Tuesday, 17 May 2005
Seanad Eireann Debate
Mr. Leyden: I raise the need for the Minister for Justice, Equality and Law Reform to review the procedures governing the making of wills and the desirability of providing a national registration system for wills. I am of the opinion there is an urgent need for legislation to provide for a national registration system for wills. We are faced with a situation in which many people’s last wills are not being honoured. Many make wills not knowing that these may sometimes not be executed correctly, if at all. It is a unique situation where a purchaser of this service has no after-sales service or comeback, as it were.
We have a responsibility to ensure citizens’ wishes are honoured and given their proper and deserved legal recognition. One person deprived of what is rightfully his or hers is one too many. All wills must be registered to combat this problem. I envisage a registration of wills Bill being introduced this year. The central registration would be provided for by the General Register Office, which is located in Roscommon town. All births, deaths and marriages are legally required to be registered and it is only natural, therefore, that the central registration of wills would be situated in the same location.
I propose that solicitors must lodge all wills with the national register within 21 days of the wills being executed. In the course of my research I have discovered a Council of Europe convention for the establishment for a scheme of registration of wills dating back to 1972. I understand this convention was never ratified by the State although countries such as Belgium, France, Italy, Luxembourg and Spain have done so. The convention’s main aim was the provision of a registration scheme enabling a testator to register his or her will in order to reduce the risk of the will remaining unknown, or being found belatedly, and to facilitate the discovery of the will’s existence after the death of the testator. This was on account of the situation wherein a growing number of persons made their wills in places that were not their homes or even in foreign countries.
As most member states do not require wills to be deposited with a court of law, notary or other authority and there is no central register, heirs are often unaware of the existence and whereabouts of a last will and testament. We must establish a registration scheme for wills, which would make it possible to ascertain whether a deceased person has made a will and, if so, where it can be found. In 2004, some 5,400 wills were probated in Ireland but more than 28,000 people died. This significant shortfall demonstrates my point. Many people do not make wills. Many make private wills but these are normally held with their papers and documents.
There is no requirement of the 3,000 plus solicitors registered in this country who execute and make these wills to provide lists that would be held in a central bona fide registry such as the General Register Office in Roscommon town. At present, a person makes a will with a solicitor, the solicitor records it in his or her book of wills and the document is held in the legal firm’s safe deposit box. The Law Society Gazette has advertised in the past few weeks, as it does in every publication, requests for the whereabouts of wills that are mislaid, missing or cannot be found. Many people who would be entitled to inheritances from these wills have been deprived. There is a case to be made for this move and if the Minister for Justice, Equality and Law Reform is not in a position or is not prepared to introduce a Bill, I will introduce a Bill under Private Members’ business as I feel strongly about this matter.
Mr. Leyden: This is the advantage of being legislators. We have a responsibility, in co-operation with the Government, to introduce legislation but we have a right to introduce our own when we see a shortfall. This has been done in the past by other Members of the House in connection with important Bills.
The bones of this Bill are set out in the Council of Europe’s convention but I have added other documentation and have received helpful advice and information from a Roscommon solicitor involved in this area. There is a general feeling in the legal profession that there should be a central registration office. The General Register Office is located in Roscommon and the Land Registry office will also be located there. Roscommon is the centre of Ireland and in this case it will be the centre of registration of people’s last will and testament. I hope many people will benefit when the Bill is enacted by the Government or by way of a Private Members’ Bill, with the support of the Government.
Minister of State at the Department of Transport (Mr. Callely): I thank my good friend and colleague, Senator Leyden, for raising this issue. The Minister for Justice, Equality and Law Reform, Deputy McDowell, may contact him to further discuss the matter, or I invite the Senator to contact the Minister. Some of my notes may be helpful to the Senator at this stage. I apologise on behalf of the Minister who would like to be in the House but is, unfortunately, tied up with other business.
We are all aware that the procedures governing the making of wills are contained in the Succession Act 1965. The word “will” in this context normally means the document or documents in which a person sets out his or her wishes in regard to certain matters which are to take effect after the person’s death. The contents of a will are not confined to matters relating to the disposal of the testator’s property on death, but that is generally perceived to be the main purpose of a will.
One of the principal features of a will is that it does not, and is not intended to, take effect until the death of the testator. This means, therefore, that a will may be revoked, or added to by means of a codicil, at any time before the person’s death. A will is, therefore, a declaration of the testator’s intent at a point in time before his or her death. It also means that any intended beneficiary of a will runs the risk that the will may be changed to his or her disadvantage during the testator’s lifetime. In addition, there is always the risk that on the testator’s death, his or her debts might exceed the value of the property and that it may have to be sold to clear the amounts owed.
Normally a will consists of a single document which has been completed in compliance with the statutory requirements set out in Part 7 of the Succession Act 1965. This means that it must be in writing, signed by the testator, or by his or her direction, and must be witnessed. A testator is not, however, confined to a single document. A will may consist of a number of documents provided that each of them complies with the necessary requirements.
Prior to the Succession Act 1965, the principle of freedom of testation applied here. This meant that a competent testator was free to act in an arbitrary and erratic manner in disposing of his or her property on death. However, Part 9 of the 1965 Act introduced provisions which prevent a testator from disinheriting his or her spouse or family. Section 111 provides that if the testator leaves a spouse and no children, the spouse has a right to one-half of the estate. If there are children, the spouse has a right to one-third of the estate. Moreover, section 117 provides that where, following application by a child of a testator, the court considers that the testator has failed in his or her moral duty to make proper provision for the child, the court may order that such provision as it thinks just shall be made for the child out of the estate.
It must be remembered that people still die without making a will, in which case they are said to have died intestate. In some cases, it may be assumed that the death was unexpected, especially in cases of accidents and the deaths of young people, and that the intestacy was not deliberate. In other cases, a conscious decision may have been made not to make a will, possibly because of a reluctance to choose between potential beneficiaries or because the person concerned was happy to have the estate divided under Part 6 of the Succession Act, which sets out clear and unambiguous rules for distribution on intestacy. All of us in this House can relate to issues of that nature.
Section 67 of the 1965 Act provides that if an intestate leaves a spouse and no issue, the spouse takes the whole estate. If a spouse and issue are left, the spouse takes two-thirds and the remainder is distributed among the issue. If there is neither spouse nor issue, the estate will be distributed among the parents. The Succession Act 1965 is undoubtedly one of the legislative landmarks of the 1960s, which has served its purpose well over the intervening years. The Minister for Justice, Equality and Law Reform believes that its basic provisions, amended where necessary in the meantime to reflect developments in the family law field, remain relevant to the conditions and circumstances of today and that no fundamental review of the provisions governing the making of wills was called for prior to the Senator’s contribution.
The Senator referred to the desirability of providing a national registration system for wills. While I see merit in the suggestion, I would make some comments. The 1965 Act did not provide for such a system and the Minister is not convinced of the need to establish a registration system at this stage.
The establishment of a registration system for wills would give rise to two sets of problems. First, in terms of the principle involved, it would risk encroaching on the privacy of individuals. At present, people can decide whether to make a will. People may consciously decide not to do so, for example, because they are satisfied that their wishes will be accommodated under the intestacy provisions of the 1965 Act. A registration system might lead to undue pressure or influence on such a person to make a will, and also to dispose of property in the will in a particular manner. I hope these points are helpful to the Senator.
The practical difficulties with operating a registration system would also be considerable. What statutory body would operate and maintain the system and what would be the powers and duties of such a registering authority? Apart from the structural questions, issues would arise in regard to the status of wills that had been made but not registered, or where the testator had died between the making of the will and the completion of the registration formalities. Revoking a will, or altering the terms of a will, would inevitably become more difficult and inflexible. The position in regard to wills that consist of a number of documents would almost certainly lead to complications.
The Minister for Justice, Equality and Law Reform, Deputy McDowell, is not convinced that the introduction of a national registration system for wills is justified at present. Apart from the administrative costs involved, the operation of any such system would inevitably encounter legal and practical difficulties. Moreover, the establishment of a registration system, without a clear need having been identified, would run counter to the better regulation principles to which the Government has committed itself in the White Paper, “Regulating Better”.
Mr. Leyden: I thank the Minister of State for coming here on behalf of the Minister for Justice, Equality and Law Reform. This is one of the most comprehensive replies ever given in the Seanad. Prior to raising this matter, the Minister was not aware of the issues I have brought to his attention, particularly in regard to the Council of Europe documentation. I have solved the registration problem by proposing Roscommon as the central registry location. The information would not be made available until a person died; that a will was made would only be made known on the production of a death certificate.
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