Colm Burke (Fine Gael) | Oireachtas source

I welcome the Minister of State, Deputy Stanton, to the House. I thank the Senators for bringing forward the Bill. There is always a lot of work involved when anyone introduces a Private Members' Bill. I compliment the Senators on the Bill.

I agree with what my colleague, Senator Clifford-Lee, said about delays in probate. Likewise in Cork, if I lodge an application for probate at the moment it is four months before I will get a query back, if there is an issue to be raised. If there is a query, when one replies, it might take a number of weeks before one can get the probate, so there is quite a long delay. Before one lodges the documents in probate one has to ascertain the valuation of properties and one now has to get balances from the banks on what were in accounts at the date of death. We now find that we have to fill up a huge volume of documentation for the bank before we are even given the information we seek. Before lodging the documents with the probate office it takes, on average, between eight to 12 weeks and then another four months before one gets a reply back if there is a query to be raised. Nine times out of ten there is a query to be raised and then one finds one has to reply to that, so in a lot of cases it is between eight and 12 months before one gets a grant of probate out.

That is fine if one has money in the bank and one is not concerned about the management of property but if one has property to be managed in the meantime then security issues arise. People know when a person has died and that a property is vacant so additional costs are incurred, which is of concern. When someone acts as an executor, he or she acts in the interests of the estate but there are many obligations imposed on them as well and that is of concern. I agree with my colleagues that we must consider whether there is a need for additional staff or how we can expedite the process.

I have concerns about the Bill. The courts have a fair amount of discretion. When an application is made to suggest the will was not properly done or the person did not have legal capacity at the time and the person who is challenging the will loses, in many cases the court tends to grant the costs to the unsuccessful party in order to prevent an appeal being lodged. That is one of the issues arising. In other situations I have come across cases where judges have said the parties are entitled to their costs but if an appeal is filed that will not follow, and the provision is put into the order. We must be careful in doing something like this given the effect on the discretion of a judge. In fairness, judges take into account the mood of the parties as they go through the legal process. If discretion is withdrawn from a Circuit Court judge one may end up with a lot more appeals going on to the High Court. That is something to take into account.

I was interested in what Senator McDowell said about wills. My first experience of dealing with a complicated will was one made by a parish priest in west Cork. It was a homemade will which had a number of changes, so I had to track down the witnesses. I travelled around west Cork and it took me an entire day to find the witnesses who were a father and his daughter. The only time they were in the priest's house was when they went to make arrangements for her wedding. They understood that the document they were signing related to her wedding when in fact they were witnessing his will. All they would do for me was to sign an affidavit to confirm that it was their signature but they would not swear that they witnessed his will. It just goes to show how things were done long ago.