Heather Humphreys (Cavan-Monaghan, Fine Gael) | Oireachtas source

First, I welcome the opportunity to speak on the Registration of Wills Bill 2021. I acknowledge Senator Boyhan on his initiative to reintroduce this draft legislation. I really want to thank all the Senators for the contributions. I acknowledge the genuine concerns they have regarding wills.

It would also be remiss of me not to acknowledge the significant work done on drafting similar Bills on this topic by our former Oireachtas colleague and Senator, Terry Leyden, who I know raised this issue in previous Seanad terms. I speak to Senators as both Minister for Social Protection and Minister for Justice. The General Register Office, GRO, is an independent office that falls under the aegis of the Department of Social Protection and is central to the proposal being advanced in this legislation, while the Department of Justice has a remit in respect of the administration of wills via the Courts Service and the Probate Office. It is fair to say that both Departments have concerns with the Bill as drafted. Notwithstanding these concerns, which I will outline in further detail later, I accept the spirit in which this legislation is being brought forward. I am, therefore, proposing a timed amendment in order to allow for engagement between the Senators and officials from both the Department of Social Protection, the Department of Justice, the GRO, and the Probate Office, so that the merits of this Bill and the issues it presents for those bodies can be teased out in further detail.

The House may be aware that this is a further attempt to introduce a system by which wills can be registered. As I mentioned, former Senator Terry Leyden originally introduced the Bill in 2005. That Bill passed all Stages in Seanad Éireann in 2006, but it fell on the dissolution of the Oireachtas at the general election of 2007. Senator Leyden continued to pursue a Bill and introduced the Bill again in 2011. That Bill was similar to the 2005 Bill, in that it provided for a voluntary system of registration of wills by the General Register Office. That Bill also fell and was reintroduced again in 2016. Unfortunately, despite reservations being expressed on each occasion regarding the approach in those Bills, the text of the current Bill before us appears to bear no substantial differences to its predecessors. It is worth noting at the time the original 2005 Bill was introduced, the then Department of Justice and Law Reform sought the views of the Law Society of Ireland. In its response, the Law Society of Ireland expressed a number of reservations on the Bill both in terms of the day-to-day practical implementation of the proposed provisions, and on the infringement of certain legal principles. I have not had the opportunity to consult with the society on this Bill, given the time available to me since its introduction last week. However, as the contents of the Bill have not taken on the earlier concerns, I suspect that the Law Society of Ireland’s reservations continue to persist. It might be useful to remind the House what the society concerns were. I share these concerns.

The Law Society of Ireland pointed out that as the proposed registration of wills is to be a voluntary code, it would have limited effect. Proponents of a register of wills suggest that a number of wills go undiscovered or are destroyed each year, sometimes resulting in the mistaken distribution of estates under intestacy rules, or on the terms of a prior will. Unfortunately, very little information has been advanced to substantiate the problem the Bill seeks to remedy. I am aware of a general concern that wills can go missing. However, I have no information as to the number of instances where wills are reported as missing or lost.

The Law Society of Ireland made the point in its commentary submitted on the earlier Bills that the problems of missing or lost wills would persist under a voluntary system of registration contained in this Bill. In addition, the society was of the opinion that the most the Bill’s proposed registration system would 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 of the deceased person.

A further concern raised by the society was that the registration of a will offered no proof of the validity of the will registered. As I mentioned, the current Bill as it stands does not appear to address these earlier concerns. Neither does the Bill address concerns that a will has been executed in accordance with the statutory requirements and is valid. Importantly, registration would not prove that the will was made under undue influence. The society expressed the opinion that if the issue of the proper execution of wills is not addressed, the veracity of information held in a public register was doubtful and of limited use.

I would like to turn now to the concerns expressed by the Registrar General, who has responsibility for the General Register Office. The Bill proposes that the GRO will have responsibility for the registration of wills. The GRO is one of our longest surviving offices of State. Civil registration was introduced in 1845 for the registration of non-Catholic marriages and expanded in 1864 to births, deaths and Catholic marriages. Registration of adoption was introduced in 1952, civil partnerships in January 2011 and gender recognition in 2015. The services of the office continue to evolve to reflect societal change but continue to be primarily concerned with providing legal certainty around the registration and recording of vital life events, such as births, marriages and, ultimately, deaths.

As the Registrar General has stated in his annual report to me, the GRO is concerned primarily with matters relating to identity and the legal underpinning of matters relating to identity. I do not need to remind the House of the importance of the registers maintained by the GRO. The data in the registers form a basic, continuous source of information about the population. The registers provide faithful records of vital events relating to people. Most importantly, they provide a reassurance that satisfies the need for evidence that has a bearing on rights, entitlements, liabilities, status and nationality. Senator Kyne raised a specific issue. I would ask him to provide me with the details. I would be happy to raise the issue with the Registrar General.

As emphasised in previous debates on the Bill, civil registration is relevant to each of us at important stages in our lives, beginning with the registration our births and ending with the registration of our deaths. Between those 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 such as enrolling a child in school, obtaining a passport, taking up employment, participating in sports, and claiming a social welfare entitlement. Most importantly, each event registered under civil registration legislation has the benefit of an independent, evidential basis. Details of births are notified to the register independently of the parents. Details of deaths are attested, either by way of a certificate provided by the medical practitioner who had tested the deceased, or a coroner’s certificate. Marriages are evidenced by the signatures of the parties to a marriage, the witnesses and the solemniser.

The importance of these independent verification processes is that the records of the GRO enjoy a high reputation for integrity and credibility, both nationally and internationally. Certificates of vital events are readily accepted as evidence of the facts recorded, without the need for further investigation or inquiry. Records contained in the registers are recognised for their value as evidence in court proceedings, and the processes that underpin them are relied on by our courts in determining the matters before them.

From the foregoing, Senators will recognise that the proposals to establish a register of wills by the GRO would represent a significant departure. The scheme of registration of wills proposed in the Bill is voluntary. It will not guarantee that a will registered in the manner proposed was the last will, that it was a properly executed will, and that it was not made under duress. The scheme also fails to recognise that wills may be amended, revoked or superseded. A key failure is that the Bill does not make any effort to address concerns that the validity of wills registered can be assured. I do not see how the scheme, as proposed, can achieve the underlying objectives of the Bill. In addition, placing the General Register Office in an area of legal administration that is not within its recognised public administrative function, runs the risk of undermining that body.The arguments that I have set out are equally applicable to other State bodies that have a role in the administration of wills, estates and inheritances. If we are to legislate for a register of wills, it needs to be done in a manner that addresses the concerns of the Law Society, GRO and others.

While I am not opposing the Bill today, I hope Senators will accept the genuine concerns expressed regarding it. As this is now the fourth time since 2005 that the Bill has come before the Oireachtas, I believe it is high time that there was a serious engagement between the relevant Departments and offices with the Senators who are putting the Bill forward in good faith. For that reason, and with the co-operation of Senator Boyhan and his colleagues, I propose to arrange a meeting between the relevant officials in the Departments of Justice and Social Protection, the GRO and the Probate Office in order that all of these issues can be considered in detail and a decision can be taken once and for all on the merits of this Bill, which has been knocking around the Houses of the Oireachtas for longer than me and many others.

We need to quantify the extent of the problem and get an understanding of how it can be addressed to proceed. We need to get everybody into the one room. I am happy to facilitate that so that we can move this forward. Gaining a better understanding will allow an opportunity to properly identify the solutions that can be crafted either by a legislative or administrative mechanism. I also believe further consultation with the Law Society would offer refreshed and valuable insights into how the legal profession would see the objective being progressed.

I thank Senator Boyhan for bringing forward the Bill. I also thank all the Senators who have highlighted how important it is to make a will. Senator Boyhan is correct that many a will has been burnt, many a bitter row has resulted over a will and many a family divided because of a will. Senator Gallagher is correct that it is about getting the legislation right. It is not about going around the houses; it is about getting everybody in the one room to thrash this out once and for all. As I outlined, I am happy to facilitate this engagement with the aim of getting a comprehensive understanding of the matter, identifying suitable and workable solutions, and engaging with other stakeholders such as the Law Society so that any proposals that emerge enjoy the strongest credibility.