect to make one for any reason, then, I think, the widow is entitled to the protection that we are proposing to give in this Bill.

Question put and agreed to.
Next stage ordered for Wednesday, 16th inst.