NEW CLAUSE.—(Savings.) (Hansard, 27 April 1934)

§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
I beg to move, "That the Clause be read a Second time".
This is a Clause which, I think, ought to be added to the Bill. It provides that no order may be made under the Act and that nothing in the Act shall affect the rights of any creditor or testator, or the rights of any person in relation to property of a testator which is not disposed of by the will of the testator and is not a subject of a donatio mortis causa. Hon. Members who are responsible for the Bill will realise that I submit this addition to their Bill in an earnest desire to put the Bill in as proper form as I can; but I also wish to make it plain that the Bill is not a Government Bill and is not my Bill. I have undertaken a great deal of work in connection with the Bill, work which it really was not my duty to do. The hon. Gentleman who is in charge of the Bill, I think, perhaps will say that it is not his real child but only his adopted child. The hon. Gentleman has been most helpful to me and most obliging. In fact, my only complaint is that he has taken almost too readily anything that I put before him, until I found myself in a somewhat ambiguous position. But I wish to make my position perfectly plain at the earliest moment.
Although I offer these technical Amendments to the House for their consideration, it must be made quite plain that I do not take the responsibility for seeing that every question that may be raised by the Bill has been provided for. I have moved this new Clause because this was 2030 something which seemed to me to stare one in the face when the Bill emerged from Committee. Everyone will agree that it would be quite improper for the rights of a creditor against an estate to be defeated by an order which might be made by the court after the death of the testator in pursuance of this Act. I do not suppose that the hon. Gentleman will object to that proposal.
I should say a few words in explanation of the second part of the new Clause. The way in which that will operate is this: A person might by his will dispose of half his property to a complete stranger and as to the other half make no disposition at all under the will. In accordance with the Administration of Estates Act, 1925, that property undisposed of under the will would go as Parliament has directed, to the next-of-kin—the widow or husband as the case might be or to the children if any. In other words that part of the property undisposed of would be distributed to the next-of-kin—the surviving spouse and the children if any—in the proportions settled by Parliament. The intention of this part of the Clause is to provide that no high court judge or county court judge shall have power, by an order made under this Measure, to interfere with the proportions which Parliament has thought proper to lay down in regard to the apportionment of the undisposed of part of the estate of a deceased person among the next-of-kin.

Sir JOHN WARD LAW-MILNE
All those associated with the promotion of this Bill have every cause to be thankful, indeed deeply grateful, to my right hon. and learned Friend the Attorney-General for his help. While giving that help he has made it perfectly plain, as he did to the House this morning, that the Bill is not his Bill and that he is merely anxious, if it is to be passed at all, that it should be a workmanlike Measure. This proposed new Clause, is, I think, the result of an undertaking which he gave to the Committee upstairs that he would consider these points, and, if necesary, bring for-word a suitable form of words to deal with them. My right hon. and learned Friend has twitted me with being rather too amiable in the manner in which I have received his assistance. I think the House would 2031 only expect me to receive with gratitude the Attorney-General's assistance in a matter of this kind. This is a Bill dealing entirely with points of law and those in charge of it could not fail to appreciate the value of the assistance which has been given not only by my right hon. and learned Friend but by other hon. and learned Members. This New Clause and the New Clause which is to be moved later, as far as I can follow them, deal satisfactorily with the points which the Attorney-General undertook to consider and I shall be very glad to accept them.

§ Mr. TURTON
The New Clause states that nothing in this Act or any order made thereunder is to affect the rights of any creditor of a testator. What would be the position if the surviving spouse or child were a creditor of the testator? Would he or she have a double right first as a creditor and secondly under Clause 1 of the Bill, as not being mentioned in the will? There are cases, not only of ordinary debts but also of jointure charges, wherein a wife may be the creditor of her husband who is the testator. Because she is a creditor the testator takes particular care not to mention her in his will. In order to meet such a case as that, would the Attorney-General consider inserting after the word "creditor" in paragraph (a) the words "other than a spouse or child who is not benefiting under the will." I do not wish to delay the consideration of the new Clause but that appears to be a point of some substance and if there is any doubt about the matter it could be altered in another place. Everybody wants to see a surviving spouse or children not provided for under a will, receiving proper consideration according to the terms of the Bill but not if he or she is already entitled as an ordinary creditor or under a jointure.

§ Mr. GALBRAITH
There is one small point which arises on paragraph (b) of the proposed new Clause. The proposed new Clause provides that nothing in the Act is to affect the rights of any person in relation to the property of a testator which is undisposed of by his will. That of course means that if a testator has made a will disposing of part of his property but leaving another part undisposed 2032 of, then his next-of-kin will get a certain benefit. But Clause 1 of the Bill provides that, if a testator has not by his will made reasonable provision for the maintenance of a spouse or child the court can make such provision as it thinks reasonable for such spouse or child. I suppose that when the court considers whether or not a testator by his will has made reasonable provision, the court will probably take into account the fact that in an instance such as I have given, the spouse or child is already taking some part of the property under intestacy. That ought to be made perfectly plain.

§ Sir JOHN WITHERS
With great deference I think both these points are answered by reference to Sub-section (2) of Clause 1 of the Bill which provides that the court shall on any application for any allowance consider any other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to the applicant. I think the fact that the applicant was a creditor of the testator or the fact that the applicant was already taking some benefit in another way, are certainly relevant matters which the court would take into consideration.

§ Mr. C. WILLIAMS
The hon. Member for Thirsk and Malton (Mr. Turton) referred to the question of a jointure and we are told that that point is covered by Sub-section (2) of Clause 1. Here we have two lawyers, with considerable knowledge of the Bill, holding different opinions on this matter. I personally intend to vote for the proposed new Clause as it stands because I have confidence in the Attorney General—

Viscountess ASTOR
Hear, hear.

§ Mr. WILLIAMS
I hope that my noble Friend the Member for the Sutton Division of Plymouth (Viscountess Astor) will also be able to give it her support. While my hon. Friend the Member for Kidderminster (Sir J. Wardlaw-Milne) has accepted the proposed New Clause we ought to be told whether the Government are going to vote for it. The original speech of the Attorney-General did not make that clear. Ordinary laymen are bound to accept the best legal advice 2033 and we have had it from the Attorney-General and I am prepared to support the new Clause, provided the Attorney-General himself intends to vote for it.