Victor Boyhan (Independent) | Oireachtas source

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

I warmly welcome the Minister for Social Protection, Deputy Humphreys, to the House. She is somebody who I greatly admire. She is full of common sense and very dynamic. I know she will listen attentively to this debate. While we might disagree, the Minister has a job to do, and I always respect that. I, too, have a job to do and I gave a commitment to the former Senator, Mr. Terry Leyden, before he left this House that I would continue to raise this issue. It is timely and I am glad it is today, although that was not of my choosing, as such.

We know from the Irish Farmers' Journaland the Teagasc website that there will be a series of two webinars, one this evening, on the transfer of the family farm and on succession. A similar event was run last year and it was the most attended event ever held by Teagasc. It dealt with succession, the rural farm, the rural household and the family home, all very contentious issues when people have legitimate expectations to inherit them. Usually that is encouraged, fostered and supported by a parent or guardian who suggests to little Johnny walking the hills in Cavan that one day he will inherit this 70-acre place. Everyone is familiar with The Field, and with that legitimate expectation and excitement of inheritance, to carry on what one's father had. Someone sowed and someone reaps. Land is fundamentally important to our hearts and souls and to our belonging and tradition, which are very important things. It is funny that the further one travels north or west, where the holdings are smaller, there is an even greater intention and desire to continue, to carry on, to inherit and to succeed. That is where the will comes in.

I thank the Minister. At the outset, I wish to acknowledge that this is not my Bill. This is the Bill of many Members who put the work into it. I gave a commitment to former Senator Terry Leyden when he left that I would endeavour to pursue this issue. In the last two or three weeks I checked with the Seanad Office and it confirmed to me that the Bill had fallen. The Bill went through all Stages in this House, but in the parliamentary cycle it did not go to the Dáil. Hence, it could be reintroduced. I sought to reintroduce the Bill in the House last week. I had the full support of every Member of the House and it was restored to the Order Paper. I am aware that the same content of this Bill was reintroduced yesterday in the Dáil, but it has a different date from this Bill. The only difference is that this Bill is dated 2021. However, that is the process and the way these things go. I acknowledge the enormous amount of work done by the former Senator and former Minister of State, Mr. Terry Leyden, on this important issue.

The Bill provides for an opportunity to register one of the most important documents a person can make, a will. Most countries have such a register in place. Having this debate highlights again the importance of making a will and of storing it in a safe place to which the appropriate people will have access at some stage in the future. Some legal firms go out of business and can no longer hold a will. Indeed, I will share a story with Members. I made a will over 20 years ago with a big Dublin firm. I inquired some weeks ago where it was. First, I learned that the company had split into two different groups. When I then asked where my will was, neither company could tell me. I put it to them that I spent €75 some 20 years ago for a will and that they had a duty of care to me personally. They said they would look into it. I happen to have found a copy, but this shows the importance of lodging a will and retaining it in a safe place. We do not know when we will be called or when our life will be ended or taken through health or whatever, so it is important to have that.

I acknowledge that there are issues that need to be teased out. I am the first to say, and I am not pre-empting what the Minister will say, that this Bill contains anomalies and shortages. However, I want to get it from this Stage to Committee Stage. The then Minister in 2016, Deputy Varadkar, later the Taoiseach and now the Tánaiste, said it was important to have this Bill. He heard all the debate. Many Senators then who are still Senators - I do not see them here but they may be tuned in somewhere else and might join us later - spoke in glowing terms about the Bill. It passed every Stage in the House, and that is important. Many current Senators spoke in support of it. The then Minister with responsibility for social protection, Deputy Varadkar, spoke about its importance and the right to choice.In fairness to him, he expressed some concern about aspects of the process. He asked if was a voluntary register, how much did a registrar know and have access to and what aspects were there in respect of confidentiality or abuse of access to wills, for example. He made some valid points but he suggested that pre-legislative scrutiny was the way to go in order to tease out this topic through committee. More important, it would get it to the next stage.

I am seeking a register of wills stating when and where the will was made, where it is held, the reference number and where it is available subject to the standard and appropriate checks, which are really important. We have a register for dog and television licences but we do not have a register for wills, which is extraordinary. We have a land registry and a very successful and professional probate service. We also have registration of births, deaths and marriages but we do not have a register for wills.

I note from previous debates on this matter that the Law Society of Ireland has expressed reservations and concerns, which I expect, as it represents the legal profession. It has views and it should be consulted. Again, either the Committee Stage process or pre-legislative scrutiny would be important in this regard, as that body would have opportunities to engage at that stage, which is important.

There have been times when people have felt they had to attend different solicitors in different towns to make different wills, which is extraordinary. It happens nonetheless, and it is very problematic. I have spoken with a number of solicitors in the past week and they told me they often receive emails from the incorporated Law Society asking if they have a certain will belonging to a certain person. People go through an exhaustive process, usually starting in their town, whether it is in Galway, Cavan, Waterford or Wexford, but may not be able to find a will.

I heard a terrible story of two women. One sister had minded her mother for 40 years and the other sister came home six weeks before the mother's death, admitting afterwards that she removed and destroyed the only will they had in the dining room. That case went to litigation at great cost to both of the women. The two sisters fell out and the courts forced the sale of the property. The sister who spent 40 years with her mother, giving up everything in her life, was chucked out on the road. How sad is that? Had the will been safe and out of the family home - or at least if a copy was out of the family home - she would have had some protection. The courts and the legal profession was sympathetic but there was simply no evidence of a will. The estate was declared intestate, the courts forced the sale and the legal profession made much money. Meanwhile, the two women now have virtually nothing. That should not happen and if there had been a register of wills, they would have known what was going on.

A national register of wills could address such matters. We all know what matters to people and disputes around estates can become very divisive, difficult and upsetting for all involved. Many people became benefactors of homes, farms and businesses that were not willed to them. Another solicitor told me thousands of wills were left in this city of Dublin in an old building not too far away from Leinster House. The business was completely wound up and in the normal set of circumstances the incorporate Law Society should have been informed of those wills. He told me the wills dated back from the early 1900s to the 1970s. Probate was never taken out on these wills and many were never opened. We only know they were filed alphabetically in a box and if a person said his or her name was "Boyhan" or "Humphreys", they would see if the file was there. Those wills were destroyed. It is a person's last will and testament but there are issues of concern around this. Not all solicitors are complying with regulations in that when they cease to be in business or amalgamate with another firm, they may not transfer the wills to the people. It is important because we know that if a will is found after probate takes place and assets have been distributed, the will is null and void.

People could find an only existing will five years afterwards but if the case has been in probate and the assets have been distributed, that is the end of it. It is a case being sorry but it is not good enough. The best way to achieve the key objectives of this Bill is to pass the legislation now. I know the Minister has considered this already. That is her style and I know how she operates. I know she will have an idea she will like to share with us. I respect that but I am conscious of the amendment that the Government has put down. I am proposing the legislation but the first I learned of the amendment was when it was notified to me in a general email some time late yesterday afternoon. I had no prior knowledge or discussion about it and nobody told me, as the person who moved the legislation, that this would be done. That is the process and I deal with that process.

The amendment proposes a delay of nine months, which is, to be frank, too long. We have been talking about this since 2005. I know that because I looked at the relevant sections of the Official Report. The Tánaiste has spoken about this and urged that we go ahead. I have the transcript of the speech where he suggested we go to Committee Stage. All I am asking today is that we go to Committee Stage. So what? I am not saying we should have that next week or next month but let us agree today not to have to bear another reading but to agree to go to Committee Stage. If it takes two or three months, that would be grand, but it cannot be nine months for another reading at this point. After all, this was passed through the Houses and been voted on by many Members. It is an important point.

I understand there is an idea of an online register. One aspect of the Tánaiste's contribution from back then that I like is that there may be a need to look at an online Irish wills register. Covid-19 has taught us something about being online. This is simply a register and it is not about the content and who made what. This would be a central register pointing to where the wills are deposited. He spoke about looking at the possibility of an online system. A wills register is an essential part of legal services. I am talking to the Minister, who wears several caps and is the Minister for Justice as well, but she is not here today in her capacity with the justice brief. She has much influence and people listen to her. They do not take "No" from her. She can make this happen. She represents a rural constituency.

I will tell her about two brothers in Bailieborough that I flagged with her when I spoke to her outside. They were promised they would inherit the family farm but in the end there was a dispute, as has happened so many times. It is so sad when we think of people who have fallen out over disputes involving land inheritance. We are talking about their heritage, their belonging and where they came from. They want to keep it but that may not happen if there is a dispute. These brothers fell apart, with one developing mental health issues. He is constantly struggling and feels betrayed and done out because, again, the will was destroyed. Somebody consciously set out to go into the dresser in the kitchen, bring the will outside and burn it because it was advantageous to that party to do so. How sad could that be and what legacy does that leave?

I do not need to share with the Minister or anybody in the House why so many suicides have happened and so many guns have been pulled on brothers, sisters, mothers and fathers over land disputes. It is about inheritance. We should remember the little boy who picked the stones from the fields or the fellow who settled the dry wall. We should remember the fellow who drove the cattle across the road to a few conacres he rented because he did not have it himself. He did not want his few acres overgrazed. These were noble men working the land and were proud to do it. They wanted to keep that land in their family name. Would the Minister begrudge that to anybody? I certainly would not.

A lawyer spoke to me today about a promissory estoppel. Within contract law, promissory estoppel refers to the doctrine that a party may recover on the basis of a promise - an honour and commitment - when the party's reliance on that promise was reasonable and the party attempting to recover detrimentally relied on that promise. The three main components needed for promissory estoppel are the promiser, the promisee and the promise that was not honoured. The injustice happens when the promisee suffers loss when he or she relied on that promise but it was not kept. In simple terms, it is legitimate expectation of inheritance and belonging that was, in a person's understanding, entitled to him or her or due to come his or her way.That is not to mention the free labour, the toll and the commitment and sacrifices that one member of a family might have made to stay with an elderly parent and to allow the other members of the family move on. That comes at a price too. As a rural representative, the Minister will appreciate that people make sacrifices, and not always by choice. Often an elderly father, mother or guardian cannot be left alone. Those who remain do not necessarily get paid. They might get out-of-pocket expenses on good days and nothing on bad days, but they have the hope that on the passing of the parent or loved one if a will is safe and can be found and executed they will inherit what they have been told is theirs. That is fair. People have the right to leave property to other people, to exclude others from their wills and to make early provision for people. That is important too.

I have made a reasonable case for this measure. I know the Minister is fair and reasonable. I paid particular emphasis to the importance of the family farm because that is the kernel of so many of the inquiries I have received. I have only one ask, that is, that the Minister agree to allow this Bill to proceed to the next Stage. I am not demanding that Committee Stage would take place this month or next month, but that she would give reasonable consideration to my request such that people listening in to this debate can have hope. I know the Minister is committed, fair and reasonable. This is a time for her to support and stand in solidarity with the people who need a decision today.