I move:
In line 41, after the word " Executors" and within the brackets to insert the words "and Administrators."
SECTION 3 (OLD SECTION).
" This Act may be cited as the Bodies Corporate (Executors) Act, 1928."
Question put and agreed to.
Section, as amended, ordered to stand part of the Bill.
SCHEDULE.
I move:
In the Schedule, Rule 1, line 45, after the word " probate" to insert the words "or of letters of administration."
Question put and agreed to.
I move:
In the Schedule, Rule 3, line 54 after the word " probate" to insert the words " or of letters of administration."
Question put and agreed to.
TITLE.
I move:
In the Title, line 8, after the word " persons," to insert the words " and of letters of administration of the personal estates of deceased persons."
On this question, I had intended raising a question as to the fees which would be chargeable under the rules.
At the conference which took place this matter was discussed at some length, and it was agreed by everybody there that we would do more harm than good by inserting a specific scale of charges. I speak subject to correction on this matter, but I will try to indicate the reasons given. There is, at the present time, considerable competition between the bodies who are holding themselves out to act in this manner. If you had a statutory charge, they would all charge at the same rate. The second reason given was that the bodies make an arrangement with the individual who is making his will as to a particular charge. That can be varied according to the circumstances. They can make a bargain. They cannot go back on the bargain, because, as the law stands, they cannot get any payment except what a testator leaves them in his will. They, therefore, get the amount which has been arranged, and the person making the will has complete control over that. If he does not like to appoint them, he can appoint an individual. Another reason which was given was that a complicated scale of charges would have to be introduced if the matter were dealt with at all, owing to the fact that the duties of executors are very different under different wills. In cases where the amount involved is small, and where there is no question of trustees and no question of a continuing trustee, a very small fee is all that could be equitably charged for acting as executor. In the case of a continuing trust over a long period, if a body corporate were appointed, the maximum charges permitted in the Bill would have to be very large. A very large proportion of the estate might have to be involved, and if the trust continued for a long period of years at the maximum rate, it might be something which we could not stand over. At the present time, those matters are covered by the arrangement that the testator makes with the corporate body. The point was raised in the Seanad, that if no money was left in the will to the executor, the corporate body would not act. That is, presumably, correct, but if a corporate body was appointed and no fees were fixed, there is nothing to prevent those to whom money has been left in the will agreeing to request it to act and agreeing to a certain fee. The point really is that there is no power being given to the corporate body to charge anything in the Bill. If you put fees in, you will give these bodies power, which they have not yet got, to charge. From the point of view of the banks, I would like that, but there is the danger that it might be abused.
I have received a letter from the Secretary of the Incorporated Law Society in which he states that the special committee of his society which considered this Bill were of opinion that it was desirable to give a definition of the words "bodies corporate" in the Bill, and also to introduce a limitation as to the necessary capital. The committee were also of opinion that the rules should be contained in a clause of the Bill.
There is no difference between the rules being in a clause and being in a schedule. They are just as much law in the schedule as they would be in a clause, and it was much simpler to treat them separately. These rules, when they become law, will become a part of the general court rules, which will be amended by the procedure in the Courts of Justice Act. That is the reason the rules were treated in this way. As to a definition of " bodies corporate," I am informed that, until experience has shown the need for a definition, it would be very unwise to attempt one. The law knows what a body corporate is, and the only kind of definition you could have would be one restricting it as to size. When this Bill was introduced, I said the only object of the measure was to put a number of persons acting together in the capacity of a corporate body in the same position as an individual. I do not, as an individual, ask that the capital be £100,000 or £1,000,000, because that would confine it only to banks. I do not think for a moment that either House would pass an amendment of that kind. After all, if an individual chooses to make a small limited company, in which he has absolute confidence, his executor, I think that company ought to be able to act for him.
The Incorporated Law Society seem to fear the possibility of this Bill being abused and of bogus companies being set up. As Senator Douglas has pointed out, the obvious answer to that is that the testator chooses. If he chooses a certain company, it is his own look-out. He has an unfettered choice as to the selection of personal representatives, and to limit his choice would be undesirable, at any rate unless and until it has been found in practice that the Act is being abused.
If a testator wants to appoint an incompetent representative, he is as likely to appoint an incompetent individual as an incompetent corporate body.
I imagine that the operation of this Act will be largely confined to banks and insurance companies. Where a man has been closely associated with a certain limited corporate body he may, in a rare case, exercise a discretion in favour of that corporate body under the provisions of this Act.
I should like to reiterate that the only object of this Bill is to facilitate corporate bodies appointed to act as executors or administrators. There is no provision in the Bill, I am convinced, which gives any power to any corporate body to impose itself upon anybody, even though the person in question be a client or debtor of the corporate body. The freedom of the testator is absolutely complete. I am satisfied that that is the case. The question has been legally examined and that is the conclusion.
Amendment put, and agreed to.
Title, as amended, ordered to be the Title of the Bill.
Bill, as amended, ordered to be reported.
The Committee adjourned at 3 p.m.