REDISTRIBUTION OF BUSINESS AMONG DIVISIONS OF THE HIGH COURT

HC Deb 04 May 1970 vol 801 cc108-17

Mr. Speaker

We come now to Amendment No. 1, and I suggest that we take with it Amendments Nos. 43, 44 and 45:

No. 43, in Schedule 1, page 39, line 43, at end insert: Proceedings involving the exercise of the court's probate jurisdiction; No. 44, in line 43, at end insert: Proceedings under the Inheritance (Family Provisions) Act 1938; No. 45, in Schedule 2, page 42, line 26, leave out sub-paragraph (b).

Mr. Bruce Campbell (Oldham, West)

I beg to move, Amendment No. 1, in page 2, line 1, leave out subsection (4).

Clause 1 of the Bill I welcome, as I think do most hon. Members, because it sets up a Family Division of the High Court, and that is something which most of us have wanted for many years. The situation which has prevailed hitherto, whereby family matters have been dealt with in almost every kind of court in the land, has been a thoroughly unsatisfactory state of affairs, and it is a splendid thing that at last we are to have a Family Division to deal exclusively with family matters. The object of the Amendment is to keep within the Family Division matters which, in my submission, are family matters but which, as the Bill stands, are not to be included in the Family Division.

I refer first of all to contentious probate business. The Bill proposes that contentious probate business should be assigned in future to the Chancery Division. No doubt that is because the Chancery Division is accustomed to dealing with wills. However, the Chancery Division is accustomed to dealing with the construction of wills, and I dare say that those who were responsible for the drafting of the Bill took the view that a court which is concerned with the construction of wills would be a suitable court to deal with questions affecting the validity of wills.

I think that is anon sequiturand wish to contend that the two kinds of litigation are quite different and that they ought to be kept apart, as they have been for the last 112 years or so. In a probate action the business of the court is to decide whether a will is a valid one or not, and that is something which the existing Probate, Divorce and Admiralty Division has been accustomed to do and has been doing very satisfactorily, but the proposal is that it shall do it no longer, and that this kind of litigation should be dealt with in the future by the Chancery Division.

It is to be noticed that the Bill proposes that only contentious probate matters should go to the Chancery Division, and that it is proposed to leave with the Family Division all the non-contentious probate business, which by far exceeds the contentious probate business. I believe that there are only about 70 probate actions in a year, and very many of those are not fought out but are settled at some time before they reach court. So that we are talking about a very small jurisdiction.

It is, however, a very large family jurisdiction. As a rule, when somebody puts pen to paper with a view to making a will he thinks of his family and he makes provision for his family. There was a time, until 1938, when he need not have thought of his family at all, when a testator could leave all his wealth to a cats' home or to his mistress. That is no longer possible because in 1938 Parliament passed an Act which makes it possible for a testator's dependants to apply to the court for reasonable provision for them to be made out of his estate, if he has not made reasonable provision in his will. So especially since 1938 probate business has become very much family business, and, in my submission, it ought to be dealt with in the division of the court to be called the Family Division.

7.15 p.m.

There is no similarity between the sort of work which the Probate Court does in deciding whether a will is valid or not and the sort of work which is done by the Chancery Court in deciding what a will means. These are two completely different task, and because one judge does the one does not at all mean that he will be very good at doing the other. Indeed they are two completely different tasks, because the fact is that in the Probate Court a will is merely a piece of paper of no value till the court is satisfied that it is a valid will made by a competent testator. Very many wills are invalid because so many of them are made in circumstances in which the testators cannot bring to bear upon the transactions the judgment and reflection which is required for such important matters. So many wills, for example, are made on death beds when the testators are far too ill to be able to pay proper judgment to these matters. Now it is the business of the Probate Court to decide upon the validity of a will, to decide whether it is a valid will, and the burden is on the executors, or those propounding the document, to satisfy the court that this document does fully represent the last wishes of a free and capable testator.

The business of the Chancery Court is quite different. Its business, once a will has been admitted to probate, is to decide questions as to the construction of the will, to decide what the will means, for some people do make wills which are ambiguous or whose meaning is obscure, and the Chancery judge is traditionally the judge to construe a document, including wills. So it is simply not true to say that because the Chancery Division deals with the construction of wills, therefore it should deal with questions as to their validity. There is no connection between the two.

There is a further difficulty about sending litigation of this kind to the Chancery Division, and it is caused by the fact that of those probate actions which are tried—as I have said there are not very many, but of those which are tried —quite a number are tried on circuit, not in London at all. Probate actions are tried in Wales, the north of England, and all over the place, and probate judges travel the circuits and are available to try these actions wherever they come on for trial. Chancery judges do not go on circuit; they remain in London all the time. So I do not know what will happen if the Bill becomes statute in its present form. Does it mean that all probate actions in future will be heard in London and that witnesses will have to travel far distances in order to give their evidence in London? Or is it proposed that there shall be a great break with tradition by starting to send Chancery judges on circuit? I apprehend that Chancery judges would not be very pleased about that.

So I submit that there is absolutely no case for sending probate work to the Chancery Division; that it ought to stay in the Family Division where it belongs; that because this is such a family matter it should continue to be dealt with by judges who are experienced in it, who are all now to be in the Family Division; and that it should remain with non-contentious probate business, because that is going to stay in the Family Division. To try to sever contentious probate from non-contentious probate is a grave mistake.

I turn now briefly to the other Amendment which affects a different kind of litigation and which proposes that the new Family Division should deal also with proceedings under the Inheritance (Family Provision) Act, 1938. This Act orders that proper provision be made out of a testator's estate if he himself has not made it. This is surely a family matter if ever there was one. If the testator chooses to leave his whole estate, which may be a large one, to strangers, it is possible for his widow and children to come to the court and say that he should have made provision for them. This is a jurisdiction which hitherto was always been dealt with in the Chancery Division, but now that we are making a change and creating the Family Division, 'this jurisdiction should go to that Family Division as it is so much a family matter, and I can think of no good reason for assigning it to the Chancery Division.

Since 1958 it has been possible not only for a widow to apply to the court to have reasonable provision made for her out of her deceased husband's estate but also for a former wife to make a similar application so long as she has not remarried. There may be a divorce, so that the wife is no longer a wife and will never therefore be a widow. Nevertheless, provided she has not remarried she may, after her former husband's death, apply to have proper provision made for her out of his estate. This jurisdiction is dealt with in what until now has been the Divorce Division but will in future be the Family Division. Here are two almost exactly similar jurisdictions, one being dealt with in the Family Division and the other in the Chancery Division, the only difference being that in one case there has been a divorce and in the other there has not.

It is even more ridiculous than that. The former wife may have had children who are still infants and who will have the right to apply to have proper provision made for them out of their father's estate, but they have to go, and will continue to have to go if the Bill in its present form becomes law, to the Chancery Division, while the mother goes to the Family Division. I know that arrangements are made for the two applications to be consolidated and dealt with in one division, but they have to be started in different divisions. That same deceased testator may have remarried, so that he will not only have a former wife but a widow as well, and it is nonsensical that these different classes of people, all making the same application, should have to make it in different divisions.

I earnestly hope that the Government may have second thoughts about these two matters and decide to accept my Amendments, which will enable probate actions to continue to be delat with in the Family Division where they should be, and will give to the Family Division jurisdiction under the Inheritance (Family Provision) Act, 1938.

Mr. Emlyn Hooson (Montgomery)

It is an interesting conundrum as to when a contentious probate action becomes a non-contentious probate action. Nothing so stirs up the blood as an argument about wills. In parts of Wales it is almost a national pastime. When the will is published it is often contentious but by the time it gets into the hands of the lawyers and disappears for years it gradually becomes non-contentious.

There is force in the point made by the hon. and learned Member for Oldham, West (Mr. Bruce Campbell) as to why there should be this division between two divisions of the High Court. There is a great deal to be said for leaving contentious probate matters concerning small estates within the ambit of the family court, and this is particularly true of cases that are heard on circuit. My experience is that, even at a very late stage, probate cases tend to be settled, because, however contentious people are, their hearts generally quail and their courage fails them at the door of the court.

I raised this matter on Second Reading. and there is surely a great deal to be said for ascribing the whole probate jurisdiction to the Family Division, particularly with regard to small estates and matters which are likely to be heard on circuit. There is no reason why the whole contentious business of the present Probate Division should be ascribed to the Chancery Division. It tends to suggest that there has been a compromise agreement between the judges and that the Bill carries this into law. It does not bear examination in the light of the restricted number of cases, and there is much to be said for ascribing the whole jurisdiction to the Family Division.

The Attorney-General

The purpose of these linked Amendments is to leave all probate jurisdiction, both contentious and non-contentious, with the Family Division. The matter was discussed at length in Committee, and I make no complaint about that. I ventured there to point out the massive administrative reasons for not transfering non-contentious probate business to the Chancery Division and I do not think that we are any longer troubled with the suggestion that that should take place. Nevertheless, there is merit in providing for contentious probate business to go to the Chancery Division. The cases are not very frequent. I detected almost a nostalgic note in the speech of the hon. and learned Member for Montgomery (Mr. Hooson) when he referred to probate actions on circuit. I used to enjoy immensely participating in them, and many a tale could be told about them, but perhaps not on this occasion.

In 1968 the number of contested probate cases was 52 in London and four on assize. In 1969 there were 42 in London and four on assize. I anticipate that cases that come for consideration outside London will be dealt with outside London but, as we have seen from those figures, nearly all contentious probate actions are tried in London anyway and I imagine that the same pattern would continue.

When contentious probate cases arise they tend to be long and somewhat complex. The dividing line between the Family and Chancery Divisions in deciding where the case should go will be the issue of the writ in the central office for the proof of the will in solemn form. Unless and until that event happens every probate matter will be dealt with in the Family Division, the registry or the appropriate probate district registry. In spite of the submission of the hon. and learned Member for Oldham, West (Mr. Bruce Campbell), contentious probate matters seem to come broadly into the same category as cases relating to the construction of wills.

7.30 p.m.

Bearing in mind the expertise and experience of the Chancery Division in property matters, I think it is appropriate that it should deal with this little corner of the litigation. It has always been the division responsible for all questions concerning administration of estates and the interpretation of wills. The Family Division should deal with truly family matters and not matters which are not essentially family matters. Accordingly, the proposal in the Bill is sensible.

The purpose of Amendment No. 44, which deals with a slightly different point, is to transfer the High Court's jurisdiction under the Inheritance (Family Provision) Act, 1938, from the Chancery Division to the Family Division. I accept that the 1938 Act and the work arising under it presents us with a border line case between the Chancery and the Family Divisions and I recognise that there are arguments for sending this work to the Family Division. The difference between the two jurisdictions is a slim one, but the line has to be drawn somewhere and I am inclined to think that it runs between them.

There has never been any suggestion that the Chancery Division has not exercised its jurisdiction under the 1938 Act in a perfectly proper and understanding way. The property element in that jurisdiction is sufficient to differentiate it from the wardship and guardianship jurisdiction which is being transferred to the Family Division. Indeed, it might be argued that the Section 26 matrimonial jurisdiction is on the property side of the line and should also be transferred to the Chancery Division.

The fact is, however, that there can be no satisfactory logical distinction between family and property work, and there are bound to be borderline cases. It is also necessary to bear in mind that we do not want to disturb existing institutions merely for the fun of it. Where the existing institutions, as they do in this instance in the Chancery Division in relation to this work, operate satisfactorily, there is no ground why those arrangements should be disturbed.

Accordingly, I do not think that the case for transferring the jurisdiction under the 1938 Act has been made, and the arrangements proposed in the Bill are the most practical and the most convenient.

Sir D. Renton

The Attorney-General's reference to matrimonial property reminds one that two Bills are at present going through the House, each dealing to some extent with this question. I should specifically refer to Clause 4 of the Matrimonial Proceedings and Property Bill, under which the High Court, or in some cases the county court, can make an order varying an ante-nuptial or post-nuptial settlement—these are the operative words— including such a settlement made by will or codicil ". That could involve either contentious or non-contentious probate jurisdiction.

We are in the difficulty that the Bill which we are tonight considering contains no cross-reference to the Matrimonial Proceedings and Property Bill, neither does that Bill include a cross-reference to the Administration of Justice Bill [Lords]. We need, therefore, to consider in connection with my hon. and learned Friend's Amendment that we are legislating in another Bill which is relevant to it.

Sir P. Rawlinson

My right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) has pointed to a problem that always faces us when Bills of this kind are presented to Parliament, usually at the same time, which does not give us the opportunity of reflecting between the first Bill, which goes through earlier in the Session, and the second Bill which goes through later.

In Committee, I moved an Amendment to which the Attorney-General referred as the exact opposite of the Amendment now moved by my hon. and learned Friend the Member for Oldham, West (Mr. Bruce Campbell). By the time I had completed my speech, I was half convinced that I was wrong. When I had listened to my hon. and learned Friend, I was wholly convinced that I was wrong. When, however, I listened to the Attorney-General, I came to the conclusion that the, as it were, compromise solution which is proposed in the Bill is, for the present certainly, the best that we could do at the present time.

I then expressed—and I repeat—concern that it was time that the actual division of business between the divisions of the High Court was much more closely examined. There is a case for seeing where we are going if we are now creating a Family Division court without considering how the business of the High Court should be distributed.

Therefore, with reluctance—because I was so persuaded in Committee by my hon. and learned Friend about the wrongness of my own Amendment—I nevertheless still think that the proposal in the Bill is, for the time being, and certainly so that we can see how it works, the best provision. In these circumstances, my view is that while there is much force in what my hon. and learned Friend has said, nevertheless we should try the experiment which is presented in the Bill.

Amendment negatived.