David Stanton (Cork East, Fine Gael) | Oireachtas source

I am pleased to be here on behalf of the Minister for Justice and Equality, Deputy Flanagan, who asked me to convey his apologies. He was here earlier for quite a while on Second Stage of the Criminal Justice (Corruption Offences) Bill.

The Government considered this Bill at its meeting this morning and agreed to the Minister's recommendation not to oppose the Bill but to accept the merits of its underlying principles and to agree that the Government should engage with the Bill's sponsors to address some problems that have been identified in the Bill as drafted. The Minister's understanding is that the purpose of the Bill is to ensure that persons who unsuccessfully challenge entitlements under a will or on intestacy, or who unsuccessfully challenge the administration of an estate, should not be able to do so at the expense of the estate and hence of the persons who would share in a distribution of the estate. We have heard some examples from Senators this evening of where things go wrong.

The explanatory memorandum accompanying this Bill states that, in practice, challenges that are unlikely to succeed are settled to avoid a costly court hearing and this legislation aims to bring an end to that practice. The Government acknowledges that there is merit in the policy objective of this Bill. Many of us may be aware of cases where the assets of an estate are eaten by legal battles, some of which are unjustified, and which have the effect of alienating family members and depleting the estate. We heard examples of that this evening. The Minister welcomes the Senators' proposal for legislation to address some of the unsatisfactory aspects of succession law in practice but I wish to highlight some issues with the Bill as drafted, which we believe require further work.

The approach taken in the Bill is to provide that in specified probate proceedings, an unsuccessful party shall not be entitled to an order that his or her costs be paid out of the estate of the deceased person. This would represent a fundamental change to the determination of costs in such cases. As Senators may be aware, there is a long-established practice in the courts that a court, when considering the matter of costs in civil proceedings relating to probate matters, will consider the facts of the case and, in particular, will consider two questions. These questions are whether the unsuccessful party had reasonable grounds for litigation and whether the proceedings were taken in good faith. Where the court considers that both these questions can be answered in the affirmative it is the usual practice of the court to order the general costs of the action be paid out of the personal estate of the deceased. This rule of practice was affirmed by the Supreme Court in the 1968 Morelli case, as has been referenced already. In the course of his judgment on the case, Budd J stated:

It would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported will is not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not.

The Minister is of the view that the Bill as drafted, while attempting to end what might be considered unintended consequences arising from the Morelli judgment, may give rise to unintended consequences of its own. That is, while reducing the number of unjustified claims, this legislation may also run the risk of preventing those who have genuine concerns regarding a will or the administration of an estate, from seeking to exercise their right to access to justice. To ensure that this is not the case, the Government wishes to engage with the Bill’s sponsors to amend the Bill as necessary.

The Minister also draws the attention of the House to section 168(1)(b) of the Legal Services Regulation Act 2015, which provides that a court, in proceedings concerning the estate of a deceased individual, or the property of a trust, may order that the costs of or incidental to the proceedings of one or more parties to the proceedings be paid out of the property of the estate or trust. The Minister points out that there appears to be a difficulty of interpretation in the Bill as published. Section 3, which provides that an unsuccessful party shall not be entitled to an order that his or her costs be paid out of the estate of the deceased person, is subject to section 4. Section 4 preserves the jurisdiction of the court in terms of the determination of costs in accordance with the rules of court or procedure. Perhaps it is intended that the rules of court could effectively override the provisions contained in section 3. The Minister would welcome some clarification as to what is intended here.

Reference has been made to probate. A working group has been examining an operational probate system and the work is nearly completed. I am also interested in the reference that has been made to a registered wills Bill. That is something that should be examined further.

As I indicated, the Government acknowledges the merit in the Bill's underlying proposals insofar as they seek to deter frivolous or vexatious claims against an estate which may be settled before reaching court. For the reasons that I have set out, however, the Minister considers that the provisions will require careful scrutiny and, in all likelihood, amendments to ensure coherence with existing practice in probate matter and to ensure that the right to access justice is not restricted unfairly. To that end, the Minister will consult the Attorney General to ascertain whether the objectives of the Bill can be achieved in an alternative manner and would be happy to engage with the Bill's sponsors in this regard.

This area is quite interesting and challenging. We all have examples and heard anecdotes of what happens, especially in some parts of Ireland. The cases are not all from Cork and I am sure instances happen in other parts of the country as well. I thank the Senators for bringing forward the legislation and for the interesting debate on same. We look forward to engaging further.