Seanad debates
Wednesday, 21 June 2023
Nithe i dtosach suíonna - Commencement Matters
Legislative Programme
10:30 am
Victor Boyhan (Independent)
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I welcome the Minister of State, Deputy Joe O'Brien, to the House for what is a particularly interesting Commencement matter. It relates to a Private Members' Bill that I tabled in the House and about which we had an extensive debate. The legislation in question was the Registration of Wills Bill 2021 and the debate took place on 6 October 2021. Before I go into the central plank of what we were trying to achieve, I will say that the relevant Minister, Deputy Humphreys, came to the House and committed on the record - I have read the transcript - that she would actively engage with all parties and stakeholders to get some sort of resolution.
Efforts have been to made introduce this Bill, or various shades or types of it, on four occasions without any great success. Many commitments were given but nothing happened. What happened at that time was that the Government tabled an amendment to defer the Second Reading of the legislation for nine months later. That time limit has well and truly gone. In fact, a period of two years has passed between that debate in 2021 and today. We had a vote, which I am looking at now, and nothing has happened since. One could argue that it was open to me to re-enter the legislation. The Bill is now back on the Order Paper because that nine-month period has elapsed.
I will go into the essence of the Bill again. I want to work in the spirit of co-operation because the Minister identified a number of shortcomings. Everyone is familiar with the film The Fieldand the legitimate expectation and excitement of inheriting or holding what one's family has worked for. I am thinking in particular of rural agricultural communities and rural farms. I acknowledge the great work Teagasc has done through a number of webinars on succession for farms, particularly family farms. It was one of the best and most oversubscribed webinars Teagasc has ever run, which was interesting in itself.
This is an issue of importance because it is about inheritance. It is about passing on from one generation to another. As a member of the Oireachtas Joint Committee on Housing, Planning and Local Government and, more importantly, the Oireachtas Joint Committee on Agriculture, Food and the Marine, I am aware this is a recurring theme. Everywhere I go around the 31 local authorities, including to marts and agricultural fairs, I meet people who tell me of their concern around litigation in respect of inheritance.
What are we trying to do? We are trying to get a register. The Bill seeks to have a register of wills. Most countries have registers of wills. It struck me today that we have registers for births, deaths, marriages, cattle and dogs. We also have a television register and licence and are also soon to have a register for farm fertilisers. Despite all those registers, we do not have a register of where wills are held. They are clearly confidential documents. Much of the litigation and dispute is around succession and the right to ascertain a will or to find out that wills have been destroyed because they did not favour one person over another. The area is contentious and there is a need for a register.
I acknowledge the enormous work done by former Senator Leyden. He drove this issue for many years but is no longer here. I undertook to take on the issue, having spoken with him extensively. There is an issue here, particularly with regard to agricultural holdings and land. There are issues with regard to all wills. We need a central register of wills. Can we work together to put in place a register of wills similar to that in many other jurisdictions across Europe?
Joe O'Brien (Dublin Fingal, Green Party)
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I am pleased to take this Commencement matter on behalf of my senior colleague in the Department of Social Protection, Deputy Humphreys. Currently, there is no requirement to register wills with any State authority. The Private Members' Bill was the fourth attempt to introduce legislation that would allow for the voluntary registration of wills. The argument is being made that significant problems arise for families where there is a belief that a will exists but that it has been misplaced or lost.
When this matter was previously before the House, a timed amendment was agreed to allow for further examination of the proposals. On foot of this, a working group was established, comprising officials from the Department of Social Protection, the Department of Justice, the Courts Service and the Probate Office. The working group prepared a consultation document with submissions received from the Law Society of Ireland, the Bar of Ireland probate committee and the Society of Trust and Estate Practitioners, STEP, Ireland. All of the submissions received raised serious observations about the proposed legislation. The Law Society of Ireland stated its strong view that there was no need for the establishment of such a register. It drew on the evidence that a tiny number of grants of representation, probate and administration intestate are revoked because a will is found after the grant of administration or probate issues. The society considered that the Bill would be detrimental to encouraging more people to make a will, would act as a barrier to the making and amending of wills, and would add to costs. It stated the Bill was contrary to public policy to encourage more people to make a will. Fears were also outlined by the society of the effect a register might have on vulnerable clients who could come under pressure to produce proof of registration to bad-faith actors, where currently they can simply refer their question to their solicitor and rely on solicitor-client confidentiality.
The Probate Bar Association of Ireland concluded that while there could be some practical benefits, these were outweighed by the lack of a need. Its members were unaware of any ongoing issues or difficulties that required the establishment of a register. The association observed that there did not appear to be benefits which were proportionate to the likely additional costs or administration that might be incurred. It was also concerned that a register would dissuade people from making a will.
STEP Ireland expressed general opposition to the enactment of the Bill and stated that a register of wills would act as an additional layer of compliance and bureaucracy in the making of wills. It would add to the costs for clients and disincentivise the making and updating of wills.
The report of the working group noted that making a will where property interests were involved was good public policy and supported by the Government. The working group noted there was little evidence of lost wills, that no public policy objectives would be achieved by establishing a form of registration and that an intervention of this nature could work to dilute the aim of encouraging the making of wills.
The negative impact of a registration process on vulnerable people either making wills or engaging in a process of registration where knowledge of their actions might expose them to exploitation was clearly expressed in submissions and needs to be considered.Notwithstanding that, a form of registration or pre-validation process may support the work of the Probate Office to some limited degree, the working group concluded that the case for establishing a register was not well-grounded on either public policy or practical grounds. However, officials from the General Register Office are happy to engage further with the Senator on the matter.
Victor Boyhan (Independent)
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There is a lot in that. I do not have a copy of the Minister of State's script, so I would need to go away and consider it. However, it falls a bit short. I had to raise the Bill in the form of a Commencement matter in order to even get that response. I sought to engage, and I have a list of letters and correspondence from the Department. There was to be a meeting. It was cancelled and there was no engagement or follow-up in respect of a series of emails. We are where we are. As a result of tabling a Commencement matter, we have discovered a decision that clearly sets it up that the working group has not made a recommendation but the Government governs. It is not the Law Society of Ireland, the Bar of Ireland or the legal profession, rather, it is the Government that implements laws. This Parliament deals with legislation. I want to give notice that I intend to progress the Bill to the next Stage. It is on the Order Paper, so we will get a date as soon as possible and have a debate on it here in the House. The transcript of the Second Stage debate shows that many Senators were committed to the principle. I thank the Minister of State. If he could make available a copy of the response he read into the record to every Member of this House, I would be grateful. Copies should have been provided. It is difficult to talk about a response when you do not have it in front of you.
Joe O'Brien (Dublin Fingal, Green Party)
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I apologise for not having a copy of my response available.
Victor Boyhan (Independent)
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That is not the Minister of State's fault.
Joe O'Brien (Dublin Fingal, Green Party)
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From the recommendations made by the working group, based on the submissions made by key stakeholders, it is clear that the introduction of the form of registration of wills would be counterproductive and would create more difficulties for individuals than it would seek to resolve. The Bar of Ireland has pointed out that data from the Probate Office indicated that as few as 100 out of 15,000 wills processed involved missing wills and that in almost every case, the experience was that the High Court would admit proof of a will where a copy was produced. The Bar of Ireland's submission concluded that it is only in a tiny minority of the 100 or so missing wills that it would not be possible to obtain a grant of probate for want of evidence. While I appreciate the positive intention behind the draft legislation, it is considered that on balance, any benefits are far outweighed by the potential disadvantages and it is felt that the Bill, in its current form, should not proceed.