Michael McDowell (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I will outline to Senators what is intended by the Bill. Under ordinary rule of practice in the civil courts, there is a judge-made rule in respect of costs that dates back in the medium term to 1968 and a case called Vella v. Morelli. Prior to that, it dates back to the early 19th century. The Irish courts, where a challenge is brought to a will, generally follow the rule that, if the challenge is brought in good faith and is reasonable, the challenger is entitled to have the costs of the challenge - this is in addition to the costs of defending it - paid out of the estate even if he or she fails.

My reasons for believing this rule is unfair are as follows. The Constitution guarantees the general right to devise, bequeath and inherit property, subject to the provisions of the Succession Act, which afforded extensive protections to parties so as to ensure that they were dealt with properly. We have a new statutory rule under which children and persons in the position of children are entitled to challenge a will that fails to make adequate provision for them, except where all of the estate is given to that child's parents by the child's father or mother.

Those kinds of case are fine, but this Bill addresses a growing problem. Recently, the President of the High Court said that one would need to be either a millionaire, billionaire or pauper to go to law voluntarily these days. I will not dwell too long on how legal fees have grown, but they have increased. I know that from my own experience. As a consequence, any kind of case in the Circuit Court or High Court can be very expensive and outside the grasp of ordinary people to conduct. Such cases can be dealing with limited estates, for example, the value of a small house in Dublin, which is €300,000. If that gets involved in a tangle between the executor, one of the children and another of the children and everyone starts looking for costs, the estate often gets gobbled up or seriously dented rapidly.

The purpose of the Bill is to change the situation so that the ordinary rules of handling costs in litigation should apply in challenges to a will. The costs follow the event subject to a discretion of the judge not to do so. This Bill would effectively reverse the line of case law that is referred to in Vella v. Morelli to make it in future the ordinary rule that, if someone brings an unsuccessful challenge to a will, such challenge will normally be at the challenger's own expense and he or she will be liable to pay the costs of the executor in defending the will if the challenge is not merited.

I do not wish to discuss cases in which I have been involved, but I know as a matter of general experience that, where a challenge is mooted or brought, the reaction of the executor and the people who are likely to gain from the defence of the will is frequently to say that, although they do not believe there is any merit in the challenge, they will need to buy off the challenge in light of the rule in Vella v. Morelli. Consequently, people who are not entitled to a share in the estate or are entitled to a lesser share are suddenly put in the position of effectively having, I do not want to use the term pejoratively, a blackmail value to their challenge, which means that the people who are entitled to succeed to an estate in a will must effectively buy them off.

The rule increasingly acts unjustly. It is easy for someone to imagine that he or she has a good case against a brother or sister for using undue influence to procure a will in the sibling's favour. It is an easy charge to make. To put, for example, the woman who stayed at home to look after her elderly mother in a position of having to defend herself against a charge that she somehow got her mother to leave the house to her when the brother, who is well-to-do and so on, is able to challenge her behaviour, lose the case by a long distance and still say that he had reasonable grounds to challenge the will, creates a significant injustice.

When Mr. Justice Kearns was in the Supreme Court, he stated that the rule in Vella v. Morelli was not an absolute one and that, if someone instituted proceedings and it subsequently became clear that he or she had no case, he or she would not be liable to the costs involved if he or she proceeded with the matter. My view is that it would be far better if there were fewer challenges to wills and if people who wanted to challenge one faced the ordinary rule that they could not get the costs of making an unsuccessful challenge paid out of the estate, except in extraordinary circumstances that justified such a call.

As I understand it, the rule was followed by the Courts of Chancery in Ireland in the 19th century on the basis that there was a public interest in there being scrutiny of wills and documents that were produced as wills.Now the great majority of wills are drawn up with the assistance of a solicitor. The old idea is somewhat outdated that people take out a small piece of paper from under the bed or something else and say it is a genuine will. It is now much more difficult, as a matter of practicality, for somebody to produce a false or bogus will than it was in the 19th century when there was not such a facility.

Some Members have said they would favour the creation of a registry of wills or some system for registering wills such that, although the fact that there is a will would not be known to members of the public, after the death of somebody, the fact that a will had been brought into existence could be established. It would be instead of having advertisements placed in the Law Society Gazette looking for a will in a case of intestacy. That is a good idea, but it is different from the point I am making in this short Bill. I am strongly of the view that the time has come to change the rule established in Vella v. Morelli and save small estates, in particular, from the added burden that they can be challenged at the expense of the estate by somebody who will lose the case but suffer no penalty. It is in those circumstances that I bring forward the Bill. The explanatory memorandum sets out the background circumstances. I hope the House will give it a favourable hearing.