Thursday, 26 November 1953
Dáil Éireann Debate
Minister for Justice (Mr. Boland): I move that the Bill be now read a Second Time. This Bill is concerned with a single type of intestacy and with no other type of case, namely, the case of a man who dies leaving a widow but no children. It is not a Bill to deal with the law of intestate succession generally. Nor does it aim at a reform of the law of property, which some people think is overdue.
The Bill differs from the Bill that was introduced in 1951, chiefly, in two respects. Under the previous Bill the widow was to take the whole of the intestate's personal estate. Thus, if  the deceased's estate consisted solely of a farm of registered land (which devolves as personal estate) the widow would take the entire estate. This, we believe, would be inconsistent with the wishes of intestates generally in this country and we have, therefore, proceeded on a different principle. Secondly, the previous Bill would have given the widow a life interest in the whole of the real estate but no other interest therein. This would put the widow in a worse position than she is in at present in the case of a small estate of real property as it would deprive her of the statutory legacy and a lump sum equivalent to half the value of the residue which would be a much more valuable interest in such a case. Opinion is indeed unanimous that life interests in small estates are most undesirable. We consider, therefore, that it would be a retrograde step to make such a change in the law.
The Bill proposes to make better provision for the childless widows of intestates in three ways. In the first place it proposes to increase four-fold the statutory legacy payable to such widows under the existing law, that is to say, to increase the statutory legacy from the sum of £500 to the sum of £2,000. Secondly, it provides that in the case of a partial intestacy the provisions of the Bill will apply to the intestate part. As the law stands the widow has no right to the statutory legacy in the case of a partial intestacy. And, finally, it provides that any property which, for want of an heir or next-of-kin, would pass to the State under the existing law shall in future belong to the widow absolutely and exclusively.
There has been a widespread feeling which is shared by the Government that the present law of intestate succession as it affects the case of the widow of a person who dies without children is not in accord with what such a person would have wished to have done with his property. Nor is it in accord with what is done by the average testator in making a will. On the other hand there is no evidence that public opinion is prepared for sweeping changes or would welcome any radical departure from the  principle upon which the property of such a person has been distributed on his death for the past 60 years. Indeed there is some reason to suppose that any sweeping changes which ran counter to accustomed ways of thinking would be strongly resented. Accordingly it is proposed within the existing framework of the law to increase the statutory legacy fourfold so as to bring it into line with the present value of money and to remedy those defects in the law as a result of which the widow is deprived of some of her inheritance for the benefit of the State where there is no heir or next-of-kin and loses the statutory legacy in the case of a partial intestacy.
There is one provision in the present Bill that must, I think, be reconsidered and that is the provision which relates to the valuation of real estate. Under the Bill as it stands the value of the real estate for the purpose of determining the widow's rights falls to be calculated in an artificial manner upon the basis of 20 times the rateable valuation. The effect of this artificial manner of valuing real estate under present-day conditions when the price of land is high might be to produce anomalous results and to make more ample provision for the widow of an intestate than it is thought reasonable to make.
Let me give an illustration. Suppose two persons were to die intestate, one possessed of a farm of registered land with a rateable valuation of £100, and the other possessed of nothing but £2,000 in the bank, the widow would take the entire estate in each case, but the saleable value of the farm of registered land might be worth as much as £4,000 or £5,000. The anomaly would be even greater in the case of two farms of registered land the artificial value of which was slightly below £2,000 in one case and slightly above it in the other, although the saleable value of both farms was much in excess of the artificial valuation. In the first case, the widow would take the entire farm, but in the second she would get no more than a statutory legacy for £2,000 and half the balance of the market value. For this reason  we have come to the conclusion that real estate should be valued on the basis of its market value and I propose, on the Committee Stage, to ask the Dáil to amend the Bill accordingly. Subject to this amendment I think the Bill is a good one and I ask the House to give it a second reading.
Mr. O'Higgins: I think that this Bill can be accepted by the House, but it should not be passed into law without Deputies appreciating that the real tribute for its enactment is due to the efforts made by Deputy John Costello some years ago to have this and other outstanding grievances and defects in our law amended. Deputy Costello, in this House, has consistently, on a number of law reform measures of this kind, done the work of a pioneer. It is regrettable that much of his efforts have not got from the draftsman's office, from the Minister's Department, the Attorney-General's Office, and from other bodies and authorities that should give assistance, the assistance that one would expect.
The Intestates' Estates Bill is introduced by the Minister in 1953. It was sponsored by Deputy Costello many years ago. Like many other Private Deputies' Bills, dealing or touching with law reform, the dead hand of the daughtsman's office descended upon it, and it was committed with the Civil Liability Bill, and a variety of other Bills of that kind, into the limbo of forgotten things.
Mr. O'Higgins: It has come to life five years later. Deputies will recollect that Deputy Costello introduced, I think in 1940, a Tort Feasors Bill, and also a Bill dealing with the position of married women as Private Deputies' Bills. The present Minister was in charge of the Department of Justice at that time. Deputy Costello was asked then would he not hand over the first-named Bill to the Minister for piloting through this House. Twelve years later, Deputy Costello, as Taoiseach, had the obligation and duty of seeing that that measure became law. That is why I say  that the Minister's office has been responsible for bringing about the complete death of worthwhile measures.
The Minister now says that this Bill has come to life again. It has come to life in a very attenuated form. The Bill proposed in the Seanad by Deputy Costello's Government, the Intestates' Estates Bill of 1951 which is still on the Order Paper, proposed to give to a widow, if her husband died intestate and where there were no children, his entire personal estate. That, if one likes to say it, indicates a very marked departure from the present state of the law.
I have yet to hear any convincing reason why, when a man dies intestate, having no children and leaving a widow, the widow should not get all his personal property. It seems to me only reasonable that that should be so. The case might be made that, if he died with real estate and personal property, his real estate should legitimately descend to his blood relations. Accordingly, in the Intestates' Estates Bill of 1951, it was provided that the widow, in addition to taking all his personal property, would have a life estate in his real estate, and in his landed property.
I do not know that there can be any very cogent reasons advanced against that proposal in the other Bill which is still on the Order Paper. The Minister apparently does not agree with it, and suggests, instead, that where a man dies intestate, leaving real estate and personal property, or merely one or the other, of a net value that does not exceed £2,000, then the widow will take all absolutely. That, of course, is sound as far as it goes. But we must not forget that we are dealing with something very trivial. Nowadays, with the fall in real value in money and the increase in market value of houses and bits of land that a few years ago would not be worth much, there are very few estates that do not exceed £2,000 in value, and we should not forget that the reform proposed here in its full degree will apply in very few cases. It is provided, then, that where the estate exceeds £2,000 the widow will have the first £2,000 and  will then take whatever share she is entitled to under the Statute of Distributions. Of course, the Intestates' Estates Act is, or will be, repealed by this Act. In other words, she will share with the next-of-kin of her husband all his property in excess of £2,000. Again, there is a difference of opinion. The Minister apparently holds one view; Deputy Costello and I would be inclined to hold a different view. The Minister thinks it is reasonable that the widow should be compelled to share with her husband's next-of-kin the real and personal property which perhaps herself and her husband acquired or worked together to acquire over a long married life. I do not think that is sound but that is the Minister's view. His proposal here is that after the £2,000 charge—the statutory legacy, I think the Minister called it—is satisfied, the widow will then share with the next-of-kin of her husband whatever is surplus to that.
I do not think that there is any other matter that requires comment in this Bill. I am glad the Minister referred to Section 7 because certainly as the Bill stands at the moment the valuation of real estate would be a matter that might cause considerable difficulties.
Might I just say this? I have frequently referred in this House on matters of law reform to the very considerable lead which the neighbouring country of Great Britain has on us in the reform of law. We here carry on under a common law very similar to the common law of England, but more important than that we carry on under a statutory code passed by the Imperial Parliament in many instances over 100 years ago, often longer. Many of our statutory conventions, regulating the duties and obligations of one citizen to another, are enshrined in very old British statutes. Now it is quite commonplace for Deputies when they are candidates at elections to say it is wrong for us to be carrying on under British statutes; why do we not change it? That, of course, is true, and I have often asked: Why do we not change them? The British themselves changed them years and years ago. The British do not carry on in  their modern society under aged statutes passed in the days of Queen Anne or in the early years of Victoria's reign. They have recognised that those statutes are out of accord with modern requirements. This particular matter of succession of a widow to the estate of her intestate husband was dealt with in England first of all in 1925. It was later amended by the Intestates' Estates Act, passed by the British Parliament of 1952. It is only another example of the manner in which in Britain they have consistently ensured that the law is kept in accordance with the modern requirements of their society.
We here—and it is unfortunate—are very much behind, but so far as this Bill is a little step, perhaps a faltering step, in the right direction, we welcome it. We wish the Minister had taken the stride that Deputy Costello proposed should be taken. But even the little step is a welcome one and we recognise that even Ministers must crawl before they walk.
Mr. Blowick: This Bill, as the last speaker has said, is definitely a step in the right direction, and I just want to ask the Minister a few questions on points on which I am not too clear. The changes that are proposed under Section 6—could the Minister give us any idea of what that will cost the State each year? Could I put it this way, what will the annual——
Mr. Blowick: Not that I am by any means interested in widows. The second thing is: seeing that we are dealing with the matter of intestacy in any case, I have another group of people in mind who are concerned in cases that we come up against in the country very often. As a matter of fact the titles to most of the land of this country, due to an unfortunate feature of our life, i.e., emigration, are in a serious muddle in many cases. Father or mother or both parents in many cases died without any will. A son remained on in the holding. The result was that there might be two, three, four or sometimes more children  in England, America, Australia, or scattered all over the globe and the son or daughter who stays at home and looks after the old couple in their last days and looks after the farm or holding, cannot get title without going to extraordinary rounds. I could quote one case where the owner of the holding died without a will, with a son who went to England 27 years before and married a widow who had children by her first marriage. In turn that son died, and the son who remained at home in charge of the holding tried to take out title. The court held that not alone must the brother's widow, but even the children of her first husband, who never stood inside this country or knew they possessed relatives here, must be considered as well.
Mr. Blowick: I am sure the Minister is well aware that that is a very serious flaw and it is preventing the occupiers of holdings from getting Government grants or availing of loans because they cannot prove title. Would amendments along these lines be acceptable to the Minister to make the proving of title easier? Would the framework of the Bill permit such amendment?
Mr. Blowick: Will the Minister consider bringing in a Bill to cover the cases I have mentioned? I got an insight into the position while I was Minister for Lands and I think I am safe in saying that eight out of every  ten holdings are without title. The Land Commission is sometimes blamed for being slow but one must admit that the Land Commission and the Land Registry, an office for which the Minister is responsible, have done an excellent job of work in giving title to all registered farmers. Now, due to various unforeseen contingencies, titles are slipping back into a hopeless state of chaos. I am sure some legislation to meet that situation would not be outside the scope of the Minister.
General MacEoin: The best that can be said for this Bill is that it is an improvement upon the existing position. Under the Constitution every citizen is supposed to be equal and to have equal rights before the law. Yet, here in this Bill we have a continuation of the theory that the female of the race has not equal rights with the male.
If a woman dies without making a will her husband gets her full estate. When he was getting married he made a pledge to his wife: “With all my worldly goods I thee endow”, but the Minister now says: “Only to the tune of £2,000.”
General MacEoin: The Constitution says we are all equal and we all have equal rights. Here is a Minister of State coming in and saying: “No, it is only the male of the race who has the right of succession to the whole estate; the female has not.” I can see  no reason in that. I cannot understand why the Minister could not have accepted Deputy Costello's Bill because that was rectifying the situation.
Another point is that this Bill will not take effect until the 1st January next. If I die intestate before the 1st January next my widow will suffer because the old law will be still extant, but if she could keep me alive until the 1st January next she would get £2,000 instead of £500 according to the Minister.
General McEoin: It should apply to all intestate estates that have not yet been wound up. If that is accepted justice will be done to people who might otherwise not get justice. I think that is a reasonable line of approach. I have known cases in my constituency where a man and his wife built up a big business. They worked hard and I can safely say that the wife worked as hard as he did, if not harder. He died intestate and people who were away for years came home and succeeded to the business; the widow got her £500 and the door. There were no children, of course. I know cases in which grave hardship has arisen because of the state of the law. I cannot see why estates that have yet not been wound up and the assets distributed cannot be brought under the scope of this measure. There will be no difficulty in getting a certificate from the registrar that these estates have not yet been wound up. There should be no trouble about that and I think it is a reasonable line of approach. It is the Minister who should put down these amendments. If the Minister does not do so, then the Whips will be on and we will be back where we started. This is a type of legislation where no Whips should be on because this is legislation for the benefit of all, no matter whether you are Fine Gael, Fianna Fáil, Labour or anything else. Therefore, the Whips should be taken off and the Bill should be discussed on its merits to make it a better Bill and to make the law in respect of the administration of estates equitable and just.
Mr. Moran: I welcome this Bill, so far as it goes, as an undoubted improvement and advance but on some of the more glaring injustices existing under the Intestate Estates Act it is unfortunately silent. One of the most glaring injustices has always been that in the case of pure realty the heir-at-law or the eldest son will inherit, irrespective of what he may have contributed to the family or whether he has been the greatest blackguard of the family. It is an extraordinary survival of the old feudal law that we still have here that, where you have pure realty and somebody dies intestate, the eldest son, even though he has gone away from the home and has been away all his life, can walk in and collect all the real property irrespective of the position of the other members of the family or, if it is the father that dies, irrespective of the position of the widow or, if it is the mother that dies, irrespective of the position of the widower. Possibly this can be cured on the Committee Stage of this Bill.
I do not see why, even so far as this Bill goes, as far as the first £2,000 is concerned, this old position that has been created in feudal times in the English law and taken over by our legal code should not be cured. It is high time it was cured. This law often gives rise to very grave problems of title. In trying to make title to pure realty it is sometimes impossible to find where the heir at law is.
The Bill purports to be an Act to make better provision for the widows of persons dying intestate and I would suggest to the Minister that on Committee Stage he would abolish the special privileged position of the heir-at-law as it exists under our code to-day.
I do not know that it is open to me on this Bill to mention another matter. I think it has been mentioned by Deputy Blowick. It is true that there is immense confusion and immense expense incurred by people under the law as it stands in regard to registered land and ordinary yearly tenancies that we meet from day to day in the country. Deputy Blowick and I would be merely concerned with the small  type of farmers in the West of Ireland. Owing to the historical conditions there, we have and will have for a long time, a large number of people emigrating from small farms under £10 valuation. It is often virtually impossible to make title to these small farms when parents die. There may be five or six members of the family scattered all over the world, in Australia, New Zealand, America and England, who have not been in touch with their homes for a great number of years. The boy who has waited at home and has worked the farm since his father's death, if he has the misfortune to take out administration, becomes express trustee and cannot acquire title without endeavouring to trace the members of the family who are all over the world, in order to get releases from them.
That causes him tremendous expense. In some cases the people who are abroad may not hear of the parent's death for some time and, when they find that they have a right, even though it may be only a nominal right, to a release in some of these small estates, they start trouble and refuse to sign deeds. The member of the family who stayed at home would be in a far better position if he never took out administration and just stayed on for 12 years. Something should be made more definite in ease of these unfortunate people.
In a Bill of this kind there should be a simple section inserted to provide that where there has been no adverse claim from any of the other next-of-kin within a period of 12 years, automatically, under this new particular section which I would suggest the Minister might put in, the man on the land would be entitled to file a simple affidavit in the Land Registry and be registered as full owner without having to go to the expense of applying under the Local Registration of Title Act or having to go to the interminable rounds involved in endeavouring to trace brothers and sisters who have left the farm perhaps 40 or 50 years before that. Some reform of that kind is long overdue, and I would ask the Minister to consider it before the Committee Stage.
 I know that there is a great number of our laws that need reform and that we very badly need a law reform committee but, if we wait for the work to be done by such a committee I am afraid we will have a very long time to wait. In so far as we are curing defects under this Bill, I would ask the Minister to consider, in particular, the privileged position of the heir-at-law as he now exists at law and, if he can see fit in this Bill to bring in such a section as I have suggested to enable the man who waits at home on the small West of Ireland farm to get his title put in order without the interminable legal rounds and the tremendous expense he is put to as a result of these people being all over the world and making trouble when he tries to get registration in respect of that small farm.
Mr. Hickey: Great improvement has been effected in the Bill as introduced by the Minister. Would it be asking too much to ask the Minister to agree to the suggestions that have been made to make the Bill retrospective? Perhaps the Minister would reconsider that matter.
Mr. Sweetman: On the general principle that the provision of a mere £500 for the widow under the Intestates' Estates Act, 1890, is insufficient, everybody is in agreement. Personally, I think the Minister should have gone the distance that was visualised in the other Bills introduced in the Seanad. If a man does not want to leave all his worldly goods to his wife, we are not seeking to make him do so by will. But, if he neglects to make other dispositions and if he has no children, it is reasonable—and the balance of hardship would certainly be alleviated most—that his entire estate should go to the widow.
There are two points which may be committee points but which I wish to mention. I do not understand Sections 1 and 2. Section 1 is phrased that the Act comes into operation on the 1st day of January, 1954. Section 2 refers to a man dying after the commencement of this Act. I cannot understand the difference between the two dates.  Supposing we pass this Bill before Christmas and a man dies on the 30th December, under Section 2 of the provisions of this Bill it applies, but under Section 1 the Bill does not come into operation until January 1st so I just do not understand the drafting of it. Perhaps I am extremely dense about it but it is quite clear that under Section 1 it does not come into operation until January 1st. It is equally clear—oh, yes, I see it suddenly as I am talking.
Mr. Sweetman: I skimmed it too quickly; but what I really wanted to say arises out of that. The type of person to whom this Bill applies is a type of person who does not read desperately carefully what is taking place, and a great many people of that class are under the impression at the moment that there has been a change in the law because of what they saw publicised in 1951. Quite a lot of people believe that the old provisions of the 1890 Act have been extended for the last two years though, in fact, they have not. Quite a lot of people saw references to an Intestates' Estates Bill in 1951 in the newspapers and believed that the law was changed. The type of person who would be affected by this does not, perhaps, understand and appreciate the difference between a Bill being introduced and being passed into law, and I think there is a very real case to be made for having the effect of this Bill retrospective to that date where at least the grant of administration has not been extracted since 1951 and the present time. If the estate has been distributed then, of course, I agree that you can do nothing about it, but if the estate has not been distributed then I think we might assume quite fairly that no action has been taken on foot of the rights that were created. The only way you can tell with any certainty that an estate has not been distributed is where the grant of administration has not been taken out, and I think we might quite fairly use that as the datum date.
I do not know whether under the Long Title of this Bill we could do what  Deputy Moran has suggested, but quite candidly I am in entire agreement with him that the provision by virtue of which a person extracting administration to an estate is thereby made a trustee in perpetuity is something that is without reality in regard to small holdings.
Mr. Sweetman: It involves the people concerned in quite unnecessary expense. I am afraid, however, candidly, that we are bound by the terms of the Long Title of this Bill, and we can only deal with cases where there was no issue, and, of course, it is very seldom in the cases where there is no issue that the title difficulty arises. It is nearly always where there are children who have gone away to America.
It would be outside the terms of this Bill, but there certainly should be some provisions that a person would be enabled to commence their squatter's title notwithstanding the fact that they had extracted a grant of administration perhaps for the purpose of dealing with a very minor type of asset which has been distributed—largely, I think, by paying funeral expenses and the debts in particular cases. Having to make application under Section 52 in those cases is putting very unnecessary hardship and cost on the person concerned.
It did occur to me when I read this Bill first of all that perhaps we might be running into some difficulty under the terms of it from a technical point of view. It is quite clear that we are not affecting the provisions of the Statutes of Distribution by the Bill by not expressly excluding them, because it is under the 1890 Act that the £500 came in for the widow and we are expressly repealing that and providing this provision instead of it. As far as my memory goes the 1890 Act did make some rather more express references to the Statutes of Distribution than is made in the drafting of this Bill. I have not looked it up and I am relying on very vague recollections of a date at a time when I was reading for examinations, which unfortunately is a  long time ago. Is the Minister absolutely tied to the question of leaving this on the basis of the £2,000? I really think that there is no case for the husband taking all the wife's assets on intestacy and the wife only taking part of the man's assets.
Mr. Sweetman: There would be at least more logic in introducing a section in the Bill side by side to that effect than doing it in this way. It is not a matter about which we want to make a political discussion on Party lines, and I really think that there is more logic in having it that if the man does not go to the trouble of making a will the wife would take everything where there are no children. I know that certain bodies supposed to be very learned in these matters have said differently, but very often these bodies are not as close to the realities of problems in the country as sometimes the people who have to see the countryman and to explain and to break, shall I say, the bad news. I really think that the Minister might do something on those lines.
Mr. Sweetman: For the pure realty estate, if I may use the word, and for registered land and, therefore, freehold passing as realty, and which is being paid out of the personal estate you have changed the market value?
Mr. Sweetman: Then I agree because the basis here would be an invalid basis. I hope it is going to be possible to have no basis at all, because if you wipe out the £2,000 and make it the whole estate then you have not to consider market value and the Bill becomes an even more simple Bill still.
Mr. Boland: I certainly think that  this is an improvement on the other Bill. The Attorney-General who drafted this Bill made inquiries as to what the general practice was about people making their wills in the cases where there are no children, and he says that they generally provide for some of their near relations. It could happen that it might be an old mother or an old father or an invalid brother that he would like to make some provision for —and first of all he would make sure that his wife was fairly well provided for. That at least is something which has been the practice where they have estates which are fairly valuable. A person after making a will may often die off.
Mr. Boland: I heard of one very strong objection which does not very often arise. That is the case where a young woman, a person whom you might call a gold-digger, marries a very old man, and he does not make any will. He may have other relations that he would like to provide for. He knows what the law is but he does not do it.
Mr. Boland: I am personally satisfied that this is not alone an improvement on the existing position but also an improvement on the Bill that was introduced by the last Government. I am somewhat surprised at the attitude of some speakers in regard to making the Bill retrospective. I have here an explanatory memorandum which was circulated when the last Bill was introduced in the Seanad. Deputy  O'Higgins said that it was due to Deputy Costello that that Bill was brought in. Part III of the explanatory memorandum issued in 1951 says:—
In other words, Deputy Costello thought it only fair and right that notice should be given to everybody, or at least to married people with no children, that this Bill was to come into effect. Now I am attacked by my predecessor for not making it retrospective. This is a non-Party matter. I do not say that everything that the last Government did was right—far from it—but in this matter they thought it well to give due notice.
Mr. Boland: Nevertheless, it is not the law, but now we are criticised for giving any notice. If I were to follow the example of the last Government, I would not allow it to come into operation for some time further.
Mr. Boland: It is a different question altogether. Everyone knows how difficult it is. I have known cases in the West of Ireland where people came back from other countries after a number of years and claimed their  rights to the detriment of people who had been there all their lives. They told the people who had been there all their lives that they were required to deposit a certain sum of money in court to cover the value they have got out of the land. One finds these cases but this is not a Bill to deal with them. This is a Bill simply to deal with a case where a man dies intestate leaving no children. I think we have improved it very much by increasing the widows' share fourfold. Also, half the residue which formerly went to the State will now go to the widow.
Mr. Norton: Supposing a man dies intestate and leaves a widow, she would get under this Bill £2,000 and if the estate reached £3,000, £500 of the remaining thousand will go to the widow. A tenth cousin living in the bush in Australia who has not been seen perhaps for 50 years could then arrive in Dublin, if the man died in Dublin, and put his hand on the other £500 but if he thought the journey were too long, the State would put out its greedy hand to take the £500 from the widow.
Mr. Boland: I cannot deal with how far the next-of-kin goes. This Bill deals with one definite matter. It does not deal with the law of succession in general. We are dealing with the circumstances set out here.
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