Paschal Mooney (Fianna Fail)

I also welcome the Minister to the House. I endorse all that has been said by the Minister and Senator Healy Eames regarding the motivation of Senator Leyden in bringing the Bill to the House and their hope the situation is regularised. If the Bill does nothing else, it will alert the general populous to the fact that a substantial number of people do not make wills. According to a number of solicitors who work in this area, a lost will might as well have never been made. The consequence of a lost will can include family disputes, unnecessary inheritance tax bills and expensive tracing fees. The only option is to contact every solicitor in the deceased's location to ask if he or she is holding a will. It is a hugely time consuming exercise, which may not produce the desired result.

I refer to a number of instances of the impact that this had, both emotional and financial, on people. The 2009 case of Thorner v. Major in the UK is an example of the costly arguments that can arise when a will is lost. David Thorner worked on the farm of his cousin, Peter, and was the main beneficiary of Peter's 1997 will. The will, however, could not be found after Peter's death. It took four years, Stg£400,000 in legal costs and a great deal of distress for all those involved before the estate was settled. David's solicitor, Stephen Gisby, believes that had the 1997 will been registered with a national wills register, his agony could have been avoided. An associate of Mr. Gisby's, Karen Shakespeare, recently dealt with a case in which an elderly man had told his friends that his will benefited them because he had no close family. After he died, his will could not be found and his friends believed it was accidentally thrown away when his house was cleared. Eventually a tracing company located a wife from whom he had been estranged for more than 30 years and she took everything. Ms Shakespeare said, "It is extremely unlikely that this is what he would have wanted. If his will had been lodged with a solicitor and registered, it wouldn't have been lost and his wishes would have been followed".

According to The High Court: A User's Guide, published by Four Courts Press, if the original will has been lost, advertisements should be placed in suitable newspapers to try to find it. A copy will is not normally acceptable in case the original was revoked, perhaps by destruction, but if a copy exists, the High Court may be asked to admit the copy to proof. The solicitor or person who made the copy will must swear that it is authentic. If no photocopy or carbon copy of the original will exists, someone with means of knowledge such as a person who has the original on computer disk may give evidence in order that the will can be reconstructed.

I illustrate these cases to emphasise the consequences of not properly registering a will. That is the primary motivation behind the Bill. During my research, I discovered, much to my surprise, that a number of companies operate in this field. One, in particular, claimed to have almost 2 million wills allocated to it and it has a sophisticated wills search system that connects solicitors throughout Ireland. There is a fee for this. If a will is lost, there is no national register and no way of tracing it. The reason I mention this, apart from my surprise that there are alternatives where I had assumed initially there was none, is the fact that there is at least one tracing company, which has a voluntary system in place to which 2 million people have subscribed, gives the lie to the views of the Law Society and other worthy people that somehow this Bill is not acceptable..

There is a need and a desire for a similar system to be put on a statutory footing. That is the central argument Senator Leyden made. In spite of the fact that there may be alternatives, there is a need for the State to intervene in this regard and while I accept, and Senator Leyden acknowledged, the severe limitations being placed on the Minister's resources, perhaps there are other unstated reasons this Bill has not been accepted. There seems to be a consensus among those in the legal profession or those who would be obliged to implement such a register that for some reason or other this is not right. Senator Leyden answered the questions, specifically in regard to the Law Society's objections going back to 2006. I only put this forward as a supposition because commercial voluntary will registers exist. I understand the Minister's reluctance. This legislation should have been passed by the previous Administration. Senator Leyden was ill-served by his party colleagues during that period. There was sufficient time for the Bill to be passed through the Dáil subsequent to the 2007 election, but it was not. The arguments that have been put forward today are new and were not raised previously, as I am sure Senator Leyden would have addressed them in detail.

I wish to depart slightly from the debate to take advantage of the Minister's presence. Last week we did not get an opportunity to refer to the guidelines on habitual residence under the social welfare Bill. The Minister has since issued guidelines. I would be most grateful if Members of both Houses could be given those guidelines as it deals specifically with returned emigrants.