The Gazette 1964/67

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be thanked but parts IX and X contain fundamental defects which cannot be cured by patchwork amendments and should be withdrawn.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.

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 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