Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 14 Jul 1965

Vol. 59 No. 4

Private Business. - Succession Bill, 1965: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

This is a Bill to reform the law relating to succession to the property of deceased persons. It deals comprehensively with all aspects of the subject, including devolution, administration, testamentary disposition and distribution on intestacy. Provision is made for assimilation of the law respecting real and personal estate so that realty will devolve and be distributed in the same way as personalty. The present rules of intestate succession are highly complicated and draw irrational distinctions between real and personal estate. These rules are to be abolished and replaced by new, simple and uniform rules which will be applicable to all property. Parts IX and X of the Bill deal with the problems of the inofficious will, or the will which disinherits or makes insufficient provision for the members of the testator's family.

The existing statutory law governing success to property on death is spread over more than seventy enactments, the earliest of which dates back to 1226. These enactments are being repealed or amended in consolidated form. When the Bill is enacted, the whole of the statutory law of succession will be contained in one Act of the Oireachtas.

Part I is the preliminary and general Part. It deals with such matters as commencement interpretation, the jurisdiction of the courts and repeals. The proposed Act will apply to the estates of all persons dying after the commencement date specified in section 2, namely, the 1st July, 1966. This is to ensure that people will have a reasonably long period in which to familiarise themselves with the proposed law and to make whatever arrangements they wish to make of their affairs.

Section 5 deals with the problem which arise, where two or more persons die in circumstances rendering it uncertain which of them survived the other or others. Under existing law, there is no legal presumption as to the order in which the deaths took place. This leads to inconvenience and uncertainty when it comes to determining rights of succession to the property of the deceased, particularly where the deceased were husband and wife. I have studied the solutions of this problem adopted in other jurisdictions, including England, Scotland, and continental countries; and I have decided that the best solution is to provide that, in cases of uncertainty, the persons concerned shall be deemed to have died simultaneously. This is the rule adopted in the German Civil Code and it has been operating satisfactorily since 1900. There is a similar rule in the Swiss Civil Code.

The following example will serve to illustrate how the rule will operate in practice. A husband and wife make wills, each leaving everything to the other or, in the event of the other's death leaving everything to the members of his or her own family. The husband and wife are subsequently killed in a common accident. The effect of section 5 will be that the husband and wife will be deemed to have died simultaneously; and since the wife does not survive her husband, his property, under the terms of his will, will go not to his wife but to the members of his family, which is what he intended. Similarly with regard to the wife's property. It is, of course, true that the present difficulties may to a large extent be avoided in a properly drawn will.

Section 6 provides for the jurisdiction of the High Court and Circuit Court in matters arising under the proposed Act. The High Court, as at present, will have original jurisdiction in all probate matters. The Circuit Court will continue to have jurisdiction in contentious cases, but it is proposed to increase the limits of that jurisdiction from £2,000 to £5,000, in the case of personal estate, and from a rateable valuation of £60 to a rateable valuation of £100, in the case of real estate.

Part II of the Bill deals with the devolution of real and personal estate on death. Section 10 of the Bill reenacts the existing law and provides that all property both real and personal, of a deceased person shall devolve on his personal representatives. Section 11 provides for the abolition of all surviving feudal rules and canons of descent applicable to real estate. This section will abolish descent to the heir-at-law and will chiefly affect unregistered freehold land in urban areas. Since 1891, freehold registered land, comprising the bulk of rural land, is distributed in the same way as personalty. Section 13 provides that, where a person dies without having made a will, or where, having made a will, he dies leaving no executor surviving him, his property shall, until the grant of letters of administration in respect thereof, vest in the President of the High Court. The President is, for this purpose, being made a corperation sole.

The removal of all remaining distinctions between real and personal property for the purposes of devolution, descent and distribution will greatly simplify the rules of law and practice governing succession. So far as the existing rules distinguish between real and personal estate, they no longer serve any useful purpose, and they do make the law more confused than it need be.

Part III deals with executors and administrators and, in the main, provides for re-enactment of the existing law. Section 19 proposes to abolish the principle that an executor of an executor represents the original testator—the chain of representation, as it is called. I feel that it is unreal to impose on the executor of an executor the task of representing a testator whom he probably never knew and of administering an estate in which, in all likelihood, he has no real interest. The historical circumstances which gave rise to the present rule have long since disappeared, and I think that nowadays it is more realistic to have an administrator appointed who will have some close connection with the testator or some genuine interest in the estate.

Part IV provides for the consolidation, with amendments, of the present law relating to the issue of grants of representation. Section 27 provides that the order in which persons are to be entitled to a grant of administration shall be regulated by rules of the High Court. In granting administration, the court will ordinarily be bound by these rules, but it will have a discretion to depart from the rules where circumstances so warrant. Section 30 provides for the issue of grants of representation to trust corporations and replaces the Bodies Corporate (Executors and Administrators) Act, 1928.

With a view to encouraging people to take out grants of representation and put the affairs of their deceased relatives in order, I have had stated clearly in section 35 of the Bill the existing law under which anybody seeking to obtain a grant of representation may, irrespective of the size of the estate involved, make a personal application for the grant either to the Probate Office in Dublin or to the district probate registry for the district where the deceased lived at the time of his death. In addition, I propose to have new district registries established so as to provide a convenient service for persons wishing to avail themselves of the right to make a personal application. Each new registry will be located in a specified Circuit Court office. The County Registrar designated will be the district probate registrar for the region and he will deal with all personal applications for grants of representation. He will prepare the papers necessary to obtain the grant and will, as far as practicable, assist applicants by giving them information and directions as to the course which they are to pursue. He will not, of course, give applicants legal advice. Where a grant involves difftcult questions of law or needs a direction of the court, or where the distribution of the property of the deceased is a very complicated matter, the applicant will have to consult a solicitor in the ordinary way. The existing special probate fees for personal applications will be reexamined, and I envisage that in the case of small estates the fees will be not much more than nominal.

The present right to make personal application for a grant of representation is contained in Rules of Court and was first granted in Probate Rules made in 1879. Over the years, the tendency has been to limit the number of district registries and this has restricted the exercise of the right to make personal applications. I consider it important that the right should be preserved, on the general principle that every citizen should be free to conduct his own legal business and be facilitated in doing so. What I propose, therefore, is to reverse the present trend by establishing a number of additional district probate registries in county towns. This will facilitate the making of personal applications and will also, I may say, facilitate solicitors acting for clients. I want to emphasise that I am proposing no change in the existing law and practice under which the Probate Officer and the district probate registrar have for years been issuing grants do personal applicants. What I am proposing is that, for the sake of emphasis, the fight to make a personal application should be stated in the Bill and that existing facilities for the exercise of that right should be enlarged by increasing the number of district registries. With the increase in the number of registries, there will be no need for applications to Customs and Excise Officers. Accordingly, section 33 of the Customs and Inland Revenue Act, 1881, is being repealed.

Part V of the Bill deals with the administration of the assets of deceased persons and continues the process of the assimilation of the law relating to realty and personalty by providing that real and personal estate shall be administered in the same way. All the property of a deceased person is to be available for the payment of his debts and to satisfy any legal right under Part IX of the Bill. Provision is made for the amendment aud simplification of the law in regard to payment of a deceased person's debts.

Insolvent estates are to be administered in all cases in accordance with the rules for the time being in force in relation to bankruptcy; and in such cases the present right of retainer of a personal representative and his right to prefer creditors are to be abolished. A new order of priority is being established for the application of assets in the case of solvent estates. This new order, which is provided for in section 46 and in Part II of the First Schedule, will be simpler than that under existing law and will be common to both realty and personalty.

Section 49 proposes a valuable safeguard for personal representatives in respect of undisclosed claims against the estate of a deceased person. The effect of this section will be that, where personal representatives have issued such notices to creditors as would have been given by the court in an administration suit, they may, after the expiry of the period specified in the notices, distribute the assets without regard to any claims which have not then been disclosed. The section extends to all assets comprised in the estate of a deceased person the provisions of section 29 of the Law of Property Amendment Act, 1859, which are applicable only to personal property. Personal representatives will be able to seek guidance of the County Registrar or an Examiner of the High Court as to the number and nature of the notices that will satisfy the requirements of this section. By the way, it is not necessary to insert these notices in Iris Oifigiúil nor is it necessary that they should be elaborate notices.

Sections 52, 53 and 54 codify the law as to assents and conveyances by personal representatives. These sections provide, an the main, for the re-enactment of the existing law, but subsection (3) of section 53 introduces an important new provision to the effect that a conveyance of unregistered land by a personal representative shall, in favour of a purchaser, be conclusive evidence that the person in whose favour the conveyance was made was, in fact, the person entitled to have the land vested in him. Thus, where a purchaser buys land from a vendor who is a beneficiary, he will no longer be obliged to concern himself with the terms of the will or of the intestacy under which the vendor acquired the property, but need only see to it that the land devolved on the personal representatives and that they, in turn, vested it in the vendor.

Section 56 contains an entirely new provision to protect the interests of a surviving spouse. It proposes to give to the surviving spouse of a deceased person the right to require appropriation of the family dwelling house and household chattels in satisfaction of his or her share and of the shares of any infant children for whom the suviving spouse is a trustee. There will be exceptions to the general rule in the circumstances provided for in subsection (5) of the section. The purpose of the section is to allow the spouse to retain the family home, provided, of course, that, where its value is greater than the share to which the spouse is entitled, he or she will have to make up the balance in cash in order to exercise the option. The right granted by the section will have to be exercised within one year of the first taking out of representation of the deceased's estate, except where the spouse continues to reside in the family home. In the latter eventuality, the spouse will be able to exercise the right after the expiration of the one year period, provided he or she does so within one month of receiving a written inquiry in the matter from the personal representatives. The section will apply mainly to dwellings in urban areas.

It is proposed in section 57 that, where an infant is entitled to a share in the estate of a deceased person and no trustees have been appointed by the deceased, the personal representatives—or a trust corporation or any two or more persons appointed by the personal representatives—will be trustees of such share. These trustees will have full powers, without recourse to the court, to apply the share, or the income therefrom, for the advancement or benefit of the infant during minority. They will, in particular, be able to carry on any business in which the infant is entitled to a share.

Section 63 of the Bill enlarges and states in statutory form the doctrine of advancement and the rule against double portions. The present law requires that, subject to any contrary intention expressed or appearing from the circumstances of the case, children must bring into account any money or property they have received from the deceased in his lifetime by way of advancement or portion or upon marriage, if they wish to share in the distribution of the estate. The enlarged doctrine will apply to shares on intestacy and under a will. The doctrine is, as under existing law, being confined to children.

Part of the Bill proposes new rules for the distribution of property on intestacy. Under the Intestates' Estates Act, 1954, where a man dies intestate leaving a widow but no issue, the widow is entitled absolutely to the first £4,000 of his estate. In the great majority of cases this means that the widow takes the whole estate. Subject to the widow's right, the property of a person who dies intestate is distributed in accordance with rules which vary according as the property consists of realty or personalty.

Realty—consisting in the main of freehold property in urban areas— descends to the deceased owner's heir, who is ascertained in accordance with highly complex rules having their origin in feudal conditions. Males are preferred to females, the elder male is preferred to the younger, females of the same degree all take equally, parental ancestors are preferred to maternal ones, relatives of the whole blood take before relatives of the half blood, and so on. A surviving spouse has certain rights which are prior to those of the heir. Thus, a widower is entitled to a life estate in the whole of the deceased wife's realty, provided that she was seised in possession of an estate of inheritance and that issue of the marriage capable of inheriting has been born alive. This right is known as a tenancy by the curtesy, or, more fully, a tenancy by the curtesy of England. A widow is entitled to dower, which is a life interest in one third of the whole of her deceased husband's realty, provided that he was seised in possession of an estate of inheritance, that issue of the marriage capable of inheriting might have been born alive, and that a declaration in bar and dower was not made by the husband during his lifetime. Both curtesy and dower are being specifically abolished in section 11.

The existing rules for the distribution of personalty—which includes most agricultural freehold land and all leasehold land—are those laid down in the Statute of Distribution, 1695. They provide that a widower takes the whole of his wife's personal estate even where there are issue also surviving. A widow, on the other hand, takes only one-third of her husband's personal estate and the issue take two-thirds. Where there are no issue, the widow takes one-half of the estate and the next-of-kin take the other half. This is, of course, subject to the widow's prior right to £4,000. If an intestate dies leaving neither spouse nor issue, his father is entitled to the whole estate whether or not the mother also survives. If the father is dead, the mother, brothers and sisters share the estate equally. Children, but not remoter dependants, of a deceased brother or sister take their parent's share. If the mother, brothers and sisters are all dead, the children of the brothers and sisters take the estate in equal shares.

The new rules of intestate succession laid down in Part VI of the Bill will be applicable to all property, both real and personal. They are simple and uniform and are so framed as to accord due recognition to the important position which the wife occupies in the Irish family. The existing distinction between the rights of inheritance of husband and wife and of males and females is being removed. Section 66 provides that, where both spouse and issue survive, the spouse will take two-thirds of the estate and the issue will take the remainder. If there is a surviving spouse but no issue, it is proposed that the spouse will take the whole estate. If there are surviving issue but no spouse, the issue will take the whole estate. Where all the surviving issue are in equal degree of relationship to the intestate—as, for example, where they are all grandchildren—distribution among them will be per capita, that is, in equal shares. Otherwise it will be per stirpes, the issue of a deceased child taking their parent's share.

Under existing law distribution among issue is effected in accordance with the per stirpes rule irrespective of whether all the surviving issue are in equal degree of relationship to the deceased. The change which I am proposing where all the issue are, in fact, in equal degree of relationship was adopted in Scotland last year. It is also, I understand, the system of at least some of the American States. I believe that it provides the method of distribution which the average reasonable person would prefer in the circumstances.

Section 67 of the Bill proposes to place the father and mother of an intestate on an equal footing as regards succession rights. If an intestate dies leaving parents but no spouse or issue, the estate will be distributed between the parents in equal shares. One consequence of this change is that the intestate's brothers and sisters, or children of deceased brothers and sisters, will be entitled to share in the estate only if the intestate leaves neither spouse nor issue nor parent surviving.

Almost 50 per cent of the people in this country die without making wills, and the purpose of Part VI of the Bill is to make for these persons, so far as is possible, the sort of arrangements that they might themselves have adopted if they had made wills. For convenience, a comparison between the existing and the proposed new rules is given in Appendix A on page 12 of the original explanatory memorandum circulated with the Bill.

Under Part VII of the Bill the existing statutory law relating to wills is being consolidated with a number of important amendments. It is proposed in section 76 to reduce from 21 to 18 years the general age limit for making a valid will. A person under 21 may marry, own property and operate a bank account. He may assign certain property interests—for example, money in savings banks—to take effect on death. If he has children, he may appoint guardians of those children. Generally speaking, young people tend nowadays to mature quicker, mentally and physically, than in former times, and, on the whole, I think it is reasonable to allow persons of 18 years and upwards to make a will if they wish to do so. It is also proposed that any person who is or has been married should be allowed to make a will, irrespective of age.

Under existing law, marriage after the making of a will renders the will invalid. It is proposed in section 84 to amend the law so as to exempt from this rule a will made in contemplation of the particular marriage, whether so expressed in the will or not. No change is being made in the ordinary rules as to the manner of revoking a will.

Two important changes are proposed in the law relating to the interpretation of wills. First, under section 89 extrinsic evidence is to be admissible to show the intention of the testator and to assist in the construction of, or to explain a contradiction in, a will. In general, under existing law, extrinsic evidence may be given to explain what the testator has written in his will but not what he intended to write. Secondly, in the case of doubt as to the interpretation of a gift in a will, the interpretation according to which the gift will be operative is to be preferred. Provision to this effect is contained in section 98.

Part VIII of the Bill will amend the present rules of international private law in this country relating to wills. The main purpose of the proposed changes in the law is to enable this country to adhere to the Convention on the Conflicts of Laws relating to the form of Testamentary Dispositions drawn up at the Hague in October, 1961, under the auspices of the Hague Conference on International Private Law. It is provided in Part VIII that a will shall be valid as regards form if the form complies with the internal law either of the place where the testator made it, or of a nationality possessed by the testator, or of a place in which the testator had his domicile or habitual residence, or, in so far as immovable property is concerned, of the place where the property is situated. The existing law in this country is rather doubtful, as the Wills Act of 1861, known as Lord Kingsdown's Act, is considered to be of imperfect application, if it applies at all.

Parts IX and X of the Bill contain the provisions that are designed to protect the spouse and children of a testator from disinheritance.

There is no historical or moral basis for the view that freedom of testation is a fundamental right inherent in property. The will is an invention of Roman law, but proponents of freedom of testation conveniently overlook the fact that, at Rome, the exercise of the power of testamentary disposition was considerably restricted by the rules as to legitima portio, or the legal portion which could be claimed by a disinherited spouse or child. Indeed, it is one of the ironies of history that the right of testation was introduced into Roman law in order to enable a man to leave his property to the members of his family and so protect them from the injustice which resulted from the operation of the rules of intestate succession. A will was not regarded by the Romans as a means of disinheriting one's family or of effecting an unequal distribution of a patrimony. Rather was it valued for the assistance it gave in making provision for a family and in securing a fairer and more even distribution of property than would have been obtained under the rules of intestate succession. It is to be noted that, in all modern systems of law which are based on Roman law, the legitima portio exists in one form or another.

Old Irish law knew nothing of freedom of testation. Our present law of succession in respect of personal property dates only from 1695, when the Irish Statute of Distribution was enacted. Section 10 of that Statute is of considerable historical interest inasmuch as it provided for the abolition of the "Custom of Ireland by which only one-third, or a moiety, of the personal estate of a deceased person is subject to the party's disposition by will". The Custom is described at some length in the section. If a man died leaving a wife and children, his estate was divided into three equal parts, whereof one part belonged to the wife and another to the children. The remaining third was disposable by will. If the deceased left a wife only, or children only, his estate was divided into two parts, whereof one part belonged to the wife or to the children, as the case might be. It is not without significance that this excellent Custom of Ireland was abolished four years after the Treaty of Limerick and at the outset of the Penal Laws.

Complete freedom of testation is a peculiarly English idea which, apart from England and Wales, is only to be found in countries forcibly brought under British rule. Freedom of testation was, in fact, introduced in England at a time when there was no danger of an abuse of the power and, as at Rome, in order to protect the family. Moreover, it was introduced only very gradually and did not eventually find a place in English law until the seventeenth century. In so far as real property is concerned, rights to curtesy and dower continued to exist until 1925, and it is only since 1833 that a right to dower could be barred in a will, and only since 1882 that a right to curtesy could be similarly barred.

In Scotland freedom of testation is unknown, and the Scottish system of legal rights applicable to moveable estate has been maintained under the Succession (Scotland) Act, 1964. While I am on the subject of the Scottish system of legal rights, I should like to take this opportunity of referring to what are tantamount to accusations that I misled the Dáil and the public as to the position in Scotland. In his speech in the Dáil on the Second Stage of this Bill, Deputy M.J. O'Higgins referred to my opening statement, in the course of which I said that "the Scottish system of legal rights applicable to personal property has been maintained under the Succession (Scotland) Act, 1964". The Deputy stated that I used the same words in my Second Reading speech on the Succession Bill, 1964, except that I omitted the words "applicable to personal property". The Deputy said he assumed that it was because I was corrected by the Law Society—in a statement which the Society made to the Press last January—that I was careful to refer only to personal property.

What I had to say on the Scottish system in the course of my speech on the earlier Bill is reported at columns 340 and 341 of the Official Report of the Dáil Debates for the 2nd December last. The record speaks for itself. In point of fact, I made it quite clear at the time that the legal rights system in Scotland applies only to moveable estate. I should explain for the benefit of Senators that in Scotland they do not divide property into personal and real estate as we do in this country. The distinction the Scots draw is between moveable estate and what they call heritage. For the record, I should now like to quote what I actually said on the occasion in question. I am quoting from columns 340 and 341 of the Official Report of the Dáil Debates for the 2nd December, 1964. I said:

The system of legal rights operating in Scotland affords a good example of the legitima portio method. The Scottish system of legal rights is basically the system of thirds to which I have already referred. If a man leaves both wife and children, his moveable estate is divided into three parts. His wife is entitled to one part as her jus relictae (the wife's part), and his children to one part as their legitim (the bairns' part). The remaining third (the dead's part) may be disposed of by the testator in his will.

Then, having referred to the fact that officers of my Department had visited Scotland for consultations with Scottish experts on the law of succession, I mentioned that modifications were introduced in a new Succession Act which was enacted earlier in 1964. I then went on to say:

When the Bill for this Act was before Parliament, strenuous efforts were made by Scottish interests to have legal rights extended to the whole of a deceased person's estate, but this proposal was rejected in Westminster.

Lest there might still be any doubt on anybody's part as to the correct position, I shortly afterwards made the following statement, which will be found at column 344—

Accordingly, Part IX of the Bill provides for the adoption of a system of reserve family shares based generally on the system for moveable property operating in Scotland, but extended in scope so as to be applicable to the entire estate of a deceased person.

To complete the picture, perhaps I could mention the following two points. Firstly, the Law Reform Programme published in January, 1962, clearly stated that the Scottish legal rights system of thirds applied to moveable estate. Incidentally, prior to the 1964 Scottish Act, the legal rights of curtesy and terce were exigible out of heritage; but these rights were abolished in the 1964 Act, notwithstanding that the expert Committee on the Scottish Law of Succession under the chairmanship of Lord McIntosh recommended that they should be retained and made similar. The whole system of Scots law is not, as the Law Society allege it is, based on the Roman civil law. The Scottish law of succession is rooted in feudal law and Canon Law. The system of thirds is to be found in a number of other legal systems, including those of France, Germany, England, Wales and Ireland. And the system was not taken from Roman law in any of these jurisdictions or in Scotland.

Secondly, the Law Society in the course of their statement last January allege that the present continental system of family law is based on the Code Napoléon. This simply is not true. There is no such thing as a continental system of family law. The only countries in Western Europe, other than France, which have legal systems based on the French Civil Code are Belgium and Luxembourg. Even in France, the system goes back centuries prior to Napoleon and was found amongst the Celts by Julius Caesar.

I am sorry if I have digressed somewhat, but I think the House will appreciate that I should not allow to go unchallenged the suggestions that have been made that I in some way gave misleading or incorrect information as to the Scottish system. Incidentally, I make no apology for looking to Scots law for inspiration in dealing with the problem of disinheritance. It has been suggested by more than one English legal commentator that England itself would do well to look North of the Tweed for guidance in dealing with legal problems. Certainly so far as legal problems in this country are concerned, I shall continue to look to Scotland for assistance and advice whenever it is clearly in the interests of our people that I should do so. I think we have a lot to learn from Scotland in legal matters.

We in Ireland pride ourselves on the fact that we recognise the very special position of the family "as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". Against such a background so-called freedom of testation is a paradox which cannot be defended on any ground. Article 41 of our Constitution pledges the State "to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State". Under the same Article, the State recognises that, by her life within the home, woman gives to the State a support without which the common good cannot be achieved; and the State undertakes to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. These principles cannot be reconciled with a system of law which allows a man to ignore the mother of his family and to leave his property to strangers. It is no answer to say that most men do, in fact, provide for their wives and children in their wills, when, as we know, there are those who do not.

The evidence available to me clearly establishes that there is a problem of disinheritance in this country, and, indeed, I do not think that this is seriously disputed by any informed or responsible people.

It is obvious from the discussion on the Bill in the Dáil and from the views expressed throughout the country that there is general acceptance of the need to restrict a testator's right to disinherit his family. The only real difference of opinion concerns the choice of method to be employed to achieve this object. Basically, the choice rests between a system based on judicial discretion, involving an application to the court, and a system giving members of the family a legal right to a specified share of the estate.

In deference to views expressed in the Dáil by Deputy John A. Costello, I undertook to see if I could find some intermediate way between these two systems; and the proposals contained in Parts IX and X of the Bill represent the outcome of my consideration of Deputy Costello's suggestion. I may say that from the beginning I was myself satisfied that we should distinguish between the widow and the children. To me it appeared that a legal right share for the children could work unsatisfactorily. I shall return to this matter later on.

With regard to a surviving spouse, section 110 provides for entitlement to a legal right share of one-third or one-half, depending on whether or not there are children of the testator also surviving. I am firmly of the opinion that, in the case of a spouse, the provision of a legal right to a specific share, irrespective of dependency, is the only system compatible with the true nature of the obligations and responsibilities that bind husband and wife. Under this system, the spouse will be entitled to a share which is just and equitable having regard to his or her status as a member of the family. The degree of need of the spouse is not made a criterion. The view has been expressed that testamentary freedom ought to be restricted to the extent necessary to ensure adequate maintenance for a man's widow, but not to the extent of granting her a right that would ensure for her the share which recognises the true extent of the responsibilities that, in a civilised society, husband and wife owe to each other. I cannot accept that view. In my considered opinion, the provision of mere maintenance does not fulfil the responsibilities to which I have adverted. The enactment of legislation which guarantees only maintenance for the widow after her husband's death fails to discharge the obligation imposed on the State under Article 41 of the Constitution.

I think it ought to be remembered that in Irish circumstances the wife plays a particularly important part in the affairs of the family. More often than not she has to engage in hard physical labour. In rural Ireland she is the joint manager of the home and farm, and very often, where her husband takes to drink or neglects his duty, she is the sole manager. It may, perhaps, be axiomatic to say that the wife and mother is the very foundation of family society, but it must, nevertheless, be said. She has moral rights above and superior to any mere right to be maintained in the house, given what is called "the range of her teeth", and allowed the use of the family conveyance to take her to Mass on Sundays.

I am not going to force into court every Irish widow who is wronged by her deceased husband. I am totally opposed to any system which obliges a man's widow to go to court to obtain what should be hers as of right. Recourse to the courts can be a forbidding and even a frightening prospect for many people, and the unreasonable and capricious testator would not hestitate to compel his widow to go to the trouble of bringing court proceedings in order to enforce her rights. Above all, recourse to the courts would involve the raking-up of all sorts of embarrassing family circumstances, including acts of unkindness and unfaithfulness, which were better not resurrected, even at a private hearing by the court.

One of the vital sections in Part IX of the Bill is section 114 and I would like Senators to consider it carefully. The section will allow a spouse to choose between her legal right and her rights under the will. The choice will have to be exercised within 12 months from the first taking out of representation of the deceased's estate. On the basis of past experience in this country, I believe that the members of the family will generally settle their problems among themselves. If the widow is adequately provided for in the will, she will not elect to take her legal right share. However, if she is not adequately provided for, she will have the legal right to fall back on. The point is that she must have some bargaining counter. I should imagine that the legal right will seldom be claimed. As in Scotland, its mere existence will deter the capricious testator.

With regard to the position of children, I have recognised the force of the argument that the application of the system of legal rights in their case could impose unduly rigid limitations on the discretion which a testator should have to divide his estate among the various members of his family in the manner best suited to the particular needs and circumstances of each case. I accept that a married man should not be compelled to leave anything to his children where, in fact, he wants to leave all his property to his wife; that he should not be compelled to leave anything to adult children who are no longer in any way dependent on him and to whom he owes no moral duty; and that he should be allowed to choose between his children having regard to the position in life of each child. After careful consideration of all the factors involved, I came to the conclusion that the interests of the children can best be safeguarded by the introduction in their case of a system of application to the court under which the court will determine what constitutes dependency in any particular case and will have ample discretion to make such provision for a child as may seem proper and just in the particular circumstances. This arrangement will have the merit of avoiding the anomalies that are inevitable under a system based on any arbitrary definition of dependency.

Accordingly, section 116 of the Bill provides that any child of a testator will be entitled to apply to the court to have just provision made for him out of the estate. The grounds for the application will be that the testator has failed in his moral duty towards the child. The section makes it clear that the moral duty in question is the testator's duty to make proper provision for the child in accordance with his means, whether by his will or otherwise. The court will have to consider the application from the point of view of a prudent and just parent, taking into account the position of each of the testator's children and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the applicant and to the other children. The only limitation on the court's discretion will be that it will not in any circumstances be permitted to make provision for a child at the expense of the legal right share of the surviving spouse; and it will be permitted to interfere with a devise or bequest to the spouse only in the case of a child who is the stepchild of that spouse. I might mention that in New Zealand, the home of the judicial discretion system, the courts, in interpreting the family provision legislation, have accepted the notion of a moral duty. The question always is: what moral duty did this particular deceased person owe to this particular applicant? The duty, of course, varies from case to case and depends, among other things, on the means of the testator and the means of the applicant.

There will be general agreement that any scheme based on application to the court should be capable of being operated in as informal and inexpensive a manner as possible. Accordingly, subsection (4) of section 116 proposes that rules of court shall provide for the conduct of proceedings in a summary manner. In accordance with section 118, all applications will be heard in chambers. The time limit for bringing applications will be 12 months from the first taking out of representation of the deceased's estate. In view of the greatly enlarged jurisdiction of the Circuit Court provided for in section 6 of the Bill, I envisage that that court will be able to deal with the vast majority of applications that will arise under section 116.

The proposals in Part IX of the Bill will allow considerable flexibility to a testator in disposing of his property among the members of his family. I would particularly draw attention to the fact that, under these proposals, a testator will be able to leave all his property to his spouse. Alternatively, he will be able to leave a life estate to his spouse with a direction to her to appoint among the children. If the spouse or the children are not satisfied with this, they will be able to exercise their rights under sections 110 and 116, respectively. Subject to the legal right of the spouse, a testator will be able to leave his property to any of his children that he chooses or, indeed, to anyone outside the family. The children will, of course, have the right to apply to the court if they feel they have been treated unfairly.

Section 112 of the Bill will allow a spouse to renounce his or her legal right in writing, either by ante-nuptial contract or during the marriage. To deal with the type of case where, before the new legislation comes into operation, a testator has, during his lifetime, made permanent provision for his spouse, whether by way of separation deed or otherwise, section 115 proposes that any such provision —other than a provision for maintenance to be paid periodically during the testator's lifetime—shall be offset against the legal right share of the spouse. I want to emphasise that this is a purely interim provision designed to cater for circumstances which may have arisen before the proposed Act comes into operation. It will not apply to a case where a husband makes permanent provision for his wife after the Act is in operation. In such a case, it will be open to the husband, if he so wishes, to arrange to have his wife renounce her legal right share. If he does not do so, she will be entitled to that share in the same way as if no provision had been made for her. At the moment, separation deeds often make provision for the intestate rights of the separated parties.

In considering the proposals as to the legal right share of the surviving spouse, there is one very important provision which must not be overlooked. It is contained in section 46 (6) of the Bill. By virtue of that subsection, a claim to a share as a legal right will be a claim against the assets of the estate of the deceased. In other words, all that the spouse will be able to claim is a monetary sum representing the appropriate share of the assets. The spouse will not have a claim to any particular asset or part of the estate. This is, of course, subject to her right to have the family home appropriated in satisfaction of her share under section 56.

Part IX of the Bill will not give rise to fragmentation of farms and businesses. Those people who suggest that it will should remember that fragmentation does not occur at present on intestacy. Our present rules of intestate succession constitute a legal rights system under which the widow is entitled to one-third and the children to two-thirds. This gives rise to little or no difficulty in practice, notwithstanding that one out of every two successions is an intestacy. The fact of the matter is that, for the overwhelming majority of Irish people, all property has for years and years been distributed on death as if it were personalty. The heir-at-law was a rare institution in Ireland and the Registration of Title Act, 1891, by providing that compulsorily registered land should be distributed as if it were personalty, made, in fact, no change as far as the people of rural Ireland were concerned. The Irish tenant farmer was a leaseholder and was well acquainted with the system of distribution on intestacy —under which his wife got one-third or one-half depending on whether or not there were children. Indeed, this was the reason why the late Judge Madden framed Part IV of the 1891 Act as he did; and he has so stated. Those who may be tempted to accuse me of not knowing Irish conditions should themselves first study these conditions both today and in the past.

A major problem in dealing with the law of succession arises on the question of unworthiness to succeed. This is the subject of Part X of the Bill. If a spouse is to be given a legal right to a specified share, the testator must not be allowed to withdraw that share. The spouse should have an absolute entitlement to the share and should only be deprived of it on the same grounds as would justify deprival of an ordinary intestate share. Having carefully studied the provisions in other legal systems, I have come to the conclusion that there should be three grounds of unworthiness to succeed. These are the grounds which are provided for in section 119. Firstly, a person who has been guilty of the manslaughter or murder, or attempted murder, of the deceased will be excluded from any share whatever in the estate, whether under a will, on intestacy or as a legal right. This follows the existing law and is based on grounds of public policy. Secondly, a spouse against whom the deceased obtained a divorce a mensa et toro, a spouse who failed to comply with a decree of restitution of conjugal rights, and a spouse guilty of desertion for two years or more immediately prior to the deceased's death will be excluded from any share as a legal right or on intestacy. “Desertion” here includes “constructive desertion”, so that, where the deceased was obliged during lifetime to separate and live apart from the other spouse because of the latter's behaviour, the surviving spouse, being the guilty party, will not be entitled to succeed. Thirdly, a person who has been found guilty of a serious criminal offence—meriting two years' imprisonment or penal servitude—against the deceased or a member of his or her family, will be excluded from any share as a legal right or on intestacy. It is to be noted that, in the case of the second and third grounds which I have mentioned, the person concerned will not be excluded from a share under a will. This is because a man may wish to forgive the acts concerned and, if he does, there is no reason why he should not be allowed to make provision for the offender in his will.

Section 120 of the Bill is designed to prevent a person from disposing of property during his lifetime so as deliberately to defeat or substantially diminish the share of his spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or so as to leave any of his children insufficiently provided for. This section is essential if people are to be effectively prevented from disinheriting members of their family. I may add that similar provisions to those contained in the section are to be found in a number of jurisdictions; and the absence of such provisions in England, Scotland and Canada has been adversely criticised.

The section will apply to voluntary dispositions taking effect within three years before the death of the deceased or on death or later. In the case of a disposition to which the section applies it will be open to the court, on application by or on behalf of the spouse or child of the disponer, to order that the disposition shall, in whole or in part, be deemed to be a devise or bequest made by the deceased by will and to have had no other effect. So far as a spouse is concerned, this will mean that the disposition will be reckoned as part of the estate out of which the spouse will be entitled to a legal right share. In the case of a child, the disposition will be included in the estate in respect of which the child will be entitled to bring an application under section 116. The court will not be able to make an order under section 120 interfering with a disposition made to the spouse of the disponer except on an application made by a child of the disponer who is not a child of the spouse, that is, a step-child of the spouse. In the case of a disposition made to a child of the disponer, the court will not be able to make an order under the section if the spouse was alive when the disposition was made and consented in writing to it. The stipulation that the spouse, if alive, must consent to a disposition made to a child will provide a valuable safeguard against injustice being done to other members of the family.

Section 120 will not apply to a disposition made to a purchaser. Accordingly, a genuine business transaction involving the sale or mortgaging of property will not be affected.

Section 121 provides that applications under Part X shall be heard in chambers, as it is clearly undesirable that the issues involved should receive any publicity.

Part XI of the Bill provides for miscellaneous amendments of the law dealing with limitation of actions in respect of the estates of deceased persons. The provisions in this Part of the Bill have been inserted in an effort to meet conditions peculiar to rural Ireland. They are framed to cure difficulties that arise in regard to the title to land where, for example, some members of the family remain at home on the farm, while others leave to take up professions or to work in towns and cities at home or abroad.

Part XII of the Bill provides for the consolidation of miscellaneous existing statutory provisions relating to the Probate Office and the district probate registries. These provisions do not, I think, call for any special comment.

In framing this Bill we were fortunate to have the benefit of the expert knowledge and advice of a number of eminent authorities on the laws of succession in Northern Ireland and in other jurisdictions. All were unstinting in their help and advice, and I am extremely grateful to each and every one of them. I should also like to express my gratitude to the National Farmers' Association, the legal professions and other organisations and persons in this country who have been of invaluable assistance to me.

This Bill covers a wide and complicated sphere of private law. Although it will, I hope, considerably facilitate the task of lawyers in advising on the law, it is not a lawyers' Bill. Every person in the community with property to leave is concerned in this legislation, which is probably the most important law reform measure so far to come before the Oireachtas. I am satisfied that the proposals in the Bill will result in a system of succession which will be compatible with the principles of social justice and in accord with the values that are fundamental in Irish society.

I am sorry that, owing to certain circumstances of which Senators will not be unaware, I have been unable to have a full print of a revised explanatory memorandum circulated with the Bill. Instead, I would ask the House to accept the stencilled supplementary memorandum which has been circulated with the Bill as passed by Dáil Éireann.

Certainly, we have just listened to one of the most extraordinary speeches that Deputy B. Lenihan, the Minister for Justice, has ever delivered—perhaps, one of the most extraordinary speeches ever delivered in this House. One can only say, after listening to the speech of the Minister, that he doth protest too much and the reason he protests so much is that he has an uneasy conscience about the Bill. He ranged from the Celts, from the Code Napoléon and through the Civil and Swiss and German Codes right up to the present time of the Scottish law enacted only recently. He looked for inspiration, he has told us, north of the Tweed to the Scots, to tell the Irish people what way they should dispose of their property and what way they should look after their wives and their children.

The mentality which produced such an abortion as the 1964 Succession Bill proves to be the same mentality as now tries to brazen out the one-third share, the Part IX of this Bill. The Minister has called in aid what was done by the Celts. It is a pity he did not tell us what the Firbolgs and the Tuatha de Danaan did about their wives in the disposal of their property. When he was traversing history, he might also have told us that one of the most bitterly resented of the Penal Laws passed in the reign of Queen Anne required that the property of every man on his death should be divided equally among his children. According to English and Irish historians, that was considered one of the most savage of the Penal Laws. We have echoes and undertones of it here or we certainly had it in the 1964 Succession Bill and we have the last rumbling echo of it in this Bill.

We are now told about what Judge Madden had to do in Part IV of the Registration of Title Bill. All of that is wholly quite irrelevant to conditions in modern Ireland. We all know the way in which the Registration of Title Act, 1891, was interpreted by the courts so as to produce results quite different from those which the framers of that Act intended it to produce

We have the Minister invoking— it would be welcome, I suppose, to an extent, if the motive behind it were good and the purpose for which it was being used were good—the provisions of the Constitution to tell us about the concern which the State has for the family as a unit in society and of the position that the wife occupies in the family. The Minister belongs to the Government who have the policy, and are trying to have it enshrined in legislation, that those who leave insurance policies for the benefit of their wives should suffer in the same way and to the same extent in regard to death duties as if those policies had not been designed especially for the wives. That, as the Minister knows, is the concern which the Government have for the widows in this country who, from the enactment of the Finance Bill, 1965, will bear a higher rate of duty than ever before on policies which were designed especially to protect wives upon the death of their husbands. Therefore, all this rigmarole—going to Scotland and through the Continent and back to the time of the Celts—is quite irrelevant and quite unconvincing.

The plain truth of the matter is that we have here in this country a problem. We do not have to send officials to Scotland to make any inquiries as to how to solve it. It is a small problem. It is a very important problem for those whom it affects but it will not be solved in the way that this Bill sets about solving it.

These are only preliminary remarks generated by the most extraordinary speech that the Minister has made. The Bill which we have before us is a good Bill: I was inclined to say that it is like the curate's egg but I would not say that: it is more like a clutch of a dozen eggs of which eleven are good but Part IX is a glugger, the non-starter, rotten to the core and will never be any good.

The other parts of the Bill are to be commended and the Minister and his Department are to be commended on this much needed modification of the law relating to succession, the devolution of property and the descent of property and its distribution which, as he has said, ranges over so many statutes that at times for the present day lawyer it is quite impossible to find the particular statute which relates to some of the problems we have to deal with from time to time because they are long since out of print or written in a form of Anglo-Saxon or sometimes Latin not readily intelligible. For that we must commend the Bill. The assimilation of real and personal property for the purpose of devolution and distribution is one which I think all lawyers and all persons of commonsense will agree with. The old difference is a relic of ancient times which has no basis whatever for its existence in modern times.

Nobody will shed tears at the demise of the heir at law, who was a sore thumb always sticking out of the title which conveyancers had to deal with. There was more money spent in administration suits in trying to trace the heir at law than was ever justified. Consequently, now that he has been laid peacefully to rest in this Bill there will be no requiems sung about him. Nobody regrets his departure. Equally, nobody regrets the departure of curtesy and dower, which also gave rise to numerous difficulties in the way of putting title to property in order.

I could readily appreciate the Minister increasing the jurisdiction for personal property from the present limit of £2,000 to £5,000. I think that is a sensible sum in the light of modern values, but I do not quite see why property with a valuation of £60, which in case of farms must embrace the vast majority of farms, should be increased to £100. It does not make a great deal of difference, but it seems to me that if one is making a differentiation between the jurisdiction of the Circuit Court and that of the High Court £60 was certainly a very high valuation to place on lands being dealt with within the jurisdiction of the Circuit Court. However, it is not a matter that I quarrel with. I do not know the basis upon which it was decided to raise it from £60 to £100 because land all the time continues to retain its value. I would have thought that £60 valuation, which embraces the vast majority of holdings in this country, was a suitable valuation for the Circuit Court. However, it is not a thing about which I would quarrel.

I am glad that the Minister has extended the right of making a valid will to persons who have attained the age of 18, and I entirely agree with the reasoning that if people can own property, can select their employment in life, decide their affairs and are liable to all the rigours of income tax, PAYE and all the rest, they are also, especially in modern times in view of their improved standard of education, entitled to make a will at the age of 18. I have little doubt that they have the wisdom and the testamentary capacity to make a will at that age.

Finally, I think that every lawyer will raise loud cheers for the Minister at the abolition of the decision in Rice and Begley, another of the obstacles that many people have had to endure in making title to farms in this country. The abolition of the doctrine of bailiffship will, likewise with the abolition of the heir at law and curtesy and dower, facilitate what the law in its many statutes and especially in the Statute of Limitations seeks to do, to give proper and valid titles to persons who have been a long time in possession.

There are many other reforms in the Bill which are well worth while with regard to the interpretation of wills, and others, and I want merely to pass on this favourable comment in order that the House should appreciate that what I have to say in regard to section 9 is not said with an eye that can see no good that is done by the Minister. Rather, it is said with the eye of somebody of his own experience and listening to the experience of everybody else in the legal profession and to people outside the legal profession and what they have to say about Part IX of the Bill. The plain truth is that at the present time the people in the country are not aware, and they will all waken up individually when it is too late, to the enormities of section 9 of this Bill.

The Succession Bill of 1964, the father of this one, was universally condemned in a way that no other piece of legislation or no other Government proposal ever before was condemned, and the condemnation, let it be said, is not based upon politics. It is not related to any profession or walk in life, but everybody who knows what this section contains and who knew what Part IX of the 1964 Bill contained was unanimous in condemning Part IX. While the Minister thanks and pays tribute to the legal profession for the help, advice and guidance that he says they have given him, I fear that he has paid little attention to the accumulated experience, wisdom and knowledge which the legal profession has in regard to this particular problem. Remember that it is the solicitors in this country who are the people who know all the details of the families of those whose wills they draw up.

I met them twice and met every point they made.

I understand that quite recently the Minister met them. I have not yet met any solicitor who is satisfied that the Bill, as drafted, has met the points which they raised in their original memorandum and in the memorandum which they issued to the papers when this Bill first came out. The truth is that there is a problem with regard to the position of widows who are sometimes disinherited by thoughtless and sometimes callous and cruel husbands, but nobody can say and certainly the Minister cannot say that the problem would extend to more than 5 per cent of the wills in this country.

Deputy John A. Costello said it was a sizeable problem.

He said it was a sizeable problem, and the Minister was so impressed by what Deputy Costello had to say that he brings in as almost typical of what goes on in the country the reference to the fact that a widow is extended only certain rights and maintenance and the use of the family conveyance on Saturday because Deputy Costello used that to illustrate one case of hardship of which he was aware.

A sizeable problem.

A sizeable problem does not account for anything like 5 per cent of the wills made in this country. The Minister has no firm statistics any more than I have, except that mine are based on what I know and what I have heard from solicitors and from what one gathers from all the cases on in courts, for, let nobody mistake it, wherever a man dies and disinherits his widow, the normal procedure for the wife, if he leaves property to somebody outside the family, is that that will is challenged upon the ground that the man was not of sound mind, memory or understanding when he made it.

One recollects in one's own experience wills where the husband or spouse was disinherited. I recollect the case of a man being married to a woman who was older than himself. He was disinherited by his wife and received no part of her money. In the course of the evidence it was stated that the wife, in her lifetime, thought the husband, who was younger than herself, had too much veneration for the young girls going the road. You do not commonly encounter cases where a woman and man will disinherit their husband or spouse. That is the odd exception. The Minister and the Government are trying to do the same thing in relation to the entire population of this country. They are doing that in respect of property owners and those who have a small amount of assets to distribute.

There are clauses in the Bill which are tantamount to a requirement that every citizen shall enter into a bail bond to be of good behaviour. Occasionally, of course, it is necessary to make the minority of the people enter bail bonds to be of good behaviour. That is what the Bill is trying to do. There are no grounds for asking the majority to conform with the provisions of Part IX of this Bill. What is being said is that the majority of the citizens, when they make their wills, have no regard for their husbands or spouses. That is being stipulated in the Bill because a small minority so disinherit.

That is not the experience of the legal profession. I am sure that is not the experience of the Members of this House. Is it suggested, for instance, that the majority of the married men and married women in this House, when they make their wills, will disinherit their spouses or husbands? Is the suggestion not plainly and monstrously false and incorrect when you test it by the example of the people in this House? The people here are no different from the average people in this country.

We should object to such distortion.

The Bill is an effort by the legislature to substitute, for all time, the provisions in Part IX, for the knowledge, the experience and the understanding that every testator has of his own family and the particular dispositions of persons whom he wants to benefit, their business acumen and everything else which a man takes into consideration when he is disposing of his property.

We should reject this Bill because it does that and because it suggests that the majority of the property owning people in this country are improvident, disregarding their wives or husbands and have no consideration for them. Part IX of the Bill, make no mistake about it, is legislative slander upon the people. It is legislative slander upon every spouse who makes a will. That is what is involved in it. We heard a great deal about what they do in Scotland. One would have thought that was the last country where generous provisions would be made for anybody, if tradition is correct. We heard a great deal about what is done in a variety of countries. If this Bill becomes law in its present form there is many a widow who will curse the Minister for Justice—we all know what a widow's curse is like— for ever having introduced the Bill because she will be told formally by her solicitor: "Were it not for the Bill introduced by Briany Lenihan"—I do not say that out of disrespect to the Minister—"you would be far better off today, ma'm."

They would be Fine Gael solicitors.

My contacts, thank God, are not confined to Fine Gael solicitors I am happy to say. It is a very wrong thing to introduce the subject of Fine Gael or Fianna Fáil solicitors because, as I say, the opposition to this Bill is not based upon any political antagonisms.

The Labour Party supported the Bill.

Perhaps, but they may also have reason to rue it. I shall deal with that later. As I say, there is many a widow will rue the day this Bill was introduced. In the Dáil the Minister adopted a legalistic approach to the one-third share by saying this was not a vested right. It only gives the widow the right to claim one-third the value of the assets. Then he goes on to talk about the provisions in the Bill under which, if a legacy is left to a widow, she may elect as between the legacy and her legal right. That is full of pitfalls for the widow.

A husband having picked up knowledge from the local paper, makes a homemade will—many wills are home-made—with the aid of the teacher, the parish priest or the local curate who will say: "She will get her legal right anyway and you might as well show that you do not forget her. Leave her £10." She is left that in the will and if she does not exercise her option within 12 months, she will get only £10. Where will the poor widow be then? She will be out in the cold and will be worse off than she would have been if this Bill had not been introduced. This is not a hypothetical case. This is the kind of thing that, as certainly as I stand here, and as certainly as this Bill goes through in its present form, will arise.

There will be many more cases of hardship if this Bill goes through in its present form than if the present position were allowed to continue. Section 10 gives the widow the right to one-third interest in the assets of her deceased husband. This section also refers to the widower. I am not too concerned about widowers at all. They are entitled, if they are dependent widowers, to something and I have some concern for them. I am treating this section as if the widow were entitled to claim one-third and and if she does so under this Bill it means for all time a man is debarred from leaving a life interest in his property to his wife.

The Minister argues that she can choose between a life interest and the one-third share. A practical man of affairs will say: "I am bound to leave her one-third and if I do not, according to the law, I am for it." He certainly will be inhibited if not prevented from leaving a life interest in his property to his wife, and to his son afterwards. If that is so, what will be the position of the widow? Let us take the widow of a man who has a farm valued at £7 10 or £8 10. Would it not be better for her to have a life interest in that property and be able to manage the whole property, rather than have the right to one-third for which the farm would have to be sold? What is the value of, say, £1,000 to a widow of 44 or 45 years as compared with a life interest in a farm valued at £10?

She could take the life interest.

Of course she could, but she will not be left the life interest. There is many a farm or business where the husband leaves the property to one son or daughter with rights of residence, support, clothing and maintenance charged upon the property to be provided by the son who gets the entire property. That is going to disappear. If, as the Minister says, the one-third is going to continue, will the Minister indicate how that one-third is to be made good to the widow? Does it not necessarily involve, in the case of all small farms and small businesses, the sale of the property? That is what will happen.

Not necessarily.

I cannot for the life of me see how small farms, and the vast majority of small businesses, will be able to pay out in one slap to the widow one-third of the value of the property. It certainly cannot be done in the case of the overwhelming majority of small farms because to do so would beggar them. This is even worse than the heaviest form of death duties ever imposed upon farmers, because it now means that on the death of the owner the property is charged with one-third of its value. There never was a rate of estate duty applicable to farmers—except in the case of the great landowners—as high as 33? per cent.

If a man provides for his children, and leaves the legal share to his wife saying: "This is what the law has decided and I will not do any more", when he dies this means that the farm becomes owned by two people. This will breed many more problems than the one it is intended to solve. Will the Minister tell me and the House where a woman is entitled to a one-third share of a farm—and if he is right she does not have a vested interest in it—if the property is left to her son, who presumably is entitled to be registered as the full owner, and there is this kind of floating charge of one-third upon it in favour of the widow, is there any bank that will give a loan, or will the Agricultural Credit Corporation make a loan, to such a man?

I am absolutely satisfied that no bank will give a loan to a farmer where there is one owner and another person has a floating charge upon it of one-third of the value of the assets of the deceased. I do not think the Agricultural Credit Corporation would do so either. If this is the way we intend to help farmers to become properly capitalised and to get development under way, it seems to me that the Minister for Agriculture and the Minister for Finance need not have bothered bringing legislation in here in connection with agricultural credit in the past few weeks.

The life tenant would be in a worse position.

The life tenant is different. The life tenant is the owner and there is not a floating charge of one-third of the value of the farm and all the assets which the deceased left.

Another problem arises. If in that kind of situation there is a divide of land coming from the Land Commission, and if the son got the farm from the father with this floating charge of one-third for the widow, who is going to get the accretion or the divide from the Land Commission?

(Longford): The Land Commission have administration facilities for such emergencies.

The Land Commission are always concerned with whether they can consolidate or not, and, of course, the widow will not get her share of one-third of the value of the assets because the money will not be there. After a time if the son gets married—this is the pattern in rural Ireland of which Senator O'Reilly will undoubtedly be aware—and brings in a young wife, and in due course various tensions and strains arise, what happens? The widow will have her one-third right share of the value of the assets of her late husband, and this is something she can use against her daughter-in-law, and when she goes to visit her married daughter, her daughter will say: "This is something you must realise, mother; you should get your one-third share from Patrick or John, or whoever it is", and the next thing is she will institute proceedings and get a judgment mortgage. That is the kind of thing that will happen in these circumstances. If the mother is a judgment mortgagee of one-third of the property what will happen after that? No one knows.

(Longford): I do There is really no basis for family life if that is the picture.

That will be the picture. I am not a clairvoyant but I think that is an inevitable consequence of Part IX of the Bill.

The Bill has been so badly thought out by people who have no knowledge of what goes on in rural Ireland that another problem presents itself, and I should like to hear the Minister on this. The husband dies and the widow becomes entitled to a one-third legal share. He also leaves her a gift of, say, £300 or £500. Under section 114 she must elect within a year whether she will take her one-third legal share or the legacy of £300 or £500, but there is no provision in the Bill at all to say what happens if the widow dies within the time she has to make her election. What will happen then? It seems to me very likely that if a widow is given a right to one-third she is entitled to that in all circumstances. If she dies it seems to me that the right of election is a personal power—some people may say that they do not know and that it will have to go the whole rigmarole to the Supreme Court to ascertain what the law will be—and that her personal representative will make the application for her.

That is self-evident.

The things the Minister says are always self-evident. Everything is perfectly plain. Everything is in black and white, but the picture I am painting here, which so alarms and frightens Senator O'Reilly, is black and that is the picture which will unfold itself in future if this Bill becomes law. I hope Senator O'Reilly with his considerable powers of discernment will look at this and when it comes to the relevant time he will assist those in the kind of situation about which I have been speaking.

The Minister then comes along and says that this Bill will not lead to fragmentation and the reason he gives is that there has been a fair amount of intestacies and there has not been fragmentation of farms in rural Ireland where all devolves on death to the sons via intestacy. When this piece of legislation becomes law most women will get to know about the existence of the Succession Bill, 1965. Very few of them were alive to or had the mental capacity to comprehend the Intestacies Estates Act of the 1800's, but it is an entirely different thing in a modern literate community such as we have at the present time to talk about leaving this one-third right. Every woman in the country will know now that she is entitled to one-third of the property on the death of her husband, whereas before she would have been quite content to get rights of residence, clothing, maintenance and a small annuity charged on the farm or business. From now on she will regard herself under her husband's will as getting one-third.

Quite right, too.

As we all know, once people find themselves entitled to something under a will: whether they expect it or whether they are entitled to it, it is their money. I think it would have been far better if the law had been that husbands and wives would get together, as they frequently do, and decide what they will do with their property when one or other dies. The present law, which has not been proved to work unsatisfactorily in the vast majority of cases, should be allowed to continue.

As happens under section 116, in the case of a minority of widows who would fare badly under the will they would be entitled to go to court and the court would fix what share they were entitled to. It is all right for Senator Yeats to say that the widow is entitled to one-third. Would he tell me what value it is to a woman to have one-third of a farm of £7.10. valuation?

That is not the point.

That is the size of the vast majority of holdings in this country.

Would the Senator support an amendment if I put it down that the widow should get the whole lot?

I would prefer that. In many cases she will get the whole lot.

And she will continue to do so.

The Minister misses the point. Once the provision is made in the Bill that she is entitled to one-third, I have no doubt that with a lot of home-made wills the draftsman of the will will say that the widow is getting one-third and he will leave her a few hundred pounds as well.

She will get the whole lot if the husband wants it that way.

I have little doubt it will not happen. The far better way is the charge of rights of residence, support, clothing and maintenance. Remember most of the old people who settle their property by deed and those who make wills always insert, especially in deeds, that where they have the roots of their lifetime they shall have rights of residence, support, clothing and maintenance and a right to be nursed in their illness. More than anything else old people require the company of their family and the right to be nursed. It can be quite certain that if the widow is given, and gets only, the one-third share under the provisions of this Bill she will get very little kindness and comfort, if she insists, from her daughter-in-law or whoever else is given the rest of the farm. Another aspect of this new-fangled notion is the effect this will have on the real income of the widow.

It is as old-fangled as Greece and Rome, for the benefit of the Senator's classical education.

It may be, but I do not think that as regards family life we in this country had anything to learn from Greece or Rome in ancient or in modern times.

The Catholic Church.

An Leas-Chathaoirleach

The Catholic Church is slightly out of line with reading the Bill Second Time.

The Minister might also give some indication—this might, perhaps, be more appropriate to the Minister for Social Welfare—as to what effect the one-third legal charge will have on the widow when it comes to ascertaining her means for the widows' and orphans' pension or for the old age pension. How many widows will be disqualified as a result of the one-third legal share?

That point has been dealt with.

It certainly is not dealt with in this Bill. I do not suppose it would be entirely appropriate. The provision in Part IX, unless some correcting amending legislation is brought in, would initially have the effect of reducing the value of widows' and old age pensions. I do not know whether this is to off-load some of the costs of widows' pensions and old age pensions from the Exchequer. I hope it is not. I hardly think it is.

I should like, therefore, when the Minister is dealing with the Bill, in reply, if he would deal with some of the difficulties which Part IX will give rise to. I should like to deal especially with what will happen in the case of a widow who is left merely a nominal legacy. If she does not, as I understand the provisions of the Bill—and the Bill does not set out that this is to be in addition to her legal share—then it seems to me that she will get only the nominal legacy, if she has not opted to take her legal share. To my mind, that would be disastrous for any widow.

We must always bear in mind that many wills are drawn up when it is altogether too late, when testators are ill and anxious to make the best provision they can. Draftsmen are not always as alive to the legal effect of what they do as they might be. I cannot for the life of me see how the value of the one-third share will be calculated. If, as is provided in section 46 subsection (6), it is to be:

A claim to a share as a legal right or an intestacy in the estate of a deceased person is a claim against the assets of the estate to a sum equal to the value of that share...

How is the value of the business or the farm to be calculated?

In the same way as it is calculated for intestacy.

The only way it is calculated in intestacy is a sale——

It is done every day of the week for probate purposes.

If the Minister advances that as an answer, it shows his innocence. Everybody knows that there are two valuations, that a valuer will make a real value and another value for probate. In any event, in the valuation for probate, in the case of certain kinds of holdings, is it not 25 times the poor law valuation, less the outstanding balance of the annuity? How is a small farm which is subject to that kind of valuation situated? So far as I can see, it can be valued only by being sold or by the parties agreeing to pay £25 or £30 to a valuer to make a valuation. Or, perhaps, each party would get his own valuer and then try to agree to a price. However, I cannot see how that will be done. Nor, indeed, can I see if a widow was entitled to an annuity out of some other fund how there is no provision in section 115 to deal with the immediate problem of calculating the value of the annuity which is to be offset pro tanto against her legal share. I cannot see how that will be done in the Bill.

The plain truth of the matter is Part IX was conceived by people who are more concerned with the interesting facets of Scottish law and German and Swiss civil codes. They failed to realise that the problem we have in this country is a very small one. They failed to take note of the fact that the vast majority of Irish husbands and wives, when leaving their property, deal equitably and affectionately with the spouse they hope will survive them. That is the experience of the legal profession in this country. It is the experience which the Minister or any other person in this House cannot gainsay.

The only basis upon which the Minister could hope to justify the introduction of a radical piece of legislation of this kind would be if he were able to come into this House and say that a great number of wills were unfair to widows. What he is doing now is to upset the existing order of things, without conferring any benefit upon the 95 per cent, 96 per cent, or the 97 per cent who will be quite happy and will be well looked after in the wills of their husbands or wives. There is the problem concerning, say, three per cent to 5 per cent.

Deputy John A. Costello says it is a sizeable problem.

I shall not regard Deputy John A. Costello, with all his great experience, as a statistician for this purpose. I am sure that Deputy John A. Costello would not wish to be misquoted or to feel that what he said was misused in this way. It is not a very big problem; in fact, it is a very small one, and could be better dealt with in the way that fathers who disinherit their children are dealt with in section 117. The Minister says that he does not want to drag widows into court and all that kind of thing. If this were dealt with in the Bill on the same basis as what is accorded in the case of children, no difficulties would arise for any woman than would arise in the situation where she has to go in and tell the whole matter to her solicitor.

I should like the Minister to indicate in what way he has met the Law Society's objections because as I have read the Law Society's objections to this Bill no amendment which the Minister has made has met the fundamental objections which the Law Society had in their first publication of the 1964 Bill or in the publications which have been made since this Bill was introduced. Perhaps the Minister, in his reply, might deal with this.

In my view this is a very valuable Bill with many useful provisions. I think that probably the main purpose of the Bill originally was to consolidate, as far as that can be done, the law relating to succession. It has, of course, done that and done it very successfully. This is an ideal branch of the law for consolidation because of the fact that the law goes back so far and because its range is so wide. The extent to which this consolidation has been done and the effect on the law may be gauged from the fact that so many Acts have been repealed and by the fact that something in the region of 30 Acts dealing with the law of succession have been entirely repealed. It is certainly a great relief to anybody who has to deal with this law in a professional way to know that, in the future, most of the law will be in one Bill and, although this branch of the law will still be rather complex, there is no doubt that the Bill will simplify it to a considerable extent.

In addition to the consolidation, there are a number of new provisions in the Bill. Although I do not intend to enumerate them on this Stage, as I think we will all have an opportunity of commenting on them at a later Stage, I would in particular welcome the fact that the distinction between realty and personalty has been further reduced and almost entirely eliminated.

It is, unfortunately, impossible to speak on the Bill without making some reference to Part IX. It is a very small part of the Bill but, at the same time, it has given rise to some controversy and it is difficult not to deal with some of the criticisms that have been made of it, many of which criticisms are completely unjustified. Senator O'Quigley gave the impression that the entire legal profession are against this part of the Bill. He said that everybody he has spoken to is against it. I am afraid he must have been very careful to whom he spoke and he must have confined his discussions to a very small circle because I do not agree with him at all that the legal profession are by any means entirely opposed to this provision.

Senator O'Quigley said also that the opposition to the 1964 Bill had no political content whatever. Whereas I am willing to agree that the original opposition to that Bill may not have had any political content, I would ask Senator O'Quigley to examine his conscience and say whether the opposition to the Bill was not used politically and an effort made to cash in on it from a political point of view.

Is there any use in telling the Senator that everything we do in this House is political—in the right sense of the word?

Thank you for adding that qualification. Now, Senator O'Quigley has argued that just because some people make bad wills we should not do anything about it. He has used the analogy that we should not all be asked to enter into a bond to keep the peace merely because some people break the peace. If he follows that example to its logical conclusion, he should also say that because most of us do not commit murder there should not be any law for dealing with those who do commit murder.

I entirely agree with that but do not call us all murderers. The Senator missed the point. I agree that we must do something about the small proportion but this is not the way to do it.

It is tying everybody up.

Like hanging for murderers.

That is the argument which a lot of people use about Part IX. They say, in effect: "Of course, there is something to be said for this problem. There is something to be said for ensuring that the surviving spouse will get a share." On the one hand, they say that this is a principle which is good and which cannot be denied and, on the other hand, they are not prepared to do anything to deal with the problem. They are prepared to say, on the one hand, that the widow should have some rights but they want to do that without depriving the testator of any rights and it is not possible to do these two things at the same time. Consequently, I think that to lay your hand on your heart and to say that there is a problem here and that you must do something for surviving spouses and at the same time are not prepared to do anything concrete about it is just not facing up to the problem and will not get us anywhere in dealing with it.

I have no hesitation at all in supporting not only the principle behind Part IX but in supporting the machinery that is provided by the Bill to ensure that the surviving spouse will get a fair share of the property of the testator. The right to a one-third share is merely a right and a means of ensuring that the surviving spouse will get something: it is not by any means inflexible. Numerous ways are provided in the Bill for modifying that or for providing other solutions to the problem. The wife or spouse may by agreement before marriage renounce her right to the one-third share. At any time during the marriage she may renounce her right to the one-third share. After the death of her husband, if anything at all is provided in the will, the right to the one-third share does not operate if she does not elect. There are, in fact, in practice, so many ways under which the one-third share will not come into operation that it cannot be said, by any means, to be an inflexible problem. To my mind, having regard to all the considerations, this is the best possible solution to the problem of ensuring that a surviving spouse will get at least some reasonable share. I am also completely in agreement with the modification which has been made in regard to the children. I think the present arrangement is the very best one that can be made to deal with the rights of the children.

Senator O'Quigley has described this right to a one-third share as though it will create a revolution in this country, as though the whole law of succession will be thrown into turmoil by this new provision. In point of fact, of course, approximately one half of the people in this country die without making any will. Consequently, one half of the property is distributed on intestacy and, in these circumstances, almost exactly the same proportions operate—the widow gets one-third, especially if there are children.

And that was one of the reasons for the decay of rural Ireland because nobody ever owned anything.

That may be so. If the Senator believes that the decay of rural Ireland was caused by intestacy he should be doing something about abolishing the law of intestacy. He is the person who is saying that this will create a completely new and impossible situation but, in fact, up to now, approximately half the property——

That is why there were so many late marriages.

Senator O'Quigley is drawing the long bow.

——passed on the death of a person. At the very most, this will affect half the property that passes on the death of a person so it cannot be argued that this will have anything like the revolutionary effect which Senator O'Quigley suggests it will.

I believe that this Part and Part X are in many ways the best parts of the Bill. I am completely in agreement with them. In the beginning, when the Bill was first introduced, I was not in agreement with it but I think it has been modified in a way which makes it extremely good and I have much pleasure, indeed, in supporting it. There are a number of other provisions with which I should like to deal, and intend to deal, but I think they are better dealt with on the Committee Stage and I do not propose to say anything more on this Stage.

Not feeling very easy in a House where legal knowledge abounds, I had hoped to say a few words on Part IX but Senator O'Quigley forestalled me so brilliantly that there is very little I can say except by way of repetition. Unlike Senator O'Quigley it seemed to me that the Minister has gone to great lengths to produce a fair and just measure. Clearly, it was a difficult task. Nevertheless, certain provisions in the Bill did appear to me to be somewhat harsh. The examples I have in mind dealt more with town and city dwellers rather than the cases concerning those mentioned by Senator O'Quigley, of farmers. Section 10, as he said, says that if a testator leaves a spouse and no children the spouse shall have a right to half the estate. This applies, of course we know, do cases where the decreased spouse has omitted to make any provision for the surviving wife or husband and has willed his estate elsewhere. The right under the Bill is to be restricted to half of the estate. While I believe that the provision gives some relief to a deprived spouse it might go only a very short way towards making a just settlement for her. The estate in question might be a modest one consisting of a house and contents and some money totalling, perhaps, £5,000. To meet the legal right claim the spouse, it seems to me, must suffer the sale of the house and contents and then see some £2,500 pass elsewhere. I do not think that this is a very just state of affairs. The surviving spouse may well through the years of marriage have been hard working, prudent and, indeed, responsible for there being any estate at all. The Minister himself mentioned this in his speech.

Subsection 2 of the section says that in the other case if a testator leaves a spouse and children the spouse shall have a right to one-third. Again, this is a case where the testator omitted to make provision for the survivor and has made a will giving his estate to other persons or, perhaps, indeed to some organisation. The spouse is now worse off. She will get one-third and the children, perhaps, or, indeed, someone else outside the family altogether might have to make a fight for the balance. The enforcement of the legal right here, as in the no children case, may mean that the house and its contents has to be sold. That is, if I understand the Bill, and if we again assume the figure of £5,000 the surviving spouse finds himself or herself with about £1,666 with which to meet future needs but without a home, a very serious situation particularly if the survivor is a widow.

Once again acknowledging my legal ignorance, it appears to me that it would be much better to leave these small estates intact, ensuring the retention of the home for the survivor, particularly far the survivor with children, more especially if the children are young and have little or no means. Once the children have reached adult years and are living outside the home, there would be even less justification for splitting up the home to give away money gifts which of themselves may be of very little permanent use to the recipients.

There may be a case for the actior set out in the Bill where large estates are concerned but it seems to be a bad arrangement when it concerns small estates of £5,000 or, perhaps, under. I was wondering if the Minister could amend the section in so far as small estates are concerned to avoid the necessity of selling up the home in order to give the legal right shares. The family home should be left to the surviving spouse, at least during her lifetime, more particularly if there happen to be young children. Senator O'Quigley said that there are very few cases of this kind in the country, but, as Senator Stanford has said on another measure, even one sparrow is entitled to be considered.

In the matter of children, I would have liked to see in the Bill some specific legal right for dependent children, including handicapped children as distinct from normal grown up children who may be fully capable of fending for themselves. Such dependent children should have a stated legal postion fixed for them in a Bill such as is now before us. Section 116 makes provision for an application to be made to the court, and where the court is of opinion that the testator has failed in his moral duty to make proper provision for a child it may order that such provision may be made. This does not seem to me to meet the case of a dependent child or a handicapped child who may not even be aware that he has any rights, and it would be much better if such a child had a firm legal stated right to just consideration and not have to wait until he was in such a plight that somebody felt the necessity for making an application to the courts on his behalf.

Something like 99 per cent of this Bill is excellent and most welcome in my opinion so far as I have been helped to understand it by my friends who are learned in the law. I propose to confine my remarks to the much disputed section 110. This section has been condemned by the representative bodies of the barristers and solicitors of our country, and I have a letter here in my hand from the Irish Association of Civil Liberties saying that in their opinion it will cause a serious deprivation of civil liberty. Senator Ryan says he thinks it is an excellent provision. But Senator Davidson has pointed out from the women's point of view, from the very practical point of view of the family and of the home, that she does not think it is a good provision.

I propose to rely in what I say on the opinion of the writer of an article in the Irish Times of February 8th, 1965. The article was signed “Justitia”, but it is an open secret that the writer is a former member of our Supreme Court who also represented this country at the European Court in the Hague. I do not intend to go into this in detail, but there are certain cases which strike home so effectively that I believe the House should hear them.

First he says: "Let it be said at once that so far as the Bill seeks to prevent a testator from leaving his surviving spouse and children without ample provision for their maintenance we must for that purpose accept it as wholly good. It is its stupid cast iron method of doing this that is pernicious." Rigidity, in other words, where flexibility is desirable. He gives examples—and I take three of them— of the foolishness of this cast iron method of approach. The first case he takes is this: "Suppose a testator leaves his widow penniless. His property is small and the income from all of it would scarcely give her the bare necessities of life. She may be old, crippled or blind. In common humanity she should get the whole of that meagre property. This Bill gives her only a half, or a third if there are children, the other half is allowed to go to strangers. The enormity is the same where it is the husband who survives and is old and disabled and helpless to support himself."

That is the first case. Now lot us consider the second case. I again quote from this article:

Here the wife dies first. She has only a little property but her husband is already wealthy. She has, however, an aged mother or brother or sister whom she has supported while she lived from her small resources, and who will be destitute if that support ceases. Naturally, the husband, being already wealthy the wife leaves all she has to the helpless mother, brother, or sister, the whole of it being needed to prevent their distress. One can imagine this testatrix's feelings on her deathbed, knowing that our new law will rob the poor relatives of half her little capital and give it to the wealthy husband to whom it will be a bagatelle.

Let the House understand what I am doing. I am not appealing to Roman Law. I am not appealing to conditions in Ireland. I am not using any smear tactics with reference to Penal Laws such as were well replied to by Senator O'Quigley when he pointed out that one of the worst provisions of those Penal Laws was something like what is being done here—in other words, a cast iron rule about the distribution of property. I am not asking the House to consider this law in the terms of historic antipathies or historic prejudices but in terms of human beings and of cases that probably will occur very shortly. When they occur they will ultimately demand amending legislation if this Bill goes through.

Let us look at the third case. I would refer the House to this article if they would like to read it for themselves. This is what the writer says:

Here absurdity reaches its zenith. In the Bill published last June the Minister saw nothing wrong in giving adult well-settled children the same shares of a testator's property as the young dependent children.

I know that some of this has actually been changed by subsequent amendment but the point is this. Suppose circumstances are such that the testator or testatrix wants for very important reasons to leave all his property to charity when his wife is well settled already, this legislation will deprive charities that need support in this country as much as anywhere else of greater opportunities. Take, for example, a man with £10,000 a year and a wife with £10,000 a year. It will be impossible, under this legislation, if it is passed, for more than two-thirds of that £10,000 a year to go to charity.

She can agree.

She seldom agrees because rich people always like to be richer. She will take from charity one-third and keep it for herself.

From the Cats' Home to the poor widow.

I am not going to specify any particular charity. I simply say that it is bad law which prevents a rich man from leaving all his estate to a deserving charity. What does this come to in general? I quote further from this article:

If we look for a moment at the English Act, 1938 we find it does not enforce any gifts of capital. It is quite content to say a certain amount of money every year goes to the dependants.

Senator O'Quigley and others have already dealt with this point but this is one we have to keep in mind if we consider this Bill.

The Minister said in one of his speeches—I must commend him for the eloquence and power in which he made his case—that "it would be a `heartbreak' for claimants to have to go to court" in the case of widows or spouses who are deprived of a fair settlement. The Minister will, I hope, forgive me for what follows but I am quoting the writer, The writer says:

This is rank nonsense, and comes ill from a Minister who proposes to have every disposition of property made within three years of death subject to be ripped up and contested in court. That would, indeed, be a widespread "heart-break".

There is a fear, and it is expressed in this article, that the procedure of going to the court will fall on the widow. In fact, that could be met if the Minister would reconsider this particular clause. The writer of this article, who as I say, is a most eminent authority says the Minister could do what he wants to do without this cast iron rigidity. Let me state what he says. He states:

Our wise men could surely agree upon a fixed standard figure that would provide for decent lifelong maintenance in every average case, with a fixed addition for each dependent child. Where the dependency is total the claimant would get this standard figure automatically, aud where he or she has some, but insufficient, means already, he or she would get enough to bring the means up to the fixed standard. All the claimant for increase of the standard would have to do would be to produce to the executor or administrator a copy of the last income tax seturn which the Commissioners would be required to supply, or if none existed, a sworn declaration of resources, subject to penalties for falseness would suffice. Any beneficiary under the will who would suffer through a claimant's false declaration could challenge it in court, at the usual risk of costs if his case proved unfounded.

That seems to be a practical way of meeting the principle the Minister is laying down. It would need more complex drafting but it could be done and it would avoid the injustice I have quoted. I recommend that article in full to this House before our next sitting. It is a most weighty contribution. The article is in the Irish Times of February the 8th, 1965. The writer sums up the main objections to the Bill and at the end he mentions three of them. They are:

(1) The rigid limit to a half or a third of the testator's estate where that amount would be insufficient to provide decent maintenance for spouse or children.

(2) The compulsory gift of a testator's property to a surviving spouse who is already amply and perhaps sumptuously, provided for or to any spouse beyond what would ensure good maintenance.

(3) Compulsory endowment against a testator's wish of adult children who are not disabled and are well established in life.

There is one other objection which the Irish Association of Civil Liberties has mentioned to me. This ought also to be considered.

In the case where the spouse is bankrupt as it realised by Deputies and Senators that the bankrupt spouse will never be able to get discharge from the bankruptcy during marriage because of this proposed statutory right to fixed legal shares and that—greater hardship—onethird or one balf of the solvent spouse's estate on death, which both parties would probably wish to go to the children, will have to pass to the creditors of the bankrupt?

That is a mistaken notion.

If there is a mistake I would be very happy to have it corrected. If there is it is certainly another good reason for reconsidering the section. In this, as the House knows, I have been largely depending on people who are experts in law. I have made this case because I feel there is an infringement of civil liberties in this section. I appeal to the Minister even at this last moment to reconsider the possibility of alternative legislation.

There is one final point of detail about which I should like to ask. In his speech in the Dáil the Minister said that in the case of the lunacy of a spouse, section 116 would deal with that, but section 116 was deleted on Report Stage in the Dáil. Unfortunately, the proceedings on Report Stage in the Dáil have not been circulated to us because of the printers' strike. I should like an assurance from the Minister that somewhere else in the Bill this particular provision has been made as otherwise a serious gap has been made by the deletion of section 116.

I shall end by saying that many people in this country consider that section 110 is bad law, and that it is an infringement of a fundamental liberty with regard to personal property. I hope the Minister whom we all know is a very reasonable man, will reconsider that section.

Senator O'Quigley in opening for the attack, as it were, regretted—I think he regretted, but at any rate he expressed surprise—that the Minister had not gone back and told us what the relationship between the Firbolg and property was. I feel I should clear up that matter at the start, as there are very few of us left now. What happened to our property, of course, was that we were completely dispossessed by the invading Gaels.

The Minister was quite right to refer to the law of Scotland, not because they are fellow Gaels—one is never quite sure which were the Picts and which were the Scots moving in and out of Ireland—not because of their ancient lineage, but because of the commonsense nature of their law.

I was a little shocked by Senator O'Quigley's suggestion that this Bill was considerably worse now than it would have been 60 years ago because now most women can read. He seemed to suggest that if only women were illiterate, and would not know about the fact that they had a legal right to one-third of their husband's property it would not be so bad. He tried to wring our hearts by the suggestion that now Irish women will know their actual rights, and that, therefore, it is safer not to give them these rights in too clear terms but leave it to the lawyers to argue it out. I feel that we should not be influenced by such arguments. I had a feeling that Senator O'Quigley was making more of a case than he fully believed in himself.

He said for instance—and I think he was wrong—that the widow might be forced to make a choice between £300 or £400 left to her by her dead husband and one-third of the estate, and that she might not know which was the greater. In fact, in section 113 it is made quite clear that if the husband wants to leave her something in addition to the one-third he can do so. One-third of the property as envisaged in section 110 as a legal right, is the minimum, but on to which the testator has a right to add under section 113. Nevertheless, I think it is necessary to look very carefully at section 113 and ask two questions about it.

Subsection (1) of section 113 states:

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 first point that strikes me is the ambiguity of the last word. The subsection provides far a "bequest to the spouse of a sum equal to the value of that share", and the only reference to a "share" so far is the one-third legal right share. It sounds as if she gets the first third plus a second third. It would avoid ambiguity if we had a simple amendment making the word "share" read "additional bequest." In its present context it can only be interpreted as meaning the share which the spouse has as a legal right earlier on in the same section. I think this requires some amendment and a simple amendment would be sufficient.

The second point that occurs to me about the section is that while it is a good thing to recognise the testator's right to add to the one-third minimum, nevertheless, some complications might ensue if he were to express in his will his desire to leave to his widow in addition to her legal right, property to the extent of two-thirds of the estate. What happens then? What do the courts do about that, because the children have some rights into which the courts can inquire? This section would seem to give him the right to leave unlimited additional bequests to his wife. There may be same simple answer, but as the section stands, it seems do me that the testator could evade his obligation to his children if he wanted to by saying: "I wish to leave to my wife in addition to her legal right two-thirds of my property."

I think Senator O'Quigley also made too much of the difficulties of valuing farms or estates. This occurs all the time in France where they have a not dissimilar law. It is now recognised that a certain proportion—I forget the exact proportion—should be distributed between each of the children and the surviving spouse. What happens is that there is a legal valuation of the estate and if one member of the family wishes to continue on the farm he or she must make provision for paying a just share to the other beneficiaries. This is frequently paid out over a period of years. It can entail hardship, and this must be recognised, because a farm with a theoretical value of £10,000 might have to have its value cut up between four people; and the obligation on the beneficiary wha would be running the farm, might be £7,500 to three brothers and sisters, and that would be a heavy load on the farmer, even if spread over many years.

Nevertheless, the question of valuing farms and estates is met by having an official valuer. Senator O'Quigley seemed to suggest that our valuers in Ireland are not people of great probity. I do not use that word as a deliberate pun. He suggested that they seemed to give valuations which varied very greatly in accordance with the need of the immediate client.

I think also that it was not sufficiently adverted to, for the Minister mentioned and I am sure his figure is correct, that one-half the people dying in Ireland, die intestate. I think he said 50 per cent. The situation is by no means a happy one even now. I feel that the Minister made a very strong case for the retention of this much-contested clause in section 110. When I first read about the Succession Bill my instinctive feeling was that it was a good Bill. I think the Minister made it clear today that he is concerned with the rights of the surviving spouse, and equality as between husband and wife.

Senator Davidson quite rightly suggested that very often the property involved which has been left by the testator, has been built up co-operatively by the husband and wife and, indeed, by the children, and that, in that a dying farmer has the right to do fact, it is a monstrous injustice to say what he wants with "his" property. In all equity, it is not "his" farm but the property of the family and of those who built it up. Consequently, when I read the circular sent out by the Civil Liberties Association, of which I am proud to be a founder member, and saw that the Association believes that "the best judge of the family needs is the average parent," I put a very big question mark to that. I would go so far as to say that many members of a family, particularly younger members, would hotly deny that "the average parent" is the best judge. I am quite sure that my own three children would not agree. I do not know about the children of other Senators. I think this is an innocent belief, and I do not think it is true.

Therefore, this Bill seems to me to be a distinct step forward, because it deals equitably with something which seems to be regarded in this country as more sacred than anything else — private property. We have a lot of secret worshippers of Mammon in this country, and his disciples very frequently speak in defence of his rather earthly interests. The present power of the testator to disinherit his family and his wife is a monstrous power, and it should not be given to any person. It is often stated, of course, that to talk about this is to exaggerate, because most testators make "just wills." I am afraid that what is considered now a just will, and which has been considered so for many years in Ireland, is a will which would leave the major portion of the property to the eldest son. It would leave the farm to the eldest son, a dribble to the other boys and ¾d to the daughters. This is regarded by public opinion in many parts of Ireland as "making a just will." Of course, if the Minister tries to alter this, he is accused of interfering with the "sacred rights" of the testator and so on. But I would congratulate him on so interfering, and I think he has interfered in a moderate way. He is not in any way depriving the testator of his rights. He is simply suggesting that the testator's surviving spouse, be it the widow or widower, is also entitled to some rights.

The explanatory memorandum which accompanied the Bill, I feel, brought out very strongly and justifiably the special effect and very great merits of the Bill. I do not want to go back at great length on it, but the purpose of the Bill is there set out very clearly and the variety of things effected by it—assimilation of realty and personalty, the effect of the simple decision that when two people die almost simultaneously, they shall be deemed to have died simultaneously which is much better than the English view which used to be that the younger one had survived the older. I suggest that under our new law this will be more sensibly decided. The Bill also wisely allows the jurisdiction of the Circuit Court to incorporate a much wider range of cases.

I think also that fair notice is given in section 9. Subsection (4) says that the provisions of the Act will apply to every person who dies after the commencement of the Act. The provisions of the Act will apply from the 1st July, 1966, irrespective of when tbe will was made. That is to say, a full year's notice is given, and if we are as literate as Senator O'Quigley feels we now are, this will be brought home to everybody who is interested in it.

I notice also that section 11 provides for the abolition of primogeniture. I feel that here, again, we are gradually slipping into the twentieth century out of the middle ages, and the Minister and the Government are to be congratulated on their attitude to this, too.

They are also to be congratulated on section 76 which provides that a person who has reached the age of 18 years and is, or has been, married and is of sound mind may make a valid will. That, too, clearly is a step forward. Senator Stanford also mentioned that such people owning property nowadays should have increased rights. I would go so far as to say that they should have voting rights. In some countries they are considered old enough to die for their country and I consider an extension of the rights of this age group a good thing. The controversial point would really appear, when one remarks all the merits of the Bill, to centre upon section 110.

I read the articles Senator Stanford mentions and I should like to mention one point. The Minister suggested it would be difficult and expensive for the court to make decisions and so on. The article by Justitia referred to by Senator Stanford says:

The procedure necessary to get court sanction for legal right shares would be quite different, and there is no reason why it should not have privacy, quickness and freedom from any but negligible expense as in most income-tax assessment appeals at present.

I think that though it would be possible to devise a court mechanism for such purposes which would not be as cumbersome as many people suggest, yet the Act as it stands is a better Act than if amended in that way. For the court to attempt to limit the legal share of the surviving spouse to "what is necessary for decent maintenance of life", and so on, or "during dependency", seems to be a very parsimonious and pinchback method for the surviving spouse. In relation to dependent children this is allowed for under the Bill as it at present stands. Surely the widow has more right than to get merely "decent maintenance" for life or "during dependency"?

There is one final point I should like to mention. I would hope the Minister, in view of what he has said on this Bill, is also very strongly in favour of the Government introducing a system of widows' pensions for all former state servants. Here, too, just as much as with the farming community life is a shared one. It is a partnership Yet the only pension a civil servant's widow gets is what may be sacrificed in advance for her by her husband. In other words, the Government is lagging a bit behind on this parallel matter; and, so in congratulating and supporting the Minister in his present efforts on behalf of the surviving spouse, I would like to think of him as exercising his mind and influence for the purpose of recognising also the pension rights of widows of former state servants. With those words, I commend the Bill to the favourable attention of the House.

I listened to the debate very carefully and have, like most Senators, taken an interest in this matter ever since the 1964 Bill was introduced. This evening we received a very forthright and explanatory speech from the Minister ranging over some 30 pages. It did cover the material very well but, from my point of view, the most valuable sentence in the whole speech occurs on page 17 which reads:

Incidentally, prior to the 1964 Scottish Act, the legal rights of curtesy and terce were exigible out of heritage; but these rights were abolished in the 1964 Act, notwithstanding that the expert Committee on the Scottish Law of Succession under the chairmanship of Lord McIntosh recommended that they should be retained and made similar.

In other words, the British, in all their wisdom, did not dream of changing such a fundamental aspect as the Scottish law of succession without having an expert committee to sit and report it.

The English not the Scottish.

Yes, the English made the change and their recommendation was based on an expert committee.

Against the expert committee.

It does not matter whether it was for or against the I expert committee. The fact was that an expert committee sat on this. I think it is a pity we do not have such a forthright and impartial approach to the problem in this country. The 1964 Bill will stand for ever as a monument to what misguided bureaucracy can impose on a country. We had better take the lesson of the 1964 Bill to heart and see that it is a measure that showed fully the frightful and the awful face of a bureaucracy that believes it alone has the right to legislate, that it can tie everything into a series of neat statutes and neat commands, rather than allow any free will or discretion.

The Minister is to be commiserated in that, unfortunately, he has inherited this Bill and has had to take part in the various steps that sought to get rid of some of the extreme rigidities in this measure.

I speak with a great deal of experieace of this. Like all Senators, I am old enough to have been through wills or through at least one. I am old enough to have seen the difficulties in adjusting to the terms of a will, accepting the terms and so on. Consequently, I believe section 9 is an exceedingly dangerous one in so far as it applies to rural Ireland. There is nothing, as far as I can see that can compensate in rural Ireland for the wisdom of the family solicitor. He has, for years, known the family fortunes, he has been the family counsellor and, when it comes to making a will, he is adviser and friend to the testator. This Bill does not do it in this rigid one-third provided for the widow. It is a very dangerous weapon that cuts two ways. Senator Stanford and Senator Miss Davidson have outlined where it cuts on the one-third share, where hhe one-third, if given, will not be sufficient for maintenance on the level at which the person concerned is entitled to be maintained.

The whole lot can be given under the will.

Surely that should be a minimum above and beyond all shares. You are entitled to maintenance, at least sufficient maintenance, even if it takes the whole estate to do it.

The whole estate can be given—one-third, two-thirds, three-quarters, or the whole estate.

It can happen especially in the case of a widow some of whose children might have gone away—one might be at home, the widow having either a right of maintenance or, alternatively, insisting on her one-third share and going elsewhere. In the difficult adjustment period, therefore, very often, in all good faith, a widow can be advised not to put up with that to take her one third share and be happy. That is the same as advocating an easy divorce, telling the person you should not put up with it, get your divorce and be happy. This happens in America where those who gain the newfound freedom of an easy divorce very quickly see the horror of what they have done. This is what will happen here, under the Bill—a widow might be irritated by having to live with a son or daughter; she will insist that she will not put up with that any longer, take her one-third share and go to live alone elsewhere. It could happen that would be a decision that would be regretted bitterly afterwards but, unfortunately, it is one that cannot be gone back on.

Another very dangerous provision here, again applying to rural Ireland, is the question of the rights of children who can appeal to the court if they feel that the settlement is not just. There is scarcely any settlement in rural Ireland which operates justly, from the point of view of those who have to leave the land and go to work in the city. They look back and see the son at home with property away beyond anything they have got and any computation you make on that property would show that the son in the city, with his salary, cannot hope to amass any property comparable to what the son on the farm has been left. When he dies it is pretty certain that the son living in the city will leave far less behind him than the son at home on the farm. I wonder how the law courts will look at that. It would not seem, on a textbook approach to justice, to be proper: yet, it is because the family farm or the family business is a unit and it is the basis for creating the livelihood for the person at home. It is right and proper that this should be left in as much a unit as possible and should not be split with debts to give large sums to those who have gone away and who are in the way of making a reasonable livelihood for themselves elsewhere. That is the difficulty we will be faced with in the Bill. I can say from experience, and having spoken with many people who hare gone away from home and know the sense of disgruntlement they feel, that the son at home got the best of the bargain after all.

I can see how section 115 could lead to a great deal of litigation. Consequently, I believe the two sections to which I have referred while seeking to remedy the injustice to the widow of the type the Minister has referred to, will create far more difftculties than they will ever relieve. The wisdom of the family solicitor would outweigh any of the provisions in these sections, especially if there were suitable talks on radio and television, acquainting people of the procedure when making settlements, how to make them and se on. In fact, I think it would be far better in such cases where the general approach is to leave maintenance plus some cash emoluments, if the Government made it easy for that maintenance to be transferred from a place. I understand that at the moment it is quite difficult, if a person leaves a house of her own accord or at least leaves it, to carry the maintenance involved and to get an order to that effect. I think that the procedures there could be simplified much more.

These are points which come to me, thinking over Part IX for a long time and having a great deal of experience in this regard. I believe that what is there is best left unwritten and left to the judgment of the family solicitor and, of course, you have the law courts, as in the past, to be used in the case where a will is obviously wrong.

One other thing occurs to me here. The Minister spoke about his experts visiting different countries in regard to this—bypassing the Irish Law Society which should have been the first to be consulted.

No, I said——

That was in 1964, when the thing began. It occurs to me that a sacred duty is imposed on all our Irish Governments here. The sacred duty is that they are committed one day to the unification of this country. In fact, the Constitution applies to a 32-County Republic. It is very wrong that an Irish Government should raise up barriers against that unity. We are all delighted at what we see about the barrier softening, and so on. But every Act here which differs radically from the corresponding Act in the North and which is likely to offend a very large section of the Northern population is surely one which does not hasten the end of Partition and this Succession Bill here is obviously that. All British law stands to say that Part IX is repugnant to what is held in British law. Consequently, I can see many of the Northern people——

English law.

We are anxious to show how reasonable we are and how we want to fit them into a unified country. We can see them raising queries on this Bill just as they raised them on the Intoxicating Liquor Bill and on some other Bills of recent times.

Would the Senator make the same case on the Finance Bill?

The Minister should, as a first concern, have seen to it that what was brought in was something not for today but for tomorrow and the future. He should have seen to it that it would set a pattern and be a statute capable of being accepted and worked in a united Ireland. That has not been done. I appeal to the Minister to think over it carefully and to make drastic modifications in Part IX before it leaves the Seanad because the other Parts, I think, all commend themselves. Part IX stands out as the real innovation being made by the Bill and I believe a very wrong innovation.

Is beag atá le rá agam. First of all, we were told that no Bill would be more condemned than this one. Actually, we had the experience of the Land Bill and if we are to be as long on this Bill as we were on the Land Bill then we shall not get through this measure for a few more weeks. A very poor picture was painted of Irish husbands. They were not depicted by Senator O'Quigley for their qualities of integrity, honesty or Christian charity. As regards the widow's curse, the Minister will get far more widows' blessings than curses for his wisdom in protecting them and ensuring that many of the injustices done to them in the past will not be repeated in the future.

I want to congratulate the Minister on the tributes he paid to the women of Ireland. He has as least tried to ensure that some part of the promise made at the altar—with all my worldly goods I thee endow—will be carried through.


I was amused that Senator O'Quigley is frightened that we women are getting more enlightened. I hope that the Minister will see to it that the husbands will read this Succession Bill and do something more about seeins that we get our share. I think that is the most I have to say except that in many cases I have seen men far more concerned with preserving the family name than with affection for their partner in life. Again, I congratulate the Minister on what he has done for the women of Ireland.

Most of this Bill is to be welcomed although one's sense of history is saddened at the disappearance of so many lovely statutes of Henry I, Henry III, and so on.

Like the Georgian buildings.

Also the responsibility of this Government.

For which the Lord be thanked.

Senator E. Ryan mentioned that the Bill in its original form had been unpalatable to him. He also referred to political opposition to it. He did not actually express formally what has rendered the Bill palatable to him. I am sure it was only an oversight on his part.

Not having any formal views before this debate, it seems to me that Part IX is too rigid. Perhaps, some of the possible eventualities which were brought up in the debate are things that are not very likely to happen although they are possible, and queer things certainly do happen when it comes to making wills. There are two clear-cut cases for which it seems to me provision has not been made here. There is the case where the property left is small and where the husband wills away more than half of it. There is no provision here to enable the widow to claim the full property in such a case. This I think, is one objection that can be levelled at the Bill. The other is where the surviving spouse is wealthy and the property has been willed to some other good purpose, it is to be taken back from that purpose and given to the surviving spouse who does not need it.

The simple fact is that in respect of these two clear-cut cases the Bill is too rigid, and the Minister is too rigid in refusing to face this fact and make the necessary adjustments to provide for those cases. I do not think that there is any use in saying that these are rare cases. They are not necessarily rare, and in any event the purpose of the Bill is to deal with cases that are rare or relatively rare because in the bulk of cases however one looks at it there is no problem. It is only in the minority of cases that the problem arises.

Despite the Minister's reference to it I would direct the attention of Senator Mrs. Ahern to husbands who have been taking to drink or neglecting their duty and references to the danger of raking up acts of unkindness and unfaithfulness, the picture of rural Ireland which the Minister has painted for us, but despite this it is the rare cases that we are dealing with.

Senator Sheehy Skeffington did not quite take the point that Senator O'Quigley was trying to make in respect of one matter. He was referring to home-made wills where it will be so easy for people to neglect to make it clear when they are leaving something that they mean it to be additional to the one-third. I cannot believe that every testator making his own will will take adequate care to put in proper legal terms the statement that he is leaving perhaps hundreds of thousands of pounds as an addition to the one-third. If he fails to do so it will be joined up with the one-third and not given to the widow. This provision might almost be reversed to make it clear, to gut it on the basis that everything that is left shall be taken to be additional unless ihe contrary is stated, which would be the safer way of doing it. This was the point being made; and in home-made wills—and I have had some experience a good distance back in time of one—you can get all kinds of difficulties of this kind.

I was not quite clear whether Senator Sheehy Skeffington's reaction to the Bill was attributable to his liking for France, his dislike of lawyers, his distrust of parents or his pleasure at dismantling another bit of feudalism. I was glad to see his deep concern that property should pass to the next generation and delighted——

My bicycle has already passed.

On a different section altogether there is a point I would like to raise which is a bit unsatisfactory. Section 119 subsection (1) says "A sane person who has feloniously killed or attempted feloniously to kill another shall be precluded from taking any share in the estate of that other". It seems to me, though I might very easily be wrong, not being a practising lawyer, that this would or could apply where, for instance, a husband and wife were driving in a car and the wife was a bad driver and an accident was caused by her gross. negligence of such a character as to reap the penalty for manslaughter. In such a case the negligence would be gross but the punishment would be first the loss of the husband and then the penalty she would suffer for manslaughter, and it does not seem to be right that she should be penalised by total disinheritance as well. I wonder if this was the intention, or should it not be made clearer by putting something in like "feloniously and wilfully" or something to that effect. It is only wilful killing, I suppose, that should rate total disinheritance in this connection.

I would ask the Minister to have a look at it. Unless I have not read it properly, as far as I can understand it, this means what it appears to mean.

I hope that the points raised on Part IX were not completely a waste of time and that the Minister will consider them worthy of attention, so that he will give them some further thought so thai we do not get something a little too rigid for our needs in regard to this question of spouses' rights.

Senator O'Quigley described the 1964 Bill as a monument to the awful power of bureaucracy. It should be said that if the 1964 Bill were such that the Bill now before the House is a record of the amenability of the Government to public suggestions, because now at this stage we have by consent in this House narrowed down the opposition to this very detailed and praiseworthy Bill to section 110 and in particular to subsection (2) of that section, which makes provision for the legal right share of the widow. In the event of the testator leaving a spouse and children she shall have up to one-third share. We should be quite clear as to what is involved in this. It does not preclude that great institution, the family solicitor, from still exercising his counsel and advice and recommending to all the parties concerned that they should make a will which in the circumstances of their own case would be a fitting and prudent one, far more fitting, in fact, than the case where the prudent family solicitor and the possibly prudent testator does not exist and the insistence on a minimum right to a one-third share for the spouse which, in fact, she does not insist upon. She may in certain circumstances insist upon it, but there as no compulsion on the testator to make such provision for her if this legal right business has been discussed between the spouse and the testator. It is only in the absence of this prudent testator and solicitor that provision such as this becomes necessary. In its general attitude the Bill is one which should recommend itself to the humane and moral feelings of this House.

We have been faced with a lot of specific cases here of old and disabled spouses, wealthy husbands and poor relatives and of the husband being disentitled to leave all his propaty to charity where his wife is already provided for. These are all cases which must be dealt with on the merits of each and no legislation could effectively deal with them. Our legislation in insisting on this one-third legal right for the widow is being as prudent as it possibly can be and, in fact, insisting on what is in my view a minimum share.

There is the further suggestion in relation to all these matters, and it is something that cannot be dealt with by legislation but yet something more fitting for consideration. I feel that in relation to what Senator Quinlan said in conclusion, that our ultimate aim should be that of a united Ireland, that in this we should all agree, but in supporting the change from the succession law in the north of Ireland we may, an fact, be attracting a very large proportion of that community, namely, the neglected wives and spouses who may, in fact, become very strong towards the implementing of a united Ireland.

Most of the Senators will agree that Senator O'Quigley made a brilliant contribution here tonight. It was comprehensive in every aspect and he put every aspect here to us for our consideration. It was clear from what he said that this is a good Bill except for Part IX. He, in the course of the case he made, asked the Minister either to remove it from the statute book or at least amend it. The effect of this, of course, will be to break up-many small farms and many small businesses. That is the automatic effect of it in the absence of the discretion which the Minister seems to lean so much on.

He should have legislated for the exceptional cases instead of bringing in a seotion which applies to all cases. There are exceptional cases which everybody agrees this legislation should be designed to meet. He could have drafted legislation to meet those exceptional cases instead of having a section of this nature which will break up small farms and businesses if it must be complied with. It is a case of compulsory will making. It is a remarkable fact that in this country only 50 per cent of the people make wills It was mentioned that the exceptional cases constitute a sizeable number but it is only a sizeable number of the 50 per cent who make wills.

The average Irish farm is capable only of supporting one son with the parents. The parents usually select the most suitable son to build up that farm. Under this arrangement the other five or six sons or daughters, who found it necessary to take up employment in London, Liverpool or even America, will have their rights. They will have the right to return and do their part in breaking up the farm which was built up by the boy who stayed on and who was selected by the parents to follow after the owner of the farm had died.

It is a mistake to include this Part in the Bill at all. The Minister should have another look at it on Committee Stage. The original Succession Bill was scrapped and thrown in the waste paper basket. As mentioned earlier, it was the electorate who rejected it. It was made an issue in two by-elections where the Government were defeated.

Senator O'Quigley says that it was never made a political issue.

He forgot about the two by-elections in which the Land Bill and the Succession Bill were issues. The present Succession Bill was brought in and it is only to Part IX there appears to be any abjection. It is capable of amendment.

This Bill, for the most part, is an excellent piece of legislation. It is excellent in form and matter. In form, it abolishes quite a large number of Acts of Parliament which amended one another and which stretched back over the centuries. It reduces to one Bill practically the entire law governing intestacy and wills It removes a large number of antiquated principles that were heretofore followed whereby in many cases the eldest son of a family received all the assets to the detriment of everyone else.

Heretofore when a husband died intestate leaving a widow and no family, the widow got only part of the estate and the balance went to the next-of-kin no matter how remote when the estate exceeded £4,000. In such cases it is right and proper that the surviving widow should get the entire estate. The Bill also Provides for many cases of doubt which heretofore existed and which led to considerable litigation such as where the husband and wife met with an accident and died together in a car crash or a plane crash.

There are, however, one or two points to which I consider, with respect, the Minister should apply his mind. By doing so, he could ensure that this legislation would abide for many years without the necessity of any amendments and thereby redound to the good of the entire community. The first case to which I refer is that of a man who has only a small estate. He has a wife but no family. By this Bill such a man is obliged to bequeath only half his estate to his widow. This may be completely inadequate for her reasonable support, if the estate is small. I consider that there is an obligation on every spouse so to provide in his or her will far the surviving spouse, so that within the limits of the estate the survivor can, through life, enjoy the same standards of comfort as were enjoyed during the lifetime of the testator

I can visualise, many instances where a wife has spent her life working to keep and maintain her husband's small farm or small business. If there is no family the husband is, by this Bill, obliged to bequeath only half his estate to his wife even though that fraction may be completely inadequate for her needs. I feel that is a situation which should be remedied. Senator FitzGerald made the same point. A fundamental principle in all cases should be that the standard provided for the surviving spouse should be such as would leave the spouse, so far as the assets of the testator can go, in as good an economic position as during the lifetime of the testator.

On the other hand, I can visualise many cases of grave hardship which can be oaasioned by the obligation to bequeath one-third of the estate to the surviving spouse where there is a family. I use the word "grave" very deliberately Take the case of the large estate or business run as a family affair by the father with the assistance of his sons and, perhaps, his daughters. Many of those large businesses today have capital assets of, perhaps, £200,000. I know one particular case where the wife is a complete neurotic and is in and out of a mental home. The proper provision for her would be to leave her an income of £3,000, £4,000 or £5,000 a year or whatever it is that will meet all her needs during her lifetime and not cripple the family by leaving her one-third of the shares in the business. By leaving her one-third of the shares in the business for all practical purposes she controls the business. Once she owns more than 25 per cent of the shares, the capital cannot be increased without her approval. Neither can it be reduced. For all practical purposes she can effectively govern dhe entire conduct of the business.

If a testator does not make adequate provisioa for his wife, there is something radically wrong with his outlook. He is either neurotic or he has not a proper sense of his domestic obligations and his testamentary capacity should be controlled. On the other hand, it is not always the party to the marriage who is first to die who is the person with no proper sense of responsibility. I have come across not one, not two, not three, but quite a large number of instances where it is the surviving spouse who has no proper sense of responsibility to the children. I could cite instances where the husband is a house devil and a street angel, where there are ten young children, where the substantial farm into which he married is owned equally by his wife and himself. It was part of the marriage settlement. The wife is now dying. He is a bit of a sadist and has no regard for the children. To all outward appearances he seems to be completely normal, but by reason of this Bill, that unfortunate woman is unable to leave to her children the half of that estate which she owns. She must leave one-third of that half to her husband in addition to the half he already has.

I can also visualise many cases where the surviving spouse is not prudent. He is addicted to gambling or addicted to drink. If the one-third share is marked out it will be badly spent to the detriment of the children. I am interested only in those cases where there are children. Where there is no family I do not think any injustice is done to anyone, no matter how much is left to the surviving spouse. Where there is a family I can visualise many cases of grave hardship. I have come across cases time after time, after time, in which serious injustice will be done if the share of the spouse must be marked out in fractions of the estate.

The domestic obligation of a testator to his or her spouse could be dealt with otherwise. It could be dealt with by making provision for personal annuities. The surviving spouse could be protected by putting the onus on tbe executor to satisfy the court that in the circumstances of the case the provision that has been made for the surviving spouse is the most prudent provision having regard to the demands of the family.

I would ask the Minister if he would be so good as to apply his mind to those two types of cases: the case where there is no family, where the estate is very small, and the case where there is a family and the prudent husband in ihe interests of the surviving wife, or the prudent wife in the interests of the surviving husband, deems it proper not to mark out fractions of the estate.

Listening do the debate today a story came back to my mind about an old man I knew who became involved in a lawsuit not of his own choosing, with the State for an amount of £76. It started in the district court and eventually ended up in the Supreme Court before five learned judges. To the delight of everybody he suceeeded in beating the State. I met him one day afterwards and I congratulated him on his victory. He said to me: "Listen here, gossoon, if you take my advice you will try to live unknown to the law. Do not let them know you are there at all."

It was stated in this debate that 50 per cent of the people of Ireland die without making wills. The people in the country are reluctant to go to law and they fix these things themselves. They contrive by one means or another to fix them themselves. Senators mentioned cases of hardship but there are other cases where the hardship is not too readily seen. Before I came to the House I was supplied with memoranda from various professional organisations. They were terribly concerned about the Succession Bill but all the cases they cited were cases of big estates and big businesses.

Today for the first time I heard emphasis being put on a farm with a valuation of £7 1Os. I come from a county where a valuation of £7 10s. is quite common. Anyone who gets into a heat over the disposal of a farm with a valuation of £7 10s. is talking nonsense. It is not realistic to talk of the problem of disposing of an estate with a valuation of £7 1Os.

It is a home.

I know it is a home but the Senator was talking a few moments ago about a lot of people rushing back from America to divide up a farm with a valuation of £7 10s., which is absolutely ridiculous. The people, and particularly the people on the middle class farms approve of this Bill. I heard more disapproval of it in half an hour today than I heard since the Bill was first mentioned. I know that wives will have a sense of security now, which they never had before. I know women who lived part of their lives in fear and trembling of the day when their husbands would die and leave them dispossessed. They lived with that fear for ten or 15 years. Now they will at least be secure to some degree.

In most cases I would prefer them to benefit to a greater extent than one-third because, let us not delude ourselves, the women on the farms of Ireland are the builders of the farms and the families. In many cases the women make a greater contribution than the husbands and they are entitled to benefit. We should not be niggardly towards them. When the wife knows she is secure this brings out the best in her and in the children. They gang together to face the challenge, and things work out better than when lumps of money are thrown around to everyone, and the money is dissipated. Much of the talk about this Bill is merely looking at it from a lawyer's point of view and citing imaginary cases. The people think it is a commonsense measure that should have been introduced many years ago.

First of all, I think wa should get down to first principles in analysing this question in regard to succession. Absolute freedom of testation was never a universal rule or anything like it. All European systems of law over the years have grown from the fountain-head of Greek and Roman law and from customary law. They all had legal right shares for both the surviving spouse and the children. It was a peculiar English Victorian conception finally developed in the last century that introduced only in England and in countries which came under her sway this strange notion of freedom of testation. It was part of the Victorian conception of the last century that property had no duties or obligations, that there were no duties or obligations attaching to rights. Outside Victorian England and Wales, and outside this country up to now, this notion did not hold sway. In my view, in 1965 there is no place for the view that a man or woman can do with his or her property what he or she likes irrespective of the family.

To put the matter into proper historical perspective, Scotland always had a system of legal rights. Throughout Europe they always had a system of legal rights and in most of the States of Canada and the United States they have had for some years a legal rights system. It was only in the English provinces of Canada there was originally freedom of testation. In the Dáil it was suggested that any system of legal rights would impair business. In the State of New York, which is the commercial hub of the world, they have for years had legal rights for the spouse and children. It is only right and proper that we should now endeavour to remove from our system of succession this last relic of the archaic English system of succession.

In 1938 in England a curb was introduced in the form of a right of application to the court. We are going further by providing that there will be a legal right for the surviving spouse of one-third of the estate of the deceased husband or wife with children. We do not regard this as an unduly restrictive provision. It is, in fact in my view, the minimum provision, if we regard ourselves as Christians, which should be incorporated in a measure passed by an Irish Parliament.

I should like to emphasise one fact which appears to have been forgotten. This is only a minimum provision and we have here spelled out in the legislation the fact that a man—taking a husband as it is a more usual example —may by his will leave everything to his wife. She may succeed to his entire estate. I would refer in that regard to section 116 which brings in a system of court application where there are dependemt children. It is provided in subsection (3) that that particular application will not lie where a man leaves everything to his wife. If he leaves everything to his wife that is the end of the matter and the children's right does not arise at all. It is then a case of the wife dealing in her own way with her children under her moral obligation to them.

Senator Miss Davidson adverted to the share of one-half in the case where there are no children and one-third where there are children. These are minimum shares and they in no way prevent the testator from giving the whole of his property to his wife if he wishes.

If it is maliciously left?

I cannot go beyond insisting on a minimum of one-third or one-half, as the case may be. If we sought to do any more we would run into the sort of difficulties we have already met by way of severe criticism. There is a provision for a basic legal right share or the widow and, at the same time, flexibility is preserved. We have to compromise between these two notions. The giving of a basic minimum share of one-third to the widow with children and one-half where there are no children, has I think met the case, it being left to the court in the case of a prejudiced child to decide on the provision to be made for that child.

Section 116 is phrased in a flexible way precisely to meet the points made by Senator Miss Davidson in regard to children who may be mentally or physically incapacitated or children who are in any way depending on the testator. His moral duty to them will be determined by the court—that he should have made provision for children who are dependent on him for any one of several reasons such as infirmity of mind or body or economic dependency, which would come within the broad definition of the moral duty of a testator towards a child. If the child contests the will, the court will make just provision for him or her.

Why cannot the moral duty to the wife who in a given case is entitled to more than one-third also be determined by the court?

It is important to ensure that as little recourse as possible is made to the court. It is undesirable that we should force a widow into court.

How would the Minister force her into court by giving her the right to go there?

We have allowed a court application for children and this will be a simple application on the basis of dependency. The dependency will be related to the moral duty of the parent to the child. It is undesirable to bring a widow into court. I will not be responsible for driving the widows of this country to court to prove rights which I feel are inalienable and proper to them.

How could the Minister drive a widow to court by giving her the right, which is additional, to go to court and seek more if the estate is more?

I do not think Fine Gael can have it both ways. They want on the one hand freedom of testation and on the other, that the widow should get more. A similar attitude was adopted in the Dáil in regard to this. We have here basic rights which I feel must be given to a widow, a wife who has lived with her husband over a number of years.

And widowers.

I refer, of course, to widowers as well. Senator Sheehy Skeffington very properly emphasised the fact of community of ownership, which is the Christian interpretation of what ownership of property should mean in the case of a husband and wife partnership. The basis, I think, of the husband and wife contract is a partnership. I think this partnership creates a unique situation, particularly in Ireland where the partners have lived together for 20, 30, 40 or 50 years and where the wife, as Senator Honan said, often contributes more than her husband. It is intolerable that we should have a legislative Provision, which exists at the moment, whereby the wife has absolutely no rights whatever in the event of a capricious husband treating her badly. No rights whatever reside in her unless she is able to go to court and prove that at the hme of making the will her husband was insane or unduly influenced. This requires a degree of proof which can be obtained only in the most exceptional of cases.

I do not subscribe to the view that these cases of inofficious will-making, these wrongs done to widows, are exceptional. I have had personal experience of a number of cases, particularly where the testator had no children or where the husband did not particularly like his children. I have known a number of specific cases where the husband has passed the property on to some other relative, with whom he has had no association at all, and left his widow high and dry without any means whatever. I prefer to accept Deputy John A. Costello's assessment of the problem, in which he came very close to our view on how this matter should be tackled and when he described this problem in the debate in the Dáil, from his fifty years of legal practice, as being a sizeable one. There is no point in people saying—" Oh, widows very seldom bring court applications". The answer to that is that the widow, in order to succeed, must prove insanity or undue influence. She knows that that cannot be done. No more is heard about the case and the widow just suffers on and lives with her particular problem without being able to do anything about it because she knows that she has no chance of succeeding in an action to upset the will.

I do not propose to have another system for the widow and I shall stick strictly to the terms of section 110. We were supported fully by the Labour Party in this and we had substantial parliamentary support right through the Dáil on the proposition that a man or his wife has duties to the partner with whom he or she has lived over a number of years. I will not be dissuaded from this line. I am completely open on every other proposal in this Bill, but, on this particular section, both the Labour Party and my own Party and, indeed, Deputy John A. Costello in the Fine Gael Party in the Dáil were fully behind the view that it is important to have written in and clearly spelled out in this Bill that a particular property right resided in the widow that does not have to be established in court.

Is the Minister not even open to constructive suggestions on this point?

I am open to any suggestions but the fundamental principle in section 110 is one to which I shall adhere.

I mentioned earlier that the court application in regard to children will be based on the dependency of the children and will arise from the moral duty of the parent. I mentioned also that this application would not give rise to any unseemly evidence before the court or anything of that kind. I said there was a great difference between the situation of the children and the position of a widow. The only way in which a widow's case could be rebutted in court by the personal representative or anybody else of the estate would be by raking up all sorts of family contentions and disagreements over the years. I would not like that to happen to any woman even in a private hearing before a judge in chambers. I do not think any woman should have to meet that sort of opposition to a claim for a just share out of her husband's estate.

Could the Minister not look into my suggestion about the smaller estates and keeping the home intact ?


Hear, hear.

Section 56 covers the point raised by Senator Davidson in regard to the dwelling and household chattels that may be appropriated. In brief, this section sets out that, in the case ot the estate of a deceased person including a dwelling in which, at the time of the deceased's death, the surviving spouse was ordinarily resident, the surviving spouse may require that the dwelling and household chattels be apprapriated to her share no matter what the testator did in regard to the dwelling. It is not likely to arise very often that the amount of money over and above the one-third share would be excessive. In the majority of imaginable cases a widow should be able to make up the balance.

Even where a very small house would cost more than £3,000.

This is my difficulty right through in regard to this discussion and indeed in regard to the whole debate on this matter. How can I reconcile the view of Miss Davidson in regard to the legal right and the view of Senator O'Quigley in regard to not having a legal right at all? I am also aced with the view of the Fine Gael Party that there was no need to bring in any legal right provision whatsoever. How can we give a legal right and at the same time allow testators a certain flexibility of testation? Senator Davidson raised a point with which I have sympathy and if I can do anything else for widows in that direction I shall be very glad to do so. In this matter I run up against this question of flexibility.

You do not run up against flexibility by introducing it.

I want to preserve this balance between the extreme advocates of Victorian codes and the advocates with whom I have sympathy, those who have got a social conscience, and who also are people with whom I fully agree. I am, unfortunately, up against the situation that there must be a degree of flexibility with regard to testation which prevents my going as far as some people would like in this matter of legal rights.

Would the Minister give a little more thought to this realising I am on his side?

I will, indeed, because I appreciate your point and it is very important.

Another point I want to emphasise again on this question of the legal right is that it is a legal right rather than a forced share to be extracted out of the estate. The way in which I envisaged this system working, the way it has worked in Scotland and here in regard to intestacy cases, is that the legal right will very seldom have to be enforced. It will be a lever to a widow to ensure that she is not dealt with badly in the will or, subsequently, after the testator's death by her children, or indeed by anybody else who may benefit under the will. It is a lever which can be used by the widow to ensure that she gets a fair deal. It has certainly not been the experience in intestacies over the years, either here or in Scotland, that a forced share has been extracted by the widow. Such would be the very last thing I would envisage happening and I am certain that this system will work in the interests of justice having regard to the commonsense of our people.

I should like to say again that that figure of 50 per cent for intestacies I mentioned applies to all properties. In the case of properties about which much concern was felt by Senator O'Quigley—that is the small farms— the proportion of intestacies is much higher. In these cases, few wills are made. I would say, in regard to the small and medium farms, that in 60 per cent to 70 per cent of the cases the property passes by way of intestacy. Contrary to what Senator O'Quigley had to say, I have faith in Irishwomen of this generation and of many generations who have been fully aware of their rights on intestacy, which, under this Bill, will be doubled, from one-third to two-thirds.

Another important aspect of the legal rights system a the right of election which the widow may exercise within 12 months after the taking out of representation in the event of her getting a raw deal in the will. If she gets a bequest that may be favourable in her circumstances or which may have been agreed with her husband, she will not elect. The suggestion has been made that the legal right share will invalidate wills. It will not invalidate wills. Proper provision for the widow may be made in the will and the widow will accept it. If she does not specifically elect for her legal right share the Testamentary bequest will stand. It will automatically operate after 12 months of the taking out representation. In addition to that, we provide for flexibility by enabling a woman to renounce her legal right in a pre-marriage contract. Furthermore, we enable her to renounce her legal right during the marriage itself by a very simple means, an ordinary simple note in writing.

We have a further provision to meet the advocates of testamentary freedom whereby at any stage, right up to the day of the death of the testator, a deed by way of family settlement can be drawn up transferring property to a particular child of the testator's choice — for instance, a farm or business to the eldest boy who has been managing it—but the wife must consent to the arrangement. If a wife consents to her husband's giving all the property to one particular child in order to preserve the unity of the family business—she may be happy to depend on the son who is getting the property, and so on—such a deed may be made right up to the day of death, apart altogether from any provision made by will. In these various ways, whereas we guarantee the widow the protection of a basic legal right, we are introducing it in such a fashion that a considerable degree of flexibility is left to the testator to ensure that the business or farm is carried on. All we are saying is that, if he decides to give it to a son of his choice in order to preserve the unity of the business or farm, that son must look after his mother and, if the mother does not require to be looked after by her son, she will consent to the settlement. She may agree to give up her legal right before the death or reach agreement with her husband on the subject.

We have had a constructive debate on this matter both in the Dáil and in the Seanad. There has been a general interest in this matter and I would not put it on a political basis at all. I think the public interest was stimulated because people appreciated the importance of this matter.

I want to emphasise that, at all stages, I have met people and organisations concerned with this problem and have had fruitful discussions with them. On two occasions I met representatives of the Incorporated Law Society. They submitted memoranda to me last November or December and every single point in the memoranda submitted to me at that stage was met by me in a series of amendments to the Succession Bill, 1964, which are now incorporated in the 1965 Bill. At no stage, then, was any suggestion made that I should deprive the widow of this basic right of one-half, where there are no children, or one-third, where there are children. The Law Society concentrated their fire on the compulsory one-third for the children. Under the 1964 Bill, that might have given rise to difficulty an the case of children who had been settled in the world, who had gone to America, or who had been professed or given professions, in the event of their coming back for their one-third share. That was the main concern of the Law Society as, indeed, it was of the National Farmers' Association whom I also met. When I told the Association that we were deleting this compulsory share in regard to children, they were quite happy. I had communications from them in which they fully endorsed that aspect of the Bill. If the National Farmers' Association endorse it, as the people mostly concerned with rural property, small, medium-sized and large farms, I am quite prepared to accept their endorsement and not the views of the Fine Gael Party.

I have had some very fruitful discussions with the National Farmers' Association. At no stage in these discussions with them was it ever suggested that we should even entertain the monstrous idea of deleting the one half share for a widow with no children or the one-third share for a widow with children. It was only in the Dáil— and contrary to the views of Deputy J.A. Costello—that some Fine Gael speakers sought to raise trouble in regard to this provision which I think now commands widespread support. That is how I feel it should be in regard to a legislative matter of this kind. The 1964 Bill produced considerable discussion. Out of that discussion and out of meetings with the various bodies and people concerned, we have arrived, I feel, at a reasonable measure an the present Succession Bill, 1965, which seeks to combine opposing points of view.

I am open to constructive suggestions on everything except the basic principle which is enshrined in section 110. Some technical points were raised by Senator Sheehy Skeffington in regard to section 113. I am not altogether happy about the drafting of that section. We switched it around a bit in the Dáil and I shall have another look at it between now and the Committee Stage.

Senator Garret FitzGerald spoke about section 119 which was not raised in the Dáil and in relation to which there may be something to be said for his views. I shall certainly have a look at that. I feel we can have a fruitful discussion on this Bill in Committee. I have dealt at length with the legal right aspect. There are many other aspects in the Bill which command general approval. They probably can be improved in a technical way on Committee Stage when we proceed section by section.

I am thankful to the Seanad for a constructive and healthy discussion on a matter which as of concern to us all but which I feel should, in 1965, be approached by us, in a Christian Parliament, in a humane fashion. The purpose behind this Bill is the humane purpose of seeking to cater for widows and surviving spouses. I feel the measure commends itself to our people generally. It has commended itself to the great majority of the Dáil and I feel it will commend itself to Seanad Éireann, as well.

Question put and agreed to.
Committee Stage ordered for Wednesday, 28th July, 1965.