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THE LAW DIRECTORY, 1965
NOW ON SALE
NEW FEATURES
• Alphabetical list of practising Solicitors
(in
addition to local list).
• Alphabetical and local list of Northern
Ireland Solicitors.
LEGAL AID
The Criminal Justice (Legal Aid) Act, 1962 will
come into operation on ist April, 1965, Criminal
Justice (Legal Aid) Regulations, 1962 (Commence
ment) Order, 1965 (S.I. No. 13 of 1965).
ROAD TRAFFIC GENERAL BYE-LAWS,
1964
The above which are referable to Dublin will be
published by the Stationary Office and are available
from the Government Publications Sales Office,
G.P.O. Arcade, Dublin i, price
25.
The Statutory
Instrument S.I. No. 294 of 1964 deals with traffic
signs and roadway markings, vehicular traffic, cycle
traffic, animals on roads, duties of pedestrians and
other general provisions.
COMMISSIONERS
OF
CHARITABLE
DONATIONS & BEQUESTS BOARD
MEETINGS
Hilary Term—1965
Tuesday
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izth January, 1965
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26th
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9th February, 1965
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23rd
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9th March,
1965
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23rd
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6th April,
1965
J. S. MARTIN, Secretary.
SUCCESSION BILL, 1964
Undutiful Wills
The statement of the Council of the Society dated igth
October, 1964 outlined a number of practical objections to
parts IX and X of the Bill. It was made clear that the list was
not exhaustive and that it merely illustrated the fundamental
objection to parts IX and X viz., that the attempt to legislate
by fixed rules for human situations is bound in this case to
create more injustice than it remedies. Hard cases make bad
law. The Council agree that the present unfettered power of
testamentary disposition should be controlled but not by the
method proposed in the Bill.
In Northern Ireland, Britain,
New Zealand and some provinces in Canada judicial discretion
is conferred on the Court to make proper provision for dis
inherited relatives. This in the opinion of the Council is
infinitely preferable and certainly far more suitable to Irish
conditions, than the Continental authoritarian principle of
legislative direction because the Court has the advantage,
which the legislator cannot have, of knowing the facts and
family circumstances in each individual case. Furthermore the
mere existence of judicial power to alter the provisions in an
undutiful will must restrain a testator from making an unfair
will because he knows, or will be advised, that undutiful
provisions can be set aside.
The chief line of argument in favour of the system of fixed
shares and against the system of judicial discretion on the
second stage of the Bill was that
(a)
No system which depends on a Court determination to
enforce a legal right can be satisfactory in this instance.
(b)
Recourse to the Courts would involve raking up family
differences.
(c)
Different judges take different views of what constitutes
a fair legal provision.
(d)
The system of fixed shares follows the Scots kw.
These are unproved assumptions. There is no evidence that
the existence of judicial power to give relief against undutiful
wills has caused excessive litigation elsewhere or that it would
do so here. The possibility of litigation in a few cases is a far
lesser evil than the injustice to many caused by inflexible rules.
It is far better to entrust the duty ofdoing justice to the testators
family to the judiciary who act impartially, sympathetically,
and with insight as regards the facts and the needs and
characters of the parties than to the State which cannot regard
the individual case. Such defects as have become apparent in
the working of the Inheritance (Family Provision) Act, 1938
in England and the Inheritance (Family Provision) Act,
(Northern Ireland) Act, 1960 are due to the restriction in those
Acts of the power of the Court to make provision for mainten
ance of the dependants. These defects can be remedied by
enlarging and clarifying the judicial discretion to make full
provision from the capital of the estate giving the Court power
to make a fundamental alteration in the terms of the will where
it is considered necessary as regards capital or income or both.
For every suit which may be prevented by the present Bill if it
becomes law there will be at least three by persons driven to
the Court to seek relief from the hardship of its cast-iron
provisions and litigation of a most undesirable kind will ensue
particularly between separated spouses in the cases mentioned
below. The argument that the system in the Bill is based on
Scots law is unconvincing. The whole system of Scots law
is based on the Roman civil law and it is not to be assumed that
it should be introduced in Ireland. One important fact however
has not been sufficiently stressed viz., that the legal right rules
in Scotland do not apply to land. The Succession (Scotland)
Act, 1964 came into operation on loth September last. The
legal rights apply to moveables and are inoperative if the
testator converts his moveable property into land during his
lifetime. The claim will also be defeated if the testator alienates
his moveable estate during his lifetime. In this country wills
are very largely concerned with land or livestock on land.
The amendments recently proposed meet some of the
objections on points ofdetail advanced in the Society's memor
andum of October igth and by a number of correspondents
but the fundamental objection to the Bill's underlying principle
remains. The following list contains further examples of the
injustice and inconvenience which will be caused by the
a priori method of control proposed by the Bill, even as
amended. It is no more exhaustive than the list of objections
already published. The ill effects of the Bill will not be fully
realised except by painful experience if it becomes law.