§ Order for Second Reading read.
§ 12.10 p.m.
§ Mr. Windsor
I beg to move, "That the Bill be now read a Second time."
The principle embodied in this Bill has had rather a checkered career in this House, and perhaps I may be permitted briefly to make a few observations about the history of the principle that is embodied. In 1931 the hon. Member for the combined English Universities (Miss 513 Rathbone) brought in a Bill which was read a Second time by this House on the understanding that it was sent to a Joint Committee of both Houses. They took evidence and the matter was considered, and the Bill was brought back again, when, unfortunately, it was talked out. In 1931 the main opposition to the Bill appeared to be that the number of people involved in bad and unjust wills were so negligible that it would be quite unreasonable to pass such a Measure. It was pointed out that, although the number might not be unduly large, it was certainly sufficiently large to justify the introduction of a new Bill. I will give one quotation from the report issued by the Joint Committee, who in paragraph 7 said:The Committee, however, are of opinion that it is wrong that a surviving spouse or child, who is otherwise without adequate means of support, should be left without such means of support, owing to the terms of the deceased spouse's will, and that such spouse or child should be able to obtain such means of support by application to the court, the amount to be measured by the amount of the estate and the circumstances in which the family had been living. The Committee are unable to amend the Bill so as to bring it into harmony with this recommendation, but they consider that a Measure on these lines would he worthy of serious consideration by Parliament.The matter was again brought before the House in 1934 by, I believe, the hon. Member for Kidderminister (Sir J. Wardlaw-Milne), and the Bill was sent upstairs and was amended in Committee. It was brought on to the Floor of the House, but it was again unfortunate and was talked out.
The Bill for which I am asking a Second Reading to-day is almost on entirely similar lines to the one which was introduced in 1934. The only difference is that there is a proviso in Clause 5, otherwise the Bill is entirely the same. It is a very peculiar anomaly that England and Wales are about the only two countries in the civilised world where such a provision is not permitted in the law. Already in Scotland they have a much wider principle embodied in their law. This principle is embodied in the law of New Zealand and Australia, and also in many provinces of Canada. The Bill is based upon the law which is operating in New Zealand and Australia. The fact that the subject has been a matter for debate in this House and in Committee 514 on such a number of occasions renders it unnecessary for me to make any long or laboured statement as to the provisions embodied in it.
Indeed I should think that every Member of the House must have received from time to time an enormous number of letters from constituents pointing out the unjust treatment that many spouses have unfortunately suffered from. I could read from a batch of letters which I have here, but I shall not do so. I shall only refer briefly to them. I have a letter from an old lady of over 70 who was unjustly left out of an estate to which she had contributed with her husband in building up a business. Unfortunately, either from caprice or for some other reason, she has been left out of all benefit from the estate. Her husband would have been compelled to maintain her during life, but because he is dead no responsibility rests upon him. That woman is drawing an old age pension of 10s. a week, whereas if she had had justice she would be living in decency, if not in comfort.
There are innumerable instances of that kind. For instance, cases where a young woman has married an older man, and it may be sacrificed a career in the industrial world in order to help the husband and the family. Then suddenly, because of some strange fancy of the man for someone else, she, the second wife, is left out of consideration altogether. It is to remedy such evils as these that the Bill is drafted. I have no desire to weary the House with a lengthy statement because I believe that hon. Members are fully aware of all the implications of the Bill and the reasons for the Bill. I hope that the House will give the Bill a Second Reading.
§ 12.18 p.m.
§ Mr. G. Hardie
I beg to second the Motion.
I hope that the House if for nothing else but its relative sense of justice, will offer no opposition to the Bill. What we are really dealing with is the implementing of a contract known as marriage. When marriage takes place under the law it means that there are certain responsibilities to be assumed. The marriage law means this if it means anything: The word "honour" that is used in the marriage ceremony implies everything 515 that this Bill seeks to provide, and even more. The liabilities that are involved in that word "honour" have not seemingly yet been fully realised in English law. In Scottish law we have always realised the relation of the individual to a contract. I am not going to boast about Scottish law in comparison with English law, and I shall state only the facts. In nearly every Scottish law dealing with a contract between two or more individuals the individuals contracting are protected on both sides, but under the law of England, no matter how great the pledges at the marriage contract, with all the blessings called down from above, there is not that protection, and we find in our daily Press the most harassing details. Whatever the reason may be for the change between the man and the woman, that should surely not be made the basis of ill-treatment of the offspring. Most hon. Members will have read in the Press recently about a man, fairly wealthy, who seemingly did not get on with his wife or family, and he took it upon himself to leave all that he had for the care of animals. While we all feel that the animal world has to be protected by the human, we must not pass over the protection of the human first, especially in relation to this contract.
The Bill seeks to protect the woman and the children from the callous type of mind. It has been argued in previous investigations of this subject that there was little of this sort of thing. It does not matter what the quantity is. If it is a wrong it ought to be righted. If there are only Zoo wives and families suffering, they should not be called upon to suffer. If they suffer it does not suggest a sense of justice running through the community, falling, as the rain does, on the just and the unjust. The claim of the Bill is to secure a greater sense of justice. What responsibility have the children? They have done nothing that they should be called upon to suffer under the iniquitous law as it exists; they have done nothing to deserve being treated so by a callous father, being denied the education that they should have, being denied the right to the proper living which they should have enjoyed. Why take evidence on the subject? I never can understand why we should take 516 evidence about a thing that is so obviously staring everyone in the face. Everyone knows the injustice that exists. Why talk about evidence? Why not take the facts relating to other countries that do justice in this matter? The evil exists and that should be enough for its destruction.
Under the Scottish law what we do is this: In the case of an estate where there are no children the wife takes half and no one can disturb that arrangement. It does not matter whether the man and woman have disagreed; no matter what the reason for any difference between the man and woman that arrangement cannot be disturbed. It should not be disturbed. The contract has taken away from the woman especially certain rights that she would have had if not married. When a man treats his wife in the way that the Bill seeks to remedy she is often left in a predicament. If she seeks employment there is difficulty, there is an askance look when she seeks work, and people say there must have been faults on both sides. It is not a question here as to what is the reason for the difference between man and wife. The question is their relation to a contract solemnly taken and given, and the responsibilities that must follow.
I have spoken of an estate when there are no children. Where there are children what happens in Scotland is this: The wife takes one-third and the children take one-third, and nothing can disturb that division. It does not matter what mental kinks the husband and father might develop. Scottish law protects both the woman and the children. I hope that without seeming to be pushing Scotland too much into the picture I have induced the House to give the Bill a Second Reading. It is not a question of asking English Members to adopt these proposals because Scotland has done so. I ask that they be adopted because of the justice that underlies them.
I know of a case, about seven miles from this House, where a marriage took place some years ago. There are four fine children and, as far as the neighbours can judge, the wife has given every ounce of her efforts towards doing her best for the family and her husband. What has happened? Because some change has taken place in the husband's mind, not only in relation to his wife 517 but through her to the family, the man can simply put his marriage contract and all his responsibilities on one side. He is busy trying to do that now. In the event of that man being run over to-day by a motor car or finding himself in some difficulty and having to leave this world, under the arrangement as it stands that woman and the children would be left without a halfpenny. That is the kind of thing that should make it possible for a Bill like this to have immediate access to the Statute Book. Following the example of my hon. Friend, I will conclude with a brief speech. I regret the absence of so many hon. Members this morning, because on such a question as this, and in view of the suffering that we know exists, I could have wished that there had been a better attendance in order to make sure that the public realise that the House of Commons as a whole stands for justice to those who have no help for themselves.
§ 12.27 p.m.
§ Mr. Michael Beaumont
I find myself, in regard to this Measure, in a certain amount of difficulty so far as the Bill is founded on the report of the Joint Select Committee, of which I was a member. Some years ago the hon. Lady the Member for the English Universities (Miss Rathbone) who, as we all know, has this matter very much at heart, introduced a Bill of a different character, to which some of us took very great exception. That Measure was remitted to a Joint Select Committee of both Houses of Parliament, which issued a report broadly along the lines on which this Bill has been drafted. By giving my assent to that report of the Joint Select Committee it follows, naturally and implicitly, that I should not oppose such a Measure when it was brought forward. Therefore, in the circumstances I cannot vote against the Bill should it go to a Division, nor can I take any part in trying to oppose it. but it would be idle to contend that I view it with any great affection. Should a Division come I shall vote in favour of the Bill, but I do not think that it would be right to allow the Measure to go forward without putting the other side of the case.
The hon. Member who moved the Second Reading—I regret that I heard only a portion of his speech—and the hon. Member who has just sat down, put 518 with great force and great sympathy the point of view of those who support the Bill, the point of view of the hard case. On the question of principle I do not find myself in agreement with the hon. Member for Springburn (Mr. Hardie). He talked as if marriage ipso facto gave to the surviving spouse inherent rights in the estate of the deceased spouse. This Bill, very rightly, applies to both sexes. We generally talk of the wife of the comparatively well-to-do husband who is left devoid of means, because that is the more common case, but the converse is also true, occasionally, and it would be possible under this Bill, if it becomes law, for the husband to make application for maintenance from the wife's estate, just as the wife could make application in respect of the husband's estate. The hon. Member for Springburn spoke as if marriage gave the spouse an inherent right in the wealth of the man or woman he or she marries. I deny that. While the marriage remains, while the couple remain together, we know that it is rightly the duty of the husband to support the wife, but I frankly deny the claim that after death there is any inherent, inalienable right to the fortune of the husband.
§ Mr. Hardie
Does the hon. Member say that if he had children who were left behind, while he did not want the wife to get anything, he would deny the children anything from the estate?
§ Mr. Beaumont
Happily, I hope that I should never be in that position, but I deny that there would be anything —it may be bad taste—inherently wrong if I did so. I may be old-fashioned—I am not ashamed of it—but I still believe in the right of the man to do what he likes with his own.
§ Mr. Beaumont
Exactly. He should do what he likes with his own. I do not believe that good, on the whole, will come from interfering with a man's or a woman's testamentary provisions, except in very extreme cases. It is all very well for hon. Members opposite to talk as if when this kind of thing happens it is always the one who is left penniless that has given up the best years of his or her life to look after the other. Let us put it in another way. Take the case of the 519 man or the woman—I am ashamed to say that in most cases my own sex have been the greatest offenders—who marries for the money of the husband or the wife, as the case may be, and who, once they are safely married, behave disgracefully, pay no attention to the happiness of the spouse with whom they are living and make his or her life a hell. Do hon. Members contend that, having done that, having married, almost frankly, for money, having done nothing to carry out their marriage obligations, they should be entitled to a portion of the estate on the decease of the spouse whom they have treated so badly?
§ Mr. Beaumont
I am dealing with the arguments that were advanced by the hon. Member for Springburn (Mr. Hardie). What the hon. and learned Member says is perfectly true, and that is the reason why I am not going to oppose the Bill. But the hon. Member for Springburn was laying it down as a principle that a spouse had a right to a portion of the estate. I put the opposite case, where the spouse who is left penniless has not carried out the marriage contract, and I say that such a spouse has no right to expect to be provided for. When you get that kind of case no man, no judge, no tribunal, can say what is really justice. You cannot tell in marital relations what is the justice of the case and what is not; no outsider can; and for that reason if for no other I dislike the principle which underlies the Measure. I think more harm than good is done when you interfere with the testamentary disposition of a man or woman.
§ Mr. Beaumont
I listened carefully to the evidence given to the Joint Select Committee and as a mere Sassenach I say that I was not impressed that the conditions in Scotland were materially better than those in England. You have the other side of the picture, where people do not fulfil the marriage contract and take a proportion of the estate to which 520 they are not entitled. That is an injustice the other way. I am not impressed by the conditions in Scotland. I do not care for the principle of the Measure and no overwhelming case on the ground of sympathy and justice has been made out for the Bill. There is nothing in the Measure which gives a right to any portion of the estate, the whole thing is left to the decision of the Courts on an application, and I think that the number of such applications will be few. Each case must be carefully investigated and all the circumstances ascertained. I say that there is no inalienable right to any portion of the estate and the discretion is entirely a matter for one of His Majesty's judges. Although I think the Bill unsound in principle I think it will do very little harm. It may possibly do some good. I hope so. I could not allow the Measure to pass without making these observations, and if it goes to a Division I shall vote for the Second Reading and if it reaches the Statute Book I wish it good luck and Godspeed.
§ 12.39 p.m.
§ Mr. Lovat-Fraser
I want to express my approval of the Bill. If there is a division I hope it will be taken soon and that the Bill will not be defeated by any of the accidents which defeated it on former occasions. I am supporting the Measure mainly because it is part of the movement for doing justice to women. I am a feminist and wish to see women placed in a position of absolute equality with men. The Bill will help to do justice to women. There is no doubt the vast number who will benefit by it will be women, and I shall be glad to see it pass as part of that movement, which I am glad to say has become stronger and stronger within the last few years, so that the time will come when no woman will be able to accuse men of not doing justice. That is my principal reason for supporting the Bill, apart from the fact that it will prevent England alone standing out as practically the only country which does not make such provision as is made in Scotland and in other parts of the world.
§ 12.41 p.m.
§ Lieut.-Colonel Heneage
I beg to move, to leave out the word "now," and, at the end of the Question to add the words, "upon this day six months."
521 I have listened to the interesting speeches of hon. Members opposite in favour of the Bill on this as on previous occasions, and I pay my tribute to the sincerity of their views and to the fact that they believe the Bill will do good. I confess that I do not share their views. I consider that the kind of changes which the Bill seeks to introduce are rather too big for a private Member's Bill, and this is proved by the fact that the Measure has been put off from time to time. It has been before Select Committees and Joint Select Committees and ordinary committees who have expressed considerable doubts as to the effect of certain Clauses. The protagonists of the Measure are ardent feminists. They talk about hard cases, which undoubtedly exist, and they think that by putting these hard cases right they are going to do no harm to anybody else. I have read all the evidence or as much as I can on this matter, and I am not sure that the promoters are not going to do a great deal of harm. The hon. Member for Lichfield (Mr. Lovat-Fraser) said that England was the only country left which maintained the law in its present state. I am not at all impressed by that argument. Can anybody say that the will system of England is worse than that of any other country, or that the women and children in those countries which have such a provision as this are any better off than the women and children in England? If you go to Scotland you will find hard cases.
§ Lieut.-Colonel Heneage
If a man or woman in Scotland wants to get round the provisions of this Bill they can do it by means of the marriage settlement. That is what I am told. They can make the provisions of this Bill of non-effect. I am glad that the Bill deals equally with men and women. What will be the effect of its provisions in this country? I am bound to say that in the case of a person making a will disposing of money only, this Bill would be comparatively easy to manage, but in cases where much is in property, such as houses, land or any other sort of property, it would be preferable to leave it to the man or the woman making the will than to the courts or lawyers to decide on the distribution of the property. There is one thing on 522 which I would like some enlightenment from the promoters of the Bill. If a man has house property or a small holding, for instance, would he be allowed under this Bill to dispose of it as he thinks fit to the children who would most benefit from it, or would it have to be decided by the courts?
§ Lieut.-Colonel Heneage
I object to that, because it would entail so many legal expenses, and I think it must be dealt with specifically in the Bill. Another objection to the Bill is that in a big family the children might differ greatly in character. A man making a will could decide which kind of property and how much money the different children would best be capable of handling. I would rather have the man or woman making the will decide on that point than leave it to the courts and lawyers to settle afterwards. Those are my thoughts on the personal side of the Bill, a side which I do not think has received sufficient attention. Let me refer briefly to the position in France, where this question is regulated much more than it is in this country. The property owned by a married couple is divided up very extensively on death, and the effect is that whole families have to live together in order to work a small holding or an estate. That suits the French. I do not know whether the effect would be the same in this country, and that the married children would have to live together in the same house to carry on an estate or business as is done in France. I do not think that married children in this country would make a success of that sort of thing if they were driven to it by this Bill. I am sure those are some of the things which the promoters of the Bill have not anticipated.
With regard to the question of appealing to the courts, I do not like this business of always going to the courts for decisions with regard to doubtful wills and their meaning. If people have to go to the courts and say that, in accordance with the Bill, if it becomes an Act, they want an increase in their allowance or in the amount of money left to them under a will, it will lead to something which so far we have avoided in this country. In 523 the United States of America one constantly hears of cases of people demanding allowances of £20,000 a year or £200,000 a year—they deal with much larger sums than we deal with—according to what I think would be called an interpretation of "reasonable provision" in Clause r of the Bill. I would not like to see happening in this country that which happens in America, where people apply to certain courts in order to get a satisfactory interpretation of "reasonable provision" because they know the judges in those courts have a tendency to decide in a certain way. I should be very sorry to see this country slip into the American practice of dealing with wills. I have perhaps raised several very wide issues, and I have a great many objections to this Bill on what I might call Committee points. I submit to the House that it would not be wise to give the Bill a Second Reading, because it raises far wider issues, in changing the social system of the country, than the promoters envisage.
§ 12.52 p.m.
§ Sir John Withers
I have from the beginning supported the Bills which have been introduced to effect the same results as this Bill. The original Bill was introduced in the form of putting into operation the Scottish procedure, which divides up the free estate of the testator among certain people. An hon. Member opposite rather questioned—and his query was taken up by an hon. Member on this side —whether that was so. I will answer him by saying that undoubtedly it is possible to defeat the Scottish Measure by making a settlement which provides for the property going a certain way.
§ Mr. Hardie
Does the hon. Member forget the Scottish law regarding what is heritable and what is entailed?
§ Sir J. Withers
During my experience I have had to deal with the particular question as to whether the heritable, or, as we call it, real and personal estate, should be dealt with in the same way—
§ Sir J. Withers
Sometimes it is very limited. For instance, suppose a Scots- 524 man who had £1,000,000 left £999,000 to strangers, and only left the balance to be dealt with under the Scottish law. When the matter was before the Select Committee, the Committee saw the disadvantages of the Scottish law and recommended the procedure in the Bill, which I support wholeheartedly. I cannot see that it can possibly do any harm. It applies only in cases where some obvious injustice has been done, and the only serious criticism I have heard of it yet is that the Bill is one for helping lawyers, which, to a certain extent, of course, it is. I feel, however, that it would very rarely be put into operation. In the first place, happily there are not very many cases of unjust wills, and this Bill will deter people from making them. They will know that an unjust will can be put right. If a person goes to his solicitor and wishes to disinherit, let us say, his son for some unjust whim, as people sometimes do, then, of course, the solicitor will say to him, "Do not be such a fool as to do that. It will only mean that Tom—or whatever his name is —after your death will apply to the courts and the courts will find that you have acted unreasonably in this matter and will put it right." I have practised for 45 years in these matters, and I am bound to say from my experience that cases of unjust provision for wives and families are rare, but there are some very bad cases and there is no method whatever at present of putting them right. I certainly think that those cases are sufficiently important, and sufficiently numerous, even though they are not very numerous, to justify some provision being made for putting them right. This is the only way in which we can do it. Therefore, I hope that the House will give the Bill a Second Reading, and that the Committee to which it is sent will deal with it in a favourable way.
§ Mr. Hardie
In speaking of contracting out, did the hon. Member mean without consultation with the wife?
§ 12.58 p.m.
§ Sir Reginald Craddock
I warmly support the Bill, which carries on the face of it obvious justice and the remedying of injustice. Naturally, as a general rule, the will of a testator should be respected. If it were otherwise there would be endless disputes. But this Bill covers the particular case of an unjust or vindictive- 525 will or wills such as have been described by my hon. Friend the Member for Cambridge University (Sir J. Withers). I do not think that on the merits any hon. Member can seriously dispute the justice of this proposal although, no doubt, many would be able to cite particular cases of difficulty which may arise. I am not a lawyer, but I have had a good deal to do with initiating and carrying through legislation, and I have always found one of the difficulties in legislation to be that of avoiding the hard cases which rigidity in the law is bound, sometime or other, to create. I have found, generally, that although a particular law may in the majority of cases be a sound proposition, it is extremely difficult always to deal with borderline cases, and even genuinely hard cases where there is rigidity in the law.
My own experience in the matter of preparing legislation and watching its effects has been that there are always loopholes in Acts of this kind and they are often loopholes through which injustices may creep. On those grounds I have always found, in practice, that if certain discretions can be left, for the purpose of avoiding hard cases, one may with safety trust to our judges to exercise those discretions reasonably. Those are cases in which judges can act according to what they consider to be, in the circumstances, equity and justice, and not merely on a strict interpretation of the law, which might otherwise compel them to give decisions which their own intelligence would show to be extremely hard and unjust on particular individuals. For those reasons, I warmly support a Measure which provides for such contingencies.
As between the rigidity of the provisions of the Scottish law in this respect and complete freedom for the testator, I welcome this proposal which follows the practice in our Dominions—and a very good practice too—of enabling borderline cases and cases of whimsical or vindictive wills to be dealt with at the discretion of an authority which is fully qualified to do so. I have very high opinion of the sense of equity of our judges.
§ Notice taken that 40 Members were not present; House counted; and, 40 Members being present—526
§ Sir R. Craddock
I am glad that the attempt to count out the House did not succeed, but I had almost finished my remarks when the count was called. As I say, I welcome this legislation heartily, and I feel sure that the number of cases which will arise under it will be few. The question to be decided, after all, is generally one of whether sufficient has been left under a will for the maintenance of the surviving spouse or the children, and it will be in those cases in which estates are small and the parties concerned poor, that the benefit of this Measure will be particularly felt. People of that kind will be most deeply concerned in a provision of this kind for carrying out justice and providing adequate maintenance for those who are entitled to it.
§ 1.5 p.m.
§ Mr. Petherick
Like the hon. Member for the Combined English Universities (Sir R. Craddock), I am very glad the House was not counted out, because I am supporting this Bill wholeheartedly. I merely wish to ask one question. Under the Bill a child can, on application to the courts, receive maintenance, and I want to know whether a child is in this case only a minor or whether it could be taken to include a man who has grown up in a bad state of health and is unable to support himself. If it is the former only, I am inclined to think that there is a slight flaw in the Bill there, which could perhaps be remedied in Committee. In conclusion, I think it is far better for, say, a widow or a widower who has behaved badly to a husband or a wife, to receive money which she or he does not deserve, than that a number of people who are left destitute should not receive that maintenance to which they are entitled.
§ 1.6 p.m.
Only one hon. Member who has spoken so far has been opposed to the Bill, and therefore there is very little left for those who support it to say, but I would like very briefly to sum up the arguments that have been used and to put some points to the House. First of all, I would like to remind the House that it would really be stultifying itself if it should refuse to give a Second Reading to this Bill after its previous action. This matter has received, in the form of a Bill which I introduced five 527 or six years ago based on the Scottish model, a substantial Second Reading, and it received the full discussion of a Joint Select Committee, which almost unanimously preferred the form of legislation now embodied in this Bill. Then a Bill which was practically the same as this was introduced by the hon. Member for Kidderminster (Sir J. Wardlaw-Milne), which went through its Second Reading and Committee stages and only did not pass its Report stage owing to lack of time.
I would like to remind the House that if anyone tries to pick holes in this Bill on the ground of defective drafting, he will find himself in somewhat of a difficulty, because in effect this Bill in matters of technical workmanship is very largely the product of the predecessor of the hon. and learned Gentleman the Solicitor-General himself. The Government spokesmen, making it clear that they were not doing it because they were sponsoring the Bill, but merely in order that it might be in a workmanlike shape, practically rewrote it in Committee and on the Report stage. Indeed, the Attorney-General, in discussing the Bill moved by the hon. Member for Kidderminster, actually on the Report stage twitted the hon. Member for having shown himself so complacent in accepting nearly all his suggestions. There may have been certain small points which he did not accept, but if there are any points in the Bill of which the Government or the House in their wisdom do not approve, they may still be dealt with in Committee.
§ The Solicitor-General
(Sir Terence O'Connor): I must point out that the Bill as now printed does not embody a good many Amendments of importance in the previous Bill which were suggested by the Government. They do not appear in the present Bill.
I am sorry if that is so, but this Bill certainly does embody a great many such Amendments, because I remember reading only this morning a speech by the hon. and learned Member's predecessor in which he twitted my hon. Friend the Member for Kidderminster with his facility in accepting certain Amendments, and I thought 528 they also appeared in this Bill. There is one substantial change in this Bill which was a concession to the known views of the Government on the question of the reference of cases of smaller estates to the county courts. We know that representatives of the Government took strong objection to that Clause in Committee, and so a provision was introduced into the Bill providing that such cases could not be dealt with by the county courts until after several years' experience of the working of the Measure. That was done specifically to meet in some way the objections made by the then Attorney-General.
We may anticipate, whether in Committee or elsewhere, the objection, already made indeed, that after all there are only a few cases of injustice. Although relatively, of course, such cases are very few, the number of cases of injustice which this Bill would meet is larger than some people suppose. As the hon. Member for Cambridge University (Sir J. Withers) pointed out, injustice is largely prevented if testators know that if they make an unreasonable will, it will be put right. The very knowledge that that is so will prevent them making such a will, and I am convinced that it would be wrong to judge as to the number of cases from the number known even to experienced people such as the hon. Member for Cambridge University. People naturally avoid, as far as possible, washing their dirty linen in public by bringing their grievances to the public notice. Therefore, a great many unjust wills are made and executed which never come before the notice of the law.
Another point is that I am sure that this power to make such wills is used in terrorem over many unfortunate spouses and children. If a man is naturally of a tyrannical disposition and has a wife, a son, or a daughter who will not do everything he wants, he threatens them with disinheritance after his death, and such cases never come before the lawyers. If one makes the surely modest estimate that one husband in a thousand is a bad husband, capable of making an unjust will, and that there are 8,000,000 or 9,000,000 couples living in households in this country, that gives 8,000 husbands who are capable of making such a will. That is not a trivial number, yet it does 529 not involve a satirical view of human nature to suppose that the number may be as great as that. Therefore, I believe that if this Bill passes into law, it will prevent a great deal of injustice as well as making illegal a comparatively small number of actually bad wills.
I want to make an appeal to the learned Solicitor-General. We know that if this Bill passes its Second Reading at this stage in the Session it may be very difficult to get it passed into law this year, and I do beg him to give the House an opportunity at least of expressing its opinion once again and of voting on this Bill, if it is only with this object, that surely the time will then have come when the Government themselves will take this matter up. One hon. Member who spoke said that this was more a question for the Government than for a private Member. I only wish it was. I think it is far too great a question and too flaming a case of injustice to be left to the chances of private Members' legislation, but since the Government have not yet taken it up, I suggest that if this Bill does not pass into law this Session, they should at least consider whether this is not a question on which a Bill could be carried through without casting any burden on the public purse. All Governments naturally think about anything, especially at the end of their term of office, which will cause them unpopularity.
I do not think the Bill has an enemy in the country. I do not know any society that has voted against it or any women's organisation that has not petitioned in favour of the Bill over and over again. That is not because it favours only women. I could tell the House of half a dozen cases at least where the woman has been the wrongdoer and sons and widowers have been the sufferers. Naturally, however, the majority of those affected are women because far more often the woman is economically dependent on the husband and is, therefore, left in a serious difficulty if he disinherits her. Very often it is a daughter who has never been allowed to earn her own living, having spent her time looking after her widowed father, and then he leaves her destitute because of some whim or fancy towards a wife he marries in the last few years or months of his life.
Therefore, I would appeal to the Government not to oppose the Second Read- 530 ing, but to give the Bill every chance in Committee, and, if it does not then pass, to take it in their own hands and bring at long last an end to this injustice in which Great Britain is practically alone among civilised countries. It is an injustice which enables a man or woman to escape out of the most solemn responsibility any man or woman can take upon themselves by slipping out of life without giving notice of his or her intention to disinherit. It is the meanest thing that can be done. Very often they do it without telling the unfortunate man or woman left behind that they are going to leave them destitute. There is no remedy. A disinherited spouse or child has no legal remedy, no chance of bringing the case before the court, and it leaves a slur upon them—"There must have been something, some reason why the father or husband treated them in this way." What would anybody think if it were the law that a man could escape his debts to his tailor, to his lawyer or to his landlord by the act of death? His debts have to be paid out of his estate. Is there no debt that a man puts upon himself when he brings a child into the world or marries a woman, when he uses the form of words, "With all my worldly goods I thee endow"? He takes upon himself a solemn responsibility from which he should not be allowed to escape. The evils which arise out of the present state of the law can be remedied if this Bill is given a chance and if the Government give it fair play.
§ 1.18 p.m.
§ Mr. Pritt
There are not many words I want to say in giving this Bill my support. The hon. Member for Penryn and Falmouth (Mr. Petherick) drew attention to one small point as to whether, in covering the maintenance of a child, the Bill dealt only with infant children. I think that there is no doubt as a matter of fair law that, as used in the Bill, the word "child" is deliberately intended to cover children whatever their age. The mere relation of parent and child is what is aimed at. I would pay my tribute to the drafting of the Bill. It is obviously very well drafted and seems well designed to avoid the evils that arise occasionally under other jurisdictions that have a similar system of legislation, and, at the same time, to give the court the opportunity to do substantial justice every 531 time. It might even be said that the main difficulty of the Bill is that it does throw on the court the burden of exercising a discretion. I believe that the courts are well equipped for the proper use of discretion and that it is a very healthy thing to extend in a good many directions the practice of entrusting the courts with discretion. It makes their work a little more onerous, but it enables innumerable social services in the wider sense of the term to be worked properly if we once get into the habit of leaving things to the discretion of the court.
It is now becoming not uncommon to find in the legislation of this country successive adoptions of those branches of the law of other countries which have for centuries been unknown to us. The English system of law has spread, of course over most of the Dominions and substantial portions of the Colonies, and practically the whole of the United States of America. It is very different in a great many ways from the systems of law, largely, but not of course wholly, based on the Roman, that have found favour in other civilised countries. Where they have appeared to be better than the English law we have rather slowly and cautiously got into the habit of adopting some of their features, modifying them to suit our own temperament and generally lagging behind our own Dominions in doing it. Those who know anything about the Adoption of Children Act, for example, which has now had something like a ten years run, must agree that while it was adopted with a little anxiety on the part of some conservative-minded people, it has been a brilliant success and has avoided many evils and anxieties and given many families the feeling of greater security which they might not otherwise have possessed. I do not think that it is extravagant to suggest that if the Government will in one way or the other see that this Bill becomes law now, we may in ten years time look back upon it as a substantial improvement in the lot of mankind.
§ 1.22 p.m.
§ Mr. Denville
I am in favour of the principle of this Bill, and I hope to give it my support at every stage, but there are one or two points to which I should like to draw the attention of the pro- 532 moters. Machinery should be provided so that the Bill will work equally in all directions. I have in mind the case of a husband who deserts his wife for no earthly reason except that he is infatuated with someone else, and in course of time that innocent woman suffers. We must agree that that is wrong and that it should be put right. On the other hand, I have in mind a Lancashire phrase "from clogs to clogs." How are we to legislate for the son who is a spendthrift of his father's property? How are we to get over such a case? There is another type of case with which we have to deal. I have in mind a certain incident that happened only this week. A close friend of mine died on Monday. Over 25 years ago he married one of three sisters, each one of whom is separated from her husband. They were all noted for their bad tempers. Life became intolerable for this decent fellow. When he separated from his wife he made her a provision of £2 a week, which was more than a man of his position could afford. Two or three years after the separation he came in contact with another woman who was suffering in similar circumstances to himself.
§ Mr. Denville
The hon. Member for West Fife (Mr. Gallacher) is, I take it, speaking feelingly. It may be prevalent in West Fife.
§ Mr. Denville
This couple had been together for 25 years, to my knowledge, and were a very happy couple indeed, and their only regret was that they could not be married legally. I have never met a happier or more honest and straightforward couple, and as a friend of both of them I have often regretted that circumstances were such that they could not carry out what they had in their hearts. The man passed away. What would be the position under this Bill in the case of a couple in similar circumstances? Are we to say that the wife who has been living apart from her husband for 25 years shall be in a position, with the support of the law, to have the woman who has lived with that husband for 25 years or more—make it as long as you like—thrown out into the street? Is she to 533 be neglected altogether in order that a vindictive wife may benefit? There are vindictive women just as there are vindictive men. Those are the only two points I wish to put forward. Otherwise, I think it is a very good Bill; and after having listened to the hon. Lady the Member for the English Universities (Miss Rathbone), who is an authority on this sort of thing, I felt more impressed with the strength of the Bill than before. I hope that it will be given a Second Reading, and that in Committee its provisions will be so drawn that the vindictive woman will have no more chance in the courts than the vindictive man.
§ 1.28 p.m.
§ The Solicitor-General
The hon. Lady the Member for the Combined English Universities (Miss Rathbone) made a double-barrelled appeal to the Government. I am glad to be able to satisfy her as regards one point. I can tell her that we do not intend to ask the House to oppose the Second Reading of the Bill, and it may give her and those who support the Bill some satisfaction to know that the degree of support which it obtains to-day on Second Reading will necessarily be a matter which the Government will have to take into account. The second request which she made, namely, that the Government should take up this Bill, falls into a different category, and I am afraid that I shall not be able to satisfy her on that. I hope she will not object if I put the position this way: This is a private Members'. Bill and that each of the private Members' Bills is to some extent, so far as the Government are concerned, a cuckoo in the nest, and at this stage of the Session it is a little difficult to give any forecast of how much breathing-space we can allow the bird at a later stage.
§ The Solicitor-General
If any, as I am reminded by one who has great professional experience of the difficulties of affording Parliamentary time. At any rate, it is not possible for the Government, at this stage, to give any undertaking as to any course they may take in the future as regards the Bill. I should like to explain that when I answered the hon. Lady a moment ago I did so under a partial misapprehension, and may have said something which was not quite correct. 534 I think that all, or at any rate most of, the Amendments which were suggested by the Government when the Bill was before the House previously were, as she says, adopted by the promoters. I find that there are a considerable number of Amendments which do not appear in the present Bill, but I understand that that is because they were not reached on the Report stage. Therefore, although there was a modicum of right in what I said, I could have wished, from the point of view of looking at the Bill as an instrument for carrying out the promoters' intentions, that it had embodied more of the Amendments which had been suggested, but no doubt they will be borne in mind if the Bill goes to another place.
There is no need for me to depart from the commendable brevity which has characterised all the speeches here to-day, but I feel that as the Government take no attitude on the matter at the present time there are one or two things which it might be wise to point out to the House, and to those who may be in charge of the Bill in Committee if the House does give it a Second Reading. The history of the Bill has been quite correctly stated by one of the promoters from the other side. The original Bill was rejected by a Select Committee. That Bill followed the Scottish model, which did not commend itself, for various reasons, to that Select Committee. To replace that Bill this type of Bill, which follows a New Zealand model, was introduced in 1933, and again in 1934, and on the latter occasion it was only through lack of Parliamentary time that it was not seen to its conclusion. The Bill we now have follows that last model, and has this advantage, that a great many of the corrections which were made by the Committee, and by the House on Report stage, have been embodied in it.
Moreover, there is, I think, very general agreement, not only in this House but also outside it, that we are dealing here with an evil which, if it can be remedied, should be remedied. I think there is a grave hardship in cases—which are notorious—where the partner for life has been excluded from the will of a testator, but it would not be candid for us to pretend that the Bill does not present several difficulties or that it completely meets the situation. As has been pointed out, there is nothing 535 in the Bill to prevent voluntary settlements which would evade the purpose of the promoters of the Bill. On the other hand, it may do something which is worse than leaving the slur on those who survive, of which the hon. Lady spoke. She pointed out that the mere act of shutting out from a will a widow or a child leaves a slur. If this Bill becomes law it will probably be found that testators will be forced to include in their wills not a nebulous but a precise statement of why they have cut out their wives or why they have cut out a particular child, and it will be by no means an easy task for the courts to find out where the rights and wrongs of the matter lie.
Perhaps I may be permitted to give a personal experience of a will suit in which I was engaged when I was a private member of the Bar. A gentleman had been separated from his wife for a considerable number of years. He was a very wealthy man. When they separated he offered his wife this arrangement: "I will either give you so many thousands of pounds for your life, settled so that you shall have it for as long as you live, or I will give you double that amount for our joint lives. I am not supposed to be as healthy as you are, and therefore if I give you twice as much for our joint lives you will be able to make provision for yourself in the event of my death—insure my life and so on." She accepted the larger sum, the double amount, which was several thousand pounds, and she continued to enjoy that sum of money for a very long period of time.
The testator said to his advisors: "Mark my words; when I die she will not have made provision for herself and she will try to persuade some court of law that I was insane when I made this will. I therefore insist upon seeing the best alienists that I can command and having my mental state inquired into when I made this will." What occurred was exactly as he had anticipated. He died in the course of nature, not having seen his wife for a very great many years, but having made that double provision for her, and on his death an action was brought to obtain for her, on the basis of injustice, what the widow said she 536 was entitled to and what he had meanwhile left to charity.
I give that case as a personal experience and as indicating that it does not always follow that the exclusion of a person from a will is an act of injustice, or that provision has not previously been made; or, indeed, that the best interests of a party are served by forcing the testator to put into black and white the circumstances which led him to draft his will in that way. Other matters leap to the eye in a Bill of this character, such as, for example, the very heavy burden, as was mentioned by the hon. and learned Member for North Hammersmith (Mr. Pritt), cast upon the courts which have to look into all the circumstances of the cases. I do not think I should be candid if I did not point out that there is another side to a Bill of this kind. There are various difficulties, and it is possible that the evils which the promoters intend to remove will not necessarily be removed by the Bill. Whether that can be remedied by Amendments when the Bill reaches Committee stage is not for me to say. So far as the Government are concerned, they do not oppose the Bill at the present stage. We shall consider carefully the course of the Debate to-day and the degree of unanimity that has been expressed, and in the light of those matters the Government will have to make up their minds at a later stage.
§ Question, "That the word 'now' stand part of the Question," put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.