The widow has a legal right to two thirds under an earlier section of the Bill and, in the case of an only child, that child has a right to one third. If there are no children of the intestate surviving, the spouse gets the whole lot. If there are no children, in the case of a will, she gets one half. I have normally got an open mind but the more I hear in this debate and with regard to what I have heard in the Dáil, the more certain I feel that the only approach to the matter is to do what Senator Sheehy Skeffington suggested, that is, have it written in in statutory form.
I am not saying this is a perfect measure. I believe it is beyond the wit of man to devise a perfect measure in regard to something like this, to ensure that every different case can be met. I am modest enough to say that this is an improvement on existing legislation. I do not claim it is perfect or that it satisfies everybody.
There is one very important thing which I think should be emphasised here. Senator O'Quigley, although this is not strictly in his amendment, spoke about the position of the widow and suggested that, where an estate is small, she should get the whole lot of it. We are dealing here with property and the transmission of property and I would like to remind the Senator that there are certain provisions in the constitution in regard to this matter. Article 43, section 1, paragraph 2 reads:
The State, accordingly, guarantees to pass no law attempting to abolish the right of private ownership of property or the general right to transfer, bequeath and inherit property.
It would be very dangerous to make it mandatory for a man to give all his property to his wife. A number of people in the front benches of the Fine Gael Party in the Dáil attacked the Bill on grounds opposite to those on which Senator O'Quigley has sought to attack it here. The main attack in the Dáil arose on the principle that freedom of testation should not be curbed.
Now Senator O'Quigley has attacked me with regard to the one third or one half share for the widow. He wants me to give the whole lot to the widow in certain circumstances. I am afraid that this would be wrong. I feel it would be better to follow a middle course, although we have been open to attack from all sides because of this. In this Bill we are trying to follow a middle course between absolute freedom of testation, which is a Victorian notion, because property has its duties as well as its rights, and a principle of complete direction to the testator as to how he should dispose of his property. I think the middle course is to provide by statute basic guarantees which do not prevent the testator from giving over and above those guarantees. This is a misconception which many people have. Of course there is nothing whatever to prevent a testator from giving all the property, or any share he wishes over and above the basic guarantees written into the statute. That is my point and I do not think it has been adverted to sufficiently.
I will not go into the merits or demerits of life estates because my views on them are well known. There is nothing in the Bill to prevent a testator giving a life estate to his widow, or making any arrangement he may wish to provide for his widow and his children as he wishes so long as there is agreement between them. All this Bill requires is that there will be reasonable consultation between husband and wife. There can be renunciation by either spouse of the legal right by way of deed with the consent of the other spouse, or by way of the surviving spouse not exercising his or her legal right.
Senator Cole emphasised the reverse of the point made by Senator O'Quigley. He mentioned the son succeeding to the estate. Quite often in rural Ireland, particularly in regard to small properties, the person who should get the greater ownership in the farm after the death of the man of the house is the son. He should get it because he is a young man and has stayed in the home when the other children have been fixed up in occupations elsewhere. He is the man who will carry on, and probably bring in a wife of his own and start a family. He has the greater right to the property. He should get two thirds of the estate, subject to the one third statutory right residing in his mother, to make certain that he does right by his mother and treats her properly. This is a weapon —and I want to emphasise that I envisage its being used very seldom— to ensure that he will treat his mother properly. She can enforce her legal right and demand that she be given proper treatment.
Despite what Senator O'Quigley and Senator Miss Davidson said— and I speak with knowledge of rural Ireland—in many cases in rural Ireland it would not be desirable that the widow should get the entire farm— especially in the case of small and medium-sized farms—after the death of the man of the house. In many cases the right person to take hold of the property, to work it and expand it, is the young son who has stayed on the farm, is trained on the land and is bringing in a wife and family. He has an incentive, by virtue of greater ownership of the land, to expand it and improve it. It would be a retrograde step to have any scheme whereby the testator would have to leave the property in such circumstances to the wife rather than the son. The son is probably on the brink of manhood and the testator should not be debarred by some mandatory provision from leaving the farm to him. There are these cases on both sides, and I think we should seek to strike a balance, to meet the intolerable situation where a man could disinherit his wife and his children.
It is generally agreed that that situation was intolerable. It has been argued that that intolerable situation could be met by a system of court applications, but, although I am a lawyer, I am of the opinion that there are many sensitive people particularly women, who do not like the prospect of going to lawyers, and do not like the prospect of going to court. They do not like to bring their affairs before a court however private it may be. I should prefer to leave it in the form of a statutory right. There is the basic right which arises out of the marriage contract, and there is a partnership in the common property between these people over a number of years. I think, on balance, that it should be written in in statutory form. I think that is preferable to a system of driving the widow or widower into court.
On that basis I would ask the Seanad to pass the section and to reject the amendment. I would ask the Seanad to do this, not in a spirit of claiming that this is a perfect answer to all the problems in regard to testator succession, but in the spirit that this is an improvement on the existing situation. It is on analysis, the best that can be done to rectify as many injustices as possible, while not completely eliminating all injustices.