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Seanad Éireann díospóireacht -
Wednesday, 6 Jul 2011

Vol. 209 No. 4

Registration of Wills Bill 2011: Second Stage

I move: "That the Bill be now read a Second Time."

I welcome the Minister for Social Protection, Deputy Joan Burton, to the House. I congratulate her and wish her well in her portfolio.

I sincerely welcome the Minister for Social Protection, Deputy Joan Burton, to the House. I appreciate very much the fact that she has taken time to discuss this Private Members' Bill. I also welcome the Registrar General, Kieran Feely, to the House. I thank my party for giving me time to bring the Bill to the House. The Bill was passed in Private Members' time in the House in 2006 or 2007 but due to difficulties with getting Dáil time, it was not passed there.

I will provide the House with some background on why I feel the Bill would be of assistance. The country has approximately 2,100 legal practices. These are individual solicitor's offices, each with a wills book which is retained by the practice. The difficulty is that no record of a will having been made exists outside of the practice. This is becoming a greater difficulty given the increased mobility of people because after having made a will, people move to live in a different town and the same link does not exist between a person and a solicitor with many clients as it did in the past between a person and a family solicitor. A further complication has arisen since the Bill was first passed by the House as some legal practices have gone out of business.

I have personal experience of constituents coming to me trying to find their wills which is why I suggest this Bill should be passed. Jack Lemmon once said, "death ends life, not a relationship". The Law Society Gazette has pages and pages of advertisements from people searching for lost wills and hoping their loved ones made a will. Many people make wills not knowing that sometimes they may not be executed. We have a responsibility to ensure the citizens’ wishes are honoured and given the proper legal recognition they deserve. Anyone, particularly solicitors, who have experience of the Law Society Gazette of June 2001 will know there are numerous advertisements seeking lost wills. According to the old saying where there is a will, there is a way. I hope there is a way with this Bill.

The Bill will provide a clear statutory basis for the registration of wills by extending the civil registration system which will enable a person making a will, or his or her solicitor, to register the details of the custodian of the will, thus reducing the risk of a will remaining unknown or being found belatedly.

The Bill 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 would be kept in the General Register Office in Roscommon, further facilitating decentralisation to Roscommon. Having the register of deaths, births and marriages in Roscommon has been a tremendous boost to the town and surrounding areas. It has also provided a great service to members of the public.

The study found that 75% of people do not have a will, in other words, more than two thirds of adults have not written a will according to new research. The survey for Irish Life also revealed that more than half of parents do not have the relevant legal documents in place and of the 75% who indicated they had not made a will, more than one third believed they were too young to make one and almost one fifth believed they did not need one. These figures were reported in a newspaper article published on 24 September 2010. The Registration of Wills Bill 2011 will give people confidence in the process of making a will. In 2010, a small proportion of wills made — 11,625 — went to probate.

I will outline some of the main provisions of the Bill. Part 1 contains the usual provisions for a 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 name and address of the custodian of the will, the testator's signature, name, address, sex, date and place of birth and personal public service number, the informant's signature and name and address, the date of registration and the registrar's signature. Subsection (3) provides that one or more wills, including codicils, made by the same testator may be registered or re-registered. This means that if a person decides to change his or her will, he or she can register or at least indicate the location of the new will.

Section 11 provides that information held in the register of wills shall not be accessible to members of the public and or made available except as provided for under section 12. This ensures the privacy of will records. I emphasise that the will would not be held in the General Register Office but either by the testator or a solicitor's office or in another safe location identified in the registration.

Section 12 requires the Registrar General 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 registered entry is only available to the testator or someone else on the death of the testator.

The further modernisation of the Civil Registration Service through the introduction of the Registration of Wills Bill 2011 is essential to ensure rights for those who made wills in this life and their beneficiaries. In 1972, the Council of Europe made recommendations on the establishment of a European registration of wills. Given current levels of mobility and the development of the European Union, this proposal could be considered.

The difficulty I experienced when I had a similar Bill passed in the Seanad was that I was unable to secure time in the Dáil. In addition, registration and the General Register Office were transferred from the then Department of Health and Children to the then Department of Social and Family Affairs. This created further delays and difficulties.

Contacts with various Ministers and Departments and the outcome of cases before the courts may give rise to a requirement to introduce legislation. I was aware of an individual — I do not propose to name him — who was confident his father had made a will but was unable to locate it on his father's death. He visited every solicitor's office in his locality without success and felt very aggrieved that the last will of his father had not been made or his wishes had not been honoured because the will had not been found. This occurs frequently and gives rise to considerable difficulties. It is important, therefore, that persons who decide to make a will can avail of a central facility to register the will. Some solicitors offices are highly conscientious in these matters and will make every effort to find out when a person who made a will died. It is sometimes difficult, however, to locate people because the population has become highly mobile. Someone from a rural area, for instance, could make a will in Dublin and, on his or her death, contact is not made with the family because the testator's solicitor is not aware that he or she has died. A further danger is that will books and wills become mislaid in solicitors' practices. The cost of storage has also become a problem, especially for solicitors in urban areas.

One cannot introduce a law imposing fines on solicitors who fail to register a will. A voluntary approach based on persuasion must be adopted at this stage. In that regard, the proposals in the Bill are interim arrangements. At a certain point, however, the procedure should be that when a will is made a fee will be paid and the will sent to the General Register Office where it will be held securely and no one, other than the testator or, in the event of his or her death, the family of the testator, will have access to it. This would allow families, on the production of a death certificate, to check whether a will had been made and access its contents. This process will be slow but I hope at some point all wills registered in solicitors' offices will be held at a central location.

I thank my colleagues in the Fianna Fáil Party for permitting me to introduce this Bill in Private Members' time. I also thank other parties. In 2006-07, when my party was in government, my earlier Bill secured cross-party support in the House. I had hoped it would be introduced and passed in the Dáil to allow its enactment. Where there is a will, there is a way and I will seek to have the legislation enacted. I extend my best wishes to the Minister who has a difficult Ministry. I know she will do her utmost to make a great success of it.

I am pleased the Minister has attended the House in person. She is one of the more imaginative Ministers in the Government and has a great deal on her plate. The functions of the General Register Office are not among the better known responsibilities of her Department.

Senator Leyden's Bill is excellent legislation which deserves all-party support. It is a shame that Ministers in the previous Government did not provide time in the Dáil to progress it. Their failure in this regard showed a distinct lack of imagination on the part of some albeit not all of them. It is unfortunate that time was not available to discuss it. When presented with logical, sensible legislation of this nature one has a tendency to ask why no one thought of it previously. While I accept the Bill may give rise to some costs, the problem could be easily addressed by deciding not to commence the legislation until we can afford to do so or sufficient staff are in place. Costs should not be cited as a reason for opposing the Bill.

I speak as someone who worked in general legal practice for a short number of years before being elected to politics. The drafting of a will is one of the most solemn tasks one can undertake. It should be noted that anyone may draft a will. Only last week, I received a call from my office concerning the drafting of a particular will five or six years ago. The questions of who witnessed, wrote and took instructions on a will are extremely important.

The Bill addresses the problems of lost, missing and unknown wills, which are more common than one would expect. Every month, the Law Society Gazette features a long list of names of deceased persons whose relatives are searching for a will. The legislation proposes to make the process more efficient by registering the execution of a will. This does not mean a will cannot be changed or added to by way of codicil but simply that it will no longer be necessary for people seeking to trace a will to place advertisements in the Law Society Gazette or write letters to every solicitor in their town or region. For someone in my position working as a solicitor in Drogheda, in fact, it would have been prudent to write to all solicitors in Dublin because it was a frequent occurrence for people living in the commuter belt area to deal with city centre solicitors on very personal matters that they might not wish to discuss with local solicitors. That is a huge burden on solicitors and families and it would be solved by the enactment of this Bill.

The fact that the Minister for Social Protection is present is probably due to the fact that the Bill proposes that this registration process be carried out in the General Register Office, GRO. That is important although, frankly, I believe it could just as easily be done by the Property Registration Authority or another suitable body. Senator Leyden has particular connections with the GRO as it is located in County Roscommon. However, I understand there might be some resistance within the General Register Office. If it is about resources, that is fair enough. We know civil servants are under pressure and so forth. Nevertheless, it should not be about resources but about the principle of the Bill and whether it is a good thing or not.

I understand the Law Society might have had some concerns about it in the past but I do not know what its current position is. However, speaking as somebody who is involved in this area I believe it would be excellent that if a deceased person's family comes to one's office and one does not have the will in the office, there would be a simple procedure, which could probably be carried out in the course of a day, to find out if there is a will registered elsewhere.

It would also be a useful measure to tackle fraud with wills. There is a certain element of fraud with regard to wills. If somebody is drawing up a will fraudulently or forcing a person who is not of sound mind to write a will, and there are certainly allegations that this happens from time to time, they would be less likely to register the will. It would never be mandatory but the fact of registration would, perhaps, give it some extra authenticity, even though the strict legal requirements for authenticating a will are set out.

In summary, I support this Bill as a worthy and necessary legislative measure. If cost is given as a reason that it cannot proceed, a commencement date can be included so it would not necessarily have to become law immediately. The Bill will assist more efficient legal practice and will benefit families that are in a really difficult position going to see a solicitor after the death of a loved one. It will also remove confusion and, indeed, would comply with our obligations under the EU-IMF agreement under which the legal services industry is to be deregulated further, made more accessible to the public and made more competitive. The Bill would add to the competitiveness of that aspect of legal services, given that it is a huge element of legal practice in rural areas.

I thank Senator Leyden for bringing this Bill before the House. The Senator said that where there is a will, there is a way. When I was first working as an accountant a venerable solicitor said something I never forgot, that where there is a will there are relatives. It was written on a notice in the solicitor's office. I am sure Senator Byrne appreciates that saying, given his professional experience.

I acknowledge Senator Leyden's hard work and initiative in drafting the Bill referred to in the motion. On the face of it, the establishment of a system of registration of wills would appear to be a worthy initiative. As Senator Byrne said, there are some very good ideas in the proposed legislation. However, it is my duty to bring to the attention of the House certain difficulties with the Bill that preclude me from expressing support for the motion at this point in time.

I understand that the Bill was drafted against the background of the Council of Europe's Convention on the Establishment of a Scheme of Registration of Wills, ETS No. 077, which provides for the establishment of national registration schemes and contains supplementary rules governing the international co-operation between the national authorities entrusted with registration. Ireland has not ratified the convention. The Registration of Wills Bill 2005 was introduced by Senator Leyden. The Bill passed all Stages in Seanad Éireann in 2006 but it fell on the dissolution of the Oireachtas in 2007. The Registration of Wills Bill 2011 is very similar to the 2005 Bill in that it provides for a voluntary system of registration of wills by the General Register Office or GRO.

At the time the 2005 Bill was introduced, the then Department of Justice, Equality and Law Reform sought the views of the Law Society of Ireland. The Law Society expressed reservations about the Bill on a number of grounds, both in terms of the day-to-day practical implementation of the proposed provisions and the infringement of certain legal principles. The society pointed out that, as the proposed registration of wills is to be a voluntary code, it would have limited effect. Proponents of a register of wills suggest that a number of wills go undiscovered or are even possibly destroyed each year. Senator Leyden referred to some of the recent advertisements in the Law Society Gazette. That results in the mistaken distribution of estates under intestacy rules or the terms of a prior will. However, these problems would still exist under a voluntary system of registration.

In addition, the Law Society was of the opinion that the most the Bill's proposed registration system would achieve would be to confirm that a particular will was registered on a particular day. Crucially, it would not be conclusive that the will registered would be the last one. That is an important difficulty. A further concern is that registration of a will is not proof of its validity. The Bill does not appear to address whether a will to be registered has been executed in accordance with the statutory requirements and is valid, nor would registration prove that the will was not made under undue influence. Also, the register would accommodate the registration of holograph wills. Experience over the years suggests that a large proportion of these wills do not comply with statutory requirements. The society is of the opinion that, if the issue of the proper execution of wills is not addressed, this calls into question the veracity of information held in a public register, a concern shared by my Department and by the Registrar General.

The Bill proposes that the General Register Office 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. Registration of adoption was introduced in 1952 and civil partnerships in January 2011. The data in the registers 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 civil partnership, 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.

Each event registered under civil registration legislation has the benefit of an independent evidential basis. This is particularly important. Details of births are notified to the registrar independently of the parents. Details of deaths are attested, either by way of a certificate provided by the medical practitioner who attended the deceased or a coroner's certificate. Marriages and civil partnerships are evidenced by the signatures of the parties to a marriage or civil partnership, the witnesses and the solemniser on the registration form, details of which have been recorded by the registrar prior to the event. As a result of this, the records of the General Register Office enjoy a high reputation for integrity and credibility both nationally and internationally and certificates of vital events are readily accepted as evidence of the facts recorded without the need for further investigation or inquiry.

As the scheme of registration of wills as proposed is voluntary and therefore not comprehensive, it is unable to guarantee that a will registered is the last will and that it has not been amended, revoked or superseded, and its validity cannot be assured. It is, therefore, difficult to see how the scheme as proposed can achieve its objectives. In addition, I would be fearful that the good reputation enjoyed by our system of civil registration could be undermined.

I am aware that Senator Leyden is seeking to be helpful in a situation where not enough people make wills and evidence of the whereabouts of a will is often scanty. There is still some superstition connected with making a will and many people are reluctant to do so for fear that it might have unwarranted consequences. For a scheme like this to work, much work would need to be done, particularly in addressing the issue of the last will and testament, which is the document that must stand for the purpose of the distribution of an estate.

I thank Senators Leyden and Byrne for their kind remarks about the responsibilities I have taken on. The additional pressures placed upon my Department, and on the public service generally, due to the current economic climate are severe. I sometimes feel — and it is a compliment to the Department of Social Protection — that many people would like to hand over the general administration of Ireland to the Department.

We would be happy if the Department took over the community welfare officers.

Within the next year, my Department will take on responsibility for community welfare officers, FÁS, redundancy and insolvency payments, to mention but a few. There is an onerous burden on the staff of my Department. My colleague, the Minister for Public Expenditure and Reform, would have to allocate the additional resources that would arise from the implementation of the proposed scheme. To put it mildly, in the context of the comprehensive expenditure review, of which Senator Barrett is more aware than the rest of us, that would take a great deal of thought and argument with people in Deputy Howlin's Department and the Department of Finance.

I regret to inform the House that, in view the reservations I have expressed concerning the scheme of registration of wills as proposed in the Bill, I am unable to support the measure. The motion contains very good ideas but I cannot support the Bill at this point. However, it does raise critical issues that need to be addressed.

I welcome the Minister to the House and agree with the sentiments Senators have expressed about the operation of her Department. I rarely hear phone-in programmes that are critical of the Department of Social Protection. They are often critical of many other agencies. The Department distributes large amounts of money efficiently to a large number of people.

I heard Senator Leyden's briefing last evening. The Bill represents a good idea and I hope the Minister will consider it. It would, at least, get over one step in the search for lost wills. There might have been a subsequent will, as the Minister said, but one would at least know where to start. There must be huge transaction costs for people who do not know where to start and I am mindful of all those advertisements in the Law Society Gazette trying to find lost wills. Having the State involved might encourage more people to make wills and lead to fewer disputes about inheritance. Like the Minister, I think there are good ideas here.

We license television sets and dogs, for example. Might it be a good idea for wills to come higher up the licensing scale at some future time, perhaps when the finances improve? This might improve people's welfare throughout the country and lead to fewer disputes about lost wills.

I welcome the Minister to the House and share the sentiments of other Senators in wishing her well in the challenging Department she holds.

Senator Leyden brought this Bill before a previous Seanad in 2005. They say persistence distinguishes the strong from the weak. Senator Leyden is persistent and is to be congratulated on that basis. Senator Leyden and his Fianna Fáil colleagues, and all legislators, need to be convinced of the use, practicality of application and understanding of how this Bill fits in the framework of succession and civil registration legislation. A Chamber that passes a law that cannot be validly applied by the Judiciary or goes contrary to the principles of common law and evidence rules runs the risk of being judged as crudely as the legislation it passes.

In Senator Leyden's words, endorsed by his colleagues, the Bill seeks to ensure that citizens' wishes are honoured and given their proper legal recognition. Despite the first reading of the Bill where it might, on the face of it, make eminent sense, it goes against Senator Leyden's stated intention. There is an argument in principle that the last will and testament should be easily identified and sourced so that beneficiaries and other affected parties can enjoy the expedient administration of estates. However, the Bill, as outlined by Senator Leyden and although well intended, falls short of what citizens and legal practitioners require. This coincides with much of what the Minister said.

One of the aims of the Bill is to provide a quick and legally certain record of the existence of a will. The Bill appears to do that, but on closer reading it does not. I suggest that my colleagues consider the 2005 and 2011 Bill side by side. They appear identical. However, the 2011 Bill has an additional section that strikes at the heart and original purpose of the Bill. Section 13 is a new section in the 2011 Bill. Unusually, it is not included in the explanatory memorandum. Thus, the explanatory memorandum is deficient. Can you advise, a Chathaoirligh, if this has any impact on the progress of the Bill through the House? There is no explanatory memorandum for section 13 of the 2011 Bill. In fact, the paragraph on section 13 in the explanatory memorandum provided to Senators refers to section 14 of the 2011 Bill. The new section 13 has, like some wills, gone missing. I know Senator Leyden believes that where there is a will there is a way, but where is the new section 13 in the explanatory memorandum?

On the basis that the Cathaoirleach is satisfied that the Bill should proceed today, section 13 confuses the very intention of the Bill. For this reason, I will be opposing the Bill. Subsection 13(1) holds that the registration or non-registration of any will shall not be evidence of or provide any presumption of the existence of a will, the validity or non-validity of a will, the execution or non-execution of a will or any of the particulars entered in the register of wills. Subsection 13(2) confirms that the registration or non-registration of any will shall not be used to construe any will, whether registered or non-registered.

If that is the case, what is the purpose or benefit of the Bill? From my understanding of this provision and in the absence of a compulsory registration clause, the Bill merely provides a facility for those who choose to register their wills. Registration will confer no legal basis for the existence of a will or no assistance in the construction of a will.

In 2005, the Law Society gave this Bill the thumbs down as it was dependent on voluntary registration. Let us consider whether registration should be compulsory or voluntary. Section 10 is concerned with the registration procedure. The wording and workings of the Bill have not been properly thought through by the Fianna Fáil Senators. If registration is to be compulsory, where are the amendments to the Succession Act 1965 drawing attention to the fact that the validity of a will now requires registration? For example, what if on a person's death bed he or she relates a new will or codicil? Will it be voidable because of the lack of registration? This issue was also raised by the Minister.

Will solicitors have to run to Roscommon to enter their documents before death befalls their clients? Sections 10(1)(a) to 10(1)(c) set out that the entry must be signed in the presence of the registrar. It cannot be faxed, for example. If registration is to be compulsory, how long after execution must it be registered? Who pays the fee — the client or the State? If registration is voluntary, does it not carry even less weight? For example, if I voluntarily register my will of 2010 and decide not to register my will of 2011, what confusion will ensue? If it is to be voluntary, can the costs of registration and administration for solicitors and the General Register Office be justified? Does that not outweigh its narrow advantage? While I accept that there is limited advantage, it is not definitive enough for matters as critical as one’s final will and testament.

Senator Leyden should be congratulated on highlighting the issue of missing wills because that causes a great deal of distress for families. However, I fear as currently constructed, there are serious gaps in how the register is being presented and envisaged. The input of other stakeholders in the sector such as the Law Society, the Bar Council and Age Action Ireland would be beneficial. I ask that the Senator take on board some of my observations and those of his Seanad colleagues and consider them for the reformulation of the Bill.

With regard to the Civil Registration Act 2004, during the previous Seanad it was brought to our attention that the deaths of Irish citizens who are temporarily out of the country and who die abroad are not registered in Ireland. This has caused significant distress for a number of families and we were strongly lobbied about this during the previous term when Deputy Éamon Ó Cuív was the Minister for Social Protection. What is the Minister doing about this? Those affected are only looking for a document that acknowledges their loved one was temporarily out of the country and died abroad in whatever sad circumstances in order that the death be registered in Ireland. I agree a limit needs to be put on the time such individuals can be out of the country for this purpose but when we were lobbied about this, one of the interesting issues raised was that those who died had live passports but there was no record of their deaths in this country. That, in turn, raises the issue of passports being open to abuse. I would appreciate it if the Minister would address this in her reply because it is an important matter for a number of families. A major campaign called Bring Them Home was built around this on Facebook and elsewhere on the Internet. I thank Senator Leyden for his well intended Bill but it needs to be elaborated on.

I also welcome the Minister to the House. I endorse all that has been said by the Minister and Senator Healy Eames regarding the motivation of Senator Leyden in bringing the Bill to the House and their hope the situation is regularised. If the Bill does nothing else, it will alert the general populous to the fact that a substantial number of people do not make wills. According to a number of solicitors who work in this area, a lost will might as well have never been made. The consequence of a lost will can include family disputes, unnecessary inheritance tax bills and expensive tracing fees. The only option is to contact every solicitor in the deceased's location to ask if he or she is holding a will. It is a hugely time consuming exercise, which may not produce the desired result.

I refer to a number of instances of the impact that this had, both emotional and financial, on people. The 2009 case of Thorner v. Major in the UK is an example of the costly arguments that can arise when a will is lost. David Thorner worked on the farm of his cousin, Peter, and was the main beneficiary of Peter’s 1997 will. The will, however, could not be found after Peter’s death. It took four years, Stg£400,000 in legal costs and a great deal of distress for all those involved before the estate was settled. David’s solicitor, Stephen Gisby, believes that had the 1997 will been registered with a national wills register, his agony could have been avoided. An associate of Mr. Gisby’s, Karen Shakespeare, recently dealt with a case in which an elderly man had told his friends that his will benefited them because he had no close family. After he died, his will could not be found and his friends believed it was accidentally thrown away when his house was cleared. Eventually a tracing company located a wife from whom he had been estranged for more than 30 years and she took everything. Ms Shakespeare said: “It is extremely unlikely that this is what he would have wanted. If his will had been lodged with a solicitor and registered, it wouldn’t have been lost and his wishes would have been followed”.

According to The High Court: A User’s Guide, published by Four Courts Press, if the original will has been lost, advertisements should be placed in suitable newspapers to try to find it. A copy will is not normally acceptable in case the original was revoked, perhaps by destruction, but if a copy exists, the High Court may be asked to admit the copy to proof. The solicitor or person who made the copy will must swear that it is authentic. If no photocopy or carbon copy of the original will exists, someone with means of knowledge such as a person who has the original on computer disk may give evidence in order that the will can be reconstructed.

I illustrate these cases to emphasise the consequences of not properly registering a will. That is the primary motivation behind the Bill. During my research, I discovered, much to my surprise, that a number of companies operate in this field. One, in particular, claimed to have almost 2 million wills allocated to it and it has a sophisticated wills search system that connects solicitors throughout Ireland. There is a fee for this. If a will is lost, there is no national register and no way of tracing it. The reason I mention this, apart from my surprise that there are alternatives where I had assumed initially there was none, is the fact that there is at least one tracing company, which has a voluntary system in place to which 2 million people have subscribed, gives the lie to the views of the Law Society and other worthy people that somehow this Bill is not acceptable.

There is a need and a desire for a similar system to be put on a statutory footing. That is the central argument Senator Leyden made. In spite of the fact that there may be alternatives, there is a need for the State to intervene in this regard and while I accept, and Senator Leyden acknowledged, the severe limitations being placed on the Minister's resources, perhaps there are other unstated reasons this Bill has not been accepted. There seems to be a consensus among those in the legal profession or those who would be obliged to implement such a register that for some reason or other this is not right. Senator Leyden answered the questions, specifically in regard to the Law Society's objections going back to 2006. I only put this forward as a supposition because commercial voluntary will registers exist. I understand the Minister's reluctance. This legislation should have been passed by the previous Administration. Senator Leyden was ill-served by his party colleagues during that period. There was sufficient time for the Bill to be passed through the Dáil subsequent to the 2007 election, but it was not. The arguments that have been put forward today are new and were not raised previously, as I am sure Senator Leyden would have addressed them in detail.

I wish to depart slightly from the debate to take advantage of the Minister's presence. Last week we did not get an opportunity to refer to the guidelines on habitual residence under the social welfare Bill. The Minister has since issued guidelines. I would be most grateful if Members of both Houses could be given those guidelines as it deals specifically with returned emigrants.

That is the issue people have raised most often.

We would be grateful if the Department could circulate the guidelines to Members of both Houses.

I welcome the Minister, Deputy Burton, to the House. I compliment her on the recent launch of the internship scheme, in particular, which has been a great success, and on all the work she is doing in the Department.

In response to Senator Mooney's point on the habitual residence condition, which he raised on the Order of Business, I have arranged already with the Minister's office for those guidelines to be circulated. The Minister will confirm that.

I thank Senator Bacik.

I welcome the opportunity to debate the issue and commend Senator Leyden on reintroducing in a persistent way the Bill which first got an airing in 2005. It is important that we would debate Private Members' Bills in the Seanad during Private Members' time and that we would not confine ourselves to statements. I have had two Private Members' Bills introduced in the House: the Climate Protection Bill in 2007 and the Bill to prohibit female genital mutilation, which I am delighted was accepted by the Government. The Bill has passed all Stages in the Seanad and is now before the Dáil. It is an important function of our role as Senators that we would debate Private Members' legislation and that we would have an opportunity to tease out Bills in detail during Second Stage debates such as this.

As the Minister said, this is a worthy endeavour. We all agree with Senator Leyden's objectives in proposing the Bill. I was not a Member of the House when the Bill was previously debated in 2005 and 2006 but I find Senator Leyden's briefing useful. I fully accept a huge amount of distress is caused by the problem of missing wills. Senator Leyden has helpfully reminded us of the numerous pages listing people searching for lost wills in the Law Society Gazette. He has also helpfully reminded us that 70% of people currently do not make wills. I only made a will myself on the birth of my first child. Many find such an experience suddenly concentrates the mind. I was surprised by what an easy process it was. As the Minister said, people often resist doing it or do not like the idea of doing it for many reasons.

Probate law seems rather obscure to those who are not solicitors. As a barrister rather than a solicitor, many of us in the former profession are fearful of probate law. We do not understand it as it is a specialist area. We approach it with trepidation. For that reason I commend Senator Leyden on venturing into this murky area. I compliment him on bringing forward the Bill. However, having looked at the provisions in the Bill and listened to the Minister's speech, I am conscious that there are deficiencies in the Bill and the proposed scheme. We all agree with the objective of trying to ensure a better system to avoid the great difficulty of missing wills or wills that are not known about.

The Law Society's objections are particularly pertinent as it referred the matter to its probate administration and trust committee when the Bill was first introduced. As the Minister said, the objections are very strong in terms of both practical objections and principled objections. Given that the registration would be voluntary, it would have limited effect in remedying the existing problems with missing wills. Crucially, the registration would not guarantee that the registered will would be the last will, nor would it guarantee that the will would be compliant with statutory requirements, in other words that it would be a valid will. Those are strong points of opposition. I note Senator Mooney's reference to a commercial company which is doing searches and with which 2 million people are registered. Clearly, that could not be in this country where 70% of adults do not have a will. Perhaps Senator Leyden knows more about that. In itself, that is not a reason for a voluntary registration system to resolve the difficulties with missing wills because it could and would give rise to other problems.

There is a further difficulty with the proposed scheme in the Bill in that the General Register Office, GRO, would be the repository for registration. Again, the Minister outlined those issues fully. The GRO is the register of certificates which are accepted as evidence of facts recorded such as birth certificates which have an independent method of registration beyond the person himself or herself or the solicitor involved making the registration. Section 10 refers to the "qualified informant", namely, the person who has made the will or his or her solicitor as being the person who would register the will. Again, there would be a difficulty with that in terms of objective verification. It would be significantly different from the other registration functions of the GRO. We all share the objective that something should be done to address the problem but I am not convinced that the Bill puts forward the best method of doing so.

Senator Healy Eames referred to the difference between the 2005 Bill and this Bill, namely, the insertion of the new section 13 providing the registration or non-registration of wills would not be evidence or provide any presumption of the existence of any particulars entered in the register of wills. I do not see that the provision addresses the concerns that have been raised about the scheme proposed in the Bill.

Since the debate was mooted I have tried to think about how one could best address the difficulties Senator Leyden has identified. Until I read the Bill I thought the Probate Office run by the Courts Service was going to be the repository. I can see however that there would be difficulties with that given that it already has clear statutory functions in terms of the administration of wills. I apologise if my suggestion has already been investigated by others. I do so with trepidation as I am not a member of the Law Society. I wonder whether the Law Society would be a more appropriate repository for a voluntary scheme of registration of wills and if all solicitors were to sign up to a code whereby any will of which they had sight was then to be lodged with the Law Society. Perhaps it is a large function for the Law Society to take on, yet it seems to me the obvious place where solicitors could register wills. It would at least mean that if every solicitor signed up to it one would know which would be the last will. Clearly, it would not resolve the problem in the case of people who do their own wills but I think I am correct in saying that most wills are done through solicitors. It would address in some way the deficiencies in the Bill. I make the suggestion in an attempt to be constructive and to see how a voluntary scheme of registration of wills might best be carried out in such a way as to resolve the difficulty.

Senator Barrett put forward another proposal which led me to think that perhaps the Post Office could be used, as it registers dog licences. I raise that in a somewhat less serious manner. It would be worthwhile perhaps approaching the Law Society to see if there is a way of doing what I suggest. The big issue Senator Leyden raised of the relatively low proportion of people who have made wills could be addressed by the Law Society through an advertising programme suggesting people should make a will, which would generate business for its members. Something has been done already by the Law Society in that regard. Such a scheme or programme of advertising of public information through the Internet or by other means would be a better way to ensure a greater number of people would make wills. We will have to think about how we would overcome people's fear of mortality, which is the underlying reason that people are reluctant to make wills.

I call on the Minister to forgive me for repeating some points already made. I was attending a meeting of the Joint Committee on Health and Children so I missed some of the earlier exchanges.

Like previous speakers I support the intention behind the publication of the Bill. I commend Senator Leyden on bringing forward the Bill. However, I agree with some of the points of legal concern that were raised. Perhaps the Minister could take those points on board and the Government could introduce amendments or a new Bill to address the issues. I would support Senator Leyden in bringing the Bill before the House.

It is clear to me that there are advantages to such a scheme, which would help prevent situations in which families are unable to locate wills, leading to frustration of the intentions of the testator and loss on the part of the intended beneficiaries. As speakers have noted, it can be difficult to locate wills as their details may be recorded in no way other than in the books of the local solicitor. It is desirable that there is a relatively comprehensive register of wills to which the beneficiaries or family could refer rather than trawling through the offices of various solicitors. There are 2,300 practices in the State, so a way of avoiding this would be welcome. In addition, there is a need for the registration of wills to be put on a statutory basis. This is something that is long overdue.

Section 11, which provides for the privacy of wills, is important. Wills are documents that are produced in sensitive circumstances and the law of probate is littered with tales of families, as we can all testify to, in which there are divisions over testamentary gifts and fallings out over promises of gifts. It is essential that the details of wills are kept as private as possible. Centralisation of the actual wills, as opposed to the detail of the wills, would be a more dangerous and potentially controversial issue; however, this is not provided for in this Bill. Provided the vital safeguards to protect privacy were maintained, it would be a positive addition to the administration of wills if it were adopted at some stage.

I wish to take the opportunity to make one or two general observations in this area, which is a complex and intricate corpus of law in and of itself. Senator Bacik spoke about the fear that some people have of making a will. My wife, a year ago, was the one to suggest that we make a will, and I wondered why it was so important. Now that we have two children — we had a new baby last week — we must amend the will. It was only when I spoke with the solicitor, going through the various questions that are asked about who would take care of the child if something happened, that the importance of wills was brought home to me. We need to encourage as many people as possible to make wills. The figures show that over two thirds of adults have not made a will, which is shocking. This should be addressed. The passage of a Bill similar to the one proposed here could provide an opportunity for people to write their wills.

A related area of law is that of wardship of persons who are deemed not to be capable, whether that capacity is related to the making of a will or the giving of consent to something. This generally refers to those with intellectual disabilities. The issue may have been raised earlier, but wardship is a 19th-century concept that needs modernisation. The legislation is seriously antiquated and there is an urgent need for new legislation to modernise the area. While the Mental Capacity Bill 2008 was a step forward, we are still largely covered by the Lunacy Regulation (Ireland) Act 1871. A person who is a ward of court cannot marry, defend or initiate legal proceedings or transfer residence without permission from the High Court. It is a totally black and white system which allows for the total loss of control of one's self and one's estate. There are no grey areas. The consequences for someone who is made a ward of court are major.

Due to the requirements that Ireland must satisfy as a signatory of the UN Convention on the Rights of Persons with Disabilities, this is an area of law that we must reform. I ask the Minister whether there is an intention to move forward and ratify the convention to which we are a signatory. It is an affront to human rights to allow those with intellectual disabilities to suffer from such a system. Inclusion Ireland and Amnesty International are among those that have called for new legislation.

As I said earlier, I welcome the introduction of this Bill and commend Senator Leyden on its introduction. I share the concerns raised by Government spokespersons about legal issues. We have spoken a number of times over the last week about rushed legislation, and some legislation was guillotined in this Chamber. Issues such as this are so important that we have to get it right, so if there are legal issues that need to be considered they should be considered at length. We should not rush into introducing a Bill of such importance. I hope, if the Government is to oppose this Bill, that it will introduce a similar Bill which will address some of the concerns that spokespersons from the Minister's own party and her coalition colleagues, the Fine Gael representatives, have raised today. I thank the Minister for attending the House.

I welcome the Minister to the House and thank her for setting time aside to deal with this matter. I also thank Senator Leyden for introducing the Bill. I agree with what the Minister said. If I was asked to write a speech for her it would match what she said word for word. As someone who has been in legal practice for over 25 years I am well aware of the difficulties that can arise when a will is lost, but I am not too sure whether this Bill is a solution to that problem. When people make wills, the important thing they should do is to advise the executors that they have made it. People are sometimes reluctant to make wills but, having made a will, they can also be reluctant to advise their executors that it has been made and where it is deposited.

The reason many people do not make wills is that they think they have all the angles covered. In the last 30 years it has become the case that most property and many accounts are held in joint names. That is good and represents progress but it does not cover a situation, for example, in which two parents die in an accident, and that is where complications arise. When people are thinking about wills they may think they do not need to make one because their property is in joint names but that is one reason people should make wills. We need to keep highlighting that issue.

I came across a sad situation a number of years ago in which a will could not be located. It was not my own office that had been acting for the person, who had property in Ireland and in the UK. One of the problems was that property was disappearing from the house in the UK, so I sent my client over to the UK to get all the furniture out and sold. In the course of cleaning out the house the client found an old handbag and in it, lo and behold, was a carbon copy of a will. However, there was no evidence of its having been signed or witnessed. In fairness to the person who found it, she was the one who lost the most after it was found because she did not receive as much as she would have in the case of intestacy. I remember making an application to the High Court to have the document admitted into probate and it was, even though no signature was evident. The interesting thing about the case was that the person who drafted the document would sign an affidavit only to the effect that he had drafted the document but not to the effect that he had witnessed the will being signed. This was a case in which we found out the person's real intentions and the court accepted them.

This Bill tries to address problems that occur in cases in which people have made wills, but this is not the way forward in dealing with this issue. Much consultation is required. In fairness to Senator Bacik, her proposal is something that might be considered.

Another issue is that of homemade wills. There can be problems with these if people take short-cuts. I remember an example from the Leas-Chathaoirleach's part of the country in which a parish priest made a will but did not want anyone to know he had made it. The will was not properly done. When we spoke with the witnesses who signed the will, we learned the only time they were in the priest's house together was when the woman was making arrangements for her wedding. She thought the documents she was signing were related to her wedding. Subsequently, neither of them would sign affidavits affirming they were witnesses to the will. I am concerned about homemade wills and the procedure of registering them.

The Senator has had some interesting experiences.

That is what happens when one is in legal practice for 25 years.

These concerns need to be examined. The Bill, as drafted, is not the solution but it highlights the need for people to make wills. As Senator David Cullinane emphasised, with more young families it is important guardianship and other legal effects are planned for in the event of a premature death. I agree with the Minister's points about this Bill.

I commend Senator Terry Leyden for introducing this Private Members' Bill. There has been some debate as to whether the Government will support it. Senator Leyden would not argue the Bill, as drafted, is the finished article and accepts amendments need to be made to iron out the various issues raised by Senator Bacik and others, such as the voluntary nature of registration. Senator Leyden also made strenuous efforts to have this Bill put through the Thirtieth Dáil but to no avail. It was a poor reflection on the previous Government that a practical measure such as this was not implemented.

All Members agree on the need for wills to be registered. It would be a positive step, resulting in less stress for families during the immediate aftermath of a bereavement. The Government should support the Bill, as no alternative is in place or proposed. Existing statutory bodies could look after the registration of wills and subsequent record-keeping. As Senator Leyden stated, no information as to whether a will had been made would be released until the presentation of a death certificate to a solicitor. This would give comfort to those making wills that their business would be kept private. The issue is not the line-by-line assessment of the legislation but the Government accepting this is the right course of action. It should adopt this Bill rather than wait for the Law Society or others to produce another report.

While only 30% of families have wills, registration would be some ease. The heartache caused by lost wills adds to the anguish suffered by many families at a most distressful time. I hope the Government will table its amendments, bringing in proposals from the Law Society, so this Bill can move to Committee Stage and a registration of wills system can be established for the benefit of all citizens. I accept it will take time for such a system to become the norm. While the legislation makes registration voluntary, that too can be changed in time. The implementation of this legislation would not be a step in the wrong direction. The Government and others can strengthen these proposals. That would be a positive step.

With so much good will shown to this legislation, I am reluctant to call a vote on it later.

Senator Thomas Byrne made a good point on the cost of enacting this legislation. I regard it as self-financing through charging for registration. The Minister for Social Protection, Deputy Joan Burton, was positive and fair to the legislation. I accept she has enormous tasks to deal with in her portfolio. Having to bring this legislation to Cabinet is probably the last thing she needs.

Senator Sean D. Barrett welcomed the legislation and pointed out how many aspects of life involve registration such as car ownership and so forth. It is important that if a person makes a will there should be some way of locating it. Senators Fidelma Healy Eames and Ivana Bacik made excellent criticisms of the legislation. It was my intention that such criticisms would be put forward as amendments on Committee Stage.

Senator Paschal Mooney pointed out how some private legal firms already provide a service for the voluntary registration of wills. Senator David Cullinane, now a young father, made commendable points about the need for young families to make their wills. Senator Colm Burke outlined his great legal experience of dealing with wills, highlighting the intriguing situations that can arise. He also made the point that a solicitor should inform a person if he or she is appointed the executor of a will.

Will the Minister consider forwarding the Bill to the Law Reform Commission for its consideration?

Debate adjourned.
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