Registration of Wills Bill 2011

Registration of Wills Bill 2011: Second Stage

Wednesday, 6 July 2011

Senator Ivana Bacik: I welcome the Minister, Deputy Burton, to the House. I compliment her on the recent launch of the internship scheme, in particular, which has been a great success, and on all the work she is doing in the Department.

In response to Senator Mooney's point on the habitual residence condition, which he raised on the Order of Business, I have arranged already with the Minister's office for those guidelines to be circulated. The Minister will confirm that.

Senator Paschal Mooney: I thank Senator Bacik.

Senator Ivana Bacik: I welcome the opportunity to debate the issue and commend Senator Leyden on reintroducing in a persistent way the Bill which first got an airing in 2005. It is important that we would debate Private Members' Bills in the Seanad during Private Members' time and that we would not confine ourselves to statements. I have had two Private Members' Bills introduced in the House: the Climate Protection Bill in 2007 and the Bill to prohibit female genital mutilation, which I am delighted was accepted by the Government. The Bill has passed all Stages in the Seanad and is now before the Dáil. It is an important function of our role as Senators that we would debate Private Members' legislation and that we would have an opportunity to tease out Bills in detail during Second Stage debates such as this.

As the Minister said, this is a worthy endeavour. We all agree with Senator Leyden's objectives in proposing the Bill. I was not a Member of the House when the Bill was previously debated in 2005 and 2006 but I find Senator Leyden's briefing useful. I fully accept a huge amount of distress is caused by the problem of missing wills. Senator Leyden has helpfully reminded us of the numerous pages listing people searching for lost wills in the Law Society Gazette. He has also helpfully reminded us that 70% of people currently do not make wills. I only made a will myself on the birth of my first child. Many find such an experience suddenly concentrates the mind. I was surprised by what an easy process it was. As the Minister said, people often resist doing it or do not like the idea of doing it for many reasons.

Probate law seems rather obscure to those who are not solicitors. As a barrister rather than a solicitor, many of us in the former profession are fearful of probate law. We do not understand it as it is a specialist area. We approach it with trepidation. For that reason I commend Senator Leyden on venturing into this murky area. I compliment him on bringing forward the Bill. However, having looked at the provisions in the Bill and listened to the Minister's speech, I am conscious that there are deficiencies in the Bill and the proposed scheme. We all agree with the objective of trying to ensure a better system to avoid the great difficulty of missing wills or wills that are not known about.

The Law Society's objections are particularly pertinent as it referred the matter to its probate administration and trust committee when the Bill was first introduced. As the Minister said, the objections are very strong in terms of both practical objections and principled objections. Given that the registration would be voluntary, it would have limited effect in remedying the existing problems with missing wills. Crucially, the registration would not guarantee that the registered will would be the last will, nor would it guarantee that the will would be compliant with statutory requirements, in other words that it would be a valid will. Those are strong points of opposition. I note Senator Mooney's reference to a commercial company which is doing searches and with which 2 million people are registered. Clearly, that could not be in this country where 70% of adults do not have a will. Perhaps Senator Leyden knows more about that. In itself, that is not a reason for a voluntary registration system to resolve the difficulties with missing wills because it could and would give rise to other problems.

There is a further difficulty with the proposed scheme in the Bill in that the General Register Office, GRO, would be the repository for registration. Again, the Minister outlined those issues fully. The GRO is the register of certificates which are accepted as evidence of facts recorded such as birth certificates which have an independent method of registration beyond the person himself or herself or the solicitor involved making the registration. Section 10 refers to the “qualified informant”, namely, the person who has made the will or his or her solicitor as being the person who would register the will. Again, there would be a difficulty with that in terms of objective verification. It would be significantly different from the other registration functions of the GRO. We all share the objective that something should be done to address the problem but I am not convinced that the Bill puts forward the best method of doing so.

Senator Healy Eames referred to the difference between the 2005 Bill and this Bill, namely, the insertion of the new section 13 providing the registration or non-registration of wills would not be evidence or provide any presumption of the existence of any particulars entered in the register of wills. I do not see that the provision addresses the concerns that have been raised about the scheme proposed in the Bill.

Since the debate was mooted I have tried to think about how one could best address the difficulties Senator Leyden has identified. Until I read the Bill I thought the Probate Office run by the Courts Service was going to be the repository. I can see however that there would be difficulties with that given that it already has clear statutory functions in terms of the administration of wills. I apologise if my suggestion has already been investigated by others. I do so with trepidation as I am not a member of the Law Society. I wonder whether the Law Society would be a more appropriate repository for a voluntary scheme of registration of wills and if all solicitors were to sign up to code whereby any will of which they had sight was then to be lodged with the Law Society. Perhaps it is a large function for the Law Society to take on, yet it seems to me the obvious place where solicitors could register wills. It would at least mean that if every solicitor signed up to it one would know which would be the last will. Clearly, it would not resolve the problem in the case of people who do their own wills but I think I am correct in saying that most wills are done through solicitors. It would address in some way the deficiencies in the Bill. I make the suggestion in an attempt to be constructive and to see how a voluntary scheme of registration of wills might best be carried out in such a way as to resolve the difficulty.

Senator Barrett put forward another proposal which led me to think that perhaps the Post Office could be used, as it registers dog licences. I raise that in a somewhat less serious manner. It would be worthwhile perhaps approaching the Law Society to see if there is a way of doing what I suggest. The big issue Senator Leyden raised of the relatively low proportion of people who have made wills could be addressed by the Law Society through an advertising programme suggesting people should make a will, which would generate business for its members. Something has been done already by the Law Society in that regard. Such a scheme or programme of advertising of public information through the Internet or by other means would be a better way to ensure a greater number of people would make wills. We will have to think about how we would overcome people's fear of mortality, which is the underlying reason that people are reluctant to make wills.