45 / 364
Best score \>y lot:
A. P. Curneen (Dublin) 10, 33 pts.
Visitor's Pri^e :
J. Boston (Belfast) scr., 36 pts. ;
J. Clkry (Belfast) IP, 36 pts.
Team Match :
South 224 pts. beat North 192 pts.
UNDUTIFUL WILLS
The following memorandum has been submitted
to the Minister for Justice :
1. The Council of the Incorporated Law Society of Ireland
•think it right to draw attention to certain aspects of Parts IX
(Legal Rights of Spouse and Issue) and X (Unworthiness to
Succeed and Disinheritance). Their comments on the Bill
are based on the practical experience of members of the
profession in dealing with cases of wills and intestacy.
2. It is desirable that legislation should be introduced for
the purpose of protecting the family of the eccentric, malicious
or otherwise ill-disposed testator who might wish to deprive
,his widow and familyof their natural expectation of sharing
in his estate by leaving the bulk of the estate for undeserving
objects. The matter, however, should be examined in the
light of the size of the problem and the means adopted to
deal with it.
In the first place the experience of solicitors and all persons
accustomed to dealing with family problems is that cases of
inofficious wills form a very small fraction of the total number
ofwills proved. This is, no doubt, attributable to the generally
high standard of family life.
Testators who fail to make
proper provision for their families are extremely rare. The
Bill therefore deals with a marginal problem. It is important
to ensure that, in protecting the minority, hardship and injury
should not be inflicted on the vast majority of families for
whom no problem exists.
Legislation should be for the
greatest good of the greatest number.
3. The matters to be considered in disposing of an estate
may conveniently be summarised as follows :
(1) Fair provision within the testator's means for his or her
family and other objects of benefaction.
(2) Regard to the means, needs and circumstances of the
claimants on the testator's bounty which naturally vary
from one family to another and between different
members of the same family.
(3) The taxation aspect and the desirability of mitigating the
incidence of income tax and death duties.
(4) Clarity and certainty of disposition in order to avoid
litigation between the'beneficiaries and next-of-kin.
In the view of the Council Parts IX and X of the Bill fail
to satisfy these tests.
4. The problem was dealt with in Great Britain by the
Inheritance (Family Provisions) Act, 1938, which proceeds on
the assumption that the average testator is the best judge of
the needs of his family and the most beneficial disposition of
his property and, at the same time, enables the Court on the
application of a disinherited spouse or issue to set aside
undutiful provisions in a]will and to substitute other provisions.
The advantage of this legislation is its flexibility which enables
the Court to take account of the facts before it and to apply
its discretionary powers to those facts. The mere existence of
such legislation prevents testators from making unfair wills
and where unfair wills are made must induce members of the
family to come to a reasonable settlement without litigation.
Experience of the working of the Inheritance Act, 1938, has
disclosed some defects but they could be remedied by legisla
tion without departing from its basic principles.
The present Bill approaches the problem from the opposite
direction by assuming that the State knows better than the
individual testator how his estate should be divided and by
formulating general rules which apply to all cases where the
next-of-kin are a spouse and issue. Any disposition which
contravenes these rules is to be null and void. The spouse
(husband or wife) is to have a legal right to one third of the
estate. The issue (children and more remote issue) are to have
a legal right to one third and the testator is to have testamentary
power over the remaining one third.
If the testator leaves
issue but no spouse, or spouse without issue, the issue or
spouse as the case may be, will have a legal right to one half
of the estate.
5. In the opinion of the Council this
a priori
method of
regulating the power of testamentary disposition is unsuited
to conditions in Ireland and will cause injury to those for
whose benefit it is intended.
Its principal and radical defect
is that it attempts to legislate for the widely different facts
and circumstances of a vast number of cases. The Council
submit that the testator is competent to understand and
provide for the needs of his own family.
If he makes an
undutiful will only a court of justice looking at the facts of
the particular case is competent to decide in fairness and
equity what the testator ought to have done with his property.
6. The following examples of the hardship which will result
from parts IX and X are not exhaustive but they do illustrate
the type of case which has arisen and will recur if the Bill
becomes law.
(1) A wife or husband cannot be appointed universal
legatee under the will of a spouse. This will cause
hardship in the case of small and medium sized estates
where a widow is left with young children and invest
have recourse to capital to provide for family needs until
they cease to be dependent. In many cases the husband
bequeaths all his estate to his wife.
(2) Cases will arise of children who are incapacitated by
physical or mental infirmity from earning their living.
The parent might very well in such cases leave a large
portion of his estate for the maintenance of such a child.
The Bill takes no account of such a situation.
(3) In many cases a family business or a farm might be
driven into bankruptcy if restrictions are placed on
freedom to raise working capital. The fragmentation of
shares will be contrary to good business and farm
management. Cases have been brought to the notice
of the Council in which private companies would have
been driven into liquidation by a statutory provision
enabling next-of-kin to claim two thirds of the share
capital with voting rights over the members of the
family who managed the business in conjunction with
the testator.
(4) It is well known that the number of small and under
capitalised holdings and business concerns is consider
able. In such cases part IX will result in the dissipation
of capital already insufficient. Stock may have to be sold
or left unreplaced in order to avoid splitting the holding
or selling the business. This is contrary to social and
economic policy.
(5) Improvident, wasteful or absent children will be enabled
to claim shares in an estate or farm to the prejudice of
the son who has remained at home and built up the farm
by his industry and ability.
(6) The bill ignores cases of second marriages with step
children.
If the testator has married twice his wife
must receive one third of his estate as a legal right. On
her death the share will presumably pass to her children
(the step-children of the testator) to the exclusion of his
own children.
(7) Many testators make tax planning arrangements with
professional advice with a view fo mitigating the