Joan Burton (Dublin West, Labour)

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 their 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 Department of Justice and Equality 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.