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Seanad Éireann díospóireacht -
Wednesday, 9 Nov 2005

Vol. 181 No. 15

Registration of Wills Bill 2005: Second Stage.

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

I welcome the Minister of State at the Department of Health and Children, Deputy Seán Power, to the House. I also welcome the Registration of Wills Bill 2005 to the Seanad. Today we are making history by taking a Private Members' Bill introduced by a Government Member of the House. As a Minister of State, I brought some Bills through this House but they were provided by the Civil Service, they were never Private Members' Bills. This is historic and sets a precedent for legislation.

I place on record my appreciation to the Leader of the House, Senator O'Rourke, the Chief Whip, Senator Moylan, our spokespersons, Senators Glynn and Feeney, and every other Fianna Fáil Senator for the overwhelming support and encouragement they have given this Bill. I also thank the Opposition and Independent Senators for their support. The Bill is of universal importance, it is not a party political issue and will benefit the majority of people. I am confident it will be agreed and will proceed to Committee and Remaining Stages.

It has come to my attention that many people have been deprived of their rightful inheritance by the lack of a will or the inability to find the will of a family member. They have been done a great disservice by the State and this Bill is the only way to rectify the situation. When I returned to the Oireachtas, other cases came to my attention where wills had allegedly been made but not found. I recently came across a case where a person died and the family is still seeking the last will and testament but have not succeeded to date. I have heard many other stories where people have tried to find a will but have failed.

In 2004, some 5,400 wills were probated in Ireland but more than 28,000 people died. This significant shortfall demonstrates my point — many people do not make wills. Many make private wills but these are normally held with their papers and documents. The only individuals required to register a will are Catholic clergy. Every Catholic cleric must leave a copy of his will in the possession of the bishop.

There is a saying that it is impossible to live without lawyers and impossible to die without them. Over 6,000 solicitors practise in Ireland in 2,100 offices. There is no requirement on the solicitors registered in this country who execute and make wills to provide lists that would be held in a central bona fide registry such as the General Register Office in Roscommon. At present, a person makes a will with a solicitor who records it in his or her book of wills and the document is held in the legal firm's safe deposit box. The Law Society Gazette regularly advertises requests for the whereabouts of wills that have been mislaid, are missing or cannot be found. Many people who would otherwise be entitled to inheritances from wills have been deprived. To quote Jack Lemmon, “Death ends a life, not a relationship”. There are pages and pages of people searching for lost wills in the Law Society Gazette in the hope that their loved one made a will. Many people make wills not knowing that sometimes they may not be executed correctly or at all. It is a unique situation where the purchaser of this service has no after-sales come back. We have a responsibility to ensure that citizen’s wishes are honoured and given the proper legal recognition they deserve.

In the course of my research I have discovered a Council of Europe convention for the establishment of a scheme of registration of wills. This dates back to 1972 but was never ratified by Ireland. The main aim of the convention was the provision of a registration scheme enabling a testator to register his will to reduce the risk of the will remaining unknown or being found belatedly, and to facilitate the discovery of the existence of the will after the death of the testator. This was on account of the situation where a growing number of persons make their will away from home and even in a foreign country. Since most member states do not require wills to be deposited with a court of law, a notary or another authority, and have no central register, the heirs are often unaware of the existence and the whereabouts of a will. The current situation must stop and therefore I ask that the Registration of Wills Bill be dealt with.

I am pleased to have this opportunity to introduce the Registration of Wills Bill 2005 and to outline its provisions. Before doing so, however, I wish to explain why the provisions set out in the Bill are so important. We are currently faced with a unique situation where many people's last wishes are not being honoured and the Bill will rectify that. I am glad the Minister of State is here to assist with this work. The proper system will involve the General Register Office, located in Roscommon.

The Bill will enable a person who makes a will, or his or her solicitor, to voluntarily register the name and address of the custodian of his or her will. This will reduce the risk of the will remaining unknown or being found belatedly. It will also facilitate the discovery of a will after the death of the person who made it. This Bill provides for the privacy of the registered particulars of the will prior to the testator's death. This will underpin the development of a modern system of registration of wills that responds to the needs of modern society.

The Registration of Wills Bill 2005 amends the Civil Registration Act 2004 and provides a clear statutory basis for the registration of wills by extending the civil registration service. The register of wills will be kept in the General Register Office in Roscommon, further facilitating decentralisation. The office has settled well and is a good example of a Government agency being decentralised.

Civil registration was introduced in Ireland in 1845 for the registration of non-Catholic marriages and expanded in 1864 for the registration of births, deaths and Catholic marriages. Therefore, since the 1800s a registration system has been in place. Irish society now requires a national system of registration of wills to facilitate the finding of a person's will after his passing.

Part 1 of the Bill contains the usual provisions for short title, collective citation, definitions and commencement. Part 2 outlines the organisational structure for the administration of the register of wills. Part 3 provides for the registration of wills. Part 4 provides for miscellaneous amendments to the Civil Registration Act 2004. Section 10 provides for the registration of wills by a registrar of any local registration authority. Qualified informants may register wills at a convenient office by providing the required particulars of the will and signing the register in the presence of the registrar. A qualified informant is the testator or his or her instructed solicitor. The required particulars of the will are set out in the Schedule and include the following: the name and address of the custodian of the will; the testator's signature, name, address, sex, date and place of birth; the testator's personal public service number; the informant's signature, name and address; the date of registration; and the registrar's signature.

Section 10(3) provides that one or more wills, including codicils, made by the same testator may be registered or re-registered. This, of course, means that if a person decides to change his will he can register the new will.

Section 11 provides that information held on the register of wills shall not be accessible to the public and that such information shall not be made available except as provided under section 12. That ensures the privacy of will records. Section 12 requires the registrar or a member of his or her staff authorised by him or her to search the register of wills and provide a certified copy of an entry in such register at the request of an applicant on payment of the appropriate fee, provided the death of the testator has been registered or the applicant is the testator. This means that a copy of the register entry is only available to the testator or to someone else on the death of the testator.

The further modernisation of the civil registration service is essential to ensure rights for those who make wills and for their beneficiaries. I commend the Bill to the House and look forward to a constructive debate on it.

I will bring forward certain amendments on Committee Stage on the basis of information provided to me to date. One's marital status affects one's rights to inherit from one's spouse or partner. If one is not married, one may only inherit from one's partner if left a bequest in a valid will. However, a spouse is entitled to what is called a "legal right share" of their deceased spouse's estate even if there is no will, the will is invalid or there is a valid will but it leaves little or nothing to the surviving spouse. The marital status of the deceased person may also indirectly affect the inheritance rights of his or her children.

I thank all those associated with bringing forward the Bill. I am grateful in particular for the assistance I received from counsel, Wesley Farrell, who is in the Visitors Gallery, and others who have made worthwhile contributions to the Bill, including Ms Margaret McCluskey, who forwarded information, and others. I received numerous items of information from people throughout the country in regard to the Bill.

I want to express my sincere appreciation to the Tánaiste and Minister for Health and Children, the Minister of State, Deputy Power, and the Registrar General who will be dealing with this particular issue. This Bill is a move in the right direction as far as Members of this House, as legislators, are concerned. It will provide an opportunity where a need arises. Ministers are extremely busy but this Bill gives us an opportunity to identify a void in the market and the way people can be best served by bringing forward legislation. I have been given a unique opportunity, as a member of the Fianna Fáil Front Bench in the Seanad and of the Fianna Fáil parliamentary party, because the Bill was approved unanimously by the Fianna Fáil Senators and the Fianna Fáil parliamentary party at a meeting attended by the Taoiseach, and all Ministers, including the Chief Whip, Deputy Tom Kitt. This is a legislative measure agreed by our Government which is going through the process of Private Members' time. I am delighted to have the opportunity to present the Bill with the assistance of many people who have worked with me on this legislation. I commend the Bill to the House and hope it will be accepted unanimously.

The Bill brought forward by Senator Leyden brings into focus the worth of this House as a House of legislation. Many people have said in the past, unjustly and unfairly, that this House is a talking shop. This Bill puts the lie to that pronouncement.

The Registration of Wills Bill is short but it is important. It regularises a whole area of life that has not been regularised heretofore. As everybody knows, where there is a will there is a way but I remind Members that, invariably, where there is a will there is a relative, and that is where the problems start.

I recall a family situation where the owner of a farm died intestate. For many years the family squabbled over who should or should not have the farm but in the end nobody got it. The farm was in debt. There was interest and compound interest owed to the banks and it was good to nobody. That is a clear example that if legislation of this nature was in operation, that situation would not have obtained.

The legal profession can play a pivotal role in ensuring that people make wills. We do not know the day or the hour, as we were told by the great man from Nazareth, when death will come like a thief in the night. It can befall any of us at any time. It is only proper and responsible, therefore, that people would have their affairs in order and family lawyers and people of that nature have an important role to play in exhorting people to make a will. That is very important.

Another area where the Bill will be of tremendous help concerns people in long-stay care institutions who have property. Senator Leyden will agree that is an aspect we may have to examine in the context of the Bill. Having worked in the health services for many years, I have a great deal of experience of people in long-stay institutions, whether it is geriatric or psychiatric hospitals. Some of these people are there voluntarily and are not wards of court. Therefore, they are in a legal position to determine what should be done with their property. That is an area I would like to see addressed in some shape or form but "will" is the operative word because it comes down to the will of the person and what he or she wants to do.

Senator Leyden referred to people who had bequeathed their property to A, B or C but in some cases that did not happen. For example, some years ago, as a member of Westmeath County Council, my assistance was sought in regard to getting a local authority loan approved for people who wanted to extend their house. A will was made but it was made in a slip-shod way. It was witnessed but the saga went on for over two years. It cost the person concerned a lot of money and it cost the lawyer concerned a great deal of time. This measure proposed by my colleague, Senator Leyden, will go a long way to resolve that difficulty.

I am pleased to note that under section 12, An Ard-Chláraitheoir or a member of his or her staff authorised by him or her can search the register of wills and provide a certified copy of an entry in such register at the request of an applicant on payment of the appropriate fee, provided the death of the testator has been registered or the applicant is the testator. This means that a copy of the register entry is only available to the testator or to someone else on the death of the testator. That is an important provision because it protects the privacy of the person who made the will.

To return to my earlier comment to the effect that where there is a will there is a relative, one does not have to be a rocket scientist to know what has happened when the appropriate will was not made but natural justice was not done. People will say that one will not get justice in a court; one has to go to Heaven. That is a viewpoint held by many but my point is that wills have been contested by people who were motivated by nothing other than greed and the people who had the moral entitlement to the property did not get it. However, morals have no basis in law. The law comes down to what is written on pieces of paper such as this one. That is the law when we pass a Bill in both Houses and when the President signs it into law. If a person wants to leave their property to somebody when they pass from this life, or in the course of this life, it is important that the spirit and the detail of that person's wish is upheld and administered. That is why this Bill is important.

Much of what I want to say about the Bill has been said by the initiator, Senator Leyden. I look forward to Committee Stage. Some amendments may be exercising the minds of Members of this House, the public or the legal profession. When this Bill is enacted, I ask the Minister to initiate a public awareness campaign to ensure that every citizen is made aware of it. This is one of the most important pieces of legislation that has come before this House. It is a small Bill, but is worth its weight in gold. Once enacted, the State and the public will save money. While members of the legal profession like to make money, which they will do and are entitled to do, it will save legal time that could be spent in a more fruitful way.

I welcome the Minister of State and congratulate Senator Leyden on initiating this Bill. I also thank the Senator for his briefing on the Bill and his daughter for her excellent briefing on the purpose of the Bill. I broadly welcome the Bill. Fine Gael will support it in this House and I hope also in the Dáil. I recently made a will.

Did the Senator think of me?

Due to confidentiality I cannot say.

I could do with it.

I asked the lady who made the will with me the procedure solicitors follow. After making the will, they learn of the deaths of clients by reading the death notices in national newspapers. They then contact the family of the deceased. Given that many people do not put death notices in the newspapers, but rely on local radio, solicitors may miss deaths. After a person makes a will, 30, 40 or 50 years may pass before his or her death. Law firm staff change, law firms may be dissolved and files can be lost. When a person dies, a relative may report the death to a solicitor and ask if a will exists. If no will was made with that solicitor, he or she may write to other solicitors in the county inquiring whether a will exists. If that yields no result, the solicitor advertises in the Law Society Gazette, which usually gets a result. There is scope for a person’s will to be missed if relatives are not aware that it has been made.

I do not have full confidence in solicitors. There has been the recent disgraceful cases of overcharging abuse victims and, unfortunately, all professions have the potential for corruption, greed and human error. Therefore, the Bill makes perfect sense. Central registration of wills would allow the relatives of a deceased person to be notified and to know where and when the will was made and the name of the solicitor.

Senator Leyden raised the important point of the issue of the legibility of wills. I am aware of many wills that contained illegible writing and signatures. This causes even more confusion and distress at the time of death. It is important that we have a central registration office and wills can then be clearly read and understood.

I am concerned about the confidentiality of wills. We must ensure that copies of wills kept in the central office remain confidential. There will be some risks. One disadvantage of a central registration system would be that relatives would know if a person has made a will. For example, nieces and nephews might suspect their unmarried aunt or uncle has cut them out of the will. This could cause resentment in families. I recently attended two very sad funerals in Carlow. An elderly man died intestate and due to a family disagreement his land was sold. The person who bought the land was shot dead and the killer then committed suicide. This shows the importance of making a will.

The State should take an active role in encouraging people of all ages to make wills. People often think they have nothing to leave, but even if they have no property they may own items that can cause division in their families after their deaths. I am amazed in particular by farmers who do not make wills. I am aware of a recent case of a farmer who died suddenly intestate. His wife inherited everything because the property was held jointly, but had it not been, she would have inherited only two thirds while the remainder would have gone to his family. The main difficulty in the division of property is not with brothers and sisters, although that can cause problems, but occurs when what may be described as "in-laws and outlaws" are involved. Rumours of unfair treatment lead to the horrible stories such as the one I mentioned.

On the question of a fixed fine, we should move towards index linking fines. A fixed fine goes out of date quickly. The solution is to index link the fine so that it increases each year. I understand the maximum fine for using fireworks is IR£5, which shows the danger of setting a fixed amount, unless the amount is reviewed annually. Perhaps we could use this Bill as an example of an index linked fine.

What will be the fee for using this service? Most solicitors do not charge for making a will, but for discharging it. Will there be a maximum or minimum charge? Perhaps this will be discussed on Committee Stage. If signed into law, will the Bill apply only to wills made from that date onwards or could it include recently made wills?

It cannot be made retrospective.

If somebody who has an existing will wishes to record it centrally, will he or she be able to do so?

Yes, voluntarily.

I congratulate Senator Leyden on taking the initiative of drawing up the Bill, which took a lot of work. It will make life easier for families concerned. Are wills made by Irish citizens who live abroad covered by the Bill? Can Irish citizens living abroad register their wills? The absence of such a provision may lead to ambiguity. Perhaps these points may be addressed later.

It would be worthwhile to consider these issues on Committee Stage.

I thank Senator Leyden for his initiative in bringing the Registration of Wills Bill 2005 before the House. It is unusual for a Government backbencher or Senator to bring forward legislation. He has received support from both inside and outside the House in his work and I acknowledge the effort that has been made in this regard.

Several Members have mentioned the difficulties that may arise when people die without making a will. I am one of ten children and grew up in a home where one cow, two pigs, a calf and perhaps some hens were kept. I am fortunate that both my parents are alive and well but I do not get too excited about their will. Instead, I will concentrate on the memories left behind after they are gone.

The Minister of State got the Dáil seat.

Members referred to the necessity of people taking responsibility and making a will. If this debate serves only to encourage people in this regard it will have done some good. We have all heard of cases where enormous difficulties have ensued when a person died without making a will. We will look at the idea of a campaign to encourage people in this regard. Members of the legal profession are generally helpful to people who propose to make a will. The Government will examine how this may be developed.

Senator Leyden has given a thorough exposition of the aims and provisions of the Bill and I do not propose to go through them in detail. The Bill, which touches on a most important and sensitive aspect of peoples' lives, is welcome. There is a strong case to be made for a system whereby the interests of citizens can be further protected in terms of making provision for family after one's passing.

The Bill proposes that the General Register Office, GRO, will have responsibility for the registration of wills. Civil registration was introduced in 1845 for the registration of non-Catholic marriages and expanded in 1864 to births, deaths and Catholic marriages. Thus, a comprehensive registration system has been in place since 1864. The data form a basic, continuous source of information about the population by providing a record of vital events relating to people and satisfying the need for evidence that has a bearing on rights, entitlements, liabilities, status and nationality.

Civil registration is relevant to each of us at important stages in our lives, beginning with the registration of our births and ending when our deaths are registered. Between those events, civil registration affects us directly, as in the case of marriage, and indirectly, when certificates are required for many of the services available in society, such as enrolling a child in school, obtaining a passport, taking up employment and claiming a social welfare payment. While there has been little change to the basic registration procedures since 1864, there have been many changes in society, including major developments in technology and increased expectations on the part of citizens as to how public services should be delivered.

Recognising the importance of civil registration and acknowledging the changing needs of society, the Government approved a programme of work to modernise the civil registration service. The civil registration modernisation programme is a joint initiative between my Department, which oversees the administration of the registration service, and the Department of Social and Family Affairs which processed the new legislation. This is a major undertaking involving the following: the introduction of modern technology providing on-line registration; electronic certificate production and the capture of digitised signatures; redesign of business processes and procedures; capture and storage in electronic format of all paper-based records from 1845; and reform of legislation.

There will be substantial benefits, both tangible and intangible, arising from the modernisation programme. These include the following: improved service to customers, including extended opening times; greater efficiency in the use of resources and a reduction in red tape; nationwide standards for registering life events; the registration of divorces and civil annulments on a central register; the electronic capture and transmission of all vital statistics on life events to the Central Statistics Office, CSO; the sharing of data with designated Departments and Government agencies; and reducing the demand for paper certificates for the purposes of Government services.

Until now, the registration and certificate production processes were manual, time consuming and location dependent. The modernisation programme marks a fundamental change in the way the civil registration service operates and is delivering significant improvements in operational efficiency and customer satisfaction. The new computer system is fully rolled out across the country, with electronic registration and certificate production available in all registration offices. It has been recognised nationally and internationally as an example of excellence in e-government and service provision.

The modernisation programme aims to deliver a high-quality, proactive service to customers. Since September 2003, all new birth registration data is transferred electronically to the Department of Social and Family Affairs from the civil registration computer system. This facilitates the following: the allocation of a personal public service number to a child at registration; the establishment of a child's public service identity and the creation of family links on the national central database for all citizens — the client records system which is administrated by the Department of Social and Family Affairs; and the initiation of a child benefit claim for first-born children and the automatic payment for second and subsequent children in a family. Thus, payment of child benefit in respect of a baby born and registered by the civil registration system on Monday is made immediately or, alternatively, the mother is contacted by Thursday without any manual intervention. This is a prime example of Departments working together to provide more convenient access to services for citizens through e-government.

The introduction of the new civil registration system is a flagship initiative in providing life-centred services to customers. The visible improvement from the customer perspective is that a single interaction with a public service agency, such as the registration of a birth, not only achieves its original purpose but also triggers a series of related services by another agency, in this case, the Department of Social and Family Affairs. Customers availing of the e-enabled service no longer have to source and complete a multi-paged paper application form and supply a paper birth certificate. They simply register the baby's birth to set the process in motion.

In many cases, the birth notification is passed electronically from the hospital to the registration computer system, and this facility will be implemented for all maternity hospitals in the future. In this case, the birth details are captured just once, at the earliest point in the process, with seamless electronic data transmission from hospital to registration to child benefit and back again to registration with the PPS number. In conjunction with the GRO, the Reach agency electronically publishes deaths data and makes it available to all Government agencies. This is of particular importance for the Department of Social and Family Affairs and the Health Service Executive in terms of the efficient management of their services. Vital statistics are transmitted electronically to the CSO. This greatly reduces the amount of manual intervention involved in such exercises, improves the quality of data and enhances the ability of the CSO to manage the data.

The capture of historical data in electronic format has been a central element of the modernisation programme. This has been a mammoth task, involving the digitisation of more than 27 million records and registration images. The technology used in the process is first rate. I commend all staff on their efforts over the years in what has been a difficult and painstaking task.

With all these developments now in place, it will soon be possible to begin commencing parts of the Civil Registration Act 2004, which was passed by both Houses and signed into law in February 2004. I will briefly remind the House of the purpose of this Act. The main objectives of the Act are as follows: to rationalise and modernise the procedures for registering births, stillbirths and deaths; give An tArd-Chláraitheoir responsibility for the overall policy for the civil registration service, including maintaining standards of service; assign responsibility for the management of the civil registration service at local level to the Health Service Executive; streamline the procedures for the registration of adoptions; establish new registers of divorce and civil nullity; reform the procedures governing the registration of marriages; and facilitate the linking of life events.

Parts 1, 2, 3, 5 and 8 of the 2004 Act relate to the administration of the civil registration service and to the registration of births, stillbirths and deaths. Preparatory work is at an advanced stage and it is hoped to commence these provisions reasonably shortly.

The new procedures for marriage are set out in Part 6 of the Act and include universal procedures for notification, solemnisation and registration of marriages, as well as a choice of venue for civil marriages. Before these provisions can be commenced, a substantial body of work needs to be completed, including the following: drafting and publication of regulations, guidelines and detailed procedures; establishment of a register of solemnisers in consultation with religious bodies; establishment of a register of approved venues for civil marriages; and the further development of the computer system to facilitate the administration of the new marriage provisions introduced by the Act. Implementation of the other provisions, relating to registration of adoptions, divorces and civil nullity, will follow commencement of the marriage provisions.

A significant investment will be made in bringing genealogical research facilities up to modern standards. Discussions are under way with the OPW with a view to procuring new premises and facilities for research. The research facility will remain in Dublin and will be supported by a dedicated staff of eight. It is also intended to introduce electronic research in the new location and those with an interest in tracing their roots will be able to search through records much faster and will be able to view the original register entries which have been digitally scanned onto the system. It is hoped eventually to introduce Internet based research which will be available to a worldwide audience.

I hope I have given an indication of the progress that has been made to date in the civil registration modernisation programme. I commend Senator Leyden on his initiative. The Bill attempts to reduce the risk of the existence of a will remaining unknown after the death of the person who made it. While we cannot give a guarantee as to the success of this measure or the numbers that will be involved, given that registration will be voluntary, it will reduce the risk of the existence of wills remaining unknown.

It might be a little early to discuss amendments but I examined the Bill and the explanatory memorandum. I assumed we had gender proofed our legislation but the introduction of the explanatory memorandum states: "This Bill will enable a testator or his solicitor to register the name and address of the custodian...". Perhaps the word "testatrix" should be added to include the other gender. It is unfortunate that when a Bill is published, the first thing people try to do is find fault with it. That is the reason for amendments. I presume the Senator will be open to accepting amendments.

Absolutely.

Section 6 in Part 2 states: "There shall be established, where appropriate, and maintained ... the register of wills". Who is to decide what is appropriate? The provision is a little ambiguous and perhaps could be clarified. Section 10(3) in Part 3 states: "One or more wills, including codicils, made by the same testator may be registered or re-registered under this section." Even if one or more wills are made, the last will is the important one. Will all the wills remain registered or just the last one?

The last is the one that applies. It is clarified in detail elsewhere in the Bill.

Okay. I thank the Senators for contributing to the debate and I thank Senator Leyden for his work on this initiative. It is nice to see Senators take up matters on their own initiative. This obviously has much support. I wish the Senator and the Bill well and I hope the Bill has a safe passage through both Houses.

I welcome this initiative. I thought it was a good idea when Senator Leyden first raised it in the House. However, he went further and took the trouble to draft a Bill, which is very welcome. The Minister appeared to put this matter on the long finger when he said much work must be done to modernise the entire process and that consultation would be required on the Bill. However, relatively simply legislation such as what has been introduced by Senator Leyden is what is required. No doubt it will be examined in detail on Committee Stage but I hope the legislation is not put on the long finger by the Government.

Another issue that came to mind when I saw Senator Leyden's proposal is the need to establish a register of people who have guardianship of children. I refer to unmarried fathers. If the father has an agreement with the mother of the child that he is a guardian, they can swear an affidavit to that effect. However, there is nowhere to register that evidence of guardianship. That is another system of registration that must be put in place. Other states have a registration system for proof of guardianship and so forth. This issue should be examined but that is another day's work.

The proposed system is voluntary. It must be made clear in the legislation that it will not be a system of validation of the will and will not affect wills that are not registered. Many people will still choose not to register their will and that is their entitlement. It would be hard to put in place a system that compels registration of wills as it would give rise to a number of problems.

I am not sure if the Fine Gael spokesman realised that whatever is in this register will not be definitive in terms of determining whether somebody has a will. As I understand it, one will not be able to examine the content of the will. That would not be appropriate anyway. The amount of detail provided for in the Bill is probably sufficient. What is required is something that will assist people in finding out if a relative who has died left a will and where it can be found. It can often be difficult to locate wills. I am sure that people have sometimes secured a grant of administration on the basis of there not being a will where, in fact, there was a will but nobody could find it or wanted to find it.

There are other issues that must be examined. An issue emerged concerning individuals with several wills, all of which are registered. The law stipulates that the later will is the one that takes effect. It must be taken into account that an individual may register a will and then change it without re-registering it. The registry, therefore, would not in any way be definitive. An individual is not obliged to register a revocation of a will and a system where the registry is definitive cannot be introduced. People must be advised and educated about this in some way.

Many Members argue people must be encouraged to make wills. As a solicitor I agree with this and often encourage people to do so. If an individual makes a will, there is control over what happens to his or her estate when he or she dies. However, it is not so bad if an individual dies without a will. People often believe that by not having a will, fate dictates what happens to their estate. A Fine Gael Senator pointed out that when a married person who has children dies, leaving no will, two thirds of the estate goes to the spouse with one third to the children. The Succession Act introduced by Fianna Fáil was good legislation.

It was introduced by Charlie Haughey.

I thought it was the late Brian Lenihan.

Senators should make their contributions through the Chair.

While it is good legislation, it needs to be reviewed and updated. Safeguards are in place if an individual dies without leaving a will.

I am concerned that when an individual registers a will, he or she may be more reluctant to change it later. One role of a solicitor is to advise clients on the importance of frequently reviewing their wills. Two years after drawing up a will, family circumstances may have changed or the inheritance tax threshold may have gone up or down, requiring the will to be changed. If a registry of wills is established, people must know that they should review their wills. It must be made clear that the registry is not definitive and wills may have been altered since they were first registered.

The Bill must be examined closely on Committee Stage to ensure all possibilities are covered. Simple legislation is required as it is only a voluntary register for facilitating people to find a will. While various issues need to be explored, we must not get too bogged down. From the reply of the Minister of State, I feel his officials may be getting bogged down.

The Bill refers to the definition of signatures, particularly an electronic signature. The testator must consent to the will being registered. Is an electronic signature sufficient in this regard? My understanding is that under this Bill one could register a will in a local authority area. However, I believe one should be able to do a search in a central registration office, as this can be done with other legal certificates. If this body is established, good information leaflets in user-friendly language must be published to explain the register and definitions.

Section 10(1)(b) states that an individual must give “to the registrar, to the best of his or her knowledge and belief, the required particulars of the will,”. I originally read this as the contents of the will. However, it actually means the required particulars as per the Schedule. The language used in this section must be clarified.

I have often come across cases where, for example, a house was put under the joint names of husband and wife but no will was made. The family must then go through probate and obtain a grant of administration which is costly and complicated. One can go to the probate office without a solicitor but the system needs to be more user-friendly and the costs involved must be reviewed. I see no reason wills already made cannot be registered, once a testator has not died. Is the Bill retrospective on this issue?

Husbands and wives often put their dwelling houses under joint names, which is helpful in the event of one of the spouses dying. Recently, I dealt with a case where a husband and wife wanted to put their house under joint names. However, as they had bought their house from a local authority, they required the consent of the relevant council to transfer the ownership. This is one consent that should be removed. It is ridiculous that an individual who bought a house from a council must later get its consent if he or she wishes to transfer it to joint ownership. This transfer process must be encouraged because it avoids individuals whose spouses have died being forced to get probate on their dwelling house. This process should be made as uncomplicated as possible.

I welcome the Registration of Wills Bill and congratulate Senator Leyden on its introduction. I consider it a modern and practical Bill which would provide a service to everyone. As Senator Tuffy pointed out, the service is voluntary which is crucial. As there are issues around privacy and the validity of some wills, the voluntary aspect of the proposed system must be welcomed. The purpose of a will is to provide for one's loved ones and next-of-kin. As one American wit put it, the two sure and certain matters in life are death and taxes. In other cases, people wish to leave either assets or moneys to charitable organisations, many of which depend heavily on such bequests. This is a matter that could be open to abuse. I know of cases where vulnerable elderly people were taken advantage of in the drawing up of their wills. The registration of a will could avoid such situations arising.

The executor plays an important role in carrying out the terms of a will. I had the responsibility of administering the estate of my late father who died intestate. I went through the whole process without legal assistance. I found it intimidating but once I understood it, it was not too difficult. In the case of large estates in particular, if a will is registered it will avoid much conflict because some families have been split beyond repair as a result of problems with wills. There are particular problems with land, especially farming land. This Bill will ensure that where there is a question as to whether somebody made a will it can be easily verified.

In the modern economic context assets can be a complicated area. We are all conscious of the importance of pensions, superannuation schemes and the myriad saving and share schemes which can form part of a will. Debts can also play a large part in a will, whether in the form of tax liabilities, outstanding loans or salaries owed to employees. It is a complicated area which gives rise to problems if somebody dies intestate or if a will cannot be found. The legal profession plays a significant role in encouraging people to make a will and maintaining it once it is made. A register is vital so that the next of kin can be sure a will is registered, available and in the safe hands of a solicitor.

The fabric of our society is also changing. Divorce, legal separation and cohabitation are all issues which must be taken into consideration because they complicate succession rights and the transfer of property and assets. Anything that makes the process simpler for a person or family can only help. The framework of family life in Ireland has changed so much that this Bill can only make life easier for people at what is a stressful and confusing time. From personal experience of the process it would have been much easier if, in the immediate aftermath of my father's death, there had been a register to check.

I welcome the fact that Part 1 includes a reference to an electronic signature. The Minister of State went through in detail the great technological strides that have been made and the resultant ease of registration in all areas. Any use of technology is to be welcomed. Part 2 states that a register of wills may be maintained in any legible form or any other form capable of being converted into a legible form. This involves using the available technology. It is to be welcomed that a person can be registered from birth and given a PPS number.

I also welcome that there will be a yearly report to the Minister on the effectiveness of the registration of wills. That is important because the register must be updated regularly and constant pressure applied to improve the system. Part 3, section 11, states that no person other than An tArd-Chláraitheoir or another person authorised in that behalf shall be entitled to search the register or an index relating to the register. This is crucial from the point of view of privacy. Making a will is probably the most private thing a person or a couple will do and privacy must be guaranteed. For births, deaths and marriages the issue of privacy must be kept to the fore.

I welcome the Bill and congratulate Senator Leyden on its introduction. It is a modern, effective piece of legislation. It is a short Bill but an important one and should be given full consideration. I wish it well throughout the process.

With the agreement of the House I wish to share time with Senator Ó Murchú.

I am delighted Senator Leyden has brought this Bill forward and congratulate him on doing so. It is unique and historic that a Senator from the Government side has a Bill before the House. As the Minister of State said, much data are available on computer, such as PPS numbers for children, but we need to do much more on wills and this Bill is a step in that direction. It might not be the answer to everything but it provides a way to find out where a will is, if one has been made. As public representatives we are all aware of situations that have arisen, some of which have been mentioned in this debate.

As a rural Deputy I am familiar with issues surrounding land. Often when people die difficulties arise within families and among relatives over the disposal of the land. Since we introduced single farm payments under decoupling in the Common Agricultural Policy there have been problems with land entitlements which are worth a significant amount but to which title cannot be established by young farmers without a will. Under the rural environment protection scheme, people expected to receive benefits deriving from the family farm after the owner of the land passed away but if no will had been made some of the schemes fell by the wayside. In many situations, land is sold that should not be sold. If industrious farmers in Galway built up their estates when alive, buying parcels of land or getting them from the Land Commission, we found that the next generation had great difficulty finding out where title to the additional holding originated. That is a concern.

The newspapers, in particular on Sundays, interview celebrities, although I am not sure what a celebrity is these days. Maybe it is somebody from showbusiness or sport. When asked if they have made a will most say they have not but will get around to it soon. It reminds me of a tradition in our diocese, Elphin, which may also exist in other parts of Ireland. The Bishop announces a "make a will week" every year. The charge for making a will is already small but local solicitors reduce it for that week. It is a tradition I would like to see encouraged and promoted in every diocese.

Senator Brady touched on the issue of an increasing number of legal firms merging, even in smaller towns and villages. This practice is beneficial in one respect, as legal firms become more viable. However, smaller legal firms are also being taken over. I experienced the effects of this some years ago, when a solicitors' firm wrote to me stating that it had taken over the small practice holding my will. Thankfully, the letter indicated that the bigger company had possession of my will, which was good to know.

I worry about a similar case coming about, or of a situation in which a person makes a will in County Galway, for example, before moving to Dublin for alternative employment. The person may forget where the will is or the document may be mislaid. Although this should not happen, there are instances where it has occurred. The notion of registration would be beneficial in this regard. Solicitors have given a positive response to Senator Leyden's Bill. Some solicitors have made the point that the scheme is voluntary, which people will generally welcome. Senator Tuffy alluded to this point. It is good that solicitors are also welcoming the scheme.

Many houses are now being built, both private housing and housing supplied by local authorities. We must be clear that the traditional family is not as prevalent as it once was. We should bear in mind that if a number of people living together wish to leave the property to another person in the house, they should be entitled and encouraged to do so rather than leave uncertain circumstances. This Bill has an air of certainty which appeals to me, and I hope that some of the points I have made will be taken on board. I thank Senator Leyden and the Minister of State.

I thank Senator Kitt for sharing his time and I welcome the Minister of State to the House. I wonder if the offer of cut-price wills for the duration of a week in Senator Kitt's diocese might extend to other areas. We may all be travelling to Senator Kitt's area otherwise, as it appears to be a great idea.

I compliment Senator Leyden on tabling this Bill. Many of us are probably kicking ourselves, wondering why we did not think of it because of its relevance and importance. Senator Leyden initiated the idea and put much time and research into it. He spoke to many people within the Houses, in the legal profession and in the general public. The Bill has been exceptionally well researched, and many questions that may arise on issues such as confidentiality have been examined in great depth. Senator Leyden has been able to allay many fears about the Bill and I commend him on doing an exceptional job. We are particularly proud that the Bill is with us in the Seanad, and that a Senator initiated it.

There is no doubt that a most traumatic time for people is when they experience a death. This is particularly true if the death is sudden. There is a period of time when people do not focus on the realities of life, and it can be some months later before people think of the matters of property, legacies, wills, etc. Most people do not know where to start, although it may be possible if they know the deceased was a client of a particular solicitor. In that case, information may be sought. However, that would not happen in the majority of cases, as they do not necessarily have any paper trail.

People tend to be sensitive about these types of issues and tend not to publicise difficulties that are experienced or ask questions. Several months may pass before any guidance is received and even then it may be difficult to start the process. One does not even have to go to a solicitor to make a will, as it can be made privately or a format for a will can be bought. As a result, such a document could be anywhere, not even necessarily where the deceased had lived.

We have all heard many unfortunate case histories involving the courts and the media, thus increasing trauma. Many families have been divided for generations because of difficulties and differences, or worse still, suspicions and innuendo arising from an inadequacy. Everyone is aware of difficulties of this type in every community. I am pleased that the legal profession is mainly welcoming the registration of wills, as it is particularly important. The Bill would provide a location where information can be sought. The contents of a will will not be available to everyone, but it is important that one will know where to start.

I have no doubt this Bill will be enacted. I hope it will be well publicised and advertised. Having the legislation is a major step forward, but it is important that it is highlighted among the public. Senator Kitt mentioned the concept of making of a will, which is an extension of the concern Senator Leyden has taken on board in initiating this legislation. This concern goes hand in hand with this legislation, as many people have not made a will. It may not have entered these people's minds or they may not be aware of the advantages and disadvantages. It is important to highlight the necessity of making a will. Senator Kitt's comments may be an aside from the central debate, but he is to be commended for publicising the issue. If the new legislation can be used as a vehicle for highlighting the ways and means of encouraging people to consider making a will, it is important to do so.

Senator Leyden has done a great job for the Seanad, the Houses of the Oireachtas as a whole and, more importantly, the general public. I understand why the legal profession welcomes this Bill, as it must have experienced significant difficulties through the years involving people attempting to get their affairs in order. That profession would also have experienced difficulty in being certain that the wishes of the deceased were being honoured and complied with. Senator Leyden is to be congratulated. I hope the Bill will be passed expeditiously by both Houses so we can look forward to it being enacted without any great delay.

I would be forgiven for believing that I am back in the role of Minister. I am shepherding this Bill through the Houses and it is my job to respond to questions raised. I am thankful for the excellent contributions made by all sides of the House. I thank Senator Glynn, the Fianna Fáil spokesperson on health and children in this House, for seconding the Bill and making an excellent contribution. He outlined many issues which have been brought to his attention and which will be noted by those involved in the Bill.

Senator Browne made worthwhile contributions to this debate, including a number of issues and points about charges. These issues will be addressed by regulation based on the viability of the service, namely, that it would not cost the State anything and would be self-financing. Other issues the Senator raised were also worthwhile and, as his party's spokesperson, I thank him for his support for the Bill. I appreciate this as we are taking an all-party approach to an issue that addresses an anomaly. One registers one's car, dog or television but, although they are important to each and every one of us, there are sometimes no records or registrations. There is a shortfall in the system.

The Senator made a point about the retrospective aspect. This would be by voluntary disclosures and would be a matter for each legal practice. It would be in the best interests of the practices to complete a system of filing old files and to have their books centrally registered. They have individual registers of wills but having a central register for all the old wills would give them some security. I have encountered cases where the books have been destroyed or lost, leaving no records. It is a frightful responsibility for any legal firm. For this reason, I have consulted with the Law Society, which has generally welcomed the Bill. The society is currently examining it and I will ask it to suggest amendments.

This Bill will be passed by consensus. It will be an unusual situation as the Minister of State and each Member of the House will table amendments, which I would welcome. We can have an open debate on these issues. We should take into consideration a good point made about British residents, namely, including a provision whereby they could register the fact that wills had been made. This is outside our jurisdiction but could be worth examining.

I thank the Minister of State for contributing as I know the speech was provided by the Department of Health and Children. Having worked in that Department for a number of years, we could say that this matter is not viewed with enthusiasm by the officials. They will grow more enthusiastic as we do, so as to ensure the Bill becomes legislative reality. Ultimately, Ministers and Ministers of State are elected to govern and it is the responsibility of public servants to follow their lead, which is a reminder to the Department's officials.

I know of the negotiations that took place to have this matter on today's Order Paper but that is for another day's discussion and we will not go into it now as we wish to maintain as great a degree of good will from those in the public service dealing with this issue as we can. I am impressed by the Minister of State's identification of important issues in the reading of the Bill, issues that will be dealt with on Committee Stage. Any matter that he or his Department feels should be included will be done so by consensus. I thank him for his enthusiasm in respect of the Bill, as I am aware of the situation that has risen in the Department due to it.

Senator Tuffy is a practising solicitor and has been extremely helpful. She spoke about voluntary registration, which is quite correct. It is important that the Law Society comes on board and it would be good practice to have registration on a voluntary disclosure basis initially. I foresee a day when there will be a central depository for copies of all wills that have been registered properly and held confidentially. At present, the situation is very lax. Wills are held individually in the registers of over 2,100 offices. In many cases, one cannot determine whether certain wills exist, which is not good enough. Senator Tuffy made a number of good points about the information process once the Bill becomes law and about encouraging people to make and update wills.

Senator Brady also made a number of good points. He has taken an interest in the Bill and I thank him for his help. I welcome his point about voluntary services. Death and taxes are indeed inevitable. He spoke about executors of wills. The procedure is that a will should go to probate within one year of the death of the person but it is not necessarily followed. In many cases, executors are being pressured. They may be beneficiaries of the will but so may others, such as nephews and nieces. Often, they are not enthusiastic to have a will go to probate. When we have studied the situation, we may table an amendment to tighten the Bill in this area.

It has been brought to my attention that solicitors are often the sole executors of wills. This is not a good practice as, in many cases, the person in question may have no other relations. In one instance, a person left £50,000 for the saying of masses. I hope God is being good to the person but I am uncertain who ensured the masses were said. The will in question had no other executor and it was up to the solicitor to ensure the wishes were carried out. In another instance, a man who was one of the last of his family alive and lived alone decided to leave all of his land and property to the poor. The solicitor, who was the will's executor, said "Who is poorer than myself?"

Since I brought this issue into the public forum, it is unbelievable how many cases have come to my attention. People are angry about being deprived of their rights. I wish to ensure that wills are made but are also recorded and executed in proper ways.

Senator Kitt has taken a great interest in the Bill and I congratulate him on having made a will. That he went to the trouble to do so is an example to everyone in the House and beyond, as is the fact that his legal firm has amalgamated. This is a good point as, in some cases, practices are sold on and none of its staff remain, meaning the new practice has no idea where a certain will has gone. Storage is a significant problem in Dublin and companies are entering into contracts to store documents.

Finding a document is now very difficult, as is determining which legal firm has it. I have encountered cases where people have searched for wills in Dublin but could not find them. One sad situation involves a father who has Alzheimer's disease and cannot make a will. He and his family are convinced that his will was made and registered with a reputable office in this city but they do not have a record of it. It is sad that his last wishes will never be honoured.

The Senator has one minute remaining.

I thank the Leas-Chathaoirleach. I thank Senators Ó Murchú, Kitt and all Members on both sides of the House for their excellent contributions and fine compliments. I came across this anomaly over a lengthy period and found it difficult to believe. My personal assistant and backup staff researched this matter effectively and examined each situation. We brought good people on board and spoke with solicitors, including a number in Roscommon and other legal practices, and realised that there is no central registration of wills, for which reason I commend this Bill to the House.

I received many submissions. One person who is in the Visitors Gallery, Mrs. McCluskey, made the point that in the leaving certificate home economics course, it is stated in the family law section that people buying houses should have their wills included with the deeds. It is worthwhile to encourage awareness of wills among young people. A point Mrs. McCluskey also made that should be put on record is that where people are buying houses jointly, a will should be made on the day. In some cases, people may have previous marriages and their original spouses could have claims on that property.

I thank the Leas-Chathaoirleach for his co-operation and assistance. I thank the Minister of State for remaining in the House for the full length of the debate. I appreciate it and I hope he will return in the near future to see the Bill on Committee Stage and eventually enacted by the Oireachtas. I commend the Bill to the House and I hope it will be unanimously accepted on Second Stage.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next Wednesday, 16 November.

Committee Stage ordered for Wednesday, 16 November 2005.
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