The Gazette 1964/67

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.

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 CHARITABLE DONATIONS & BEQUESTS BOARD MEETINGS Hilary Term—1965 Tuesday ... ... izth January, 1965 „ ... ... 26th „ „ ... ... 9th February, 1965 „ ... ... 23rd „ ... ... 9th March, 1965 „ ... ... 23rd „ „ „ ... ... 6th April, 1965 J. S. MARTIN, Secretary. other general provisions. COMMISSIONERS OF

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,