Succession Bill, 1965: Committee Stage (Resumed).
Question proposed: "That section 110 stand part of the Bill."
There are just one or two small matters I should like the Minister to deal with on this section. The Minister will recollect that section 56 provides for appropriation of a dwelling house as part of the legal right of a widow or spouse. We have amended that section to meet the difficulty. Perhaps I should have raised this on section 56 as I had intended, but I think it arises on this section. I was wondering whether the Minister has given any consideration to the provision in section 12 of the Land Act, 1965, which prohibits subdivision.
It seems to me that when a widow gets a house under section 56, that will be a subdivision of the holding and, while I am quite prepared to concede that where a later statute implicitly amends an earlier statute, the later statute prevails, perhaps it might be better, for the purpose of clarity, and of putting the matter beyond all doubt, if section 56 were amended on Report Stage to make it clear that any appropriation that had to be made under that section should be made notwithstanding the provision of section 12 of the Land Act, 1965. Perhaps the Minister would deal with that point first.
I shall look into that matter between now and Report Stage. It might be better to clarify it.
It might be better to put it beyond all doubt so that someone would not have to take a test case.
Another point that occurs to me on this section is the point raised by the Incorporated Law Society in their memorandum of 22nd May, 1965. The Minister may have dealt with this in the Dáil but I should be glad if he would deal with it briefly here. From now on, in the case of a woman with property, to all intents and purposes by virtue of this section the husband has a contingent interest in the property, an expectation on the death of his wife of a one-third share of it. The point raised by the Society is whether or not that would be regarded for the purposes of the bankruptcy court as assets like a remainder interest which the bankrupt might have and whether that will in fact be taken into account in the bankruptcy. What I have in mind is that while that share is there contingent, a man who is a bankrupt cannot be said to have thrown all his property in for the purpose of meeting his liabilities to his creditors. There is this contingent share in the property of his wife and it would seem that he cannot be discharged from bankruptcy until his wife has died. That is the interpretation the Incorporated Law Society put on it. I do not hold myself out as an expert on the bankruptcy code but I should like the Minister to clarify the point. It might be necessary to incorporate a subsection in section 110 to say that this would not be assets for the purposes of bankruptcy or to provide that after a lapse of a certain time from the initation of bankruptcy proceedings, this should not be taken into account.
First of all, the legal right share would be in the same position as the intestate share which forms part of the assets at the present time. The question of whether it becomes a contingent interest is a difficult one, and it is being considered by the Commission which we have set up to examine the bankruptcy law. I hope to have the report of the Commission in due course. This precise matter is being considered by them in relation to intestacy and now legal rights, as there is the difficulty because of the contingent nature. They are regarded as assets at the present time and the legal right share would be in precisely the same position. The question of contingent rights and how they affect bankruptcy proceedings is being examined by the Commission.
I have no difficulty at all with regard to the shares on intestacy, because a share on intestacy does not arise. It is not contingent in the same way as the legal right share will be in the future. The intestate share only arises when somebody dies intestate, and nobody has any kind of right at all or valuable interest because it is purely speculative. But in the new situation whether a woman dies testate or intestate, it is now quite clear that the husband is going to have a share in her assets. I think the Minister might consider having a word with the bankruptcy people to see whether it might not be desirable to put some kind of interim provision in section 110 to prevent that share being taken over in the bankruptcy proceedings. There is nothing difficult about doing that because it means a man is getting money which, strictly speaking, should go to his creditors.
What we are trying to do in this Bill is that when his wife dies, if the man is not capable of earning or has no substantial means of livelihood, he should have so much money. In other legislation like social welfare legislation, this was dealt with by having an absolute prohibition, that certain moneys payable by virtue of the statute cannot be assigned or taken into account in bankruptcy proceedings. The Minister might consider putting in some kind of provision to protect the assets in the bankruptcy court. I think that the view of the Commission would be that if a man has assets, they should be employed in the discharge of his debts. From our point of view, we should say that what we are trying to do is to confer a benefit on the husband and we are in this piece of legislation taking the necessary steps to do so,
This, of course, is in practice largely an academic question, because, as things have worked out, we have not had a bankrupt discharged for 30 years. In practice, this does not happen, because, in order to be discharged, the consent of all the creditors is required and they do not in fact all consent. The result is that the difficulty envisaged by Senator O'Quigley does not arise. At the same time, even from the academic point of view, there is something in what he says. I know that it is being considered by the Bankruptcy Commission at the moment and I should prefer to leave it with them. It is a very involved aspect of the law and we have a very expert Commission set up to study it. In view of the fact that there is no practical difficulty likely to arise between now and the completion of the Commission's work, I should prefer to leave it over.
I would refer again to a point raised on the definition section. Subsection (2) of section 110 reads "if the testator leaves a spouse and children." We might want to put in "surviving" because if we go through section 5, subsection (2), we find, on descent to relatives of a deceased person, a person begotten before his death but born thereafter, for the purpose of this Act shall be regarded as having been born in the lifetime of the testator and having survived him. I take it from that that children begotten before his death but born thereafter under subsection (2) of section 110 have survived him.
Children born during his lifetime but having died have not survived him?
That seems an extraordinary position, that a child begotten before the testator who might perhaps not be born alive at all——
He would have to be born alive.
No, not necessarily, I do not think, under that definition.
The interpretation section, section 3 (2), the second paragraph from the bottom of page 7. I may be saying it wrongly but, as I see it, even if they are begotten they may not have survived birth. They may be dead. That is my reading. However, they shall be regarded as having survived him.
"born thereafter", born after his death.
Although they are dead, nevertheless, according to that definition, I think they would be regarded as having survived. That is my point.
They could not, not on the plain reading of the matter. I shall have a look at it, but I think, on a plain reading of the matter, it is quite clear.
It refers, as Senator Boland has said, to posthumous births.
It does, but, "for the purpose of the Act", they shall "be regarded as having been born in the lifetime of the deceased and as having survived him". It is not for the purpose of any particular section.
But they have to be children. They have to be alive.
I shall have a look at it.
It is a medical matter rather than a legal one.
Then, under section 110, it would make all the difference whether the widow gets one third or one half.
There is a point in it. What should be said is "born alive thereafter" in subsection (2) of section 3.
Should we not have in section 110 "leaves issue surviving"? Another position arises where a child is born during the lifetime of the testator and dies.
We shall have a look at it. What the Senator suggests would be a tighter definition. I think it means what it is meant to mean. It relates to posthumous births and it is clear enough. It would put it beyond all doubt if one adopted the phraseology of Senator Cole and Senator O'Quigley. I shall have a look at it.
Question put and agreed to.
Section 111 agreed to.
SECTION 112.
I move amendment No. 13:
In line 20 to delete "and during the lifetime of the testator."
This is a section which provides that the legal right may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator. I am seeking to delete "and during the lifetime of the testator" because it seems to me that prevents the widow —let us take it that it is a widow— from renouncing it after the death of her husband.
Surely that is covered by the election section?
It would not so be covered. Supposing she had sufficient property by way of a gift from her husband during his lifetime, money she did not want to put into the bank for the Revenue Commissioners to know about, or if she had sufficient money under a marriage settlement giving her a proper annuity or if she had been otherwise provided for. It seems to me that she cannot formally renounce her legal right——
This is really a matter of nomenclature or terminology. She can renounce during his lifetime and after his death she could release.
That is precisely the point. What could be said about the position of such release after the death of the testator? I am anticipating the kind of situation where the woman might have very good and sufficient reasons for so doing. Because she was sufficiently well taken care of and wanted to get her son married to somebody, she might say: "I am all right. I have sufficient money from my marriage settlement and these stocks. I will renounce my legal right and enter into such agreement." She might, afterwards, have second thoughts. The son would be married and she would have achieved her purpose. I should like to ensure that if she does make a renouncement after her husband's death it will be quite valid. She can do that in a case where she is left something under a will but there is also the position where she would not be left anything under the will because she and her husband had agreed that she was well looked after under a deed or settlement. It seems to me that it is the kind of thing that could breed sufficient trouble. It seems to me somebody could say the deed releasing her right is invalid because it does not comply with the provisions of section 112, because it was not made before her marriage or after her marriage during the lifetime of her husband. It is a matter the Minister might look at.
I am anticipating a lawyer at some future time being presented with a case by a solicitor for advice in respect of a woman who had renounced after her husband's death and the advice being that the renunciation was not in conformity with the provisions of section 112 and was therefore invalid.
This provision is designed to facilitate an ordinary commonsense deal or arrangement between husband and wife made, say, during the husband's lifetime so that the two can expeditiously and easily effect an agreement in writing whereby the wife renounces her legal right share. In the ordinary way, after the husband's death, the right vests in the widow by reason of his death. This is a right which is vested in the widow and does not come within the renunciation procedure. Like any other right in law, it should be given away only in proper form. A deed of release would be a way to deal with that situation. After death, she can release. She can elect, under section 114, or she can sign the deed of release, give it to the personal representative and then the estate can be administered free of her legal right. I refer to formal deed of release in respect of a right already vested, as opposed to section 112 which is just to facilitate husband and wife getting together, without formality, and effecting a renunciation by signing a piece of paper. This can be brought to the solicitor during the lifetime of the testator and whatever arrangements are necessary can be made there: the legal right has been forfeited by reason of the renunciation effected by the piece of paper. There is a difference between acting in that way in the lifetime of both parties and formally releasing a legal right which has already vested on the death of one of the spouses.
I agree with the Minister up to this that if the widow wants to renounce she will have to enter into a deed of release. The share would first have to be vested in her so that there would be release. What I am trying to achieve is that she can, in the same way as you can bequeath under a will at the present time, enter into a formal deed of release but that would be a transaction which would render that liable to stamp duty, whereas if she could disclaim or renounce, the property need never vest in her at all. The formality of the executor assenting to it and of her entering into a deed to release it and convey it to somebody else would not arise.
The release procedure is used at the moment in the case of intestacies, day in and day out.
Yes, of course, it attracts stamp duty, which is something to be avoided.
Without understanding the niceties of the legal points, would you not have to put some final point in at which she could renounce? Otherwise, everybody will have to wait for her lifetime to see whether or not she will renounce her right or not. You would have to have some end to it.
Amendment, by leave, withdrawn.
Question proposed: "That section 112 stand part of the Bill."
I feel the Minister should place a little formality on the renunciation. I would imagine that people would say, or the widow would, perhaps say: "I was induced to renounce by a promise." I feel this should be witnessed; in other words, make sure she completely understood what was happening. There should, perhaps, be at least one witness, as in a will, to renunciation under this section. I think that type of situation could easily arise and you could have quite a lot of legal proceedings on that point, where an arrangement was made between husband and wife and the widow comes in afterwards and says: "I did not understand what I was doing." She might say: "I was asked to do it and look at the position I am in now."
Taking it that there is the person who wants to avoid leaving anything to his wife, if he induces her to sign her renunciation, according to the section, on any scrap of paper, then under the Bill she does not get a proper share.
I would feel inclined to agree with Senator Cole on this, except for one point. I cannot see that having her signature witnessed to a renunciation would make any difference as to whether or not she had been properly instructed in what happened. I would not think a witness is of any great help to her.
There is a great deal in what Senator Cole has said as one of the two provisions caters for such renunciation before marriage. Everybody knows that Mary courting John strongly thinks that he will do the devil and all for her and she will be disposed to trust him. Perhaps he might induce her, for what might appear to be good and sufficient reasons, to make this renunciation and say: "Oh, well, I will be able to get more money in the bank if the property is to be tied up in this way." I would be very nervous about a woman renouncing her legal right share before her marriage, at a time when I suppose she is not fully compos mentis.
Again, not being aware of the legal phraseology, I feel the fact that it is referred to as an ante-nuptial contract should mean just a question of simply writing something out on paper. It is the informal one during marriage that would appear to me to give strength in some way.
As Senator Sheldon has stated, it is quite clear we require the full legal formality in regard to an ante-nuptial agreement which has to be in contractual form in writing. I am thinking more of the practical aspect of it. We do not want to impose on a husband and wife too many legal procedures. Surely it is reasonable where a husband and wife get together to discuss their problems, not to require a formal document of release from the wife. A simple statement in writing from her to the effect that she is willing to let her husband dispose of the whole estate and that she does not wish to partake of her legal right is a far more desirable way of achieving what is intended. However, there are stringent requirements (a) after the husband's death, where a release would be required, and (b) prior to marriage, where there would be a proper agreement in writing.
If it worked out that way, there would be no need for this section at all. We are dealing, in section 110, with the person who, perhaps, tries to avoid leaving anything to his wife and that person will try to go as far under section 112 to get her to sign her renunciation. He has only to say "Sign that" and her rights are gone.
I do not see how the deed would make any difference. He could throw the deed at her and ask her to sign that in the same way.
In that case possibly it has to be explained a little. The deed would probably be drawn up and signed in a solicitor's office in 99 cases out of 100, but this is not. I feel it should be solemnly performed. After all, if the husband and wife are making this arrangement, the chances are they are both making their wills at the same time. There is nothing to prevent it being drawn up by a solicitor just as a will might be.
While I can see Senator Cole's point, I think most people have a horror of the intentions of parties being frustrated by excessive legal requirements. The husband and wife are living together and the intention of the wife to renounce her right in favour of the children is shown. If that intention is clearly indicated and an arrangement is made on foot of that, why frustrate it because it does not conform to legal formalities A, B, or C? Why introduce solemnity into what is a practical arrangement between husband and wife? That is primarily the thinking behind this; if the intention is clearly shown on the contract in writing, it should not be frustrated because it does not conform to certain legal formalities.
Would the Minister allow her to withdraw her renunciation?
What if she has been induced to do this during her lifetime and faded out completely?
You mean if she is coerced, induced or bribed?
Would she then have her right in court?
She can upset the renunciation if she can go to court and prove that she was coerced.
Question put and agreed to.
NEW SECTION.
Government amendment No. 14:
Before section 113, to insert the following new section:
(1) Where property is devised or bequeathed in a will to a spouse and the devise or bequest is expressed in the will to be in addition to the share as a legal right of the spouse, the testator shall be deemed to have made by the will a gift to the spouse consisting of—
(a) a sum equal to the value of the share as a legal right of the spouse, and
(b) the property so devised or bequeathed.
(2) In any other case, a devise or bequest in a will to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse.
An Leas-Chathaoirleach
It is suggested that amendments Nos. 14 and 18 are cognate and might be discussed together.
Amendment No. 14, in effect, suggests the deletion of section 113 and the insertion of the amendment, which is really an elaboration of section 113, so as to make certain that the meaning is clear. Senator Sheehy Skeffington raised this point on Second Stage and there was certain merit in his point of view, that the section, as it reads, does not clearly state what it intends to do. I think the new wording is clearer. If he wants to give something in addition to the legal right, then he is obliged to express it in the actual will. The wording was not clear enough in the original section and Senator Sheehy Skeffington was critical of it. The meaning is very clear now in the amendment submitted and the other amendment.
Amendment agreed to.
Section 113 deleted.
SECTION 114.
I move amendment No. 15:
In subsection (1) (b) to add at the end:
"provided that the devise or bequest is not less than a one-fourth share of the estate."
This is an amendment to deal with the situation where the widow may find herself caught in the provision in section 114 by which, if she is left a bequest under the will, she must elect between the bequest and her legal right share. If she does not make her election within a period of one year from the taking out of administration, she gets the bequest and does not get the legal right share.
I am contemplating the kind of home-made will which you will have made in many instances because people are in horror and dread of lawyers. I can tell the House that it is a lot of these wills that give rise to applications every Friday morning in the Probate Court in probate actions to set wills aside. That is not to say that there are not quite a number of valid wills made by people without any legal training. It will become slightly more difficult to make home-made wills as the result of this enactment.
I am concerned that the idea will go abroad that a widow is entitled to a share in the property, at any rate, under this new Succession Bill. The husband may say that she will get that and the will maker may say she will be getting that and, in order to show he is doing something better than that, he may leave her some hundreds of pounds in cash. Then it may happen that the widow, believing she has got a bequest in cash and is also getting her legal right, will do nothing at the end of one year from taking out the grant, so that she will have lost her legal right share through not having done anything about the option. She may lose considerably on that.
I am putting in my proviso. It is a matter of option what proposition you take. If a man were to leave £50 in cash and she did not exercise her option between the £50 and the one-third, she would only get £50 at the end of one year from taking out the grant. I am suggesting here we should amend paragraph (b) of subsection (1) and to make the paragraph read:
In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right provided that the devise or bequest is not less than a one-fourth share of the estate.
The difference between one-fourth and one-third would not be too great. If a widow mistakenly did not exercise her option within a period of 12 months, her loss would not be so great if it were provided that this option to take the bequest only arose in cases where the bequest amounted to one-fourth the value of the estate. This, of course, is trying to provide against all classes of contingencies.
That is one of the objections to it from the point of view of the widow who is going to find herself deprived of the very valuable legal right share. It is a most valuable safeguard and, with the increasing facilities that will be given to people to take out grants without the aid of solicitors, many a widow is likely to find herself, where her son had taken out a grant without the benefit of any solicitor in the county registrar's office, in the position where she will not know what is in the will. A grant can be taken without her knowledge and she may find that time has passed and she is left with £50 when she should be entitled to one-third share of the value of the property.
There is some validity in the fears expressed by Senator O'Quigley. I think it is true that this matter has been debated, not only in the Dáil and Seanad, but throughout the country for the past year. The impression that has been left which must be very widespread by this time is that a widow, no matter what happens, is sure of her one-third. It may well happen that she would feel she does not have to do anything in any circumstance, that if she does not take any action, she is sure of her one-third share. It may happen, as has been suggested, that she will get a very small bequest under the will and end up finding she is only getting that small sum of money.
It may happen in certain circumstances that the widow may be induced by her family to do nothing about this. She may be lulled into a feeling of false security. I feel this is a distinct danger and, if possible, some way of meeting it should be found. I am not so keen on the solution suggested by Senator O'Quigley. I feel it is a little inflexible and it takes away some of the good qualities of the one-third share.
I wonder whether the Minister could examine the possibility of having a subsection here which would put obligations on the personal representative to notify the surviving spouse, before the year has expired, of his or her rights and call upon the spouse to elect—in many cases the spouse even when called upon would not elect— between the bequest and the legal right share. If the widow does not elect, the section would take effect as it is down here. The widow should at least be notified of her rights and be given an opportunity to elect, if she or he wished to do so. If that can be done, it would be a better way of dealing with it. I certainly agree that this is a danger that does and will exist and, if possible, should be dealt with.
I am conscious of the danger that exists in the case of a badly-informed widow, who, as has been suggested here, may get a fairly small bequest and due to not opting for her legal right within the period specified here, may forfeit it. It is a danger, although I believe when this becomes law, due to the publicity that has been attached to it, and the good advice that solicitors will give, people will be far more informed than Senator Ryan seems to think. There is a danger here, but it is a problem to know how to deal with it. I do not think I would go about it in Senator O'Quigley's way. There may be something in what Senator Ryan has said about putting an onus on the personal representative to inform the widow within a certain period, and I shall consider that possibility. It would go a long way towards meeting the problem posed by Senator O'Quigley. I shall consider that between now and Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 16:
Before subsection (5) to insert a new subsection as follows:—
( ) Where the spouse is a person of unsound mind, the right of election conferred by this section may be exercised on behalf of the spouse by the committee or, if there is no committee, by the court.
The purpose of this amendment is to expedite the administration of an estate where there is a surviving spouse of unsound mind, and also to facilitate the personal representatives in their administration of the estate. It is an improvement on the section, leading to more expeditious administration, in a case of this kind.
In the ordinary course, the committee of the estate of a person of unsound mind, or a ward of court, can act only under the direction of the court. There might be a case where a person was of unsound mind and suffering from a curable disease. There is the right of election as between the legal right share and a right to live and be supported, clothed and maintained in the house, and so on, out of the business or farm belonging to the testator and bequeathed to another member of the family and in this case it seems to me the committee will have to take that decision. Often-times, in my experience, the committee is a person of trust, and he merely makes the application, and most of the work on behalf of the committee is done by a solicitor. I am wondering whether this places too great a burden on the committee, or would it be the Minister's view that the committee must, in such cases, apply to the court to determine what is in the best interest in that case?
The Senator is interpreting what is in my mind. I envisage the court doing this.
If there is no committee, it is done by the court and if there is a committee, you do not go to court—"...the right of election ... may be exercised on behalf of the spouse by the committee or, if there is no committee, by the court."
There is nothing in the section to prevent the committee going to the court. That is the course I envisage would be followed.
This is a new power for the committee. The power that is being conferred by statute on the committee would be very onerous, I think. Very often a person may be of unsound mind over a period of years. The committee may be a person of 50 years and the patient, as we will call him, may be 20 years of age. After a period of years, a person of 80 years is not in quite as good a position to determine what is in the best interests of a person aged 50 years who is incarcerated in a mental home. The Minister might have another look at that.
I shall have another look at it between now and Report Stage.
Amendment agreed to.
I move amendment No. 17:
Before subsection (5) to insert a new subsection as follows:—
( ) In default of election during the lifetime of the spouse, the personal representative of a deceased spouse shall be entitled to exercise the spouse's right of election within three months of the raising of representation to such spouse's estate provided that such right shall not be exercised more than three months after the expiration of one year from the first taking out of representation to the estate of the spouse who dies first.
This amendment, again, is concerned with the right of election. To my mind, the right of election is a power which is personal to the surviving spouse and, as I understand it, in the ordinary law, a power which is personal to the donee of the power which can be exercised only by the donee, the person to whom it is given by whoever has the right to give it. If a widow survives her husband and a grant is not taken out for six months, she has up to a year, that is, 18 months after the death of her husband, to exercise her option. If she dies before the expiry of 18 months after the death of her husband, and has not exercised her option, it seems to me that the power would lapse and would not go to her personal representative. That is the position in law in regard to powers. In a case like that, what would fall into the widow's estate would be merely the bequest under the will.
It very often happens that when the husband dies, if the widow is cut up or in a bad state of health, members of her family do not want to trouble her with legal matters, or appear to be forcing her to choose between one thing and another. If she is in a delicate state of health after her husband's death, because of her physical condition she might not be asked, or might not have an opportunity, to exercise that power, and consequently if she dies within 18 months, it would lapse. I suggest in this amendment that if the widow, within the period during which the power can be exercised, does not make an election, it should be made for her after her death by her personal representative. I think that would meet the situation. It is quite clear as the section stands that once she dies, that is the end of that, and there is no question of election.
I am not inclined to agree with this amendment. I feel the legal right share is being specially brought in to protect the surviving spouse during his or her lifetime, and to make sure that he or she is not left destitute. I think it is to protect people from that kind of situation that this legal right share has been introduced. I do not think there is any particular reason why this right should be provided for the purpose of enabling them to pass on property. What is suggested in the amendment is that the personal representative of the surviving spouse should be given the right to decide in what way the property would have passed on. I do not think there is any great merit in this provision. There is something to be said for it in general, but I do not feel it necessarily follows on the principle enshrined originally in the one-third share.
If the amendment were accepted, it could, in many cases, defeat the wishes not only of the first spouse but also of the surviving spouse. Let us take the case of the spouse who dies first and leaves his widow a right of residence and support, and a yearly sum. She is quite satisfied with that and does not make any formal application. If she dies within six or eight months, this amendment would enable a member of the family to take out administration on an intestate estate, and claim one-third of the estate, which was the intention neither of the father nor the mother. I think the intention of both would be defeated in that way, and I think this would probably be a retrograde step in that the real intention of the first spouse was to ensure that the surviving spouse would be adequately provided for during his or her lifetime.
(Longford): The biggest objection to the amendment, to my mind—and I may be wrong; we are all wrong sometimes—is that it would lead to fragmentation of estates, which has been described as undesirable. There could be the case of a woman who, as Senator Nash rightly stated, was satisfied with the arrangements made and had no intention of electing for the one-third share of the estate. Then because of the death of that spouse, some other person would be in a position under the law to elect on behalf of the dead person, If that woman had not made a will, that one-third part of the estate would become an intestacy, with the result that it would be difficult to avoid the very thing Senator O'Quigley and many others quite rightly fear, the fragmentation or breaking up of an estate. I think Senator O'Quigley should examine it from that point of view.
The point made by Senator Nash is a good one but it could work the other way, too. Suppose the husband leaves a considerable sum to his wife, far more than the right under this Bill, and she dies six months after him, if you do not make some provision the will stands, and the high amount then goes.
Before the Minister rises, there are one or two things I should like to say. There is an infinite variety of situations that can arise on death in the disposition of property and what way it will go. There are all sorts of contingencies that may arise. Once you accept the principle of fragmentation that has been accepted in section 110, then you should set out and make sure, if this is the view of the Oireachtas, that the people intended by the Oireachtas should get the benefit of section 110 and should not be deprived by misfortune or ill-luck from getting it.
If you take the position of a man who dies and makes a will leaving his farm or his business to his son, very often the will will not be proved for a year. The son may be married, or he may get married and when the mother gets old and cantankerous and difficult, she may go to live with her daughter. This is a situation which not infrequently arises. She may be in and out of hospital. Meantime the son takes out his grant, maybe three, four or five years after the father's death. The mother, going to live with the daughter, says: "You know that I am entitled to one-third under your father's will and I will leave that to you in my will". She will make a will leaving the property to her daughter who has undertaken to look after her and had done so. It can happen that the widow may die before 12 months would have elapsed from the taking out of the grant of probate by the son, and the daughter who has undertaken to look after, and in fact had looked after the mother, would get no recompense because the mother had not exercised her option. She might not have got very much under the father's will and there would be nothing there for that daughter.
If you are saying under section 110 that a woman is to be entitled on the death of her husband to one third share, we should take all proper steps to ensure that ill-luck and mismanagement and perhaps deceit do not deprive her of what we are setting out in the section to give her. I do not believe in the business of saying in one section that you believe the widow should get one third share and then letting the thing fail for a variety of reasons so that as a result of any one of them, the widow will not get what we are here saying she should get. I want to ensure that her estate should be entitled to get the money just in the same way as if she had the good fortune to exercise her option.
I do not see why her beneficiaries under her will should be deprived of the money she was entitled to under section 110 simply because she had died between the taking out of the grant and the expiry of one year. In that kind of situation, the personal representative of the mother should be entitled to exercise the option and to have that property diverted to the people the mother intended in her lifetime should benefit. The mother's right should be as sacrosanct in our eyes as the father's in the first instance. I do not believe in setting up a right under section 110 which can be diminished and rendered null and void by trickery, deceit, delay and cajoling and all the other things that can be done in order to put the woman off doing the kind of thing she should do.
Would Senator O'Quigley not agree that the type of situation which he suggests is that to which Senator Quinlan yesterday objected so strongly? In many cases, as Senator O'Quigley pointed out, administration is not taken out for four, six or eight years. There is a farm and stock and the son is married there or a son who becomes married. No question of title arises. The other members of the family have gone away and married. Now the old lady is getting older and more cantankerous, and a grasping daughter may very easily sow the seeds of disunity in the family between the old woman and the young daughter-in-law, knowing that administration has not been taken out. The old lady who has been kindly treated perhaps for eight or ten years by the son and daughter-in-law leaves the home and goes to live with the daughter in her last days and dies within 12 months. The daughter gets her to make a will and gets her one-third of the estate. That will be a most unhappy state of affairs. I should imagine that if the mother lives with the son and has agreed with him for a number of years, a great injustice would have been done.
Taking the last point first, Senator Nash is precisely right there. The grave danger in Senator O'Quigley's amendment is just this, that the next-of-kin or beneficiaries may be wrongly chosen by the widow and could come in, on the election of the personal representative, for a proportion of the widow's estate, to the detriment of children or possibly of a son who had stayed on and who was the subject matter of an arrangement reached by the widow's spouse prior to his death, an arrangement under which certain bequests or dispositions were made which would be of benefit to the estate. You could have a serious situation where a son who remained on in the farm would be prejudiced by reason of the legal right being exercised so that one-third of the father's estate could be drawn into his mother's estate for the benefit of children other than the one who had remained at home.
However, there are other aspects as well. To get back to fundamentals in this matter, Senator Nash and Senator O'Reilly were on this point. This right of election is a personal right to be exercised in her wisdom by the widow within a year of the taking out of representation. It is quite clearly, therefore, a matter of choice, having regard to the circumstances. If another arrangement, beneficial to the estate, has been effected and is, in fact, being carried out, it would obviously be prejudicial to that arrangement, which is suitable in the particular circumstances, if you had the widow's one-third—which was not exercised by the widow as a matter of choice, in her wisdom—exercised and enforced by her representative subsequent to her death. This would lead to upset and fragmentation and cause precisely the kind of difficulties forecast by the main opponents of this Bill. I cannot see the merits, for that reason, in Senator O'Quigley's amendment.
I want to emphasise again here that the question of an election under section 114 does not affect the legal right where the spouse has been disinherited. Where there is no bequest to the spouse, the legal right vests automatically. That is hers as of right and she is not put to an election in regard to it. But, where an alternative arrangement, in the wisdom of the testator, has been made for the spouse and the children —there is a variety of such arrangements which might suit, such as life estates, which the testator might regard as being suitable to his particular estate, providing in one way or another for his widow—then the widow must elect under section 114. If the widow exercises her choice for that particular arrangement, that is a personal decision on her part. She also can exercise her personal choice, which is the protection in the Bill for her, against the arrangement if she so wishes. It would be very unwise if such a personal choice made by her should in any way be frustrated, or if such a decision on her part, to comply with arrangements which are working well, should be negatived by the action of her personal representative in taking what is, in effect, a decision personal to herself.
I think the situation envisaged in section 114 is quite logical, and is a consequence of section 110. In section 110, we say you cannot disinherit the widow and, if you try to do so, she is entitled to her legal right of one third. In section 114 we say that, if you want to make some other arrangement which may be suitable to the widow and the estate in the circumstances of the situation, by all means make that arrangement. The widow can opt for that arrangement or, if she feels it is inadequate, she can elect for her legal right, but she must elect one way or the other and it is fundamental that the choice is personal to her and not the sort of choice which would be delegated to a personal representative.
It is a bit ironic to hear Senator Nash and Senator P. O'Reilly (Longford) talk now about fragmentation because these are the very arguments I was using last night, and earlier, against section 110. I think all that is water under the bridge as far as this particular debate is concerned. Of course, all those kinds of difficulties will arise. This kind of fragmentation will be reduced only minimally by not accepting this amendment. It will be only in a small number of cases that this will arise. What I am trying to suggest to the Seanad is that once we accept section 110 then let us go all out vigorously to ensure that the benefits of the section flow to all the people we want them to flow to. We say no, because, if you were to do that kind of thing, it would lead to these kinds of injustices, fragmentation, and so on, but this is what follows from section 110. That is why, in my view last night, section 110 is not as good and is not as equitable and is not as practical a section as one would wish it to be. But that is water under the bridge.
Section 110 now stands part of the Bill and I say in all sincerity that then, if we give a right, we should take all proper precautions to ensure that that right benefits those it is intended to benefit. Now, I am not at all impressed by the arguments made by Senator Nash or Senator P. O'Reilly (Longford) because they are proceeding upon the basis that a man dies and, after a while, his son who is executor of his will goes along, takes out a grant and they all live happily for 10 years, and so on. But there is the other kind of situation where a man dies, appointing a son executor of his will, and leaves a certain amount of money to his widow which is much less valuable than her legal right share. She asks her son when he is taking out administration of his father's will and he says he will have to see about it. After three months, she again asks him when he is taking out administration of his father's will and he says: “Is it not time enough?” or, “What is the hurry?” Another six months elapse and the widow again asks her son when he is going to take out administration of his father's will and he begins to get testy. This process may go on and the widow may not be quite aware of what is contained in the will.
If there were other provisions in this Bill—and I am sorry it did not occur to me earlier to deal with it— so that it was easy for a person who was a beneficiary under the will to have the will proved, there might not be so much difficulty. I have in my experience seen cases of where a solicitor made a will and the will was sought to be challenged. You have to go to all the rounds in the world to cite the executor to refuse or accept probate. You have not ever seen a copy of the will and you do not know whether you are a beneficiary under the will or what the position is. These kinds of delays go on and what should be the normal procedure in relation to proving a will is oftentimes not carried out in the kind of cases where people want to deprive beneficiaries under the will of their entitlement under it.
I can see that a woman can live with her son and daughter-in-law maybe for six or seven years and, from time to time, she raises this question about taking out administration to the husband's estate, as they put it, and nothing is done and, in the interests of domestic harmony, she may do nothing about it. It may then get to the stage I have spoken about earlier where things get too much for her. The daughter-in-law may be expecting her fifth child, and so on, and the widow may say: "I cannot stay here. You cannot look after me. You have enough to do to look after your four children and this fifth child who is coming." She asks her married daughter if she will look after her and, in return, she will leave her what she is entitled to under her husband's will. That may happen and the mother may live with her for some years.
Families do not want to go into court and press each other to take out grants, and so on. The daughter may have had the mother for two or three years and then, at some stage, the son takes out a grant and the daughter, who is to inherit under the mother's will and who would be entitled to something for looking after her for those years, gets nothing. It is the kind of situation that can, not infrequently, arise. I do not believe in this kind of half-hearted way of saying a person is entitled to something under section 110 and then recoil in horror from the logic of ensuring that that something does, in fact, vest in the persons in whom it is intended to vest and cite, then, objections I raised on section 110 earlier. That is, of course, the difficulty. To be logical, once you accept 110, then you must implement it in full.
Surely Senator O'Quigley is presupposing that the woman cannot exercise her option until a grant is taken out. She has not to wait until such time at all. She can exercise her option at any time within 12 months from the date of taking out of administration of her husband's estate. If she is not being properly treated or if she has any reasonable doubt in her mind, she can exercise her option. Also as regards the logic, I think the section is completely logical because the fundamental principle underlying the whole thing is not that the widow will get one-third but that the widow will be protected and it was impressed, when dealing with section 110, that the reason for giving her one-third was that she could argue in strength, make proper arrangements if she were being badly treated.
(Longford): Senator O'Quigley has said he was not impressed with my arguments in this. I was not really trying to impress anybody. I was merely expressing a view I held with regard to the difficulty involved in breaking up a small estate, a family farm, and we all agree that is an undesirable thing to happen. I am not so concerned with the larger estates, big companies or private companies. I do not know enough about them to make a statement on that sort of property. I still take the view that this power given to the widow under section 110 is really a weapon of last resort and a weapon, in my view, that should not and will not be used except in very exceptional and rare circumstances.
It is like the atomic bomb, I suppose!
(Longford): Senator O'Quigley seems to argue on the assumption that it will be used in sixty per cent of cases. I think that would be unfortunate. The power is there to give the widow ground to stand on—she has a right and a bargaining power. Even as things are, because of the intestacy law and because of the large number of intestacies there are in rural Ireland anyway, if the viewpoint held by Senator O'Quigley were to prevail, if it were happening in practice, then quite a lot of properties would have been slashed or broken up already. That is not happening, however, because rural people—with reasonable commonsense and Christian charity—fully realise that to put the full letter of the law into force is not always desirable.
Another point occurs to me in regard to this amendment and I think it may be raised under section 110. Supposing a widow is a widow who is a stepmother to existing children—and here I am not able to say as I am not as learned in law as the Minister or Senator O'Quigley—which will the then widow be regarded, as a childless widow or a widow with children. Will she be entitled to one-third or half?
(Longford): In any event can Senator O'Quigley readily imagine what would happen in the principle embodied in his amendment in 90 per cent of cases where the relatives of a deceased stepmother would be entitled to inherit the estate, with the result it would be practically impossible to prevent a break up of that? That is a situation that could happen in quite a large number of cases.
If the amendment suggested by Senator Eoin Ryan to section 114 is carried through where there would be notification to the widow, that would bring on her in this her right to exercise her option and that seems to me to get rid of some of the difficulty in this kind of case. I am wondering, on the point raised by Senator O'Reilly, does "child" include stepchildren?
Section 110 subsection (2) says "If the testator leaves a spouse and children..."
It says "If the testator leaves a spouse and children." It does not say "his children".
As section 110 subsection (2) says "If the testator leaves a spouse and children," they have to be his children. You could clarify it if you wish in case the term "children" would be misconstrued. It seems to me, however, that it would be the children of the testator.
I am not so sure about that because there are cases——
It depends on a technical interpretation of "leave". You do not "leave" stepchildren. The testator can leave spouse and children and they are his own children, not stepchildren. It is not a colloquial use of "leave". "Leave" is the correct legal term in this context.
But if you take a Schedule of Assets where a testator died domiciled in........., leaving him surviving.........would you not include stepchildren in that?
You would not include stepchildren.
I think it should be clarified in the definition section or at the end of Parts IX and X.
I shall have a look at it, but it has been that way for a very long time. That sort of terminology occurs in the existing law.
If the Minister is happy about it then I am happy.
Amendment, by leave, withdrawn.
Government amendment No 18:
To delete subsection (5), page 39, and substitute the following subsection:
"(5) In this section, but only in its application to a case to which subsection (1) of section 113 applies, `devise or bequest.' means a gift deemed under that subsection to have been made by the will of the testator."
Amendment agreed to.
Section 114, as amended, agreed to.
SECTION 115.
I move amendment No. 19:
In subsection (2), line 19, to delete "the making of the provision" and substitute "death of the testator."
This is a section which deals with the situation where a testator dies and during his lifetime might have made, under a marriage settlement, adequate provision for his wife after his death. It is provided here that then the provision that has been made should be taken into account in determining whether or not she has got her legal share and pro tanto can be appropriate to the legal right share. I do not understand why the value of the property should be made at the date, that is presumably at the date of making the deed. If the property has increased in value would it not be much more correct to insert “as of the date of death.” Indeed if you were selling it would be the value subsequent to the date of death. It seems to me there is no reason why the value of the property should be reckoned as of the date of making the deed of marriage settlement but rather it should be reckoned as at the date of death of the testator. I do not know why it should be that way and I think the Minister might clarify this matter.
I would ask the Minister to accept Senator O'Quigley's amendment because otherwise you will have two separate yardsticks. The valuation of property changes very considerably. When a man makes provision for his wife he assigns property to her, maybe twenty to thirty years prior to his death. That property may have been valued at £2,000 when he assigned it to her but it may be worth £8,000 when he dies. As far as she is concerned it is valued at £2,000 and she is still entitled to a share of what is left. As far as his children are concerned or his right to bequeath to anyone else, if he has no children, the total property is valued at the time of his death. This means that any man who has been generous to his wife during his lifetime is further debarring or limiting himself in his testamentary power. I can visualise all sorts of cases where trusts are set up for wives. There will be all sorts of difficulties. There are many cumulative trusts where a man makes substantial provision for his wife. She gets a substantial sum of money because he had adequately provided for her. He has that money invested and dividends have accumulated during his lifetime so at his death the total sum, plus the dividends, passes from the trustee to his wife and becomes her absolute property. The dividends are also invested and she is, therefore, getting a very much larger sum than the original sum set aside.
When a man makes provision for his wife by taking out heavy insurance on his own life he may pay a substantial sum down perhaps in three instalments, now, next year and the year after. That will ensure that when he dies—his life expectancy may be 20 to 30 years—his wife will receive the large sum insured. Even if he dies in two or three years time after taking out that large sum in insurance, the total sum is paid to the widow. You are adopting two separate yardsticks here and I respectfully submit to the Minister that this is inequitable. You are also limiting a man being generous to his wife in his lifetime. You are detracting from it to some extent.
There is something to be said for this amendment also. I see there is an element of chance in this section as it stands. A wife may do very well under the section, but, on the other hand, she may do very badly. It may, in fact, happen that although she had at one time got a very valuable piece of property vested in her by the time of her husband's death it may virtually be worthless. At that time the husband may be quite well off but she may be entitled to virtually nothing. Consequently, where the original property at the time of making the provision was worth more than one third of the testator's property at the time of his death the wife would get nothing under the will. It seems to me to be possible in this way to defeat the purpose of section 110 and certainly to avoid the purpose of it. If there is some good reason for doing that I should like to hear of it. If there is not a good reason I feel the amendment should be considered.
This is a point which I have already considered in some detail and there are arguments for and against it. First of all, let us get it in proper context. This section, as it now stands, is designed to deal with existing cases and is in the nature of transitory cases in that respect. It it designed to deal with existing cases where certain arrangements have been made and where they were made prior to the contemplation of the Succession Bill or the legal provision.
So far as future arrangements are concerned they will be made by people in the knowledge of the existence of the legal right system and that can be dealt with in the preparation of whatever deal is prepared and arrangements duly made for it. We are now dealing with very few cases—most of them were specific cases brought to my notice and also cases mentioned to me by Deputy John A. Costello in the Dáil—and the section was framed with the existing arrangements in mind. They were specific cases that would have been prejudiced under the Bill as it stands and we framed this section to meet those cases.
That puts the whole matter in context in that once these particular arrangements terminate in the course of time and the death section itself will be niggardly and will have no future effect. There is one argument against the amendment and in favour of retention of the present wording, which is what matters is the intention of the parties under the arrangements. Obviously the intention of the parties is the intention in their minds at the time of making the provision. Appreciation has been mentioned but depreciation has not been referred to at all and that is quite possible.
Senator E. Ryan mentioned that.
There are arguments for and against it. We already have a provision in section 63 dealing with advancement and this is the situation in connection with advancement in Northern Ireland and Scotland. The doctrine of advancement there is related to the value at the date of making the provision. We have been following precedent in regard to advancement in this Bill and we have been following precedent in putting that in here. However, I agree I could probably argue just as convincingly the other way. I will bear in mind what has been said by Senators. I will consider the points made by Senator O'Quigley.
In that case I shall ask leave to withdraw this amendment and the next one. I should like to ask the Minister when considering whether it should be the time of death that the value should be ascertained, when it comes to the payment of estate duty, that that should be related to the value of property at the date of death. The estate duty will be payable by the next of kin or by beneficiaries under the will at a higher rate because of the aggregation of this property under the settlement which the testator might well have had some interest in. I think it would probably be fairer to the beneficiaries under the will, because they would be paying, in some cases, a higher rate of estate duty. In the circumstances, I will withdraw the amendment.
I shall consider it between now and Report Stage.
In the hope that I may persuade the Minister further to consider it favourably, might I indicate that it is very common in these settlements when a man gets married for the second time, if he has an outside farm with a house, for him to transfer the outside farm absolutely to his wife, to ensure that she will be provided for, at the time of his death, with adequate assets? It that farm is valued at the time of the transfer, and if the home farm which he is likely to leave to his children is valued at the time of his death, that could create very serious inequities.
There is certainly a lot to be said for the suggestion, but there is a lot to be said against it. I shall have a look at it between now and Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 20:
To delete subsection (5).
This amendment is consequential on amendment No. 19. I am not quite certain why we are applying the provisions of section 115 to settlements made in the past only. This is a matter of opinion, again, but it seems to me that the fact that this applies to marriage settlements made in the past and not in the future, will mean that in the future a man may be a bit slower to make a decent settlement, if he knows that upon his death, in addition to what is provided under the deed of settlement, the widow will get a minimum of one third. I think this might discourage a man from parting with his property during his lifetime.
I do not know whether the Minister has considered that social aspect of the matter. It seems to me that if, upon the death of her husband, in addition to what the widow will get under the marriage settlement, she will be entitled to her one third share under his will, that would be a disincentive to a man settling property on his wife when they are getting married. I think it would be a disincentive, and for that reason I think that whatever about subsection (2), subsection (5) should be deleted, and that whatever the woman gets under a deed made after the passing of the Bill should be taken into consideration and set off pro tanto against the legal right share.
I think it would be a pity if the Minister did not delete subsection (5). As he pointed out in the course of the debate, people are very disinclined to put things in a formal way. It is very common for a farmer, whether or not there is a family, to put the profits of the farm in a deposit account in the joint names of himself and his wife. This is allowed to accumulate throughout their lifetime, and when he comes to make a will, he knows he has made good provision for his wife. He knows that when he dies, she will be able to get that money out easily without taking out what he describes as administration. When he comes to make his will, he will leave her right of residence and support in the home, and he will say: "She has the money now in her own name and if she gets on with the son, she will probably leave it to him. If she does not, or if she is very independent, she will go to live with one of the married daughters, if she feels so inclined." In many cases those deposits—even in the case of relatively small farms—run into a few thousand pounds. I think it would be a pity if that custom among Irish farmers of depositing the proceeds and profits of the farm in the joint names of themselves and their wives, as a token of respect, or as a mark of confidence, should die out.
In the case of a man running a business and carrying an overdraft pretty well to the limit, he feels that a large claim for estate duty will cripple him, so, during his lifetime, especially if he is in delicate health, if he has cancer or consumption, he will assign a substantial share of his estate to his wife, because the estate duty can be punitive, depending on the size of the estate. If, in addition, he is bound to will her one third or one half, as the case may be, that could create an injustice. As Senator O'Quigley pointed out, in most cases there are marriage settlements. Marriage settlements provide for two sets of circumstances: where there is a family and where there is no family. He is usually far more generous in providing for his wife where there is no family. If, in addition, the widow with no family is to get one half of the estate, I think that would make the provisions in these marriage settlements far more difficult, in that it would be far more difficult to get the man to be in a generous mood.
To get back to the purpose and the intention of this one-third share, it is to make sure that the surviving spouse is not left destitute, or not left without a reasonable amount of property. It seems to me that if section 115 is left as it is, in the future when a settlement is made and nothing is incorporated in the settlement to say that it excludes the one-third share, the surviving spouse will get the settlement and the one-third share. As the purpose of section 110 is merely to ensure that the widow is not left without anything, it seems to me that the onus in this case is to ensure that she does not get both, unless it is the intention of the testator that she should get both.
Consequently, I think there is some argument for saying this section should be allowed to continue in operation and that the testator should indicate, if he wants to, whether or not it is to be in addition to, or instead of, the one-third. Although I have no very strong views on this, I think, on balance, it is consistent with the approach to this matter that the section should remain in operation and should not be confined to arrangements made before the commencement of the Act.
We should look at the reality of what the situation will be after the passing of the Bill, and if we do that it is borne in upon us that there is no need for this particular section once this Bill becomes law. Even at the present time any well drawn marriage settlement contains a clause providing for relinquishing intestate rights. A well drawn marriage settlement—and in this connection I have seen a few well drawn ones— always makes this particular provision whereby a husband does A, B, C and D for his wife and in consideration for that she agrees to forfeit any right that might accrue to her under an intestacy. This section is merely designed to meet the case of what might be described as a badly drawn marriage settlement entered into heretofore that did not include any such provision and where, in view of the legal rights provision now coming in, people might be prejudiced, in particular the husband, in the event of not making allowance for the fact that a legal right would now accrue to his wife because of this Bill.
As far as future transactions of this kind are concerned, it is quite clear that it will be common knowledge among people and among the legal profession that a legal rights system is in operation. It will become a routine clause in any such settlement envisaged in the section, any marriage settlement or any settlement of any kind, whereby the donor or the testator during lifetime makes provision for his spouse. It will be routine in any such arrangement that if the spouse gets A, B, C, D and E under the arrangement she will also forfeit her legal right. That will be a matter of commonplace legal routine in every solicitor's office or in every case where counsel is advising on the drafting of such a deed. I do not see the need for the continuation of this section. The section would not be there at all only for particular cases brought to my attention and brought to the notice of my Department of people who would have been prejudiced unless we brought in this section. Deputy Costello in the Dáil also mentioned it. The section was not in the original Bill, but when the Bill became public knowledge last year these specific complaints came in. Deputy John Costello had a very strong case of definite victimisation unless this section was incorporated. The whole thinking behind this, and the reason it is there, is precisely to deal with particular cases which exist at the moment where arrangements were made without any contemplation of any legal rights system and the importing of a legal right at this stage would prejudice arrangements not made in contemplation of a legal right. As far as the future is concerned, it will be a routine commonplace legal operation to have a clause dealing with legal rights incorporated in every settlement between spouse and spouse.
I am prepared to agree with the Minister with regard to marriage settlements. A person who does not draw a marriage settlement properly will find that ignorance of the law is no excuse. But let us take the case of a man who wishes to put money into his wife's name, a man who has a joint deposit receipt or transfers money to his wife in his lifetime. When he comes in to make a will and is asked what provision he is making for his wife he says: "She can have a right of residence and support." Then you will ask him: "How much a week will you leave her in addition, or what further are you going to do for her?" He will say: "I have already made provision for that in transferring all the money in the bank to her long ago. She is much younger than I am." He does not in doing that consider any legal right claim that he is not going to give her before going to the bank manager. That is the point. Would an injustice be done to anybody by having that clause remain there all the time? I do not think there would.
The other point to consider would be, would an injustice be likely to be done in many cases if the clause was removed? I think there would be. I think it would happen very frequently in the case of certain marriages. One of the most delicate things I find you can approach between husband and wife is when you say: "I am giving you this in place of this", when it becomes a matter of bargaining. I would ask the Minister to be good enough to consider it. I would suggest to him that where the gift is given to the wife in their joint lifetimes for their marriage the onus should be on the wife to show that it is not in part or complete satisfaction if it is more than one third of her legal right share.
What Senator Nash is getting at is a separate matter which we have already dealt with on section 63, the doctrine of advancement, which is never applied, under any code, to wives. It does apply to children where provision is made for them that is regarded as being in lieu of any right after the death of the testator. I do not think it would be proper to extend the doctrine of advancement, which is what Senator Nash is suggesting, to wives. At the present time it does not extend in the case of intestacy or in any such cases as those mentioned by Senator Nash where provision is made in the manner outlined by him where the wife benefits from subsequent intestacy. The intestate share is in addition to the provision made for her. In effect, what the Senator is asking me to do is a separate matter. It is to include wives with children under section 63 under the doctrine of advancement. When you examine it home that is what he is asking here.
That is not what is in my mind. The doctrine of advancement is as follows: that if a person advances in his lifetime a certain amount of money say, £1,000, to a child, a descendant or a stranger, if by his will he bequeaths that £1,000 to a stranger the legacy under the will is deemed——
It only applies to children.
In this case the principle of advancement does not arise at all because by his will he has left less than a third share to his wife. He knows in his mind that he has made provision for his wife—either a deposit receipt or a farm that he has given her as the case may be. Because of that he is not making provision for her under the will. The doctrine of advancement does not apply in these circumstances, I would respectfully submit.
I would urge the Minister to reconsider it.
I shall have a look at it, but I think I shall come down for the intention of the section. Knowing the background, I think that what the Senators are getting at is not relevant to it. The whole thinking behind it is that it is in the nature of a transitory provision, to make provision for existing cases and, in particular, specific cases brought to my notice.
It is interesting that, not knowing the background, we have taken a different interpretation of it.
And it seemed a good provision.
Amendment, by leave, withdrawn.
Section 115 agreed to.
NEW SECTION.
I beg to move amendment No. 21 on behalf of Senator FitzGerald who is unfortunately not able to be here today.
Before section 116 to insert the following new section:—
116. (1) Where on application by or on behalf of an infant child of a testator the Court is of opinion that the testator has failed in his moral duty to make proper provision for the maintenance of the infant child during such child's infancy in accordance with his means, whether by his will or otherwise, the Court may order that such provision shall be made for the maintenance of the infant child during such child's infancy out of the net estate as the Court thinks just by way of lump sum payment or otherwise.
(2) The Court shall consider the application from the point of view of a prudent and just parent taking into account the position of each of the infant children of the testator and any other circumstances (including those specified in subsection (3) of this section) which the Court may consider of assistance in arriving at a decision that will be as fair as possible to the infant child to whom the application relates and to the other infant children.
(3) The Court in determining whether and in what way provision for maintenance ought to be made by an order shall have regard to the value and nature of the property representing the testator's net estate and shall not order any such provision for maintenance to be made as would necessitate charging or otherwise incumbrancing or realising all or part of the estate that would be improvident having regard to the interests of the person or persons who apart from the order would be entitled to the property.
(4) The order under this section shall not affect the legal right of a surviving spouse or if the surviving spouse is the mother or father of the infant child any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.
(5) `The testator's net estate' means all the property of which the testator had power to dispose of by will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, death duties payable out of his estate on his death and the value of the legal right of a surviving spouse or if the surviving spouse is the mother or father the value of any devise or bequest to the spouse or the value of any share to which the spouse is entitled on intestacy.
(6) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
(7) The costs in the proceedings shall be at the discretion of the court.
(8) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased's estate.
What he had in mind here is that under section 116 as it stands any child of the testator can come into court and say that his father did not treat him properly under the will and then the court may make what it considers proper provision for the child. Senator FitzGerald wishes to confine that to infant children, and that where an infant child has not been adequately provided for then the court should be empowered to order such provision for the maintenance of the infant child during his infancy out of the net estate as the court thinks proper.
In subsection (5) of his amendment, he defines the testator's net estate to mean what the testator has power to dispose of by will, leaving out what he has power to appoint. From that, you can drop the amount of his funeral, testamentary and administration expenses, debts and liabilities, and then, out of that, you make provision, also having regard to the legal right of the surviving spouse. I put this up for the consideration of the House on the basis, really, that what we are concerned with here are the dependants, what would be regarded as the legal dependants of a testator, the spouse and infant children, and that, having provided for them, that that is as far as the Legislature should go. I think there is a good deal to be said for not widening the category of children who may make applications to the court. It would be sufficient if it were made in the case of an infant child who had been, for one reason or another, not properly taken care of in the father's will.
I fear I could not agree with that. Perhaps my views are coloured by a case I came across two days ago of two sons on a farm who have worked probably at least 60 hours a week all their lifetime. One of them is now anxious to get married. The father does not see why he should get married and the father proposes to cut him off. That son has spent his whole working lifetime working there on the home farm. I think that that is rather an unfortunate state of affairs but it is the type of thing one meets more often than sometimes would appear. The section provides:
Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
The court must be satisfied that the parent has failed in his moral duty to the child. Whether the child is under 21 and is legally an infant, or over 21, the parent has a moral duty to provide for that child if that child had worked and slaved there until he was 35 years of age. The parent now objects to his taking unto himself a wife. I think that a grave moral injustice would be done to the child if that parent does not make reasonable provision for the child in his will. The child should be entitled to apply to the court to set out the circumstances and endeavour, if he can, to satisfy the court that the parent had failed in his moral duty. Unless he can do so, he gets nothing whatsoever.
May I say, moving this amendment on behalf of Senator FitzGerald for the purpose of keeping the issue open, I quite see a great deal in what Senator Nash has said. Indeed, I think Senator FitzGerald wanted to confine this amendment to infant children. I can see a great deal of merit in the section as it stands. I also think of the mentally or physically handicapped child who would have a call upon the charity and assets of his parent. Section 116 enables that particular type to go in. We have oftentimes seen the case of a child who had remained at home. We have oftentimes seen cases of girls who remain at home looking after a father or mother. But, then, there is a lad in England for whom the father has a great yen and he leaves the lot to him and he, in turn, sells the property and the poor girl is thrown out. With the permission of the House, I withdraw the amendment. Senator FitzGerald may have more cogent arguments to make on its behalf. I can see a great deal of merit in confining it to infants as being the legal dependents but the moral claims of adult children can be very strong.
Amendment, by leave, withdrawn.
Section 116 agreed to.
SECTION 117.
Question proposed: "That section 117 stand part of the Bill."
May I ask the Minister a question? I notice that the section refers only to purposes of legacy duty and succession duty. They do not really arise at all to any extent in the case of a widow or children. Is the Minister satisfied that the legal share, for the purpose of estate duty, if it is not accepted by the mother, is free of estate duty? Let us take a practical instance. A person dies who leaves a business, not a very big business, including debts due to him, at the present time worth £30,000. His widow's legal share is one-third, £10,000. She does not want her legal share because he has made provision for her otherwise and she does not opt to take it. There is estate duty payable on £30,000 which, at present rates, would approximate from £4,000 to £4,500, which makes quite a very big slice. Then, if the widow dies in 12 months, it would be most unfortunate if, not having opted for her legal share, estate duty would arise again. Perhaps estate duty does not arise, only succession duty?
I shall clarify that with the Revenue Commissioners between now and the Report Stage, but my reading at the moment is that estate duty would not apply where the legal right share was not opted for. Where it is opted for, estate duty would apply.
Under a marriage settlement, where the property is left to the husband and the wife and then to the wife for life, consider the position on the death of the first of them. Suppose it was held jointly. On the death of the first of the spouses, estate duty is payable and it is not payable on the death of the second. Is that not the position?
If property is left by a husband under a will to his wife and then to his children on her death, estate duty would be payable on the death of the husband but not on the death of the wife.
If she is given a life interest, estate duty is payable on her death also—subject to correction.
I thought not. It is the 1909 or 1910 Act that regards that as a settlement for the purposes of estate duty.
If a wife is given a right to residence in the house and support then, on her death, estate duty is payable.
Sin scéal eile. That is a different kind of situation. This is where it is for the wife for life and the children thereafter. That is regarded under the 1910 Act, in the same position as a marriage settlement because it almost follows the marriage settlement pattern. These are the only two cases where death duties are not payable on the death of the second spouse. It would appear to me from this that if the widow did not exercise her option——
Yes, if she did not exercise her option. I do not see that death duties will be payable in respect of her property on her death even if the husband had left the balance of the estate to the children. I imagine that, strictly speaking, it arises on the Finance Bill. However, I do think that the situation from the point of view of estate duty will be that where the widow gets a one third share, if she exercises the option but never realises her property or her interest, that share, upon her death, will certainly attract estate duty.
My interpretation of this is that it does not apply unless the option is exercised and then the appropriate share of estate duty is payable on that particular legal right share of the estate. However, in order to clarify the matter. I shall take it up with the Revenue Commissioners between now and Report Stage and possibly have some information for the Seanad on Report Stage.
Question put and agreed to.
SECTION 118.
Question proposed: "That section 118 stand part of the Bill".
I wonder would the Minister between now and Report Stage take counsel with the judges of the Circuit Court to ascertain whether, in fact, it would be physically impossible to hear these proceedings in the judge's room because I am quite satisfied from the file of a case I looked up that "in chambers" means "in a judge's room". It seems to me in a lot of cases, especially if you had the application under section 116, it would be quite intolerable in some of the judge's rooms around the country to have the proceedings heard "in chambers". They could last considerably more than half an hour which the Minister mentioned earlier. It seems to me we ought to provide that this be done in the absolute privacy of the court room, nobody being admitted except the people admitted in proceedings heard "in chambers". There should be provision that nobody else be present. I can see a physical difficulty and it would be extremely awkward if a judge had to sit in chambers which would not improve his disposition, that is if he had to sit in some of the chambers I know.
I shall clarify that. It may necessitate making some inquiries but I shall have a look at it anyway. My view of "in chambers" is the more flexible view put forward by Senator Nash.
Question put and agreed to.
SECTION 119.
Government amendment No. 22:
To delete subsection (1) and substitute the following subsection:
( ) A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other."
It is suggested that amendments Nos. 22, 23 and 24 might be discussed together with separate decisions if necessary.
This is really a drafting amendment and the net effect of it is to delete the term "feloniously". The reason for this is that I regard as Victorian the distinction between felonies and misdemeanours as it applies in present day circumstances. This amendment is designed inter alia to abolish that particular distinction.
I entirely agree. However, having said that, perhaps the Minister could doff his suit of armour which has been impenetrable up to now. We have passed Part IX and we are on to Part X. Perhaps he could adopt the note of sweet reasonableness which he had possibly up to Part IX of the Bill.
What I have in mind, in amendments Nos. 23 and 24, is the unfortunate kind of case where a person is killed through the negligent driving of a motor vehicle. If a person, before the Road Traffic Act, 1961, were killed as a result of the negligent driving of a motor vehicle, the driver of the motor vehicle was charged with manslaughter. That can still happen. For the purposes of establishing a charge of manslaughter by the negligent driving of a motor vehicle, there has to be a very high degree of negligence but that very high degree of negligence, in some cases, may amount to no more than driving while drunk. To drive while drunk is very negligent. It does seem to me that it could well happen that a father and son would be out for a day, when the father and son might be drinking. The father might say to the son: "Look, you go and drive", he thinking that the son was better able to drive, the son would drive and meet with an accident, as a result of which the father would be killed. In that kind of case, the son could well be convicted of manslaughter and it is the last thing the father would wish, whether he had died intestate or had died making provision for the son in his will, that the son would be completely disinherited.
Again, if a person were backing out a car and were sufficiently negligent as to knock down somebody, there could be a very high degree of negligence there. It could be a relation, say, a father or mother who might be killed. Again, that person could be convicted of manslaughter and it does not seem to me that the aggrieved person in that case would wish to disinherit the person concerned. The same situation could arise in relation to a husband and wife.
It is also provided in subsection (4) of section 119 that:
A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or on intestacy.
Section 53 (2) (a) of the Road Traffic Act of 1961 provides that:
a person who causes the death of another person by dangerous driving shall be liable on conviction on indictment to penal servitude for any term not exceeding five years.
So if a person were guilty of dangerous driving, say, the child of a deceased father or mother was guilty of dangerous driving causing the death of a person that child would be precluded from taking any share in the intestacy of the parent. It also provides that if a man were driving his wife, and she is a property owner and dies as a result of his negligent driving —if he were convicted under section 53 (2) (a) of the Road Traffic Act—he would be precluded from taking his legal right. It seems to me that that is the kind of thing the person killed would not have wished to happen. I have taken the view of a number of my colleagues in Law Library on this particular matter, especially upon Amendment No. 24, because some doubt might arise as to whether or not an offence under that section was an offence against the deceased, against the spouse or against any child of the deceased. The view is that a person found guilty of dangerous driving causing a death under section 53 would be precluded under subsection (4). I urge the House to accept the amendment to subsection (5). I do not want to say any more because I do not want to take up undue time. The Minister may be able to set my mind at rest on this matter.
I am against Senator O'Quigley's argument. Indeed the Government amendment goes some way to meet the apprehension expressed here on Second Reading by Senator O'Quigley and Senator FitzGerald in that section 119, subsection (1), could be interpreted to mean that dangerous driving causing a fatality which is now a statutory offence of killing by a motor car could be regarded as prohibiting a person from benefiting under a will by reason of its coming within the category of feloniously killing or attempting to kill. For that reason, we have deleted that definition and spelled it out that people who are now debarred from benefiting under the will are people guilty of murder, attempted murder or manslaughter. Murder and manslaughter are well settled here and in England as a result of court proceedings. It has been enunciated that people guilty of those offences are precluded automatically from benefiting under a will.
That has been public policy and is well settled by court decisions. The only apprehension here on Second Reading was that road traffic offences would come under the loose definition. I have amended the section to make sure that that section debarring people benefiting in that fashion applies only to murder, attempted murder or manslaughter. Dangerous driving causing a fatality is excluded and in that case the person can benefit under the will of the deceased. I agree that the same argument does not apply to subsection (4). That is another day's work. That subsection precludes "taking any share as a legal right or an intestacy".
Subsection (4) can be obviated by a disposition under a will. That difficulty is met in that fashion. If a person wants to benefit somebody who has been guilty of a serious road traffic offence, he can leave a bequest under his will even though the offender may be debarred under subsection (4). The main point is that whatever merits there may have been in this argument of Senator O'Quigley's prior to 1961 are largely gone since then. With regard to the statutory offence of dangerous driving causing death, I would say 99 per cent of road accidents causing death involve prosecutions under that section and they are not precluded from benefiting under the will. Prior to the 1961 Act, it was the practice to bring a charge of manslaughter in that particular case although, in very few cases, was an actual verdict of manslaughter returned. In practice, manslaughter does not now arise in road traffic accidents.
Prosecutions are brought on the basis of dangerous driving causing death for the very good reason that they can only be successful under that section of the Road Traffic Act. The sort of evidence required to prove manslaughter in the case of dangerous driving would have to be extremely strong—so bad that the person responsible would be precluded under section 119, subsection (1). The practice is that charges of manslaughter in road accident cases are largely dormant and for that reason we should follow the established practice which, for many years, both here and in Britain, was public policy in a series of court decisions. The people guilty of the three categories of crime, namely, murder, attempted murder or manslaughter cannot benefit under a will.
Is the Minister satisfied that under subsection (4) grievous bodily harm to a person is an offence against the deceased?
If that is an offence against a person, then if at any time the son of the family is convicted of dangerous driving causing grievous bodily harm, he is precluded from inheriting at any time under his father's estate. If that be an offence against a person, I am inclined to think that is the possible construction of it. I certainly would not like to gamble a lot of money in litigation on this.
It is the case, but I thought I drew the distinction between the sort of case envisaged by subsection (4) as against subsection (1). In that case I agree with Senator Nash that a person would be precluded from benefiting by way of a legal right or an intestacy, but there is nothing to prevent a will being made in his favour.
I agree. I can picture how a boy, coming home from a dance, perhaps with his brother and sister, may feel if they have an accident and the brother and sister suffer broken legs. The boy is prosecuted for dangerous driving causing grievous bodily harm. He comes up before the district justice. If he is convicted now, I should imagine he would be feeling very uncomfortable until such time as he could persuade his father to go to a solicitor and make a will. He would be guilty of an offence against a child of his father. Therefore, he would not be entitled to benefit under his father's intestacy and would not be entitled to his legal right share.
I do not think we should adopt that attitude. We had recently the position where the entitlement of a person who was charged with drunken driving was examined in relation to the Constitution. The case was made that a person charged with drunken driving had committed an offence which was a minor offence. The Supreme Court came to the conclusion that drunken driving was a minor offence and the person was not entitled to trial by jury.
Let us take the less grievous offence of dangerous driving, causing serious bodily harm. I regard that as a less grievous offence. A brother who has injured another brother coming from a dance may have been convicted and sentenced to three months imprisonment. It has always been well established in law that once you have been sent to prison and have served your time there, you are quits with society. You have purged your guilt, and you start with a clean sheet. If it happens that a young lad of 18 years of age injures his brother by driving dangerously, if his father dies intestate, he cannot—even in 20 years' time—benefit on the intestacy of his father, because there is no time limit within which the offence must have been committed prior to the death of the father. There is no provision that he has committed an offence within three years of the death of the father, or anything like that. There is no limitation.
Furthermore, the section would appear to suggest that it was an offence which merited a punishment of a maximum of at least two years. It does not say you have to be sentenced to two years. The section provides: "A person who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased... punishable by imprisonment for a maximum period of at least two years or by a more severe penalty..." A person may get a suspensory sentence of three months. The jury may find him guilty and recommend him to mercy. Perhaps his young brother had told him to hurry home as their father would be giving out if they were not in before 12 o'clock. In these circumstances, if the young brother were injured and if there were a recommendation to mercy by the jury, the judge, having heard counsel and the Garda, might give him a suspensory sentence. The section merely provides that the crime is punishable by imprisonment for a maximum of at least two years. If his father dies intestate, he then gets nothing. I do not think that is the kind of thing the House would agree with, and I think the Minister should have another look at it.
There can be a very variable content in this road traffic offence of dangerous driving, causing bodily harm. It can be an offence with a very high element of dangerous driving and comparatively small bodily harm. On the other hand, there may be very serious bodily harm with a comparatively small element of dangerous driving. What we are dealing with here is where it is an offence against the deceased, or a child of the deceased. I think in certain circumstances it could be unjust, and it could go further than possibly was originally intended in depriving a child of the deceased of his legal right share or his share in an intestacy. I think it is something which the Minister should look at again.
It may be that we are being a bit too drastic in this subsection. I shall have a look at it between now and Report Stage.
I am obliged to the Minister.
Is there any distinction between the wording in the amendment and the wording in the section. In the section it is: "a person who has been found guilty of an offence........." and in the amendment, it is: ".........has been guilty.........". Is there any significance in that?
It is a technical matter. I think it may be better to delete "found" and leave it as "guilty." You can be guilty without being found guilty, and the reverse.
A person can be guilty without being found guilty. What we are concerned with here is the person who is found guilty. It is a technical matter, but it is important.
Is the wording of the amendment not an improvement?
Undoubtedly it is, but Senator Cole is perturbed about the lack of the word "found."
There must be a conviction order in respect of murder, attempted murder or manslaughter.
I was wondering why the wording was different.
I shall have another look at it to see if "found guilty" pins it down more.
A person may be found guilty but still not be convicted. The Probation Act may be applied in special circumstances. The way I look at it is that everyone is innocent until proved guilty and therefore a person is not guilty until he is proved guilty. He is innocent until found guilty.
I shall look into it with a view to ascertaining which is the better terminology, "guilty" or "found guilty", to give expression to the intention which is to exclude from benefit anyone in respect of whom a conviction exists in regard to murder, attempted murder or manslaughter. That is the intention of the section and I will ascertain which terminology best gives effect to the intention.
Supposing a person was guilty of one of those crimes and has purged his offence. Suppose he got ten years, or whatever it might be. When he has served that sentence, he will have purged his offence. I think it is entirely unjust that a person who is sentenced to a certain term, undergoes that term, and purges his offence should suffer any further disability. That is my view.
In theory, one would be inclined to agree, but there is the very old principle that you cannot benefit by your own crime. In other words, the primary purpose is to prevent anyone from benefiting under the will of a person he murdered.
It is an old feudal concept.
It is to prevent a person from benefiting under the will of a person he murdered? That is different. I thought it was if he had been convicted of murder, attempted murder or manslaughter.
No, it is a preclusion form benefiting from the estate of the person against whom the offence was committed.
Amendment agreed to.
Amendments Nos. 23 and 24 not moved.
Question proposed: "That section 119, as amended, stand part of the Bill".
What I thought Senator Boland was trying to get at was the right of any person to forgive.
We are dealing with subsection (4) now in particular. I have agreed to look into that point. We may be a bit drastic in that respect and I shall look into it between now and the Report Stage.
On subsection 1, I am out of practice and not familiar with degrees of sanity but what is meant by a sane person and an insane person? If an epileptic attempts to murder his mother, as in one case I have heard of, is he then precluded after just this one instance, on the ground that he is insane? That is just one example.
That question is dealt with by the court and the verdict it gives. A person who is sane and guilty is found guilty. If the person is insane he is found guilty but insane.
That resolves that problem. Then there is the case of the person who is charged and unfit to plead. He does not come into either of these categories.
(Longford): But supposing the person was guilty but insane but was not judged to be insane, then Senator Cole is still right.
You have to have some finality.
(Longford): There is too much inflexibility in this matter. I am inclined to agree that you could still see a situation whereby a person would be insane or of unsound mind or disturbed at the time but the jury might not so award.
This question of what is legal insanity will have to be left to be decided on the facts in each particular case. It is a matter for the courts to decide. There is nothing we can do about it in a measure of this kind.
If a person is found guilty but insane he can then succeed?
If he recovers, if the doctor decides later that he has completely recovered, is he then precluded from succeeding?
In that set of circumstances I take it that he would be entitled to succeed, because the same person referred to in the subsection is a person who is sane and who feloniously kills when sane. The question is one of his sanity at the time of the commission of the crime.
There is a point there because a sane person who has been guilty of murder—once the doctor has decided that he is sane he becomes a sane person—has been guilty of murder.
The man has now recovered but he was insane at the time of the killing.
I will have a look at it. Perhaps it is a question of tighter definition. We all know what we mean by the amended subsection but it may be a question of tighter drafting on that point and the other point raised by Senator Cole.
It might be better to set out by reference to decrees or awards given. On the section generally I am wondering about this question of "guilty of desertion." Desertion is an extremely vague thing, and I wonder whether there is any way of defining it for the purpose of this section. It is going to be very difficult.
You could agree with the definition on which the courts act at the moment when a man or a woman takes proceedings against a spouse for desertion. There is a clear legal definition in these cases and that would be an acceptable definition.
Senator O'Quigley has anticipated me in this. The difficulty of defining desertion is fairly obvious. I think it is really a matter that should be left to the discretion of the court on the merits of each particular case. There is a certain number of court decisions on this matter, in Britain particularly.
Of course there is. I would not like to have that kind of case tried in a judge's chamber.
I think it is a matter that should be left to the discretion of the court.
There is another small point. Could we not get some general terms which could be put into the beginning of every statute to include adopted children? In practically every section of a Bill we see this thing "this includes adopted children". Now that everybody agrees that they are in exactly the same position, I think for all purposes, as ordinary children of the testator, in this case I think there should be some general clause.
Amend the Interpretation Act.
That is the purpose of it.
They have the same rights under the ordinary civil law.
It is necessary from the drafting point of view. The Interpretation Act, as it now stands, does not deal with the matter. It is a question of amending that Act.
The sooner that Act is amended the better, because the intention was that they should have exactly the same right as an ordinary citizen. If the Interpretation Act interferes with that the Act should be amended. It is not good enough.
There is no doubt that we do acknowledge the principle that Senator Boland has stated, but we have to have this clumsy method of bringing it into every Bill.
We should get rid of that.
Question put and agreed to.
SECTION 120.
I move amendment No. 25.
In subsection (7) to add a new paragraph as follows:
"( ) if the disposition was made on the marriage of a child of the disponer and the disponer has by the disposition or otherwise made adequate provision in life for the spouse."
What we are trying to achieve in section 120 is to prevent a man during his lifetime from disposing of his property in such a way that it would reduce the legal right share or the share to which his spouse would be entitled on his intestacy. We intend to have the person apply to the court and empower the court to make certain orders, providing the order shall not be made affecting a disposition made in favour of any child of the deceased if the spouse was dead at the date of the disposition, or if the spouse was alive and agreed to it, or if the spouse was alive when the disposition was made and gave her consent in writing. It seems to me that if this section stands it will be extremely difficult in a lot of cases in rural Ireland where people are encouraged to get married by making a marriage settlement. That would be impossible because of this section, because if a man were to settle his property on his son and his intended wife for their joint lives with rights of residence, support, clothing and maintenance reserved in favour of himself and his spouse that settlement will fall under section 120, because that undoubtedly would prevent a widow. He would have disposed of all his property within three years, assuming a man dies within three years of making it, and that settlement would have to be broken up in order to give the widow her legal right share. My experience is that a great many of the occasions upon which a farmer in rural Ireland, in his lifetime, gets rid of his property is when he wants to get the old age pension or to hand over his property to his son or daughter when he or she is getting married.
As this section stands, as I understand it, if a man makes a deed giving the property to his son and settling it on the son and on his intended wife, or his wife, reserving rights of support, clothing and maintenance for himself and his wife, and, if he dies within three years of making that, then that settlement is gone. It seems to me that it provides no guarantee whatever for any man intending to get married or girl who wants to marry the man who is getting that kind of settlement. Furthermore, it seems to me that if this kind of settlement were made, it is liable, for three years after it has been made, to crack up if the settler dies.
For a period of three years from the date of making the settlement, that young man is tied hand and foot and cannot get any loan to renovate the house or for machinery, and so on. He will get nothing from the Agricultural Credit Corporation or anybody else because they will say to him: "Until three years have passed, we do not know whether or not you are the owner of the land. It all depends on whether or not your father lives." Therefore, I want to exclude, by this amendment, that an order shall not be made under the section if the disposition was made on the marriage of the child of the disponer. I would limit it to the marriage of a child by a disponer and the disponer has, by the disposition or otherwise, made adequate provision for life for the spouse. It is not always a child of the disponer who is involved, as he may have no children—it may be a nephew, for example. If the man himself were content to have rights of support, clothing and maintenance under the deed for his own life and made a similar provision for his wife during her lifetime, then that kind of a settlement should not be capable of being broken in the event of the father dying within three years. I think I am right in saying that if the father dies within three years, that settlement can be set aside.
I think that the addition of that amendment would possibly throw the gravest doubts upon the whole section because then the whole section might be construed that every disposition other than coming within the suggested amendment, that is, every disposition other than a disposition of marriage, to a child made within three years before death would be deemed to be void. The section is quite clear. Subsection (2) says:
If the court is satisfied that a disposition to which this section applies was made for the purpose of defeating or substantially diminishing the share of the disponer's spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for, then, whether the disponer died testate or intestate, the court may order that the disposition shall, in whole or in part, be deemed, for the purposes of Parts VI and IX, to be a devise or bequest made by him by will and to form part of his estate, and to have had no other effect.
It must be made for the purpose of defeating or substantially diminishing the share of the surviving spouse or the child who is not provided for. If it is made for marriage or any other purpose, the deed is valid and sound.
There are many circumstances to which the arguments of Senator O'Quigley might possibly be said to apply. If a man makes over a property for the purpose of defeating his creditors, that deed also is void. Therefore, you may say, if his son goes into the bank and produces the deed to the bank as security, the bank manager would be entitled to say to him: "I want to be satisfied that your father did not make over the farm for the purpose of defeating creditors." He would have as much authority to say that as the manager who might say to a farmer's son: "I want to be satisfied that your father did not transfer this to you on marriage for the purpose of defeating your mother, brothers or sisters." I do not think that situation should arise.
It would be a pity to include Senator O'Quigley's amendment because I fear the courts, when they came to consider it, would say to themselves "It is only in cases of that kind, where a son is getting married, that we will allow a disposition within three years before death to stand."
Senator Nash has correctly interpreted the section. Before upsetting a disposition, the court must be satisfied that the arrangement, entered into within three years of death, was made for the purpose of defeating or substantially diminishing the share of the disponer's spouse, However, by way of exemption from that, we have the provisions of subsection (7), which reads:
An order shall not be made under this section affecting a disposition made in favour of any child of the disponer, if—
(a) the spouse of the disponer was dead when the disposition was made, or
(b) the spouse was alive when the disposition was made but was a person who, if the disponer had then died, would have been precluded under any of the provisions of section 119 from taking a share in his estate, or
the spouse was alive when the disposition was made and gave her consent in writing to it.
In particular, I am very glad we have paragraph (c) of subsection (7), which sets out that exempted from the provisions of the section we have any arrangement or deed or disposition made by the spouse right up to the day of his death, provided his wife gives her consent in writing to it: this was not in the original Bill. I, personally, was very keen on getting it in because the purpose of paragraph (c) is precisely to make provision for the sort of arrangement which one likes to see in any part of the country, particularly in the rural areas, where a father and mother living together, with, as is often the case, a son who has remained on the land, in order to obtain the old age pension or, at any rate, due to advancing years and in order to bring a younger family into the house, agree to transfer the property to their son. As the Bill stood originally, that particular arrangement might be frustrated. We now have it spelled out here that that particular type of arrangement is exempted from the provisions of section 120, so that a man, with the consent of his wife, can transfer by deed to a son of his choice, right up to the day of his death, and the legal rights enshrined in this Bill do not affect such transaction. I think that meets any possible case that could be made under this heading.
At first, when the Bill was originally published, the National Farmers Association raised objection to this aspect. They were fully satisfied when I mentioned that this exemption could be provided for within the framework of this section. The only requirement is that the father must have the consent of his wife to the transaction. That is a fairly reasonable requirement. If he did not get his wife's consent to it, then you are driving a complete coach and four through the whole Bill. I think it is eminently reasonable that the husband, with the consent of his wife, can make whatever arrangement or deed of settlement he wishes, right up to the day of his death, and that that particular arrangement is exempted from the provisions of the Bill.
I do not see any advantage in Senator O'Quigley's amendment. Indeed, the object of his amendment can be achieved under the provision I have just mentioned, paragraph (c) of subsection (7) of section 120, providing consent is given. The only difference appears to be this insistence on consent. But if you do not have the consent of the other spouse—the wife, in most situations—the whole exercise contained in the Bill is fruitless. If, right up to the day of his death, a father can make any arrangement he wishes, irrespective of his spouse, obviously there is a massive loophole in the Bill. She must agree, in other words, to the arrangement, but the arrangement can be, as the father wishes, for one or any of the sons. He can make whatever arrangement seems to him to be for the greatest benefit of the farm, business or property: he can make that arrangement by deed right up to the day of his death for one or other of his sons. The case I have in mind is that of the son who remains on the farm, where the parents reach the age of 70 and wishing to get the old age pension give the property to him. This section will allow that arrangement to continue. The son can obtain the property, bring in a wife, rear a family and develop the farm, property or business. I think the situation is fully met by the provision there. For that reason, I think Senator O'Quigley's suggestion is largely superfluous.
I should like to make one final point on this amendment. I do not agree with Senator Nash at all when he talks about this limitation of subsection (2). The Senator is well aware that the thought of man is not triable. The devil himself knoweth not the thought of man. How is anybody to know what was in the mind of a man who is dead and whether or not he made this for the purpose of defeating or substantially diminishing the share of his spouse or children in his estate? If it can be proved that he intended to diminish the share, nearly every disposition would be captured.
Senator Nash also refers to the position with regard to defeating creditors. All the dispositions I have ever known for the purpose of defeating creditors were voluntary transactions. That is why Senator Nash in the course of his practice on the acquisition of title, asks: "Has there been any voluntary settlement"; in other words, is there any voluntary settlement on the title? Of course, banks when advancing loans look at the title to see if there is any voluntary settlement on it. If Senator Nash thought the provisions of subsection (2) were being limited in any way, it is very easy to remedy that by putting into subsection (7) that the provisions of subsection (2) must be met. That would preserve subsection (2) in its entirety. The Minister has said that once the spouse joins in that, then the deed is good. That is not so. Suppose there is not another spouse at all, suppose the spouse is dead——
That is excepted in subsection (7).
There is no provision in this particular section. Subsection (2) provides that:
If the court is satisfied that a disposition to which this section applies was made for the purpose of defeating or substantially diminishing the share of the disponer's spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for,
Does subsection (7) (a) not meet the point?
It does not because there is nothing in subsection (7) (a) to enable a child to inherit. Take the case of the family where there might be a healthy brother and a brother who is not so strong. If the father were settling the property and left a right of residence, of support, clothing and maintenance for the delicate brother, it seems to me that brother might say: "Look, I want my one third share, or whatever it is, on my father's intestacy". He is entitled to go along and upset the deed, that is, if the father dies within three years.
Remember we had here the other day the Labourers Bill in relation to a sore thumb of a small property which was a blot on the title. There were 22 million dollars at stake but the bank would not advance a halfpenny because this small property was involved in the title of the mining company. Banks will not lend money if there is any question of a farm being settled by a deed which may be broken within three years. As I have said, we had an example of it on the Labourers Bill. They had all the security in the world but, because there was a small property—which could be bought up for a few thousand pounds—involved, the bank would not advance anything. Banks will not lend money on the security of a deed three years after it has been made because of the contingency that a child involved could come along afterwards, under section 116, and say: "I was not provided for properly by my father". I think the Minister might well have a look at that to see that there is some provision made. It might include the hypothetical case I have given where one child might want all the settled property of another child, where the spouse is dead. The surviving child has an equal opportunity of going into court to question the validity of that deed within three years of its being made.
Surely Senator O'Quigley will agree that when a man makes over his farm to his son on his marriage, no court would reasonably assume that this was made for the purpose of defrauding another child. He is presumed to act honestly; at least, I think that is presumed until the contrary is proved. The deed would set out "in consideration of the natural love and affection I hold for my son, on his marriage, I am making out my property to him". If the father is dead, it would be absolutely impossible to prove anything else.
I thought I had made this clear when speaking earlier. Subsection (7) of section 120 specifically exempts any family settlements from the provisions of the section. Subsection (7) of section 120 says:
An order shall not be made under this section affecting a disposition made in favour of any child of the disponer, if—
(a) the spouse of the disponer was dead when the disposition was made, or
(b) the spouse was alive when the disposition was made but was a person who, if the disponer had then died, would have been precluded under any of the provisions of section 119 from taking a share in his estate, or
(c) the spouse was alive when the disposition was made and gave her consent in writing to it.
"If the spouse of the disponer"—in other words, if the spouse is dead, the father—assuming his wife is dead—can make any settlement he wishes for his children and there can be no question of that. In the other case I mentioned earlier, if the spouse is alive, a disposition by way of marriage settlement is made with her consent. In subsection (7) there are specific provisions which cater for the cases which worry Senator O'Quigley and which would concern us all if they were not provided for.
In the cases of family settlement where parents might decide in their wisdom to settle property on a particular daughter or son of their choice, who perhaps is contemplating marriage and settling down, that sort of desirable arrangement, from the social point of view, is exempted from the provisions of this section. Moreover, the provisions of section 116 cannot affect the transaction.
Even where there are other infant children who would clearly have got the benefit of section 116.
I agree it could be argued that way, when there is a certain preference given to some individual children. I was strongly impressed by the arguments of the NFA in this respect, and from my own experience in rural areas, I thought we should spell it out that way. I thought we should try to encourage that sort of transfer of property to younger sons.
There is just one small matter of drafting. In paragraph (c), subsection (7), we use "her" and we use "him" through the rest of the Bill.
We switch that around. Any court would interpret "her" for "him" and "him" for "her".
I know but is it not slovenly? Would the Minister not amend it on Report Stage and put in "him" instead of "her"?
Amendment, by leave, withdrawn.
Section 120 agreed to.
Sections 121 and 122 agreed to.
SECTION 123.
Question proposed: "That section 123 stand part of the Bill."
There is one point I want to make on this. The change here is to enable title to be given more easily in certain circumstances. So far as it goes that is a worthy objective but I wonder whether it is necessary to include the words "comprised in the estate of the deceased person" because it seems to me, to some extent, to frustrate the object of the section. It may in some cases be argued that in certain circumstances the property in question does not come within the definition of comprising the estate of the deceased person. I do not wish to press the point but the Minister might consider whether he would more fully achieve the object, as I believe it is the object of this section, by leaving out those words altogether.
I shall look into that between now and Report Stage.
Question put and agreed to.
SECTION 124.
There are three amendments to the section which are cognate. We will have one discussion with separate decisions, if necessary.
I move amendment No. 26:
In subsection (1), lines 18 and 19 to delete "as between themselves and".
The position in law at present time is that where a man dies intestate and leaves, let us say, six children the six children would take one sixth share each as tenants in common. If four of the children are out of the lands and two of them remain on, at the end of twelve years the shares of the four children out of the lands are barred by the statutory limitations and the two who have remained on acquire the shares as joint tenants.
The position then is after 12 years the two who have remained on have each one sixth as tenants in common and four sixths as joint tenants. It is proposed in this Bill to change that situation. What happens is that if one of them dies the four sixths goes to the survivor so he then becomes entitled to five sixths and his one sixth becomes distributable to whoever is his next of kin or he could leave it by will to his brother. The intention of the section, as I understand it, is to provide upon intestacy that the shares would be held as joint tenants from the beginning.
The intention is that those who enter into possession will acquire as joint tenants.
If that is so, the shares of those who were out of possession will be held as joint tenants so on the death of any one of them there would be this accretion of shares to those who remained on the land. The Smith v. Savage decision referred to in the side note, provided that the shares of the four children who are out of possession would be held by the other two as joint tenants. This was very wise but what is proposed in this Bill will, in my opinion, cause great hardship in particular cases. It may be that there are so many facets to this kind of thing that it is not easy for either one set of advisers or the Minister to have them all in their minds at the one time.
It is not uncommon in this country for a man to die leaving, let us say, six children, two sons remaining at home. One of them marries and settles down there. They live happily ever after with the uncle in the place. The brother with the wife will have young children growing up. If at the date of the marriage they were acquiring shares, and eventually, when 12 years had elapsed, each of them held one sixth share as tenants in common and four sixths as joint tenants. If the married brother dies, under the provisions of this section, his wife and family are out. They do not hold a single thing in the property because it is intended that the one sixth held up to now as tenants in common will be held as joint tenancy with the bachelor brother. The bachelor brother will own the entire farm and the widow and family, as I understand the effect of this section, will not own a single thing on the farm.
He will have to marry the widow.
He will have to get a dispensation for that purpose and that might not be forthcoming.
It does not promote very good relations between the brothers during their lifetime. It seems to me that that will happen. If it does I do not know what the widow and children will do because they will not own anything on the land. It may be that I have misinterpreted the section but I have taken counsel with my learned colleagues regarding this kind of thing and that is the view. That is a situation which I am sure everybody would agree should not be allowed to arise.
If the situation is as Senator O'Quigley suggests, I agree it is not very desirable. I believe the purpose of this section is to avoid fragmentation and to tidy up estates. I know tidying up has a fatal fascination in Civil Service circles and elsewhere, but whether or not it has a desirable effect in that respect, it may lead to considerable injustice. What I am not clear about is whether this is, in fact, the effect of the section. I am not clear what the section means or what it is intended to mean. There are a number of things about the section about which I am not very happy.
In the first place there is a small point which I question, that is, the phraseology "...enter into possession of the land ..." I think that is an unhappy way of putting it because in most cases such as this, it will be a question of the father, or the testator, or the intestate, dying and the family remaining on the land. It is not so much a question of those who enter into possession on the land and those who do not, but those who remain on the land and those who do not. It is a small point, but I mention it as something that could possibly be drafted a little more suitably.
The second point I want to make is a very important one. It is not clear whether this section applies only in the case of intestacies. I am not clear whether that is the intention. If it is the intention it appears to me that it is not clear from the section which provides: "Where each of two or more persons is entitled to any share in land..." They could be entitled as a result of a will. This interpretation could possibly be arrived at. If it is not the intention of the Minister to apply it in the case of a will, then I think it should be made clear that that is the position.
Of course, if it is intended to apply it not only in the case of intestacy but on land which would come down by will, I regard that as an unwarranted interference with the wishes of the testator. The point which I really find difficult to understand about this section——
Acting Chairman
May I interrupt the Senator? Do I take it that the section and the amendments are being discussed at the same time?
You cannot discuss the amendments without discussing the section.
Acting Chairman
We are all anxious to get home.
It would be more convenient. The section contains the phrase, "for the purposes of the Statute of Limitations" and it says: "Where each of two or more persons is entitled to any share in land comprised in the estate of a deceased person, whether such shares are equal or unequal, and any or all of them enter into possession of the land...." Let us assume for a moment that all of them enter into possession of the land, or remain in possession of the land as I would rather say. The section continues: "... those who enter shall (as between themselves and as between themselves and those (if any) who do not enter) be deemed, for the purposes of the Statute of Limitations, 1957, to have entered and to acquire title by possession as joint tenants (and not as tenants in common)...."
I cannot see where the Statute of Limitations arises in the case of people who enter into possession and remain in possession as tenants in common. Obviously the Statute would arise where some of the people leave. It would naturally arise in their case, but in the case of people who enter into possession and remain in possession I do not see how the Statute of Limitations will arise. Consequently, I do not see the circumstances in which they will change from being tenants in common to joint tenants. I should like to hear from the Minister where the Statute of Limitations will arise, and in what way those people who are entitled to land on intestacy, and entitled as tenants in common, become joint tenants.
This is a matter on which I feel very strongly. I regard sections 124 and 125, taken together, as two of the most important sections in the Bill. First of all, I should like to say that, from my own personal experience, tenancies in common are most unsuitable to our circumstances. They undoubtedly lead to fragmentation, confusion of title, and chaos generally. As the law stands at present, when people remain on in adverse possession of property, that is, for example, following an intestacy, where no one takes out administration, or where there is a will and no one takes out probate, if there are two sons who remain in possession, they take their shares as tenants in common. If there are four other children who have gone away to England, after 12 years the first two who remained at home acquire the shares of the other four as joint tenants, so you have two kinds of tenancies risiding in this farm.
At present if one of the two sons gets married and the other stays on, on the death of the married son, his share goes to his wife. His share becomes part of the whole estate, and the wife and children come in as tenants in common. The brother who remains on is a joint tenant, in respect of the shares of the people who went away. That is a completely confusing situation, and I do not expect nonlegal Senators to grasp it. That is the situation which is continuing in estates throughout the country at the moment. Unfortunately, Ireland is an emigrant country, particularly from the rural areas, so the situation I have outlined involves the title of practically every farm in the country. The shares of the people who go away exist for twelve years after the death of the father, and are then acquired by the people who stayed at home, as joint tenants. That confusing situation is at the back of most of the bad titles on the land in this country.
The National Farmers Association were very strong in their representations against it, and so, indeed, were the legal profession. Members of the Incorporated Law Society visited me and the sort of situation I have outlined was mentioned particularly by country solicitors. It is a bad situation because it gives rise to bad and confused titles and to holdings on which no credit can be raised. A more rational thing to do is to abolish tenancies in common in this context. That is what is suggested in section 124.
Section 125 reduces the period of adverse possession from twelve years to six. This is a very important and progressive step in my opinion. When the father dies, if he has made a will which is not proved, or if he has not made a will at all and there is no administration taken out, the two sons who remain on the farm acquire it as joint tenants. It is as simple as that. The survivor gets the lot. In the case mentioned by Senator O'Quigley of the married son with a wife and family, hardship in that case can be obviated by having the estate administered. That deals with the situation. That is a very elementary thing to do. I am certain that a man and a wife in a responsible position would see that administration would be taken out in that case.
Might I ask how taking out administration will obviate the situation I have in mind?
If the married son, before the statutory period expires, takes out administation, then he becomes entitled to his share of the estate and his wife as well. Senator E. Ryan raised the point as to whether this applied in the case of wills. It applies in cases of unproven wills as well as in the case of intestacy. He also seemed to query whether this came within the scope of the Statute of Limitations. It does. In this connection, sections 124 and 125 must be read together. We have had since 1891 under the Registration of Title Act a very simplified form of title making in this country. Section 52 of that Act provides, in effect, that where, for example, the son of the house has remained on in the property for 12 years after an intestacy or a will which has been unproved, he can go to the court to have himself registered as full owner of the land if he proves that all others have been out of possession. He gets a court order to that effect and has a freehold title.
We are improving on that situation by abolishing the tenancies in common which in many cases would prevent him from securing title, and we are also reducing the period to six years, so that anybody who has not been on the premises for six years after the death of the owner is out, on the basis of an application which can be taken to the court. You will have as a result of the combined working of these two sections a form of making title simply and effectively to land. You will have a single form of tenancy in regard to adverse possession, joint tenancy, and a scheme whereby the person remaining on after six years can succeed in a court application in getting an absolute freehold title to the land which will enable him to go ahead, develop it and finance it.
The situation is becoming somewhat more confused rather than clearer. I understood the Minister last night to speak in a resounding way against a suggestion I had made that this floating right to a legal share would inhibit a man from obtaining credit in the bank. The Minister assured us that he had spoken to the Registrar of Title for the Land Registry and that the Registrar had assured him that there was no difficulty whatever in cases of intestacy at the present time. The person who was there in possession was registered as full owner and provision was made otherwise in the folio for the shares of the next of kin who were out of possession.
These are people who had got registered.
What the Minister was talking about last night was the case of a person who wanted to get registered as owner but there were still estates outstanding in some of the next of kin. He assured the House that the Registrar of Title had assured him that it had been the invariable practice over the years that that person could get registered as full owner and obtain an estate in fee simple subject to the outstanding shares of the next of kin. If that be the case, then the reason for this amendment to section 124 does not seem to be as great. It abolishes one of the reasons the Minister gives that it is impossible now to make title and that it inhibits people from doing a lot of things. If the position is as the Minister stated last night then section 124 has no justification.
I do not want to be taken as delivering a lecture to the Minister on the niceties of the law in regard to this matter but I do not think the Minister —I do not say mala fide—has correctly stated the legal position. What Senator E. Ryan asked was, does this section affect the position of two persons where the father dies and leaves two sons the farm, or, indeed, the business, as tenants in common in equal shares? Senator E. Ryan says that this section affected that. The Minister says that this would deal with cases of unproven wills. It had not occurred to me until Senator E. Ryan raised it that this section affects persons who are entitled to any land in the estate comprised in the estate of a deceased person. A testator is a deceased person. It seems to me that if the father decides that they should hold as tenants in common with equal shares, whatever may have been in the will section 124 would apply to that condition of affairs, and that the boys will not own a half share each as tenants in common but they will own as joint tenants and if one dies the other would inherit the lot. That is the first point.
The second point is that there is not any great difficulty at the present time in making title to land under section 52 of the Registration of Title Act, 1891 by application to the court. I do not quite follow the Minister when he speaks about the injustice that is going to be done to one or two people who are acquiring as joint tenants, that that injustice can be overcome by taking out administration. I do not know what he means by that at all. With every respect, taking out administration will have nothing to do with it.
It has everything to do with it.
If the father dies intestate and the elder brother applies for and obtains a grant of administration and it is left like that and nothing more is done, I do not know where administration comes into it. If there were only two of them there they would be entitled to the land as tenants in common in equal shares. Taking out administration has no effect upon the position. Taking out administration is the machinery by which they can get themselves registered and establish that they are entitled to be registered. It does not seem to me to remedy the situation.
Section 124 only arises for the purpose of the Statute of Limitations.
Again, the Statute of Limitations has nothing to do with it.
That is what it is all about.
What we are saying here is that even as between these two people who take on the death of the deceased person they will not be entitled to hold land as tenants in common. I readily agree that where you are acquiring title against people who are out of possession—I might refer to my original case of the four children who are abroad—it is right and proper that these shares should be acquired by both of them as joint tenants, and it could not be otherwise, because you have the two brothers at home owning one sixth each working the farm and they could not acquire otherwise than as joint tenants. For the purpose of the Statute of Limitations that is all right. It seems to me that under the section as worded, from the moment of intestacy those who enter on the land who have two one sixth shares each begin to acquire as joint tenants. In other words, the idea of tenancy in common upon intestacy is abolished for all time. and in future, upon the death of the father of the six children, the six children take as joint tenants. That, to me, is a most radical departure and one which has no justification. If you revert to my case of the married son and the bachelor brother, the married person and the other, it would be a gross injustice to say that this section, as soon as it comes into operation, will affect all that kind of situation. Where the two have been working there—one of them has one sixth share—as tenants in common and quite prepared to leave the position as it is, the unmarried brother gets the lot to the exclusion of the wife and family. I do not see how this House could possibly support that kind of unjust provision. May I say in conclusion that that is only one of the things that one can foresee but there will be numerous other cases that we have never thought of that will arise.
As somebody who does not know much about the law, may I say that when I was listening to the debate yesterday it did not seem to have any connection with this whole lot of talk about the part being greater than the whole. When the Minister told me that it was a question between the son and the mother, about one third of the property, the legal right share, that is all that came into the question yesterday. A question like this did not arise.
The question of capacity to mortgage and obtain money did.
As I understand Part VI, that is, distribution on intestacy, it is intended that those who take take as tenants in common. This section seems to be an attempt to qualify or change this in some way. I do not know whether that is the intention but, certainly, on one interpretation of this section, that would seem to be the effect of the section. It would seem that in drafting the section there was some confusion about exactly how title was being acquired because it suggests that for the purpose of the Statute of Limitations those who enter acquire title by possession but those who are entitled to a share in land on intestacy do not acquire title by possession; they acquire title by being entitled under the distribution on intestacy. That is their title.
It is not title by possession. They do no have to acquire title by possession. Take the case of people who remain on the land, who never left it. We will assume for a moment—and this situation is envisaged by the section—they all remain on the land. Then it appears in some way that those who remain on the land, who were entitled to a share in land on intestacy, were entitled on intestacy as tenants in common, are in some way going to become joint tenants and the way is that their title is in some way supposed to be a title by possession and in some way dependent on the Statute of Limitations. I do not think that in the case of all those who remain on title by possession ever arises or the Statute of Limitations ever arises and I think this is going to cause terrible trouble.
I must say that this section and the following section were two of the sections—both in regard to representations which I met and which were made in great detail to me by organisations such as the Bar Association and the Incorporated Law Society and in regard to contributions in the Dáil—that were generally welcomed and welcomed in the House at all stages of the various discussions on this and the previous Bill.
Both in regard to the intention and the actuality in the two sections. First of all, to clear our minds on this matter, it applies where two or more persons are entitled to a share in the estate of a deceased person, either under a will or on intestacy, whether such shares are equal or unequal. The persons so entitled remain on in possession. For the purposes of the adverse possession that they remain on in, that is, for the purposes of the Statute of Limitations, and only for that purpose, they acquire, at the end of six years, a joint tenancy in the estate. If they seek, prior to the expiry of the limitation period of six years, to be registered as owners, they can get themselves registered as tenants in common. If they take out representation, they can administer the estate and allocate the shares to themselves. What this seeks to do—and it is highly desirable—is to provide that, where people, without doing any of these things, without going in to get themselves registered, without proving the will, without administering the estate, remain on in adverse possession, then, for the purposes of the Statute of Limitations, and for no other purpose, they shall acquire as joint tenants; and that simply means that the survivor will get the land. That would appear to be a highly desirable situation. That is all that is meant by sections 24 and 25, taken together.
At the present time, instead of acquiring as joint tenants, they acquire as tenants in common in respect of their own shares and as joint tenants against the other people who are also entitled to shares in the estate of the deceased person. The result has been to complicate titles all over the country and it has led to two types of tenancy in the same property, two types of tenancy devolving in different fashion.
This proposal is in accordance with public policy, in accordance with the provisions set out in the Land Act, and to anybody who thinks about the social situation, particularly in rural Ireland, it would appear to be the logical and sensible way to go about it. That is the spirit of the section and, in so far as I understand plain English, it appears to be what is written there as well.
I am beginning to see the light but I do not think the Minister made it clear until now.
That is what I have been saying for the past half-hour.
When the Minister reads the record he will see that he has made it much clearer now than he made it before. As I understand the position, briefly, it is that this section is intended to apply to cases where people either do not take out a grant or do not prove a will.
This section will only apply to people on land who either do not take out a grant or do not prove a will?
Of course, yes; that is inherent in the whole of this Part of the Bill.
That is an entirely different thing from what we have been saying.
As far as you can read English.
There are others who read it differently.
(Longford): I do not want to go into the complexities.
At this stage I would ask leave to withdraw my amendment.
(Longford): The Minister referred to the abolition of common tenancies. I want the Minister to clarify this for me and possibly for others. Does that prevent a situation whereby a person can create under a will a common tenancy? I could envisage this sort of situation: a man retiring from business leaves the business to his son. He may have one daughter. He may have a house near a town or village.
Acting Chairman
This section deals only with land. I am afraid the Senator's remarks are out of order.
(Longford): This man owns a farm of land and he leaves it to his son but should the son die without legal issue he could will it to his daughter. Suppose the daughter predeceased the son then such a testator could provide that it would devolve into a tenancy in common to the issue of the daughter. Is that sort of provision being prevented?
No. We are only abolishing tenancies in common in so far as they relate to adverse possession —where people remain on the land in the circumstances I mentioned. Of course, tenancies in common can still be created by will or as a result of administration.
Amendment, by leave, withdrawn.
Amendments Nos. 27 and 28 not moved.
Section 124 agreed to.
SECTION 125.
Question proposed: "That section 125 stand part of the Bill".
This is a most useful and valuable section.
Question put and agreed to.
Sections 126 to 130, inclusive, agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill".
When dealing with an earlier section I asked the Minister why he did not incorporate the bankruptcy rules and I understood him to say there were 300 such rules. However, on looking at the transcript of the debate later I found that I referred to 300 sections. I thought there were only 10 or 12 rules in relation to priorities in which property is attached for the purpose of insolvent estates. I think, in fact, that they number only 10 or 12. I would ask the Minister to have a look at this again and see if it could not be put into the Schedule. When we are having such a comprehensive code we should try to incorporate the 10 or 12 rules in the Schedule.
Question put and agreed to.
SECOND SCHEDULE.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill".
I should like to mention that, in connection with something which I shall be putting into the Bill for Report Stage, I may find it necessary to suggest additions to the list of repeals in this Schedule.
Question put and agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 24th November, 1965.
The Seanad adjourned at 7 p.m. until 3 p.m. on Wednesday, 10th November, 1965.
