Fidelma Healy Eames (Fine Gael)

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 is 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 death 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.