CONFIRMATION TO SMALL ESTATES (SCOTLAND) BILL (Hansard, 19 March 1979)

The Earl of SELKIRK
My Lords, I beg to move that the Confirmation to Small Estates (Scotland) Bill be now read a second time. The purpose of this Bill is very simple. It proposes to increase the limitation, because of inflationary effects on the currency, by means of a procedure which has existed in Scotland for about 100 years. This Bill comes to us from the other place where it went through "on the nod". Accordingly, at no time has this Bill been explained or, indeed, commended. I must admit that its drafting is not easy to understand. Nevertheless, I have to express my gratitude and thanks to the draftsman for finding his way through six Acts of Parliament and for producing a Bill. At first glance, the Bill is not very easy to understand, but what is more important 867 is that it affects a considerable number of people with small estates who may very well not be acquainted with lawyers. In any case, this is something which is unlikely to happen to anybody except once in a lifetime.
The original Act goes back just over 100 years, to when Disraeli was Prime Minister. It provided a simple method of confirmation of an estate in the event of the decease of the father. This could be done by the widows or by the children. It was cheap and it was easy, and it enabled the successors to become possessed of their property in the simplest manner. Above all, it did not need the employment of solicitors or lawyers. However, there was one limitation. At that time the estate had to be not greater than £150. In the following year the procedure was extended from intestate succession to include testate succession, and it has remained like that ever since.
In 1881, during the beneficent period of Mr. Gladstone's Government, the sum was raised to £300, but an important innovation was introduced: that any applicant—apparently it was not confined only to widows and children—could make an application under this procedure. Under the beneficent Government of Lord Rosebery the sum was further raised in 1894 to £500, and under Mr. Macmillan's Government it was again raised in 1961 to £1,000 net, or £3,000 gross. The intention today is to bring this limitation up to modern requirements. Accordingly, the sum is raised to £10,000. It allows for inflation in the future, in that this sum can be increased by Statutory Instrument on behalf of the Secretary of State. Similarly, fees in connection with it can be updated.
May I very shortly outline the procedure, because it should be generally known by those who are likely to be concerned. Anybody in this position who makes an application can go to the sheriff clerk or to the commissary office, bringing with him, in the case of intestate succession, two witnesses who identify him and his relationship. He has to take an oath in respect of the inventory. The rest of the work is done by the sheriff clerk. So the procedure is extremely simple. He may have to find a cautioner to make quite certain that the debts are paid. The cost 868 is very remarkable. As far as I can make out, it would be one half of 1 per cent., which is a very great deal less than would be charged in the event of solicitors being employed.
I am given to understand that this procedure has the support of the Lord Advocate. It is a most desirable step which will affect quite a large number of people. I feel that the Bill will be of great value to them in making possible their succession to small estates which otherwise it would be more expensive to claim. I beg to move.

Lord CAMPBELL of CROY
My Lords, I should like to congratulate my noble friend Lord Selkirk for sponsoring this Bill. May I also thank him for explaining its purpose and content. As my noble friend said, the Bill went through another place without any debate or explanation. That is a reflection of the fact that it is needed in Scotland.
My noble friend has drawn attention to the simplified procedure where small estates are concerned. I hope that this fact will come to the attention of anybody who, in the future, could benefit from these provisions. I understand also that the Bill has the blessing of the Government, although I hope that the noble and learned Lord who is to reply will confirm this in due course.
As my noble friend pointed out, at first the limit was £150 in the last century. This is now to become £10,000. Certainly it is a reflection upon the rate of inflation. I welcome the fact that the Statutory Instrument procedure is to be used in future, because this should make it easier for changes to be carried out by both Houses. This seems to me to be a sensible arrangement. I think that my noble friend is to be congratulated on taking up this Bill and piloting it through your Lordships' House.

§ Lord TANLAW
My Lords, we on these Benches should like to express our gratitude to the noble Earl for bringing forward this Bill which is intended to simplify and update the old Act to which 869 he referred. His explanation was most helpful; because of the number of Acts which have been passed since the original one, the exact intention of this new legislation was not entirely clear to me.
It may be worth having a look at what the value of £150 in 1875 would be today. According to the Economist Desk Diary, £150 is shown to be the equivalent today of £2,619. That gives us some idea of the strength of inflation, if that is the right word, over the years. I feel that the figure of £10,000 which is incorporated in the Bill will adequately cover the eventuality of inflation continuing at an even faster rate in years to come. I see from the last sentence of the Bill that it is to be deemed to have been passed before the Scotland Bill was passed. I feel that this is an intensely Scottish Bill to which there is no English equivalent. I am advised that there is no need to go for this process in England. It is merely negotiated directly with a court, but I welcome this Bill, as the noble Lord, Lord Campbell of Croy, has done, and wish it well.

§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
My Lords, I join others in thanking the noble Earl, Lord Selkirk, for bringing this Bill before your Lordships' House and for the explanations which I am sure will be found most helpful by those who find themselves covered by its provisions. As the noble Earl pointed out, the original purpose of the statutes which this Bill amends was to reduce the expenses involved in confirmation to a deceased's estate where the estate was of a small amount. Reference has been made to the fact that the rise reflects inflation. I think it does rather more than that; it also represents a growth in prosperity. What we called "small" in those days we should call "tiny" today. The term "confirmation" in Scotland really means the ratification by the court of an appointment as executor. The limits, starting at £150, have been periodically increased over the years by legislation and it is apparent that some type of continuous up-dating is necessary if we are to keep pace with the changes in the value of money.
For this reason I believe that one of the most important features of the Bill is that this up-dating need no longer be done by primary legislation but can be 870 done by order made by the Secretary of State. That is the subsection in Clause 1 on which I think Clause 3(3), referring to the Scotland Act, bites because in the event of the Scotland Act being brought into operation then the responsibility for up-dating the amount would fall upon a member of the Scottish Executive. The Bill certainly has the blessing of the Government and the support of the Lord Advocate, and indeed of all Ministers. We welcome the Bill and believe that it will be of considerable assistance to those who are administering the estates of a deceased person.

The Earl of SELKIRK
My Lords, I do not think I need say anything further except to thank the noble Lord, Lord Campbell of Croy, for the support he has given and the noble Lord, Lord Tanlaw, who has pointed out that in real terms compared with 100 years ago the amount that limits a small estate is about four times what it was—I repeat, in real terms. I think that is right and a proper step forward.