76 / 364
1. An unfaithful, improvident or otherwise undeserving
husband or wife will have a legal right to share in the
injured spouse's estate. The power to make a settlement
by deed inter vivos will be useless requiring, as it does,
the consent of the undeserving spouse.
2. The same position will exist in the case of husbands and
wives who have executed separation deeds or who have
separate estates of their own and who are amply provided
for.
3. The only method of excluding an unfaithful or separated
husband or wife will be by a Court order for a divorce
a mensa et thoro. This remedy may not be available in
every case and the erring spouse will then have an in
defeasible claim to share in the estate ofthe injured partner.
Where the remedy is available the Bill may cause an ap
preciable volume of matrimonial litigation and persons
who would otherwise settle their differences peaceably
will be driven into the Courts.
4. The principle of prescribing pre-determined fractions for
the shares of a spouse and children must lead to fragment
ation of estates and bad management. It takes no account
of the individual capacity of a spouse and children,
whether they are responsible, thrifty and intelligent or
wayward, spendthrift and foolish. It treats the intelligent
child who would benefit by higher education in the same
way as the average or below average child on whom it
might be a waste ofmoney, and the child whose education
is almost completed as one whose education has hardly
begun. A careful testator would take all these matters
into account and make provision for them. The statutory
will proposed in the Bill takes no account of the personal
considerations which are present to the minds of every
testator and cannot do so.
5. The Bill will prevent one of the commonest will forms
viz., an estate for life to a wifewith remainder to the chil
dren as she may appoint. The advantages of this disposition
are
(a)
family control,
(b)
the saving of death duties on
wife's death,
(c)
conservation of the estate.
6. The Bill will prevent the owner of land or a business from
leaving it to a dependable and competent son subject to
the obligation to support the mother and infant children.
This may be imperative where the widow is feeble or
unbusinesslike as an inducement to the able son to remain
in the farm or business by giving him the prospect of
succession.
7. If the Bill becomes law the accepted method of disposing
of property in favour of particular members of a family,
(to meet the need of the individual case) will be by deed
reserving a life interest to the owner with a power of
revocation instead of by will. This is permissible under
the Bill as amended and many testators will execute deeds
instead of wills. Such deeds are however liable to stamp
duty at i% ad valorem. The State will thus collect duty
from owners of property for the right of disposing of it
as they think best—a tax on will-making in an inverted
form.
The Bill proposes to change the present attestation require
ments by providing that the witnesses need not sign together.
This may facilitate deception and will cause confusion as to
(a) the date of execution by the-testator
(b)
the date of final completion by full attestation
and it is not clear how the effective date is to be established or
whether the testator is to sign or acknowledge twice or sign
once and subsequently acknowledge with separate attestation
clauses. The existing method of attestation and the necessity
for three signatures at the same time is a valuable safeguard
against fraud and having stood the test of time should not
Jightly be abandoned.
The Minister's programme of law reform issued in 1962
referred to the provisions of various legal systems and stated
that if the existing system is to be replaced it should only be
replaced by one that will be cheap and effective as well as being
in accordance with ordinary standards of justice and fair play
for a person's dependants. In 1962 the Council made certain
practical suggestions dealing with the present problem.
It
could not have been inferred from the programme of law
reform that the Government intended to substitute a new
Continental system of family law for the common law system
which has been in operation in this country for generations.
The Continental system is based on the Code Napoleon which
prescribed general rules to regulate rights obligations and
conduct in contrast to the common law system which builds
up general rules from particular cases, leaves far more discretion
to the judiciary and places far greater emphasis on the rights
of the individual as opposed to the State. The profession are
unaware of any demand or need for such a change. A basic
decision of this kind ought not to be taken without full
examination and discussion by practitioners and other experts
in this social field and unless it commands a very large measure
of support. The Bill has not that support.
The experience of solicitors is that the number of undutiful
wills is very small in proportion to the number of wills made.
It is not necessary to find a solution for this problem outside
the spirit of the legal system in which we operate.
In their memorandum of October I9th the Council made
practical suggestions which if accepted would achieve the
object of giving protection to the small number of cases which
require it without the injustice tmd inconvenience to many
which will follow from the present Bill. The Bill contains a
number of progressive provisions which will simplify and
modernise our legal system and for which the Minister and his
Department should be thanked but parts IX and X contain
fundamental defects which cannot be cured by patchwork
amendments and should be withdrawn.
ist January, 1965.
The Solicitors' Buildings,
Four Courts,
DUBLIN 7.
COUNTY
KERRY
LAW
SOCIETY
At the Annual General Meeting of the Kerry Law
Society held at The Ashe Memorial Hall, Tralee on
Saturday
izth December,
1964
the
following
Officers and Committee were elected for the forth
coming year :
President:
G. Bailey;
Vice-President:
D. E.
Browne ;
Chairman :
C. J. Downing ;
Secretary :
D. Kelliher;
Committee :
F. Baily, D. E. Browne,
D. |. Courtney, W. A. Crowley, H. J. Downing,
C. J. Downing, J. J. Grace, D. M. King, M. L.
O'Connell, J. J. O'Donnell, J. S. O'ReiUy, D.
Twomey.
THE COUNTY CLARE
LAW ASSOCIATION
At the Annual General Meeting held in Ennis on
i6th December, 1964 the following officers were
elected :—
President:
Patrick J. Chambers, Ennistymon ;
Vice-Presidettt;
Michael J. Walshe, Ennis ;
Honorary