My Speech on the Registration of Wills Bill 2016

The Registration of Wills Bill was considered in detail in 2006 by the Department of Health and Children (the then home of the GRO) and DJE. The then Minister of State, Brain Lenihan met with Senator Leyden and went through the legal issues and his reasons for opposing the Bill.
There is some concern that it will not achieve any certainty about the existence of a valid will, the right of a person to make a subsequent, unregistered, will or codicil remains, a registration per se could not be used in evidence, it could bring the GRO into disrepute and it was opposed in 2006 by the Law Society.
There are also issues about the parent Department or organisation, costs, staffing, training and systems.
What would the Bill achieve?
The key issue is what would the Bill achieve? It is intended to address situations where wills are lost, where a person has changed solicitor or families think there is a will but it cannot be located etc. A person or their solicitor would attend before the Registrar to say that a will has been made. The actual will would not be deposited with the GRO nor would the Registrar see it. There would be no proof that the will existed, that it was valid or that another will or codicil had not superseded it. An new section was introduced in the 2011 version of the Bill to say that the registration or non-registration of wills shall not be evidence or provide any presumption of the existence (or non-existence), validity (or non-validity), execution (or non-execution), revocation (or non-revocation), revival (or non-revival), republication (or non-republication) of a will, or of evidence of any of the particulars entered in the register of wills. It may well be that this new section was inserted to address the deficiencies brought to attention during the passage of the 2005 Bill through the Seanad. However, it is difficult to see how this new provision addresses these concerns. It merely underlines the deficiencies of the Bill.
The proposed voluntary register would be outside of the remit of the GRO, which records factual life events; births, deaths and marriages.
The registers currently maintained by the GRO have the presumption of accuracy and reliability based, as they are, on independent evidence of the event. The law provides that certificates of entries are accepted in law as being evidence of an event, unless the contrary is shown on the balance of probabilities. There would be no evidential basis for a register of wills as proposed, registration would not provide assurance that the will registered actually exists or is valid, or that the registered will is the last will of a person, or that it had been revoked, amended or superseded. The Probate Office deals with wills, once executed, and grants of probate are published. One could argue that any voluntary register should be managed by that office. There would be cost and operational implications for the GRO. Also, since the proposed scheme would be unlikely to have the support of the Law Society, it is likely that a relatively small number of wills would be registered.
However the key point has to be what the Bill would deliver for citizens. Would it provide certainty where people die apparently intestate, where the existence of a will is disputed or where wills are apparently lost? What benefit would it offer where a person could make any number of new wills or codicils without registering their existence? The register would be voluntary but a compulsory registration system would presumably raise other problems about people’s rights to dispose of their assets as they see fit.
If the Bill were capable of addressing the above issues then no doubt Government would consider the best options for establishing such a register, including location, parent Department, funding, staffing and systems.

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