The Gazette 1964/67

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.

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

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.