How assured can anyone be that a written will ultimately expresses the intention of the deceased? Wills may be written with legal advice on sheets of paper and stored in various locations, most commonly in solicitors’ offices or storerooms.
Following a number of cases involving the contesting of wills, should we look more closely at the process of validating and storage of wills generally? Should we consider a system of independent attestation, such as the notary system used in much of Europe? Could steps be taken to ensure wills are not mislaid, suppressed or overlooked, whether inadvertently or malevolently?
A 1966 report of the British Law Reform Commission estimated 100 probate administrations there were revoked each year, the majority following a belated discovery of an uncollated will. Many countries have also realised the importance of the right of beneficiaries to receive the benefit intended for them, and help to ensure such a right by the provision of a centralised register of wills.
According to www.successions-europe.eu , a website co-financed by the European Commission, all but seven members of the European Union have a register of wills. Five of the outstanding seven have initiated a legislative process to enact a register.
According to a 2010 report of the European Network of Registers of Wills Association (ENRWA), of the remaining two members, Malta is amenable to the creation of a register and already has a system for storage of wills in court vaults – but Ireland is specifically referenced in the report as the sole member lacking the political will to create a Register of Wills.
Not participated
The project coordinator of the "Euro Wills" project Celine Mangin stated that a Department of Justice representative had not participated in their workshop and that she had received a response to the effect there was no plan to create a Register of Wills in Ireland. If all EU members participated in the program, a single will search could be made across the EU for a modest fee.
In fact, Ireland’s aversion to the creation of a register goes back to 1972, when it was the sole member of a group of nine of the Council of Europe, which subsequently comprised the EEC in 1973, that failed to sign the Convention on the Establishment of a Scheme of Registration of Wills, held in Basel, Switzerland, on May 16th, 1972. The Convention is still operational, though its Directorate did not elaborate as to why Ireland had failed to participate - stating, only that there was no written record explaining Ireland’s reasons for not doing so.
In 2009, the EU drafted a regulation intended to create a more integrated approach to the administration of probate within the EU. However, in a June 2011 paper issued by the Council of The European Union, it became clear Ireland, Britain and Denmark had opted out of the proposed program that would have facilitated the issuance of a single European Certificate of Succession.
Such a process would have simplified the sometimes complex process of filing for probate in a number of EU countries, currently required by the relatives of those whose estates are dispersed over more than one country.
Senator Terry Leyden initiated a private members bill in the Seanad in 2005 to create a Register of Wills. Though it was passed by the Seanad, it foundered in the Dáil in 2007 due to lack of government support. The late Brian Lenihan, the then minister of state at the Department of Justice, speaking in the Seanad, said the government was concerned that a register (which only recorded the location of a will) could not assure the validity of wills, and this could undermine confidence in the reliability of the General Register Office.
Successions
Senator Leyden maintains that the case for creating a register is greater than ever. Every year, 450,000 successions with an international dimension are opened in Europe, amounting to some €123 billion according to the EU Commission.
Interestingly, the Senator was not the first Fianna Fáil politician who championed the issue. In 1976, the late TD and solicitor Seán Flanagan had received the backing of his party to similarly initiate a private members bill to create a register while in opposition. The idea was not progressed when Fianna Fáil came to power the following year, an election in which Flanagan lost his Dáil seat.
A Register of Wills could be provided by the state on a cost neutral basis by charging appropriate fees for registering, altering and retrieving a will to affect probate. Surely it is time we followed what is viewed as best practice in the rest of Europe by creating a Register of Wills and abandon the unreliable Dickensian process of searching for wills that may or may not exist?
Kieran Fitzpatrick is a student of civil law in NUI Galway