Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

Also, I did not realise so many Senators were solicitors until the debate commenced today. Having listened to the very short debate we have had, I am a little better disposed to the merits of the idea than I might have been even an hour ago.

I acknowledge the initiative of Senators Terry Leyden, Catherine Ardagh and Lorraine Clifford-Lee in drafting the Bill. I can certainly see why it would be a good idea to provide for a statutory system to register wills. It is important that people make a will as it makes it much more straightforward to administer a deceased person's estate and is simpler and less costly for families. Where a deceased person has no family, it could help to avoid long delays and expense while his or her successors are being identified. On the face of it, having a register of wills would seem to be a good way to locate a person's last will and testament. It might also be a way to establish whether a will was ever made. When one considers the proposal in more detail, however, it appears that registering wills might create as many problems as it would solve. I can imagine that the Senators will want to deal with situations where, for example, wills are lost or a person has changed solicitor or where the family of a deceased person think there is a will but cannot locate it. We all know that matters to do with people's estates can become very divisive, difficult and upsetting for those involved.

We all have the right to settle our affairs as we see fit and, provided we have acted within the law, no one can interfere with this. We are not obliged to publicise the fact that we have made a will, its contents or where it is lodged. I realise the proposal is that registration be voluntary, but the problem is that a voluntary system would not stop people making multiple wills or codicils subsequent to the registration of a will and then not registering the existence of new wills or codicils on the register. As such, the registered will might not actually be the last will and testament of the person concerned. I am certainly not suggesting a compulsory system be introduced and acknowledge that the Senators are not proposing it in the Bill either. I am simply pointing to some of the pitfalls in having a voluntary system. I often say we always debate two laws in this and the other House; the law in front of us and the law of unintended consequences. In that regard, I note that inheritance matters are not dealt with by my Department; as such, I would need to consult the Tánaiste and Minister for Justice and Equality to obtain further information on the issue. The Bill proposes that a person or his or her solicitor attend before the registrar to say a will has been made. The actual will would not be deposited with the GRO, nor would the registrar see it. There would be no proof that there was a will or that it was valid or that another will or codicil had not superseded it. I acknowledge that the Senators may have considered these matters and have solutions to them.

There have been some changes to the Bill since its original publication by Senator Terry Leyden in 2006. The Registration of Wills Bill 2005 passed all Stages in Seanad Éireann but fell on the dissolution of the Oireachtas for the general election of 2007. The Registration of Wills Bill 2011, again brought forward by Senator Terry Leyden, was similar to the 2005 Bill in that it provided for a voluntary system of registration by the GRO. The Bill before us bears no substantive difference to the 2011 Bill. The Bill was first introduced 11 years ago and, of course, things could have changed in that time.

When the 2005 Bill was introduced, the Department of Justice, Equality and Law Reform sought the views of the Law Society of Ireland which expressed reservations about the legislation on a number of grounds, both in terms of its day-to-day practical implementation and the infringement of certain legal principles. It pointed out that as the proposed registration of wills was to be voluntary, it would have limited effect. Proponents of the register will suggest a number of wills go undiscovered or are destroyed each year, which sometimes results in the wrongful distribution of assets under the intestacy rules or the terms of a prior will. However, there would still be these problems under a voluntary system. In addition, the Law Society suggests the most the Bill's proposed registration system could 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 was the last one.

A further concern is that the registration of a will is not proof of its validity. As the Bill stands, it does not appear to require that the will being registered be executed in accordance with statutory requirements and be valid, nor would registration prove that the will was not made without undue influence. The register would also accommodate the registration of DIY wills, a large proportion of which, experience suggests, do not comply with statutory requirements. The Law Society also opined in 2006 that if the issue of the proper execution of wills was not addressed, it could call into question the veracity of the information held on a public register, a concern shared by my Department and an tArd-Cláraitheoir.

The Bill proposes that the GRO have responsibility for the registration of wills. Civil registration was first introduced in 1845 for the registration of non-Catholic marriages and extended in 1864 to births, deaths and Catholic marriages. Registration of adoptions was introduced in 1952 and civil partnerships in January 2011. The date on the register forms a basic, continuous source of information on the population, providing a record of vital events relating to people and satisfying the need for evidence that has a bearing on rights, entitlements, liability, 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 with our deaths. Between these events, civil registration affects us directly, as in the case of marriage, and indirectly when certificates are required for many of the services available in society, including enrolling a child in school, obtaining a passport, taking up employment or claiming a social welfare payment.

Each event registered under civil registration legislation has the benefit of an independent evidential basis. Details of births are notified to the registrar independently of the parents, while details of deaths are attested either by way of a certificate provided by a medical practitioner who attended the deceased or a coroner's certificate. Marriages are evidenced by the signatures of the parties to them, the witnesses and the solemnisers on the registration forms, details of which have been recorded by the registrar prior to the event. As a result, the records of the GRO enjoy a very high reputation for integrity and credibility nationally and internationally and certificates of vital events are readily accepted as evidence of the facts recorded without any need for further investigation or inquiry. A register of wills as provided for in the Bill would be significantly different from other registration functions the office already has. As the scheme proposed is voluntary and, therefore, not comprehensive, it would be unable to guarantee that a registered will was the last one and had not been amended, revoked or superseded and that its validity could not be assured. It is difficult to see how the scheme as proposed could achieve its objectives. In addition, I am fearful that the good reputation enjoyed by our system of civil registration could be undermined.

I understand the Bill was drafted against the background of the Council of Europe's Convention on the Establishment of a Scheme of Registration of Wills. The convention provides for the establishment of national registration schemes and contains supplementary rules governing international co-operation between national authorities entrusted with the task of registration. Ireland has not signed or ratified the convention. It is also the case that there has not been enough time to consult the Law Society about the Bill to see if its views have changed in the ten years since it first considered the matter, particularly having regard to the fact that the Bill has been amended, mainly by the addition of a new section 13. As such, it would be useful to consult the Law Society on the current Bill to see if its views have altered. It would also be useful to hear from the Ard-Cláraitheoir on his views and experience, as well as from other experts and interested parties, to tease out some of the issues. The best way to achieve this is to support the passage of the Bill on Second Stage to allow it to proceed under the new arrangements to a pre-legislative scrutiny hearing at committee level when we can hear from all of those with an interest and expertise in the area and, perhaps, tease out the legislation further.The best way to achieve that is to allow the Bill to pass through Second Stage and proceed to Committee Stage and, under the new arrangements, to allow for a pre-legislative scrutiny hearing so we can hear from all those who have an interest and expertise in this area and perhaps tease it out further.

Other issues that would need to be considered are fees to cover the administrative cost of the office, whether the GRO is the appropriate body and not the Probate Office, and whether a copy of the will should actually be kept on file in the GRO. I note Senator Ardagh's point on the possibility of registration online. Of course, one could potentially scan a will and register it online. Also to be considered is the matter of whether the registered will should take precedence over subsequent wills. A Senator suggested that we examine what is done in other countries to see what systems operate there.

While I will not be opposing the Bill today, I will not be able to support it further unless some of its flaws and some of the issues I have raised today can be corrected. The best way to do that, however, is to allow it to proceed to Committee Stage, on which these issues can be teased out.