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would be on trial. How in practice could the working
of an optional scheme prove or disprove the case for
making it compulsory? All that it could possibly
achieve would be to familiarise the public to some
extent with the practice of notarial attestation of wills,
but in all likelihood this would only be true of those
who consult solicitors about their wills in any case.
Whether the scheme is optional or compulsory, it
also seems unsatisfactory in principle to seek to steer
testators towards solicitors in this way. Direct encoura-
gement of testators to take legal advice about their wills
is all to the good, but is it right to do so by exerting this
sort of indirect presure? We would also foresee that it
could raise awkward questions about the solicitor/
commissioner asked to witness a home-made will. It
seems plain that, if he were asked to exercise a purely
notarial function, he should not strictly be concerned
with the contents of the will apart from matters affecting
its due execution. But the Report seems to suggest that
he would in some way certify that it was in order, and it
seems to be an unspoken assumption that as a result of
the proposal not only might the testator decide to ask
the commissioner to advise on a solicitor and client
basis but also, possibly, that the commissioner might
feel obliged, without being asked, to point out any
glaring defects in the draftsmanship of ,a will he is
asked to witness, and clearly in some cases he might
well find it hard not to do so. We seriously doubt
whether it would be right to put a solicitor in this
invidious position and the Report does not really dis-
pose of this problem adequately.
The Report does not recommend any other change
in the rules on attestation but suggests that the rule
invalidating gifts to a witness is unreasonably rigid.
It proposes that small gifts up to a certain limit should
be exempted from this altogether and that above the
limit there should be a rebuttable presumption of undue
influence, with a procedure for decision as to validity
to be obtained on a summons before the registrar.
There is perhaps something to be said for exempting
small gifts from the rule altogether but otherwise this
proposal seems calculated to encourage litigation.
We are inclined to think that solutions to the problem
of home-made wills are more likely to lie in other
directions, such as (i) greater direct publicity for the
advantages of having a will drawn up by a solicitor (a
service which even the most prejudiced must admit is
good value for money), (iii) possible reforms of the law
on interpretation of wills which, as the Report mentions,
is being considered by the Lord Chancellor's Law
Reform Committee, who will no doubt be making
recommendations on the matter shortly, and (i
:
i)
various other reforms of the general law where it
unreasonably defeats a testator's intentions, for example
by imposing a strict settlement under the Settled Land
Act 1925.
(Gazette of the Law Society, England).
Theological Association Report
on the Constitution
It might be thought that a Report submitted to the
Theological Association about proposed changes in the
Irish Constitution would be ultra conservative. This is
however far from being the case. On the contrary, in
order apparently to please the non-Christian Com-
munity who form less than 1% of the population of
the Republic, this Report suggested that the wording of
the preamble should be secularised, and all mention of
the Holy Trinity eliminated. While the views of
important Christian denominations should be taken into
account in framing a Constitution, ultimately suitable
for all Ireland, it is very difficult to see why a tiny
minority should be placated.
Once some facilities for divorce had been granted in
Italy, it was easy to forecast similar demands would be
made here. But there is little doubt that if the demand
for full divorce were submitted to a popular referendum,
it would more than likely be rejected. It has already
been pointed out that, if there were a demand for easier
facilities to optain contraceptive pills, this could be met
by amending legislation.
An all-party Committee of politicians (including a
few Lawyers) has been formed to allegedly reform the
Constitution with a view to its being acceptable to a
majority of the people of Ireland. There is a grave
danger that these politicians may well produce the text
of a brand new Constitution, which would not have
been submitted to the prior scrutiny of Constitutional
Lawyers rather than going to the trouble of submitting
many amendments to the present Constitution which
would have to be voted upon separately in a
Referendum. We lawyers must not allow politicians to
hoodwink us into believing that our fundamental rights
will be protected in a future Constitution as much as
they are in the present Constitution. In particular we
must ceaselessly safeguard the notion that the Courts
are the guardians of the Constitution who will be the
bulwark for the protection of the individual against the
ever growing power of the State.
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