§ Order for Second Reading read.
§ 11.7 a.m.
§ Mr. Holmes
I beg to move, "That the Bill be now read a Second time."
The object of this Bill may briefly be stated as providing that a spouse or children left without reasonable provision for maintenance shall have the right to appeal to the Court, which, having regard to all the circumstances of the case, may make such provision as it thinks fit from the estate of the deceased husband and father, or wife and mother. England, Wales and Ireland stand almost alone among the countries of the civilised world in enabling a man or a woman to dissolve by death the financial responsibilities attached to marriage and parenthood. In Scotland, both husband and wife are entitled to one-half of the moveable estate where there are no children, and to one-third where there are children; children are entitled to one-third of the estate of the parent dying first and one-half of that of the parent dying last. In New Zealand, most of the States of Australia, and certain provinces of Canada, the law is on the lines of this Bill, namely, the Court may order that suitable provision shall be made.
In most other countries in the world there are laws which reserve a certain portion of the property of a deceased husband or wife for the surviving wife or husband and children. In this country a man or a woman can dispose of his or her property after death in any way he or she chooses. There is no provision in our law that requires husband or wife to leave one penny to wife or husband or to children, and, therefore, a man or woman, by the terms of his or her will can leave his or her dependants destitute. In these days, when we pride ourselves on our determination that right shall prevail over wrong, and on our innate sense of justice, it is surely desirable that we should in this matter come into line with the opinion of the rest of the world. The House has an opportunity of so doing by giving a Second Reading to the Bill which is now being presented to it.
1292 The subject has been discussed in this House on two or three previous occasions. In 1931, a Bill, based on the Law of Scotland, which would have given the surviving husband or wife and children a right to a defined portion of the estate, received a Second Reading and was referred to a Joint Select Committee of both Houses of Parliament. The Joint Select Committee, while expressing disapproval of the Bill referred to it, stated in its report, dated 17th June, 1931, that it was of opinion that it was wrong that a surviving spouse or child who is otherwise without adequate means of support should be left without 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 considered that a Measure on these lines would be worthy of serious consideration by Parliament. As a result, a Bill based on the lines recommended by the Select Committee was introduced in 1934 by my hon. Friend, the Member for Kidderminster (Sir J. Wardlaw-Milne). It reached the Report stage, but Parliamentary time could not be found for its further advancement. Last year the hon. Member for the Central Division of Hull (Mr. Windsor) introduced a similar Measure, which was given a Second Reading arid passed through Committee. It would have come before the House for Report and Third Reading on Friday, 23rd April, of this year, but as the sitting of the House on Thursday, 22nd April, was continued until after 11 a.m. on the 23rd, the Private Members' day was lost, and no further opportunity of discussing the Bill in last Session arose. To-day, the House is asked to give a Second Reading to this Bill which is word for word the same as was amended by Standing Committee A in the earlier part of this year.
Individualists, as they style themselves, may declare that a man or a woman should be allowed to dispose of their property by will according to their own wishes, but it is necessary to point out that in life they possess no such right. A living married person has a financial responsibility by law to the marital partner and to the children, and the Bill presented to-day seeks in a reasonable. 1293 way to continue that responsibility after decease. It will perhaps be argued that, in the main, men and women make adequate provision for those they leave behind them, and that the cases covered by this Bill are few in number. This can gladly be admitted, but, nevertheless, there is no reason why we should not give justice to the minority.
There may be given two examples of the cases which this Bill would affect. A man, having been married for 20 or more years to a woman who has given to him the best years of her life and has borne him children, is swept off his feet by a young woman, makes a will in favour of the latter, dies and leaves his wife and children destitute. A woman of ample means marries a man who is in the Navy, or is engaged in a business which takes him abroad frequently. Anxious for his constant companionship, she persuades him to give up his profession or business. Able, as they were, to live upon her resources, he devotes himself for a number of years to public or charitable work. There comes to her a period when her mental balance is affected and she dies, having made a will leaving all her possessions for the maintenance of a bird sanctuary or a charity of some kind. The husband has to commence life all over again, and the children are left destitute.
It is desirable to point out that the circumstances which caused the execution of such a will may continue only for a limited time. In one case the infatuation may become exhausted, in the other case the mental balance may be recovered, and the unfair will may be torn up. This particular point can be stressed still further. All of us must know cases where, during an estrangement between wife and husband, or through a misunderstanding between parent and child, a will causing disinheritance has been executed. In course of time the estrangement or the misunderstanding has ended and the will has been destroyed. But if the death of the testator had occurred while such will was in existence, an injustice would have taken place. The passing of the Bill now before the House would prevent such a thing hapenning in the future.
It has already been observed that this Bill does not give a wife, a husband, or a child the right to a specified portion of 1294 an estate; it only gives them the right to appeal to the High Court, or, in cases where the net estate does not exceed £2,000, to the county court, and the court, having heard the evidence of interested parties, may at its discretion order such reasonable provision as it thinks fit. Admittedly, the principal witness would not be present, as he or she would be dead. To meet this objection, Section 1, subsection (3) was included in the Bill by Standing Committee A last Session on the Motion of my hon. Friend the junior Member for Norwich (Mr. H. Strauss), by which a statutory declaration as to his or her reasons for the terms of the will made by a testator shall be accepted by the court as prima facie evidence of the truth of matters therein stated, whether as to the testator's motives or as to facts that influenced him or her. It is unnecessary to suggest to the House that there could be no better way of ensuring that justice shall be done than by leaving the decision to the discretion of the court,
It has been alleged that the people who would gain most from this Bill would be the lawyers, and that large portions of estates would be swallowed up in solicitors' costs and counsel's fees. A little thought shows that this will not be the case. In the first place, if this Bill becomes an Act, solicitors will remind clients of its terms when a will is made and will point out the undesirability and the futility of disinheriting a spouse or children without good cause. In the second place, if dispute arises after the death of a testator, the executors of the will will seek to arrange the matter between the parties and will be able to use the strong argument that it is to the advantage of neither to waste the estate in litigation. In 90 cases out of 100 a compromise will be arrived at. Letters received from the general public concerning this Bill indicate that its provisions are not always understood. It may be desirable to emphasise one or two points already referred to and to state one or two others:
- 1. The Bill applies only to the will of a husband or a wife, and of a father or a mother.
- 2. The only persons granted the right of appeal are wife, husband and children.
- 3. "A child" means any child, whatever the age.
- 4. A dependant is not granted a specified portion of the testator's estate. He or she has merely the right to apply to the Court.
- 5. The Bill will not apply to any will where the testator dies before the Act comes into operation.
- 6. An application to the Court must be made within six months of the granting of probate.
§ 11.21 a.m.
§ Mr. Ross Taylor
I beg to second the Motion.
My hon. Friend the Member for the Harwich Division (Mr. Holmes) has reminded us that the principles underlying this Bill have been very fully discussed in this House in recent years, and also that the Bill in its present form was very fully considered last year both on the Floor of the House and in Committee. He has just given such a very full and clear exposition of its provisions and purposes that it is really unnecessary for me to say more than a word or two in seconding the Motion. It so happened that at one period of my life I had to acquire, by reason of my profession, a somewhat full knowledge both of Roman and Scots law. Most of that knowledge, I am afraid, has in the course of years evaporated, but I remember—and we have been reminded of it, at any rate, in regard to Scots law, to-day—both in the Scots law and in the Roman law and, as we have also been reminded, under other systems, some based directly upon the Roman law, that it is impossible for a father to dispose, by will, of the whole of his personal property. Under these systems of law some of that personal property must go to his wife and children.
Personal property under Scots law is known as moveable property, and under that law a man can make a testament only in regard to one-third of his moveable property if he dies leaving a widow and children. The rest must, as to one-third, go to his wife, and, as to another third, to his children. No similar principle at present obtains in the law of England and I have often wondered why it was that in a system of law, which is otherwise so humane, the provision has elsewhere proved so beneficial should be lacking. I have no doubt that it is 1296 due to a somewhat different conception of family relations and family obligations, but in recent years that conception has been very considerably modified, and this Bill, if it becomes law, as I very much hope, will go a long way towards remedying what this House and, I believe, the country now recognises to be a deficiency in the law.
The Bill does not go so far as the systems directly founded on the Roman law. There has to be an application by the spouse or the children to the court, which must decide whether provision should be made. The Bill does, however, make provision for meeting hard cases. It is often said that hard cases make bad law. I have no doubt that it is the existence of hard cases in this country which have led to a desire for modification. In this case, I believe that the old saying will be falsified and that hard cases will make good law. History shows that in this respect provision for meeting hard cases has proved to be beneficial. In early days and up to the present time those countries that have had in their law provision of the kind now proposed have certainly shown that such provision has been of the greatest benefit to all concerned. I have very much pleasure in seconding the Motion.
§ 11.27 a.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."
I should like to pay a tribute to the Mover of the Second Reading, because he has for the first time in the history of this Bill explained it in a very moderate and reasonable way as regards the hardships which the Bill is designed to remove. I am sorry to find myself in opposition to him, because he is the successor of my old chief, the late Sir John Pybus, with whom I worked for a great many years. I am sorry, too, that the hon. Member is associated with a good case but a very bad Bill. It is because the Bill does not do what he wants it to do but does very much more, that I and my friends find ourselves in opposition to it. The hon. Member gave illustrations from the recommendations of the Joint Committee of both Houses which dealt with the Bill, but he did not say that although they recommended the 1297 court should give a decision on wills, the Bill gives the court practically no guidance as to how they are to decide the disposition of various estates.
In dealing with the history of the case I would point out that when the last Bill was introduced there was not any provision that the testator may give a declaration of his reasons. It is the duty of Parliament to give a clear guide to the courts and to say how they are to interpret the wishes of Parliament in these matters. It is not fair to the courts, when they are so overworked as they are at the present time, that they should have to deal with a complicated matter of this sort practically without guidance. There is one simple suggestion which might have been made. The mover of the Second Reading mentioned the case of Canada, and he might have given the case of New Zealand, where the courts are allowed considerable latitude, but the courts there are very different from the courts in this country, and the conditions of the people there are different from the conditions of the people here.
If the proposed legislation had been on the lines of the French law or the Scottish law, or a mixture of the practice in other countries, there would have been a good deal to be said for it, but I am of the opinion that the proposals are ambiguous. I hope that my argument will be followed up by legal arguments, because as a layman I find myself in difficulty in dealing with a legal question. I should like to quote the words used by the Solicitor-General when the last Bill was in Committee. He said:I do not want to he an obstructionist in any way but I want to point this out: Et has been said over and over again that the discretion of the court has to be exercised upon some lines. It is not to depend upon the kind of breakfast the judge has had how he is to decide a case. This Bill is of very little help as regards that, but leaves the matter entirely at large to the judge. I am aware that when we were considering the Bill in a different form the Chancery judges expressed the view, through the mouthpiece of one of their number, that a Bill in something like this form—not having seen this Bill, of course—hut a Bill attempting to carry out what was desired by this method, would in their opinion be workable. It is my duty to say that I do not know whether the Chancery judges would hold the same view if they saw this Bill as it is at the present time. I do not know and am not saying whether they would or not, but it does leave a discretion which is very large, a discretion in which I 1298 am sure the court would be glad to have any guidance that was put into the Bill as to the matters it had to consider."—[OFFICIAL REPORT. (Standing Committee A). 23rd March, 1937, col. 31.]There is very little guidance put into this Bill as a result of that appeal from the Solicitor-General.
I should like to make the suggestion as to how the Bill might be improved in this respect. It would be a step in the direction of preventing wives or children being disinherited if the Bill said that neither the spouse nor the child should be a charge against the local authority, either in the case of unemployment or ill-health. That would have been some kind of guide, but as the Bill stands there is no guidance. The court will have to decide, say, between a person who leaves some real estate and some personal property. In one case there may be a wife and five children, and in another case only the husband or wife, and there is very little chance of getting a fixed datum to go upon. Every case will have to be dealt with more or less on its merits. Although the Mover of the Second Reading said that in 99 cases out of 100 these matters would be settled before they go into court, we are faced with the fact that there is nothing in the Bill to prevent anybody who comes within the terms of the Bill going to court and causing the substance of the estate to be wasted in litigation if he or she so desires. There is no safeguard in that respect. That is a defect in the Bill.
Hon. Members are no doubt fully aware that in other countries which have found it necessary by law to say how much should be left to a wife and to children, the amount varies in different localities. One State in the United States of America has laid down 10 different crimes, shall I call them, for which a child can be disinherited, but, at any rate, they give the courts a guide, and where, I think, we as a country are making a mistake is in leaving it to a private Bill to make a change in the conditions of the people of this country far greater than is necessary to deal with the hard cases which have been mentioned. While there are hard cases in favour of the Bill, there are also hard cases which can be mentioned against the Bill. Only this morning I was told of the case of a man who was gassed in the War, whose wife told him that she had no further use for him. He made her an allowance of so many 1299 pounds a year. Why should he be forced to leave money to her? Why should he be forced by statutory declaration to signify his intentions and then afterwards to have his dirty linen washed in public? That is the kind of thing which we have not encouraged in this country, and if it is necessary to make a change on these lines I say that it is not a matter for a private Member's Bill. Supporters of the Bill like the hon. Lady the Member for the Combined English Universities (Miss Rathbone) have, we know, these hard cases at heart, but support of the Bill is not coming from those who will have to work it, from those who have to deal with the poorer classes of the country. The Public Trustee says definitely that the hard cases are extremely few, and he sees no reason why legislation of this kind should be introduced. The hon. Member for Cambridge University (Sir J. Withers), who is backing the Bill, says that it will affect only a few people, and those mostly rich people.
Let me point out one or two practical difficulties. We are not told how many wills are made each year or how many of them will be considered to be bad wills under the Bill. We have a good idea, however, as to how many wills might be upset. Every will made by a married couple might be upset under this Bill, or could be modified. Take one of the difficulties which the courts will have to decide. There is the case of a smallholding or a small farm producing an income which keeps the family going. The testator decides to leave it to one of his children, naturally the best in his opinion, and I think the testator is the best person to decide to whom he will leave his property. The other children go to the court to have the will upset. How is the court to decide? Is it going to divide up the smallholding? How is the court to decide what is best to be done under the statutory declaration? Agricultural people know their own business, but they do not know what reasons to put down which will influence the court, and in my opinion this is going to be a great hardship on many people who leave property. Suppose the capital value of an estate is £5,000, partly in real estate. How is that to be divided? You have all sorts of gradations of capital from that of the millionaire to the much 1300 smaller man, and you will have all sorts of gradations in the number of children.
It is thought by some hon. Members that there will be very little litigation after the Bill is passed, but I say that there will be a great deal. There are some estates in which some securities or properties are bringing in nothing, but presently will do so. The best man to decide how the estate shall be left is the testator. When such an estate comes before the court they would have evidence as to what the securities are likely to bring in. I mention these as points to show what the courts will have to do, and I hope hon. Members will realise the difficulty. We should like to see hard cases stopped, but we do not want to see all the conditions under which wills are made in this country altered for an admittedly few hard cases. It is also quite possible that the Bill will introduce great changes in family life. One of the reasons why they have family farms and family possessions in France is because they are forced to divide their property among their children. If that is to be the effect of this Bill, I suggest that it would not suit our people because we do not readily work real estate and farms by a number of childrens' families. It may be considered a very far-fetched argument, but it is not far-fetched in the opinion of some people who have been seriously considering this Bill, and I mention it as another danger which I perceive if the Bill becomes law.
It has been said that the promoters are forcing this unnatural Bill on the country to ensure that the Government bring in a Bill of their own. If that is the case I hope they will have the courage to say so. In the case of a previous Bill the promoters tried to rush it through in two or three minutes, and I say quite frankly that if they try to rush it through on this occasion with its many difficulties, it is not fair to the country.
§ Mr. Holmes
May I say, on behalf of myself and my hon. Friends, who seconded this Motion that we have no such intention, and that the suggestion is quite untrue?
Lieut.-Colonel Heneage: I do not understand what the hon. Member means. I gather that he does not wish the Government to take up the Bill. Is that what he means?
§ Lieut.-Colonel Heneage
If the hon. Member means that he hopes that the Bill will go through in its present form, then I find myself in violent disagreement with him. I say frankly, that I shall continue to oppose the Bill in its present form. But if he will meet the many objections to the Bill, some of which I have outlined, I shall be very glad to consult with the promoters in order to see whether it is not possible to deal with the hard cases without at the same time bringing in everybody else. But because I regard the Bill in its present form as unworkable, I move its rejection.
§ 11.47 a.m.
§ Major Dower
I beg to second the Amendment.
I wish to join with my hon. and gallant Friend in paying a tribute to the sincerity of the motives of those who have brought forward this Bill. It is a Bill with which, at first sight, nearly every Member of the House would sympathise, but when we look into it closely I think we shall find many objections to it. We have heard time and again of the hard cases which occur. There is the hard case of the wife who has given all her life to keeping a home for her husband, who has been a good and a devoted partner and who is rewarded by being left penniless because of some new love, some flightly bit of stuff, suddenly discovered by the husband when he has become an old man. There is the case of the deserving child who has given his or her best years, perhaps up to the age of 30, in looking after a parent who for some cranky reason, which would never be supported by hon. Members, leaves that child penniless in the end. I am as anxious as the Mover and Seconder of the Motion to put an end to those hard cases. I do not like them and I would not defend them, even on the ground of individual freedom, if it were possible to abolish those cases, and those cases only.
Where I join issue with my hon. Friend the Mover, is on this point. Listening to those who speak from his point of view one would imagine that every case of disinheritance was an unreasonable case. Of course that is not so. I think if you examined all these cases of disinheritance you would not find one in ten which came within the category I have 1302 indicated—the good wife disinherited by a bad husband, or the deserving child disinherited by a cranky parent. In nine cases out of ten, the person who is leaving the money thinks that it would be in the very worst interests of the other party concerned, that a large sum of money should be handed to him, to help him to go to the devil. I would also remind the promoters that this money does not come from heaven. This money which is to be the subject of an order of the Court under the Bill can only be obtained by taking it away from someone whom the testator definitely wished to receive it. In that respect the Bill raises a very large issue. It makes it possible to thwart a testator's dying wish. That is a serious thing, and we ought to hear all points of view upon it before coming to a decision.
My hon. and gallant Friend has mentioned the wide powers which are to be given to the courts under these proposals. I am not a lawyer, and I do not intend to go deeply into that question, but it seems to me that the words of the Solicitor-General on that point ought to be seriously considered, and I shall be glad to know whether the Attorney-General agrees with his colleague's view. I should also like to know whether he considers that enough guidance is given in this Bill on the point about which the Solicitor-General was so doubtful. Although we have the greatest belief in the fairness of our judges and our courts, we are not being fair to them if we hand them an entirely new piece of legislation like this, without giving them some guidance as to what we consider to be reasonable provision, and what we consider to be cases of justifiable disinheritance—if we just tell them that we leave it entirely to them to do the right and proper thing, because we are sure they are a lot of jolly good fellows.
The second objection which I ask hon. Members to consider is this: As the Bill stands, it will encourage and increase litigation in will cases. It will increase the worse kind of litigation because it will divide families. You will have one member of a family contesting what another member has received. For my sins, I have had to act as an executor of an estate, and I expect that other hon. Members have been in the same position. The winding-up of an estate, even though it 1303 may not be a very big one, often takes several years. There are Death Duties, valuations, inheritance duties, lawyer's fees and expenses of all kinds to be considered. Eventually you are told that the will has been proved valid, and then in many cases the state of mind of the testator has to be considered. If, after all that has been done and the will has been proved, it can still be upset on the ground that it is not fair, the job of an executor is going to be even more difficult, and it is going to take an even longer time to wind up an estate, especially a wealthy estate.
Hardly any legatee is ever satisfied by a will. People nearly always think they ought to have got more than they have actually received. One often hears people say, "I did get a little but I ought to have got a great deal more." At present all these arguments are ended the moment the will is proved, but under this Bill they would only begin at that point. If a discontented person thinks that reasonable provision has not been made for him, he will be able to take the case to the courts and start to argue the will all over again. Under Clause 5 it is possible for all costs of litigation to be paid out of the estate, and there will be a great temptation to anyone who thinks he has a case to bring that case into court. Then, under Clause 4, orders made by the court may be varied from time to time. That seems to be a very wide power. It also seems a very just one, but in many cases it will mean the continuance of litigation. Applications for variations of an order will continue from time to time until, in some cases, it will become doubtful whether the estate will ever be settled. Possibly, in some instances, the matter will only be settled by the bankruptcy of the estate.
There is another point of importance. I do not believe that the evidence Clauses of the Bill would be very helpful. Take the case of a father who thinks that his son is a spendthrift and a rotter and who does not want that son to inherit. That kind of case may, somehow or other, slip through, and that son, in spite of his father's just wishes, will obtain an inheritance. While on this point, I must read a letter which I received from a man who started in humble circumstances —I shall be glad for any hon. Member 1304 to see it, as it is not marked "Private and confidential"—and who is now head of one of the biggest businesses in Sunderland. He writes:I have worked ever since I was a boy of 13, starting with nothing. My wife has helped me daily throughout my life. I have a bad son aged 25. Although his mother and myself and the rest of the family are life-long abstainers, he persists and has persisted for over five years to spoil his own and our lives. Our son is not fit to inherit my money, and should a Bill be passed, we shall certainly get rid of this money before we depart from this vale of tears. May God guide you in your good work.
§ Mr. Thorne
Does the hon. and gallant Member think that the Judge in such a case would give anything to a rotter like that?
§ Major Dower
I am glad the hon. Member has raised that point. I think that in a good many cases you will find that the evidence Clauses will not work, and I will tell the House the reason why. We have already had the mover of the Bill admitting that the principal witness will not be there to be examined, and you have actually in this Bill what I consider an admission of this fact, where it says that the testator's reasons for disinheritance shall be considered "as far as they are ascertainable." That admits that in a good many instances they will not be ascertainable, and I will again tell hon. Members the reason why. In the first case a testator in a good many instances will hesitate to put on record perhaps the very personal, perhaps the very private, or perhaps the very delicate reasons as to why he is disinheriting a certain person. In the second case, the witnesses whom you will call in a great many cases will probably be brothers, sisters, or other relatives of the person disinherited, who are often the only people who know the true facts of the case. If I were asked tc give evidence against my brother because he had been disinherited, even if I thought he was rightly disinherited, I would not say so. There is such a thing as family loyalty. Take the instance where there is a bad son and the father leaves his money away from that son. Do you mean to say that, however bad that son may be, his mother will be prepared to say, "My husband was quite right in disinheriting him "? You would not like to say that, and I would not like to say it. I am only trying to put forward, very reason- 1305 ably, a point of view that I believe will have to be met, and that is that it will be very difficult to get the real inside information upon which it will be necessary for a Judge to act. In a great many families you will see what my hon. Friend has said that they would rather abandon the case than have their dirty linen washed in public.
For all those reasons I cannot help feeling, as my hon. Friend said the other day, that you will have the dice loaded against the dead, and you will not have fairness. A son 30 years of age will be able under this Bill to demand an alteration and maintenance. I am very surprised to see hon. Members opposite encouraging that sort of thing, because I think it will encourage idleness and that it will discourage initiative and an independent spirit. If you can get a man 30 years of age who will say he is not incapacitated, and that he is quite able to earn his own living, and say also, "I have no money, and I want you to alter this will in my favour," I think it will do a great deal of damage to that independent spirit which at any rate hon. Members on this side of the House like to see developed. I always thought hon. Members opposite did not like the inheritance of riches. In my opinion, this is the one form of capitalism most open to criticism, and I am very surprised to see hon. Members opposite not only encouraging inheritance, but also being prepared to support legislation to make such inheritance compulsory.
In conclusion, I would like to say a word to my hon. Friend the Member for Harwich (Mr. Holmes), who brought in the Bill. I am in sympathy with him very largely over a great many of the proposals and Clauses of the Bill. I want to see these hard cases wiped out, but I honestly think that if the Bill goes through in its present form, its effects will surprise a great many of those who vote for it. Personally, I would rather be in favour of seeing it made compulsory to leave a certain portion of your estate to your wife and your children, whether they are good, bad, or indifferent. If they are good, you will leave them all. I am going to leave all to my wife. I could never have a better wife in this world. I would rather see a Bill brought in, leaving a specified amount, which would certainly prevent a great many of 1306 the abuses to which I have tried to draw attention and which would prevent vexatious and unnecessary litigation, than I would see it left vague, so that you may have every kind of condition and case brought into the courts and a great deal of expensive litigation. If that were done, I honestly believe that the opponents of this Bill would be prepared to give their unqualified support to the Bill, and it could be made a united and unanimous Measure and pass through the necessary processes without any division or opposition.
§ 12.3 p.m.
The opponents of this Bill have paid a tribute to the hon. Member for Harwich (Mr. Holmes), who introduced it, and I should like to add mine, speaking as one who has had a rather long acquaintance with this subject. The hon. Member put his case with remarkable brevity, but I do not think he left out a single essential point, and he left no doubt in the minds of his hearers as to exactly what the Bill aimed at doing and did not aim at doing, and as to the machinery which it adopted. I will try to answer some of the points which have been made by the two hon. and gallant Members who have moved the Amendment. Let me first take what has been the main point in both their speeches, and that is that this is a case of legislation which will bear out the proverb that "hard cases make bad law." I contend that, on the contrary, the case for this Bill shows that the number of hard cases is evidence of a defective law. I think hon. Members would be quite mistaken if they supposed that this touches only a very few cases. The Opposition have contradicted themselves, because they have first of all told us that there are so few cases of unjust wills that they are not worth legislating for, and then they have drawn a lurid picture of a mass of expensive litigation.
As to the first point, I do not think the number of cases that would come under this Bill, if it becomes an Act, will be large, for the reason that its effect, as I think the promoter envisaged, would be mainly preventive. As soon as a change in the law begins to be known a testator who thinks of making an unjust will will be advised by his legal adviser that the will is likely to be upset, that it will mean washing a great deal of dirty linen 1307 in public, and that he had better think better of it, and he will do so. I think that the number of wills which will be affected will be enormously greater than the number of wills that will come into court. Those of us who have been connected with this subject for a long time know that every mention of it in the papers brings in a small flood of letters, largely from sufferers who have never brought their sufferings to the notice of the public. They only do so for the first time when they think that there is legislation in question, and very often it is one's melancholy duty in reply to tell them that there is no possibility of legislation affecting wills already executed. Many of the letters refer to wills not yet executed, of wills being held in terrorem over those it is intended to disinherit. A tyrannical husband or selfish married woman continually holds a threat like a sword over the head of a recalcitrant spouse or child, saying, "If you do not do exactly as I like, I will disinherit you."
The amount of hardship caused by the present state of the law is much in excess of the number of cases that ever get known to the public. To test the thing statistically, it may be supposed, not taking a cynical view of human nature, that one husband in a thousand and that one in a thousand of those wives who have the preponderance of means in their hands, is had or selfish. There are between eight and nine million married couples in England and Wales, and one in a thousand will yield eight or nine thousand husbands and wives who are capable of behaving in a selfish way.
I am coming to that. The class of case which comes up frequently is not that of the very poor or of the very rich. The well-to-do wife is generally provided for by a marriage settlement, and in the case of the wage-earner the man is compelled to make provision for his wife through the Widows' and Orphans' Contributory Pensions Act. Judging from the cases that come to us, the majority of them are of people who leave property of a few thousand pounds which they have built up in their businesses. Some are farmers, some small shopkeepers, and some are in no better 1308 economical position than the weekly wage-earner, but, not being wage-earners, do not come under the Pensions Act. They build up a small fortune, and one of the things that occurs is a second marriage in old age, or an old man's caprice, or some kind of injustice is committed.' It would be a mistake to assume that the injustice in these cases applies only to women, though, of course, women form much the larger body of cases. Some of the hardest cases, however, are those of men who have been disinherited. I remember in particular a case of two sons and their father who, in a joint family concern, have worked together on a farm. The farmer in his old age married a second wife and left the farm with his personal belongings and his property to the widow, a young and frivolous woman with infant children, who were the last people capable of looking after the farm. I suggest that the cases which have been brought forward where the Bill may work out unjustly are cases where an exceptional hardship caused in the carrying out of the law would be prevented by an Amendment which is urgently needed for a very much larger number of cases.
The two opponents of the Bill laid a great deal of stress on the unfairness to a man or woman of their having to give their reasons in writing for disinheriting a spouse or child. May I suggest another kind of stigma that is imposed by the present law? A testator, for utterly unjustifiable reasons, disinherits a spouse or child, and nothing happens afterwards because the will cannot be disputed. They bury their heads in poverty and go on suffering, while all the world supposes that there must be some valid reason for the disinheritance; and a stigma is imposed which, under the present state of the law, a disinherited person has no means of dispelling. Under this Bill, if a testator has good reason for disinheriting a spouse or child, he is able to leave a signed and witnessed statement which is taken as prima facie evidence when the case comes into court. That is a distinct improvement on the Bill as originally drafted, and it was inserted in Committee on the last Bill on the suggestion of the Attorney-General. Some of the criticisms of the Bill that have been made can be dealt with in Committee.
The House should remember the large amount of detailed discussion that has 1309 already gone on. This Bill has twice been discussed on Second Reading and twice passed through the Committee stage. On both occasions substantial Amendments were introduced, very largely by representatives of the Government so that it may almost be said that the Bill as now drafted, although I realise that the Government do not take any responsibility for it, is very largely the drafting of the Attorney-General or the Solicitor-General. So that if the Bill is, as alleged, a thoroughly bad Bill now it is so in spite of a great deal of expert criticism in two successive years.
The hon. Member who proposed the Amendment has graciously offered to consider with the promoters of the Bill a new form of Measure. I would remind him that his own efforts to amend the Bill last Spring did not meet with a great deal of acceptance by Members of the Committee. On one occasion he had no fewer than 20 Amendments down, and, except for one or two of them, he did not get any Member of the Committee to vote for any of them. I would like to appeal to the representatives of the Government not merely to—as I am sure they will—amend the Bill as they have done before, but really to facilitate its speedy passage, if only to prevent the waste of the time of the House which is involved by the repeated discussions of Measures year after year when it has been shown that there is a great majority of opinion in the House in favour of them, but, simply for lack of time, they fail to pass through ail their stages.
I would like to press another argument which I hope will appeal to the House and the Government. We all know that the Government at present is, to put it crudely, hard up owing to the vast expenditure on armaments. However necessary that expenditure may be in the dangerous circumstances of the times, there is apparently very little money left for social reforms. Here is a social reform which is going to cost the Government practically nothing and one which will be immensely popular with large bodies of the electorate. I can say that without fear of contradiction. I think there are very few enemies of the Bill in this House. Before the Summer Recess a clear majority of Members, excluding those who are in some way connected with the Government and, therefore, un- 1310 able to sign petitions to the Government, signed a memorial in favour of the Bill. We know that practically every woman's organisation in the country has repeatedly asked for it. There is almost no, or practically no, organised opposition to the Bill. The Government have here an opportunity of carrying through a genuinely non-party and thoroughly useful piece of legislation which would displease almost no one and cost nothing.
I appeal to a higher motive than that. I ask the House to judge the Bill not only on the details of hard cases on this side or that, but on the broad question of principle, of justice. The principle to be considered is this: Is it or is it not right that in this country, alone of all the countries of the civilised world, it should be possible for a man or woman to enter into a life-long partnership, take the responsibility of bringing children into the world and be compelled all their lives to discharge the ordinary results of that responsibility, being compelled to provide for husband or wife, even if a bad husband or wife, unless there is some valid reason for open separation—and then by the accident of death to shuffle it all off— when a woman has passed the period when she can possibly return to the labour market, when she has abandoned the use of a profitable profession or business in order to undertake the duties of wife or mother, to throw her absolutely on the world, upon the rates very likely, or, far worse, to compel her to bear the cruellest kind of poverty which faces those who are too proud to seek charity, to compel her to hide in solitude and suffering, and to endure the harsh verdict of the world which she cannot in any way repudiate— is that just or right? It is now for the House to remedy that long-standing evil, and if they do so, hon. Members will receive the blessings of far more unhappy men and women than they have any idea of.
§ 12.19 p.m.
§ Mr. Spens
If there is any one who should welcome the provisions of this Bill it ought to be the sole Member among those present who tries to make his living in the Chancery Division. I am bound to say that so far from welcoming the Bill I am going to record my vote against it. I am sure that we all appreciate the appeal to our sympathy made by the hon. Lady who has just spoken, but I 1311 would ask the House to spare the time and to take the trouble to look at the evidence on which the Joint Committee reported in 1931. The evidence that there is a large number of hard cases which require to be dealt with by legislation is extraordinarily flimsy. I do not believe that there is not evidence. There are instances of hard cases, what we think are hard cases and what individuals think are hard cases, but the instances of cases which, when they are investigated, turn out to be wholly unreasonable and unjustifiable, are extraordinarily small in number.
Let me remind the House what the evidence was. First of all the association which was largely responsible for the Bill on the Scottish system which was being considered in 1931, gave evidence that they had put certain advertisements in the newspapers and had received a large number of letters from persons who considered themselves hardly treated by their near relations. Not one of those cases, according to the lady who gave evidence, was ever investigated; no attempt was made to hear what might have been said on the other side. Two solicitors of great standing, the then President of the Law Society and, I think, one of his colleagues of the Law Society, gave evidence that in their experience they had come across so few instances of the type of case which this legislation is intended to deal with that they thought there was no need for legislation. That evidence given by the two senior solicitors of the Law Society was subsequently confirmed, after they had circularised all their members, and the Law Society as a body unhesitatingly confirmed the evidence given by those two members.
Can the hon. and learned Gentleman say why anyone who is left in poverty should go to the expense of consulting a lawyer when he or she knows perfectly well that there is and can be no legal remedy?
§ Mr. Spens
I shall deal with that point later. For the moment I am summarising the evidence, which I want the House to realise, because we are proposing to make a very serious change in our law. That evidence was supported by the late Public Trustee and he said that in his experience he had had so few of the really hard cases 1312 that he thought no legislation was justified. On the other side we had the opinion of two hon. and respected Members of this House. They are still Members and are still most respected. The senior Member for Cambridge University (Sir J. Withers) expressed in general terms his view that there were enough cases to justify legislation. He said that without giving any instances. The present Minister of Transport in the same way expressed his views. He was brought along, I think on the last day, as an additional witness in favour of the promoters. He said that in his practice as a solicitor he had come across sufficient instances to justify legislation. I am bound to say that for a major change of the law of this country the evidence of fact is extraordinarily flimsy.
I think the House must start on the basis that we are going to make this important change without any proper inquiry having been made as to the number of instances, in what class of society or where they would arise, with which we are going to deal. But on the other hand the hon. Lady, who has always been keen on an alteration of the law, makes the appeal to our reason and we can all appreciate it, on the evidence of particular instances. We all appreciate that it is possible for an absolutely unnatural man or woman, husband or wife, father or mother, to deprive near dependants of everything by a will, and that it is possible for them to do it in circumstances which no person can justify on any sort of moral ground. While we appreciate that, I should like the House to realise that we are starting to legislate without any proper evidence of what is occurring or in what class of society it is occurring. There never has beer an investigation into it.
A desire that this important change in the law should be made has been expressed by certain persons both inside and outside this House; and I have a feeling that the House has rather accepted the unconfirmed statements that there are a great number of cases in which this legislation would do good without there being any real evidence upon the subject. Indeed, as the House has during several Sessions considered legislation on these lines, it may well be that the House to-day will give a Second Reading to this Bill, but if we are going to legislate at all, and realising that we shall be legislating to 1313 deal with a quite unproved number of cases, and without any evidence as to the part of society in which they exist, it behoves us to be desperately careful of the type of legislation we pass. Above all we have to be careful that in the legislation we may pass to deal with these possible cases we do not create a great deal more injustice for other persons. We can have no evidence now before the Bill is passed, of the injustices which will arise from its working, but when the hon. Lady says that the passing of this Bill will secure us votes at the next election I venture to think that if this Government runs for its remaining 2½ years there will by that time be quite enough cases to make a great number of our constituents turn round on us and ask, "Why in the world did you ever pass such a Bill?" Assuming that there is a desire for legislation, I frankly prefer that it should be on the lines of a modification of the Scots and Roman law. The hon. Lady's original Bill was on those lines, and her evidence before the Committee was exactly the type of evidence which I should have liked to give myself in favour of that system. Her comments on the proposed New Zealand system which somehow got into the minds of the Joint Committee were very much the same comments that I should have made.
§ Mr. Spens
I know, and with great respect I take the view of the hon. Lady on this Committee, and I disagree with the opinion which the Joint Committee expressed. If we are to deal with this subject, surely it is far better to give the spouses and the family some sort of definite rights from the beginning. If we are to deal with the smaller estates, and very small estates, surely the last thing in the world we want to do is to make it imperative on everyone to go to court and fight the case against the executors or relatives. The mover of the Bill said he thought cases would be settled before coming into court and it is true that a certain number will be settled, but it will be on the lines that a totally unjustified claimant will get something because the family, do not want their dirty linen washed in public.
One of my great troubles about this is that its provisions are not confined to those who get nothing at all. Every 1314 person who is provided for in a will— not alone those who are left out of a will—and who comes within the requisite degree of relationship is entitled to go to the court and say that in his or her view the provision made is unreasonable; and who in the world ever knew any member of a family who got less than what he had expected, or less than what his brothers or sisters got, who did not think the provision made for him was unreasonable? In all my experience at the Bar that is the commonest of complaints by legatees. One child gets a legacy of £200 and the other is left the shop and business. That may be a perfectly justifiable arrangement on the part of the testator, but the child who is to receive the £200 will say immediately that the provision for him is wholly unreasonable and will want to fight it out. I cannot but think that this Bill is a licence to litigation such as has never been given by this House. I do not say that this is more than a licence to litigation, but knowing human nature as I know it— and a lawyer does know the human side of nature, just as a surgeon gets to know a great deal about the physical side of one's body—I am absolutely appalled at the prospect of litigation which will he opened up for unreasonable people who have received benefits under wills. I cannot think that the scheme of this Bill, under which every person who is dissatisfied will have a right to go to court, is the right method of tackling the problem with which the supporters of the Bill desire to deal.
Let me cite one or two of the simplest instances of what occurs. I suppose that almost every young married couple make mutual wills in favour of each other within the first few weeks of their marriage, and as a rule those wills stand right through the infancy of the family. Assume that the father dies before the children are grown up, leaving all his property to his widow and leaving a family of young children. An interfering mother-in-law or an interfering sister-in-law thinks the widow may be a bit flighty, and that before the children attain the age of 21 the money will have been dissipated. Under this Bill, as the next-of-kin, the best friends of those infants, they can make an application to the Court of Chancery pointing out that no provision has been made for the children and asking that the estate shall be dealt with in some 1315 way so that in every circumstance there shall be something for the children when they become 21. Whether the court would agree to such applications or not I do not know, but there is nothing in this Bill to prevent hundreds of applications on those lines being made as soon as the Bill becomes law. It will enable every interfering member of the family to say that the will of the ordinary young married man, by which he leaves all his property to his wife, having complete confidence in her, makes no reasonable provision for the children.
I have already given an example of a case in which a father set up his son in business during his lifetime. Having made substantial payments to his son during his lifetime, by his will he leaves the son nothing more than his gold watch and chain. The son could immediately come and say that no reasonable provision had been made by the will, although he may well have had by far the larger share of the family capital during his father's lifetime. He decides to fight. Who knows the facts? It may very well be that the executors do not know them, and that the only person who knows what happened between father and son is the surviving son. Other relatives may have some idea that the son has had a certain amount of money during his father's lifetime but may very well know no details. We are an extremely reticent nation. Very often husbands conceal from their wives what they are doing for their sons and daughters. Time and time again we have had experience in our courts that after the one woman or man who knows is dead, it is one of the most difficult things to find out what exactly has happened during their lifetime.
Let me take the other case. It was thought when this Bill went through Committee in the last Session that matters would be assisted by allowing a statutory declaration to be made by a father in his lifetime and that that could be prima facie evidence of the grounds on which he had made small provision for the widow, child or grandchild. I am bound to say that it would be better than nothing. Think what it means. Take the case of the husband who had a wife who, during her latter years, had taken to drink. He had carefully concealed the fact from his neighbours and nobody knew that that scandal existed in the family. When he 1316 comes to make a will he very properly and wisely leaves the property to the son or daughter, knowing very well that they will look after it. If you pass the Bill into law, one of two things would happen in that case; either the woman would bring an action against the estate, or the husband would have had to make a statutory declaration telling the whole world why he had made his will in that way. I cannot think that this sort of legislation is the right way of dealing with that situation.
It was rightly said by the hon. Lady that the Bill might be made better in Committee, but I do not believe, if we start on this basis that every case should immediately go to the courts, that you can put it right unless you give detailed directions to the courts covering exactly what cases they are to interfere in and how they are to interfere. I believe it is beyond the power of a Committee of this House, however constituted, to foresee all the circumstances which ought to be put into the Bill. Are we to give the judges of the Chancery Division and of the county courts the right to go into every mortal factor which any applicant likes to bring forward? That would include the applicant's own circumstances. He could spin a great yarn about them which might or might not be known to the residuary legatees, as to why the testator disliked him or why he had been left out. It may or may not be true. You would also have to go into the circumstances of the other legatees so that the court may know whether there is any justification, however hard the case of the applicant is, to take money away and, if so, how much, from other people.
Take the case of a son who comes along and says that nothing has been left to him by the will, and puts forward some great case of hardship to him. All that remains of the estate, after Death Duties have been paid, is sufficient to pay legacies to servants and workmen, annuities of £50 or £100 which may mean everything in their lives: yet, under the Bill, a court would have to go into all their circumstances, it seems to me, so as to apportion the burden between the beneficiaries and to see what, if anything, is to be done for the applicant. These would not be little cases such as the mover optimistically thinks; I can see 1317 cases costing any amount of money being worked up from the flimsiest foundations. The more penniless the applicant and the more chance he has of getting something when he can lose nothing, the more likely he is to bring the application. If he has nothing but has a chance of getting something by raising a case like this, I am certain that you would find case after case of the sort raised. However worthless and rotten the application, the executors of the family might think it wiser to give the applicant something at the expense of somebody else who may very much need it, rather than have litigation, all the expense of which must fall upon the estate.
It is for reasons such as these that I think this scheme of dealing with the evil—which I do not think has been proved to exist to any extent—is wrong. At present, statutory proceedings can be taken in the Probate Division to have the will certified, and you can nearly always make arrangements for a really hard case by settlement in that Division. I nave often told my friends in this House of one case of a man of means who lived, so far as all the world knows, in amity with his wife. For 50 years he kept her in very comfortable circumstances, but by his will he left her £5 and a parrot, and left everything else to charity. A writ was immediately issued in the Probate division on the ground that the will showed that the testator was eccentric when he made it. What happened. It was settled the charities agreeing to allow the widow a reasonable income during her life so long as they took the capital after her death. That is the practical way. The other case was that of a man who, having supported for many years his son and family, before he died married his nurse and after a bequest to his son of a block of shares he left everything else to the second wife, the nurse. It turned out that the shares were perfectly useless and did not exist. That meant the son and his family took nothing. But it was quite easy in the circumstances to get an arrangement among the family to provide an income for the son, his wife and children.
It is in practice easy to make such arrangements now and the cases are few and far between. But if we are to change the law we had far better make workable the system which was in the 1931 Bill. It met the difficulties far 1318 better by laying down that there should be a definite portion of the personal estate which must go to surviving spouses and children unless an equivalent provision is made by settlement or otherwise during the life of a testator. Then all parties know exactly where they stand from the beginning. If we have to deal with the situation let us do so on definite lines which will limit the amount and scope of litigation. If there is litigation at all, the only question will be whether the applicants received during the lifetime of the testator or by will as much as Parliament has set down as the share which each child or the widow should have.
The present system has, I believe, worked well in my native country for centuries, and has been adopted by a great many other countries throughout the world, and I feel that we should be acting, I would almost say with madness, particularly from the point of view of the smaller people, if we were to open up this vista of litigation, which, instead of being confined solely to the type of case that we want to remedy, would enable any unreasonable person who is left a small legacy under a will to bring that case into court and say that the gift is not in his particular circumstances reasonable, and that he wants more at someone else's expense. For these reasons, I would rather see something on the Roman or Scottish lines, and I hope that the House will reject this system, which has only been tried, as far as I know, in New Zealand, in circumstances which, as has been already said, are very different.
§ Mr. Spens
It has not stood the test of time like the system which has come down from the old Roman law and which has stood the test of century after century in all sorts of circumstances. I believe we should do far better to proceed on such lines than on those of the present Bill, and, therefore, I shall vote against the Measure.
§ 12.48 p.m.
§ Mr. Simpson
I am certain that nobody, either in this House or out of it, would desire to take any action that would still further depress the hon. and learned Member's view of human nature. One imagines that there must be very 1319 considerable difficulties in existence at the present time which provide very largely the basis for his depression. Hon. Members will have listened with interest to the cases he has cited, and will respect the breadth of his knowledge on this matter, but, notwithstanding his opinion, I think it is the case that there is still an enormous number of family difficulties of one kind or another leading to litigation, and that is indicative of the fact that, in the absence of any such Measure as this to which he takes objection, there is still a very considerable amount of trouble. One feels that he is stressing the difficulties rather than the advantages of such an amendment of the law. It is interesting to note that almost all the opponents of the Bill have given it their sympathetic consideration, but many of us know from bitter experience that usually the result of sympathetic consideration is simply sympathetic consideration. After all, if they are enthusiastic about some change in the law, if they feel that there is a need for revised legislation, they have not sponsored the improved alternatives to which they make reference this morning. The hon. and gallant Member for Louth (Lieut.-Colonel Heneage), who moved the Amendment, expressed his sympathy with the intentions of the Bill, and then proceeded to take every possible objection, real and imaginary, to its adoption. A number of references have been made to the fact that hard cases make bad law, but some hon. Members seem to be rather insistent that they shall make no law at all, or that no sort of redress shall be provided for the grievance that is experienced.
Complaint was made that in the Bill no guide was given as to what action should be taken when application was made for redress. It is true that the amount of detail which some Members would desire is not there prescribed, but, surely, the best guide of all should be that of principle, and the Bill, at any rate, does set down a principle, with legal backing, which should be of very definite value against the kind of injustice that the promoters of the Bill desire to avoid. I think it was Gilbert Chesterton who said that we do not know what is wrong, because we do not know what is right. 1320 The Bill does lay down a principle, and it does prescribe a general rule, and one would imagine that, with the application of common sense in its interpretation, we should get a nearer approximation to justice than we have at the present time. Furthermore, there is this important point, that when people have foreknowledge that there is legal protection of this kind, they will, of their own volition, take a definite line in what they do at the present time.
§ Mr. Spens
I wish the hon. Member would develop that point. I could understand the value of that argument if we were only dealing with total disinheritance, but in cases where, say, a son is left £200, and he thinks that that is not a reasonable provision for him, the Bill will still leave it open in every such case for the son to say that that provision is not reasonable.
§ Mr. Simpson
No one pretends, of course, that this Measure will solve all the trouble, but, with the foreknowledge that people will have as to the possibility of some redress being obtained in the courts, there will, in my opinion, be a likelihood that the individual concerned will act, at any rate, more reasonably than he might otherwise act. Again, in some cases the argument seems to turn on the number of cases in which some action is necessary. While on the one hand it is argued that such cases are very few, it is subsequently maintained that the Measure would be unworkable because of the colossal amount of difficulty that would be involved by the terrific amount of litigation that would ensue. It seems to me that the eliminating influence of foreknowledge that redress could be obtained in the courts against any unreasonable action would be a further factor in reducing the number of cases that would come to issue, and would lead to an improvement of the present position. The Seconder of the Amendment indulged in the rather neat epigram that, if the Bill were passed, the dice would be loaded against the dead. I submit that it is much fairer that the dice should be loaded against the dead than against the living, and the intention of the Bill seems to me to be in that direction. For the reasons I have given, in spite of all the imperfections that the hon. and learned Member for 1321 Ashford (Mr. Spens) can see in its application, I regard it as better than the existing state of affairs, and I propose to support it.
§ 12.54 p.m.
§ Major Sir George Davies
While many of us who have been taking part in this Second Reading Debate would hesitate to describe the Bill as an old friend, we can scarcely call it a new acquaintance. The Mover of the Second Reading, and other speakers, have recounted to us in considerable detail all its previous incarnations and appearances, its permutations and combinations, on the occasions it has previously been before the House. While I listened to my hon. Friend the Member for Harwich (Mr. Holmes), I found it difficult to make up my mind whether to congratulate him on the way in which he presented his case, and, indeed, on the way in which he so successfully convinced himself, and perhaps others, that he had been waiting for long years for just this opportunity to enable him to bring forward just this Bill, or whether to sympathise with him in the way in which he had been saddled with this Measure at the very last minute. While I am not in a position to say whether history has repeated itself in my hon. Friend's case, all hon. Members know how these things come about. A number of hon. Members gather together in a Committee Room upstairs and wait with trembling fingers and bated breath in their anxiety, not lest their names should not he drawn, but lest they should be drawn. I make an exception in the case of my hon. Friend the Senior Burgess for Oxford University (Mr. Alan Herbert) who, flushed with the marvellous success that he had about a year ago, now apparently seeks to impose upon us a sort of excursion into the realms of higher mathematics, so that we shall never know whether we have been elected, and if so, why. I can picture the Mover's dismay when he found that his name, like that of Abou Ben Adhem, led all the rest.
§ Mr. Holmes
May I point out to my hon. Friend that at the moment when the Ballot took place I was in Manchester, and knew nothing about it until I came back to the House?
§ Sir G. Davies
Then the hon. Gentleman was saved much anxiety. As a 1322 rule, one's first reaction is to quote the Bab Ballads and to say: "Bother! Likewise Blow! These miserable Whips have let me down again and only put my name down for the Ballot in order to reduce the chances of hon. Members opposite bringing in some of their poisonous nostrums, and now I find that not only have hon. Members opposite drawn a dozen starters in the Friday Sweepstake, but my own name has popped out first rattle of the box." One's next reaction is to go to the aforesaid miserable Whips and say, "You got me into this mess. Now you must get me out of it. Have you any suitable Bill in cold storage that I could introduce? "The reply is;" Certainly. We have a perfectly good Bill which has been reposing in the pigeon-holes of the Home Office or of the Law Offices of the Crown. Not only is it already in print, but in introducing it, all you have to do is to read up the previous Debates on it, and there you are."
§ The Attorney-General (Sir Donald Somervell)
May I point out that if my hon. Friend's suggestion is that the Bill which the hon. Member has introduced is of Government origin, he is making a complete mistake?
§ Sir G. Davies
I would like to draw attention to a matter which has long been a serious embarrassment to hon. Members in connection with such Bills as this one. I refer to the very short interval which elapses between the announcement of the results of the Ballot and the time when minds must be made up as to what Bill to present. I know that this subject has had full consideration, and that the reason no alteration has been made is that many difficulties and inconveniences would be involved by any change. At the same time, speaking with experience not only as a back-bencher, but as a previous Member of the Whips' Office, I can only say that if that period could be lengthened even by a short time, it would be very much appreciated by a large number of Members in connection with the introduction of Private Members' Bills.
This Bill, apart from the very important effect it would have for good or for ill upon the people of this country. is very largely the concern of the Law Officers of the Crown. It is impossible to know, and 1323 I suppose improper to ask, whether that great triple-gunned turret is prepared to fire a united salvo on the same target. Their uneven numbers would prevent a fifty-fifty difference of opinion, if indeed difference there be, and I am sufficiently optimistic to hope that it is not going to be a hundred to one shot, and that we who oppose this Bill will have at least one friend among that legal trinity. There are some people who, when they seek to appraise some smartly turned-out member of the opposite sex, begin with the shoes and feet and work up to the face and hat. My own habit in the case of a Bill such as this is, like a woman reading a novel, to peep at the end and see whether it is a happy one. At the end of this Bill, I find the sting:This Act shall extend to England and Wales only.Why is there this omission of Scotland? That is another grievance to the Northern Kingdom, infinitely more important to it, than the recent decision of the Secretary of State for War regarding mounted troops. Unless I am misinformed, the reason for this insulting omission is that Scots law already goes a great deal further than the proposals in this Bill in the way of overriding the wishes of the testator. I suspect that the Measure before us to-day will merely prove to be the thin end of the wedge in the process of gradually pushing on to Englishmen and Welshmen those inhibitions from which hitherto Scotsmen alone have suffered. We know that at the present time the principal exports from Scotland to the South are hardheaded men who come here and pinch the jobs of what the late Lord Melchett, when he sat here as Member for Carmarthen, described as "Ve Velshmen"; while our principal exports to Scotland are those dodecagonal monstrosities, the new threepenny-bits. Why disturb this balance of trade? Why risk the breaking-up of this trade agreement, which has worked for so long, by beginning to impart, in however tentative a way, the laws from which men North of the Tweed have been suffering for so many years? Such a Bill as this brings us face to face with the great problem with which all Governments, regardless of their political complexion, nowadays have to deal, that is, where to draw the dividing line between liberty and compulsion. Members 1324 of the old laissez faire school would have avoided all forms of compulsion, whereas we know that hon. Members opposite would deprive us of the last shreds of our liberty.
§ Sir G. Davies
It is impossible to draw a rigid and fixed dividing line. That is all the more reason why hon. Members in this House should be ever on the alert as champions of such liberty and freedom as still remain for us. Why should I, for instance, be prevented from going at more than 30 miles an hour when I am in a hurry and my car can do 70 with ease?
§ Sir G. Davies
If I have a piece of land, why should I not be allowed to erect on it any sort of edifice that I choose? [An HON. MEMBER: "Because other people have to look at it!"] I may satisfy my hunger with tripe, but I must not relieve its monotony with onions. I may gorge myself with fish, but however crisp Smith's products may be, they are taboo. I may buy things from Marks, but I must not shop at Spencer's. There is no end of this sort of interference with individual liberty. Supporters of this Bill may say to me, "Why should you be allowed to leave your wife penniless, or cut off your children with the proverbial shilling?" To which I might be permitted to retort, "Do you know my wife? Have you met my children?" By a rule which governs our procedure, and which I hope will never be changed, no private Member may bring in a Bill which creates a charge on the Treasury. As a result, we are thrown back on Measures which affect, for good or ill, the liberties of individuals.
With one outstanding exception, that of the hon. Member for Oxford University a short time ago, nearly every one of these private Members' Bills seeks to restrict, rather than to extend, private liberties. This Bill is no exception. It is, of course, the Home Office which is particularly affected. My heart has often bled to see the Under-Secretary for the Home Office, at the beginning of a new Session, envisaging an unending succession of Fridays which he has to spend on the Government Front Bench like an American observer at Geneva. 1325 But to-day it is the turn of the Law Officers of the Crown. I hope the Government will not accept another Measure which is going to interfere with those liberties which it should defend.
By our taxation laws, with marriage allowances, exemptions, children's allowances and so forth, we definitely encourage, at least the maintenance, if not the increase, of the numbers of our population. It is true we have not travelled nearly so far on that road as certain other countries, with their taxes on bachelors, bonuses on large families, broadcast appeals to patriotism, and so on, but it is interesting to observe, whether it be post hoc or propter hoc, that in several countries, where legislation of this sort has gone much further in the way of preventing or opposing the prerogatives of the testator, they are finding their population either diminishing, or at least stationary. I refer particularly to France and the United States. I make no reference to Italy, in regard to which the Noble Lady the hon. Member for Sutton (Viscountess Astor) once made the classic interjection, that despite the efforts of Mussolini coupled with the Pope the birth rate was falling instead of rising.
But it is dangerous to try to legislate for the exceptional rather than general conditions. There are occasions when, either from motives of revenge, unreasonable dislike, or even sheer negligence, somebody has not made proper provision for the maintenance of his descendants, but those cases are very few. One inevitable result which I can see from an effort such as this, to correct those comparatively few cases of hardship, will be that individuals who think they can get something out of it are going to approach the heirs under a testator's will and say, "Unless you share with me I am going to bring the matter into the courts, where I shall see that there is a lot of dirty linen washed. You will be put to great expense and I do not stand to lose anything."
§ Sir G. Davies
I, fortunately, have not got that class consciousness for which the hon. Member is so renowned throughout both hemispheres, and most of Scotland. The result of this Measure will be either the limitation of families, and that is a 1326 menace to the welfare of the body corporate, or else the increasing habit of the distribution of estates inter vivos, which would mean a contraction of the revenue coming into the Treasury. We know that hon. Members opposite welcome any kind of step towards the breaking up of landed estates, naturally from their point of view, but I suggest that their own proclaimed methods of nationalisation, confiscation and predatory taxation are much more likely to achieve that object than these indirect methods. It is inbred in each one of us to want to leave behind some continuity for those who come after us. I, myself, have seen some of the results of this kind of legislation in French Canada, where I have seen children, grandchildren and great-grandchildren sharing out, according to the law, the land belonging to the original patriarch, in such a way that it has been divided and sub-divided until the various holdings look like Euclid's definition of a line, length without breadth.
Previous speakers have given examples of the sort of cases that might arise. May I give an example? Imagine a man who dies leaving a family. He possesses a house, his home, which he does not wish to see broken up. You cannot divide a house among the children. You cannot divorce the house from the land. Therefore, that parent has to decide that he will leave that house and grounds to one of his children. Having done so, he realises that his aim will be defeated unless the child who is going to inherit it will be in a position to live in it. Therefore, he leaves him another part of his personal estate. That will comes to be probated. Under the proposals of this Bill that will can be contested. It will be seen perhaps that it makes an unfair mathematical distribution. You then have the court ordering the sale and break-up of that home and the proceeds distributed, in what the court considers is a more equitable way, among the children, with the whole result entirely against the wishes of the testator, who at the moment of his death was the owner of the property and was authorised to make what he thought to be the wisest provision in respect of it. I would appeal to the hon. Gentleman who has had the opportunity of introducing this Bill. We have had a very interesting, 1327 illuminating and good-natured discussion about the issues involved, and I ask him to rest content with that, and to ask leave to withdraw the Bill, and not run the risk of adding one more to that long succession of Acts of Parliament which only circumscribe instead of extend the liberties of our people.
§ 116 p.m.
§ Mr. Kingsley Griffith
I apologise for intervening in a debate, the earlier part of which I have not heard, but I feel that the very eloquent and brilliant speech to which we have just listened deserves an immediate reply. We have not had the pleasure of hearing the hon. and gallant Gentleman the Member for Yeovil (Sir G. Davies) as often as we would have desired in recent years, but his contribution to-day has been such as has delighted us, and it is all the more necessary that it should be answered. I am glad to see that he is standing up for liberty. I am glad when anybody stands up for liberty, but the kind of liberty for which he is standing up is the liberty which applies to people when they are already dead, and it would perhaps be better to take some earlier profession of freedom. I am reminded of the very fine lines of Andrew Marvell in a poem, in which he says:The grave's a fine and private place, But none, methinks, do there embrace.We do well to remember that, whereas we may preserve a great deal of liberty and influence in our lifetime, it is perhaps a mistake to think that we can regulate the affairs of the future with perfect security in our wisdom, even for our own families, unless there is some kind of check against the mistakes to which all mortal men are liable. I do not think that in this Bill any infringement of any real personal liberty is involved. I have known of cases in which, I am perfectly certain, the real intention of the testator would have been much better fulfilled in the long run if it had been subject to the very carefully safeguarded opportunities which are provided by this Bill. You may have cases where possibly under the threat of death, in the pain of the last illness, a sudden disposition of property is made which is entirely contrary to everything which has been known of the intentions of the testator beforehand. I have known of very painful cases of that kind. All that this Bill does is, with very great safeguards, to give a discretion for the 1328 alleviation of hardships that may be caused in a case like that. Nearly everything that the hon. and gallant Gentleman said about what might be done in certain cases is answered by the fact of the discretion of the court. Everything that he suggested in the cases which he mentioned could be brought before the court and taken into consideration. I cannot imagine that any reasonable hardship could be inflicted upon anybody by the passage of the Bill, and I can well see that many hardships might be avoided.
The principle of the family has been rather quaintly brought into the debate by the hon. and gallant Member for Yeovil. I should have thought that the whole question of the family principle is on the side of the promoters of the Bill. The hon. and gallant Gentleman was talking about the effect on the population, but is it a bad thing, and does he think that it is a bad thing, that people, if they are contemplating the great responsibility of bringing children into the world, should know that they are under liability to provide for them during life, and possibly, in appropriate circumstances when they need it, even after death? I should have thought that the operation of a motive of that kind would not in the least tend to the destruction of the institution of family, but rather to perpetuate and strengthen it. That personally, I very much want to do, because in one matter, as any rate, I am a Conservative—in the matter of the institution of the family. It is that which I wish to preserve, and I do not wish to see it attacked in any way. The hon. and gallant Member said that men wished to leave behind them a memorial. I do not know of what kind of memorial he was thinking, but the kind of memorial most truly representative of a man and his personality are the children he leaves behind him. Apparently, in theory only, he wishes to leave memorials behind him, and to cut them off with a shilling. I do not think that that is the best way of providing for memorials of that kind.
§ Sir G. Davies
I am not in the habit of interrupting, but the suggestion of the hon. Member is so preposterous that I must rise in protest.
§ Sir G. Davies
That is what I complain of; the hon. Gentleman is addressing himself to someone else's argument, but not to mine.
§ Mr. Griffith
I carefully noted what the hon. and gallant Member said. He was talking about the desire of people leaving behind a memorial.
§ Sir G. Davies
Certainly. I said that it was ingrained in every one of us to want to leave some kind of continuity— not memorial.
§ Mr. Griffith
The word "continuity" will serve my purpose much better. The word is a great deal better than the one I used, but surely the essential continuity that any human being can leave behind is to be found in his own children. It is that point to which I am addressing myself. I do not want this continuity to be threatened by being cut off by an arbitrary will, which perhaps does not represent the real intention. It is on behalf of that continuity that this Bill is brought forward and, adopting the hon. and gallant Member's far better word than the one which I quoted, it is on behalf of continuity that I ask the House to give a Second Reading to the Bill. If there are any further safeguards which it is necessary to be introduced, there is the Committee stage for the purpose. We are dealing here with a general principle, and if the general principle is sufficiently wide and supported by considerations which appeal to hon. Members in all parts of the House, the Bill deserves a Second Reading.
§ 1.24 p.m.
§ Mr. Grant-Ferris
I hesitate to take up the time of the House in discussing the Second Reading of this Bill, but I want to raise one or two matters. I am sorry to see the hon. and gallant Member for Yeovil (Sir G. Davies) is leaving the Chamber.
§ Mr. Grant-Ferris
The hon. and gallant Member made a very provocative speech, and I say that with not quite the same terror as would have been the case a 1330 few weeks ago because of the sequence of events, although I have the utmost respect for him. He was extremely severe to my hon. Friend the mover of the Bill when he said that the Bill had been foisted upon him by the Government. I know that my hon. Friend has this Bill very deeply at heart, and I believe everybody in the House should have the main principle of the Bill at heart. The difference is in the way we are to find an ultimate solution for the difficulty. I should like to deal with one or two arguments which have been raised, and one which has not been raised but may be raised, because it has been raised in the past. There is an old saying that hard cases make bad law. In my short Parliamentary experience I have come to the opinion that that saying is absolutely non est. I am reminded that last Session the hon. Member, the Senior Burgess for Oxford University (Mr. Alan Herbert) got through a Measure in spite of the efforts of a devoted little band of opponents, and he always used the argument that hard cases made bad law.
There is another point to which I would draw attention. It is said that a trust might be used to get round anything we might put in this Act. Trusts have been used for many years to get round Death Duties, but I notice that the Chancellor of the Exchequer manages to make a very considerable rake off every year from those duties. I do not believe that in the majority of cases this law would be avoided by trusts. That argument has not been used to-day, but it has been used before, and it may be used again, and, therefore, I want to scotch it if I can as quickly as possible. I have two suggestions to make which, I think, ought to be acceptable to my hon. Friend who moved the Second Reading. Clause I says that reasonable provision should be made. I think those words are wrong. It ought to cover the point where the party concerned has acted unjustly, and then it should be in the discretion of the Chancery Judges.
§ Mr. Grant-Ferris
No, I do not means exactly the insertion of those 1331 words, but rather the redrafting of the Clause to imply that. There is one further point which if adopted by the mover of the Bill would clear up a great deal of difficulty, and that is that the Chancery Judges should not have discretion as to the whole amount of an estate of a testator but up to one-third for the wife and one-third for the children. I believe it is the law in Scotland that the wife and the children are ipso facto entitled to one-third respectively. It would be better to leave it in the discretion of the Chancery Judge up to one-third in each case respectively. There is another point which might easily be dealt with in Committee, and that is the making of some provision for the unmarried mother who has to bring up a number of children. I hope that the House will give the Bill a Second Reading, because it deserves it.
§ 1.30 p.m.
§ Commander Sir Archibald Southby
I have heard all the speeches to-day, with the exception of the speech of the hon. Member for Middlesbrough West (Mr. K. Griffith), and I am sorry that I did not hear what he had to say. We ought to remember that we are legislating not for ourselves but for the country in general. It may be assumed that Members of this House are happily married and have exemplary sons and daughters. I certainly am happily married, and I possess two most excellent sons. I do not think that anybody could have heard the speech made by my hon. and learned Friend the Member for Ashford (Mr. Spens) without being struck by the immense force of the arguments he used. He spoke with authority as a member of the Chancery Bar, and it is a pity that more hon. Members were not present to hear the case he made against the Bill. Like him, I am not so much concerned with the details of the Measure, to which indeed the hon. Member who moved the Second Reading paid little attention, although I do wholeheartedly oppose it, but I am opposed to the general principle underlying the Bill. I believe it is a bad Bill, because, in the first place, it is unnecessary, and, in the second place, it is ill-judged. We have never had any evidence to show that a very large number of cases of hardship occur. The speech of the hon. and learned Member for Ashford brought out 1332 that point most clearly. In spite of what the hon. Lady the Member for the Combined English Universities (Miss Rathbone) says, I do not think there is any real demand in the country for the Bill.
The Bill is ill-judged because it restricts individual liberty and, what is much more important, it invades the privacy and the personal affairs of the family. We spend our time in this House restricting the liberties of the individual. It may be that present day conditions and the changes which have taken place in the structure of society and in the system under which we live make it necessary that the liberty of the individual should be restricted, but we should do well to remember that we are the guardians of the liberties of the people, and that when we are legislating we should legislate as far as we can for the good of all. One of the things that this Bill does is to take away from a man or woman the right to do what they like with their own. It may be true that the time has come to take away the last right which a man or woman possesses, the right to make a will that cannot be contested, provided the person concerned was of sound mind when it was made and provided that its provisions are not unreasonable. The argument of the supporters of the Bill is that they are trying to prevent unreasonable wills being made. Surely, the machinery exists at the present time whereby an unreasonable will or a will made by a person who is mentally unbalanced can be upset. Time after time we read of cases brought in the courts in which an effort is made to alter the wishes of the testator on the ground that at the time he or she made the will they were not of sound mind. It has always been left to the discretion of the court to make a decision. By the wise advice given to the parties to the suit it is very often possible for accommodation to be come to outside.
One of the chief reasons why I object to the Bill is that it seems to me to open up an opportunity, first of all for a flood of litigation and, secondly, it puts a blackmailing weapon into the hands of people who may consider themselves to be aggrieved, but who may have no real ground for grievance, and who in the absence of the only person who could really give evidence, because such person 1333 has been removed by death, are able to go to court and make statements which cannot be disproved. I cannot see why a testator should not be allowed to decide the disposition of his or her property. Reference has been made to Scots law, and I am informed that although Scots law lays it down that one-third must go to the wife and one-third to the children, it is, in fact, possible for people to contract out of that obligation; and that it is possible to come to an arrangement which will remove that right from the wife or children.
But this Bill goes very much further than that. It seeks to give a right to a wife, who considers she has not been properly treated in the will of her deceased husband, to go to the court. The expenses of the whole litigation will be paid out of the estate. If the wife is so well off that she can pay for the litigation, you cannot plead poverty on the part of the applicant. In the end the money will have to come out of the estate, our of the share which is enjoyed by the beneficiaries under the will. I am presupposing that it is the case of a will ma de by a person of sound mind. Who is to know what were the circumstances between that husband and that wife? Who is to know what private differences of opinion there were; what infidelities there may have been which resulted in the action taken in the will? We hear a lot about the man who leaves his wife penniless and everything to his mistress. This Bill deals with both sexes. We know that there are cases where the woman has a lover and cuts her husband, if she is the one with the money, out of her will, thereby injuring him and the children in favour of the lover.
There are cases, and hon. Members know there are, where, there may be differences of opinion between the couple who for one reason or another decide to go their own road and who because of a desire not to injure the prospects of their children, make every effort to prevent the world ever knowing what these differences of opinion were. There is the case of a man who knows his wife is unfaithful, but who, for the sake of the children, just going out into the world, shuts his eyes to what is going on; he wishes that it should never be known. If that man dies and leaves his wife nothing under the provisions of this Bill the whole sordid 1334 story will be dragged out in open court. That puts into the hand of a spouse on either side a blackmailing weapon which every hon. Member knows will be used. A man may have a son on whom he has spent a large portion of his fortune and a great deal of his time in trying to keep him out of gaol or serious trouble. He dies and leaves that son nothing. Under the Bill the son can go to the court. He may, indeed, have had spent upon him much of the patrimony which should have gone to his brothers and sisters. He can go to the court and ask the court to give him a proportion of the estate. It is perfectly true that the judge might say, after hearing the whole story, "No, you certainly are not going to have it." But it is equally true that members of the family would submit almost to anything to prevent that story coming out. Loyalty to the father would keep that boy's misdemeanours from being made public.
§ Sir John Withers
I do not think these cases would be heard in open court. They would be heard in Chambers. Cases similar to them are heard in Chambers to-day, and do not become public.
§ Sir A. Southby
If the idea is that the whole of these cases are heard in Chambers and not in open court, it reinforces the argument of the hon. and learned Member for Ashford that we should be very careful in making such a major alteration in the law. I was going on to say that the son's threat of action may be sufficient to force his mother and brothers and sisters to pay him something in order not to bring the action, and if he is a man of straw, as presumably he would be, who is going to pay the costs if the action is brought? The estate. It is perfectly obvious that if he threatens to bring an action his mother and brothers and sisters will have to sit down and consider whether it is cheaper for them to pay the blackmail or to fight the case. It seems to me that the Bill has been brought in more on sentimental grounds than on any other. I do not believe there are an appreciable number of real cases of injustice and hardship. Indeed, the hon. and learned Member for Ashford said that there has never been any evidence brought forward to prove how many cases there are. Why should the courts have to decide these matters? Why is the individual man or woman not allowed to decide for himself 1335 or herself what they think it is right to do for members of their own family? Why should dirty linen be washed in public?
If you look at the provisions of the Bill it seems to me that there is no finality in it. Under Clause 4 there is power for the court to re-open a case. It is true that nothing can be done after six months by way of starting litigation, but once a variation has been made to the will the court is allowed, if it sees fit, to vary the award afterwards. Those of us who have had to perform the sometimes unpleasant task of acting as an executor know that there is a sigh of relief when the whole business can be settled and finished as amicably as possible.
I come to the declaration which a testator, he or she, is able to make if he or she desires to cut a spouse or child out of his or her will. The hon. Lady the Member for the English Universities said she did not think that, of necessity, a lot of expensive litigation would arise out of hard cases. The expense is not going to arise out of the hard cases. Much of the legal expenses are going to arise over the necessity for every man or woman who make a will to have to consult a lawyer as to how they can draw the will so that it cannot be upset. There is no lawyer in the House who does not know and who will not testify that it is exceedingly difficult to draw a will in such a way that it cannot be upset afterwards, and if this Bill is passed then the difficulty of drawing a will, though the testator may have the best intentions in the world, is going to be almost insurmountable. You will have the expense of making a statutory declaration. Even then you have not prevented the possibility of a member of the family who considers himself or herself aggrieved threatening an action or bringing an action. There will have to be further legal expenses in taking advice as to what is to be done to meet the threat of an action and in defending the action when it is brought.
§ Sir A. Southby
It will be a gold mine for the lawyers, but I do not believe the legal profession want it. [Interruption.] I have a higher opinion of the 1336 legal profession than some hon. Members opposite. But it seems to me that legal expenses are bound to be incurred as a result of such a Measure as this, because every person who is making a will will have to try to safeguard that will against any possibility of action.
The argument has been used that the Bill would make it impossible for a testator to cut out of a will a wife or husband, as the case might be, in favour of a mistress or a lover. That is not so. The Bill would, indeed, make the position in that respect worse than it is now. Its effect would be that if such a person were so disposed they would make legal provision by deed, which could not afterwards be upset in any court of law. Under the present law there is always the possibility that the erring party may repent and that no question may arise of the wife or husband being in the ultimate resort left out of the will. In cases where there may be real hardship the Bill will only make it more certain that that hardship will operate and that nothing can be done to prevent it operating. If one examines the speech made by the learned Solicitor-General when a similar Bill was being discussed in January one must be struck by the view which he expressed and I should like to read a passage from his speech:I think there is a grave hardship in cases —which are notorious—where a 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 in the Bill to prevent voluntary settlements which would evade the purpose of the promoters of the Bill.The hon. and learned Gentleman went on to say something about a matter to which the hon. Lady opposite had referred: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 nebulus 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."—[OFFICIAL REPORT, 22nd January, 1937; cols. 534–5, Vol. 319.]The House would do well to ponder on those words. The digging up of family 1337 skeletons which it had been found possible to bury, the revival of family differences which it was desired to forget—that is something which ought not to be encouraged by this House. I consider that the Bill is a bad Bill. I do not take my stand simply on the ground that a man has the private and individual right to do what he likes with his own, I take my stand on the ground that this Bill is against public policy. If sufficient cases of hardship can be found to make an alteration of the law desirable, then by all means have an alteration of the law which will lay down that a certain proportion of an individual's wealth shall go to the upkeep of his widow and children to prevent them starving. But I do not believe it is right to allow the courts to fix the sum in a case of that kind. I think we should lay down a hard-and-fast rule. It is not the business of this House to enact legislation and then pass the responsibility on to the judges. If we must alter the law let the alteration be precise. I do not myself think that any alteration is necessary but should an alteration be found necessary let it be settled that a certain proportion, be it large or small, of an individual's belongings must on that individual's death, go to his widow or children.
The hon. Lady opposite spoke of "selfish" wills. I do not understand how a will can be selfish. I thought selfishness always related to something which you wanted for yourself, but a person who has made a will is no longer there to enjoy the benefits. It may be an unjust will an unreasonable will or a foolish will, but not a selfish will. She went on to say that this Measure would have an electoral value. I cannot help thinking that that is possibly the worst of all reasons for altering the law. To suggest that a Bill should be used as a sort of electoral bait in angling for popularity among the people is to appeal to the basest of all motives—
§ Sir A. Southby
Whether it be common or not, there is no reason why we should continue to act upon it when it has been pointed out to us that it is wrong. I hope the Motion will be carried to a Division, and if it is I shall certainly record my vote against the Bill. I believe that the alteration of the law involved in this Bill 1338 is so great that it is not a proper subject matter for a Private Member's Bill. If there is to be a fundamental change of the British law, that should be a matter for considered action by the Government, with the advice of the Law Officers of the Crown, after making the inquiry, collecting evidence and eliciting the facts. An alteration affecting the lives, the privacy and the rights of the people of this country should not be made by a Private Member's Bill on a Friday afternoon when —there is no use blinking the fact the majority of Members are not in their places. I hope the Bill will be rejected, and that if it is rejected, the Government will consider the whole question of whether there are hard cases or not and then if they think necessary, will bring in legislation to meet those cases.
§ 1.53 p.m.
§ Mr. Pethick-Lawrence
The hon. and gallant Member for Epsom (Sir A. Southby) has brought forward a number of arguments against the Bill, some of which, I venture to think, are inconsistent one with another. He concluded with the time-worn argument that, however important the subject might be, it was not suitable that it should be dealt with by a private Member's Bill. That is what opponents of any Measure are always inclined to submit as a reason why the House should take no action on an important subject. I am very glad, however, that to-day there has been an extensive Debate on this Measure. I have not been able to be present on previous occasions when similar Bills were under discussion, but I am informed that the Debates on those previous occasions have been of a somewhat perfunctory character. I think the discussion of the Measure introduced earlier this year only occupied an hour and a half. Therefore, the real case against the Bill was not heard and from the speeches made to-day, it seems there is a case to be met by the promoters of the Measure. We have heard different Members putting forward different cases. We have heard the hon. and gallant Member for Epsom, who has just sat down, giving his grounds, first of all, for opposition to the whole of this kind of legislation, though there he differs from the hon. and learned Member for Ashford (Mr. Spens), who told us definitely that he wanted a change but did not want it in this particular way. Then 1339 we had the hon. and gallant Member for Yeovil (Sir G. Davies), who, in a very humorous speech, explained that he disliked this proposal and would dislike still more a proposal on the lines of the Scottish law which was favoured by the hon. and learned Member for Ashford.
It seems to me that we have to understand what is the real basis of the opposition to this proposal. The hon. and gallant Member for Epsom said that he objected to an interference with the long tradition of the liberty of the subject in this respect. I would ask the learned Attorney-General whether I am not right in thinking that this particular freedom attaching to a testator is not of long standing but is of comparatively recent growth. I am going back to the time when I read some law, and therefore I will not be too sure, but if my memory is correct, it is not so very long ago that the widow of a testator had a certain very definite right to a share in his estate, and if I am wrong, no doubt the Attorney-General will correct me on that point. The hon. and gallant Member for Epsom was surely guilty of an inconsistency when he said that there was no evidence of any number of cases of hardship, that there was every reason to think they were so few that the law need not deal with them, and then went on to say, later in his speech, that scarcely anyone would be able to make a will which could not be upset if this Bill were passed.
§ Sir A. Southby
Perhaps I did not make myself plain, but what I meant to convey was that if you passed the Bill, nobody would be able to make a will, however just or unjust, which would not be able to be open to an action, and that any disgruntled or disappointed member of a family could try to upset any will, whether it was unjust or not.
§ Mr. Pethick-Lawrence
I am sorry if I used words which seemed to convey a false impression of what the hon. and gallant Member had said, but I am quite aware of his point, which was that it would be very difficult to make a will which some disgruntled person could not upset. I venture to think that that is an outrageous remark, because in fact the great bulk of wills—and here I agree with what he said—do make provision 1340 for widows and children, and the hon. and gallant Member is really basing his view on an entire misconception of what this Bill does. Later on I will call attention to certain words which I think he has failed to observe, but I want first to refer to the phrase which has been so often used in this debate—"Hard cases make bad law." I think that has been quoted entirely out of its true meaning. That expression does not mean that unless there is a very considerable number of people suffering from an injustice the Legislature has no right to deal with it and put it right. What I think it means is that a decision should not be given in a court of law because of the hardship of an individual case when the principle involved in that decision would not be right in general. Now this is a matter of the Legislature attempting to deal with something that is definitely wrong at the present time, and whether the number of people who suffer under the present law be 50,000, 5,000, or 500, I venture to say that we in this House have to protect people from unjust action, and whether the number of people whom we rescue in that way be few or large, it is our business to see that right is done.
One of the hon. Members who attacked this Bill said that when one was an executor—and may I say that I have been an executor in as many cases as, I think, anyone in this House, so that I have had much experience in this matter —one was very happy when the whole thing came to an end, but that if this Bill were carried, one would never know, even though one had been months or years in securing the final probate and getting the will through, when it could not be upset. But that is not how I read Clause 2, which limits the making of orders under the Act to within six months from the granting of probate. Of course, it is true that if a successful action had already been taken, it might be varied later, under Clause 4, hut that is not the point which the hon. Member was making.
§ Major Dower
As the right hon. Gentleman was referring to me, may I say that I said quite clearly that my objection was under Clause 4, where an order had been made by the Court, and it could be varied from time to time afterwards according to the means of the person in whose favour it had been made.
§ Mr. Pethick-Lawrence
I gave way to the hon. and gallant Member, but I was not referring to that remark. I forget who it was who made it, but whoever it was he seemed to suggest that one would never be safe from an initial action to upset the probate of a will. Another hon. Member said that an action could be taken by a person who hoped to get something out of it, and that it could be at no possible loss to him. That again is not the case, because, of course, the costs of an unsuccessful action normally fall upon the person who takes it. It is true that under Clause 5 the Court may order the costs to be borne on the estate, but it does not say that they shall in all cases be so borne. Therefore, I think that argument falls to the ground. The greatest misconception on the part of nearly all those who have spoken against the Bill is that they do not seem to have read the words which occur quite specifically in Clause 1, which are:reasonable provision for the maintenance of a spouse or child.We have heard a lot of arguments suggesting that any children or widows who are aggrieved because they have not got what they think is an adequate share of the estate can go into court to argue that they ought to have had a larger share. I do not know exactly what the Attorney-General will say. but I imagine that the word "maintenance" would not be construed by the Court as meaning simply that the aggrieved person could obtain a larger and more equitable share of the whole estate.
§ Sir A. Southby
The Clause goes on to refer to "capital or income," and surely the share for which the aggrieved child or widow would apply might be either for maintenance, which is income, or For capital.
§ Mr. Pethick-Lawrence
I think I am correct in saying that the main operative part of the Bill is contained in the first Sub-section of Clause 1. Quite clearly the later provision about capital can only mean in so far as it satisfies the necessity of providing maintenance as it occurs in the first Clause. It is solely a question of maintenance, and the idea that hon. Members opposite who are opposed to the Bill have tried to spread, that any child who wants to get a large share of a testator's property can under this Bill apply for it, seems to me entirely 1342 outside the provisions of the Measure. Having said that, one ought to make it clear that this Bill is not necessarily in its final form, and that if it is read a Second time, as I am sure it will be, we shall have the ordinary Committee stage. It may very well be that there are additional safeguards and additional principles to be laid down to guide the courts in deciding under these proposals. It will be for the Law Officers of the Crown, if they think it desirable when we come to the Committee stage, to put forward Amendments to the Bill in that direction. I feel that there is room for some guidance to the courts being put into the text of this Measure, but if the Attorney-General takes a different view I shall not oppose my view to his.
In that respect I do not take the view that the position of the spouse and the position of the children are on precisely the same footing. There is a considerable difference between the two. There is a great deal to be said for a spouse in all cases being entitled to maintenance from the estate of the person who is dead. I seem to remember in the marriage service some such words as "with all my worldly goods I thee endow," which are more frequently honoured in the breach than in the observance.
§ Mr. Pethick-Lawrence
Sometimes. The State takes cognisance of the fact for its own purpose that the property of the husband and that of the wife cannot be regarded as the properties of two separate people. In the Income Tax laws the State recognises that these two people having joined their lives together, it is not for the State to consider them as if they were separate individuals. Yet it allows in England the spouse who dies to separate his or her property entirely from the property of the other one, and to leave it entirely away from the spouse who survives. That is an unsound principle and this Bill seeks to remedy it, not insofar as it gives a right to the surviving spouse to some share in general in the property of the deceased, but insofar as a right to maintenance is concerned. That is really an unassailable case.
The position is perhaps a little different with regard to the children. I do not think it necessarily follows, where a man 1343 or woman has a small property to leave and has certain children, particularly if they have reached adolescence or full age, that it is desirable it should go abroad that every grown up child of a testator is bound to get out of the estate certain sums which will keep him in idleness for the rest of his life. Therefore, there is a great distinction between the position of the spouse and the position of the child, and it may be that in Committee that distinction will be brought out, because I believe that much of the opposition that has been shown to the Bill is due to the position of the children. So far as the spouse is concerned I feel that the case is unassailable and that the present law is indefensible.
With regard to other countries, the hon. and gallant Member for Yeovil, if we are to take his speech seriously—and perhaps we were not intended to—seemed to suggest that this Bill brought down from Scotland a proposal which worked very unfortunately there, and that it was an attempt to foist it upon those who were domiciled in the southern half of the Kingdom. I do not think that is the case at all. First, England stands almost alone throughout the world in having no provision of this kind; secondly, the Scottish law has worked very well, as far as I know, in Scotland; and thirdly, this proposal is a different experiment which has so far commended itself to those who are recommending some reform in this connection. A recent debate in the Northern Ireland Parliament suggests that they are looking to this House to take the initiative, and that they hesitate to alter their law unless and until it has been altered in this country. I look forward to hearing what the Attorney-General has to tell us. I hope that a Second Reading will be given to this Bill by a large majority, a majority which will mean all the more because we have, for the first time, heard in full Debate the case that is put from different sections of the opposition to the proposal. There is an amply sufficient number of hard cases that are brought about by the existing law to merit our making a change, and the method here put forward is probably the best method, subject to some modifications in Committee, for relieving that widespread injustice.
§ 2.14 p.m.
§ Mr. Erskine Hill
One thing which has struck me about this Debate to-day has beep that Members who hold opposite views about the Bill are united in saying that the Scottish law gives them support. I think that that arises because the Scottish law, be it good or bad—and I would not say it is perfect—has worked very well for the last 200 or 300 years to achieve two objects. The first object is to give protection to a wife who is left by her husband or husband who is left by his wife and to the family. The other object is to enable the testator when he makes a will to know exactly what his liabilities to his family will be under the law. Those who are in favour of this Bill naturally rely upon the protection which the Scots law gives to the wife who is left, or to the family. I agree with that, but I am against the Bill in its present form. Those against the Bill rely, and rely properly, on the fact that the testator should know when he makes his will that his liabilities are limited to a certain amount. I think nearly everyone who has spoken has been in favour of some protection being given to the spouse who is left, and to the family. It is only upon the other question of the certainty that there is much difficulty, although for other reasons I think there is a great deal to be said against the Bill. But on the question of certainty I would like to state very briefly what the law of Scotland is.
The law of Scotland makes it clear that when any one man or woman dies, leaving a wife or husband and a family, one-third of the movable or personal estate immediately vests in the wife and one-third vests in the children. If there is only one class, then the division is one half; the wife receives one half or else the children receive a half for their share. In any case the children receive equally between them; that is to say there is no power given to the testator to choose between the different children. Here there is another important distinction in the law. If a father wants to give his children something before he dies, he can arrange that they accept whatever sum it may be in satisfaction of the eventual rights when he dies. Therefore it is possible for the law as administered in Scotland to get over the difficulty which was suggested by my hon. and learned Friend the Member for 1345 Ashford (Mr. Spens), when he referred to the hardship that would occur when some money was made over to a son during the lifetime of a father and when he might, under this Bill, come again and ask for his share as though no previous gift had been made. It is clear that there would be the gravest possible hardship were a father, for example one possessed of £10,000, to advance £2,000 to his son and the son after spending that for good purposes or ill were able to come again to the court and ask the court to make further provision, although by doing so the claims of other members of the family would undoubtedly be prejudiced. That is a particularly unfortunate part of the Bill.
I should like to refer to the Clauses of the Bill, because I think that that result will follow, though I shall await what the learned Attorney-General has to say on the matter. Clause r says that:If a testator has not by his will made reasonable provision …It makes no reference to any previous gifts, while in life, at all; it is what he has done "by his will". Then if we turn to Clause 2 we find:The court shall on any application made under this Act have regard to any present or future income …Nothing is said about the past. Although it is true that the Clause goes on to say:and to any other matter or thing which in the circumstances of the case the court may consider relevant,I venture to give my opinion that there would be at least a great difficulty in construing that to include what had been done in the past, because the Clause so clearly refers to present or future income and does not refer to the past, and by so doing it carries out what Clause I says, that the only thing to be considered is what the testator has left out in his will.
I would like to take up one point which the hon. Lady the Member for the Combined English Universities (Miss Rathbone) made. She referred to the possible victimisation under the present law and said that there was no stigma of victimisation under the Bill. I think there is very considerable stigma under the Bill, because it enables questions to be brought into court and it discloses the fact that the parent has for one reason or another arranged his will so as to dis- 1346 inherit one member of a family. It is true that the court may put right the fact that not sufficient money has been paid over to that member, but the stigma of being left out, to which the hon. Lady referred, is still there. I think there is another very important flaw in the Bill. It is clear when one looks at Clause 4. The effect of that Clause will be that the ordinary troubles that arise when any question is raised under the first two Clauses and the court is appealed to, may be opened up again at any time, and the award varied. Hon. Members all over the House will agree that there is probably never a more difficult time for the friendly relationships of a family than when the time of division comes. I have known of a family going to pieces over an arm-chair.
One hopes that those cases are not common, but there is no doubt that an Act which is going to stop certainty as to what is to happen to an estate and is to replace that certainty by uncertainty, is going to arouse in families feelings which will be most regrettable. Clause 4, if anything, accentuates the difficulties of the position, because it says that even when a decision is come to that decision shall not be final; it may be varied at any time. My plea to the House is that any Bill which does not make for certainty is a bad Bill, that if provision must be made—I for one think it is right that provision should be made—that provision should be of a certain kind, so that not only the testator himself but the beneficiaries equally with him shall know what the law says in no uncertain terms.
It has been suggested that a flood of litigation will follow if this Bill is passed. I think it will be bound to cause a great deal of litigation. It has been described with some justification as creating a "lawyers' paradise." As my hon. Friend who interrupts me says, there is at the moment a good deal of litigation about wills, perhaps not large compared with the whole number of wills; but that litigation would be multiplied indefinitely, and it would be multiplied for one reason, if for no other, and that is that there is no word which gives the courts more difficulty than the interpretation of the word "reasonable". Again and again cases have come up for the interpretation of that word. The wider the discretion left to the courts the more difficult will be 1347 their decision. The Bill gives the word a meaning so wide that I cannot recollect an instance in any statute where it is wider. Therefore, I would appeal to the House to consider carefully before passing hasty legislation which may have most disastrous effects as regards the family life of the people of this country, and at the same time will increase largely the amount of litigation. I ask the hon. Member who proposes that this Bill should be allowed to pass that should he be successful in gaining a Second Reading —and I, for one, hope that he will not be —he will, before we come to the Committee stage, consider limiting the amount of liability on a testator's estate by a definite amount, so that the testator will at any rate know what it is safe for him to leave and what cannot be touched by the court.
§ 2.28 p.m.
§ Mr. Gallacher
In a previous debate in which we discussed Income Tax dodgers I drew attention to the fact that I was taking part in the discussion as one who had never paid Income Tax, and I wish to make a few remarks on this question of wills as one who has no intention of ever making a will. I have gained the impression that all are agreed that there is some injustice operating somewhere which somehow or other ought to be dealt with, but some of the arguments which have been put up, especially against the Bill, are of such a miserable and shoddy character that I cannot understand how hon. Members who claim to represent intelligent people could ever express such views. I certainly cannot say that the intelligent people have intelligent representatives. The seconder of the Amendment said for example, in making an attack on this side, that we were proposing to make it compulsory that money should be left to particular members of a family. He said there might be a son 30 years of age and quite fit for work, and that we wanted to lay it down that though he was fit for work he must be left money by his family. But he read a letter in which a father referred to a son who is a drunkard, obviously a degenerate, to whom he does not want to leave anything. According to that letter every other member of the family is fit to work and to look after himself, but it is the fit members of the 1348 family who are to get the money, and the one who is obviously quite incapable— never mind what the reason—of working is to not to have any of it, and will become a charge upon the local authorities. That is not the sort of argument which ought to weigh against this Bill.
Then there is the other argument that the Bill is somehow interfering with some cherished liberty of the individual. One hon. Member opposite waxed eloquent about liberty. I should be quite prepared to make a deal with those Members who are concerned about preserving liberty. Let them support us on this side in the demand for the withdrawal of the Trade Disputes Acts, the Disaffection Act, the Sedition Acts and the Public Order Act, which all affect the liberty of the individual, but the very Members who give the utmost support to Measures which interfere in a most vital way with the liberty of the great mass of the people are those who at once begin to squirm when it becomes a question of interfering with the way in which capital may be dealt with. We have been told of the case of the woman who has spent the best part of her life with her husband rearing a family and at the end may be left nothing. A strong case can be made out for her, but that the woman is in such a position arises from the fact that as a result of the development of a class society woman has become subject, real liberty being denied to women.
When the hon. Member who moved the Bill got on to the point about persons of the male sex being left without resources the argument did not sound nearly so good. The hon. Member said there might be a case in which a wealthy woman has married a naval officer. I do not know why he should choose to select a naval officer. Possibly it is that a naval officer uses his very fancy plumage in order to attach himself to some money. I do not know whether that is the view of the hon. Member. He went on to say that when a naval officer has married a wealthy woman he wants to get out of the Navy as soon as possible to keep close to the money, or as the hon. Member says, it may be that she wants him out of the Navy so that she may he near him; but when he has left the Navy she finds out her mistake, because the plumage goes— 1349 yes, all the fancy decoration has gone— and she finds he is quite an ordinary man, maybe very ordinary. Is it any wonder when she sees the plumage gone, when she sees what it is she has got, that her thoughts should turn to rather brighter plumage than ever she got from the Navy? Surely she should be entitled to leave her money to provide a sanctuary for birds if she so desires.
It is said that the naval officer left the Navy on the strength of his wife having money and may have devoted himself to the public service—I do not know whether the reference was to any particular Member of this House or not—but though his wife has been good enough to keep him while she was alive why should she still be responsible for him after she is dead?
You cannot make out a case for a man, but there is a case for a woman because fundamental liberty is denied to women. Women are subject to men. That is why the question of women arises; the women are economically dependent. Once they become mothers of homes they are economically dependent, and the only way to solve that problem, is either through a Bill of this kind, which is a mere patchwork, or by giving women the justice which they deserve. When a proper scheme of widows' pensions is established, not: the feeble thing that exists now with all its anomalies, and women are made independent, their future will be guaranteed and then there will not be all this talk about litigation.
A Bill of this kind will be a paradise for lawyers and we must not forget that lawyers will not fail to grab at "a gold mine." Nobody had a better idea of that than Dickens. In his "Old Curiosity Shop" you get a lawyer asking for a glass of water and, says Quilp:Water for a lawyer? No, not water for a lawyer; molten metal for a lawyer.A friend of mine had to have recourse to litigation and he got an award of £50. He actually got £5 when the case was settled. It resulted in £5 for him and £45 for the lawyer. If the Bill is passed into law the lawyers will have the benefit of it, but it will nevertheless mean that an attempt is being made to secure that mothers and children shall not be left destitute until we provide a real measure of widows' and children's pensions of such a character that will give 1350 them security. If you want to stop useless and wasteful litigation, provide security for the people of the country. Security is the necessity for all, and because of the lack of it there is always quarrelling about the few pounds or the many that may be left. There is lack of security for women and children, and if there were security for their future there would not be the litigation that takes place at the present time.
The hon. Lady talked about the case of the bad husband or the bad wife being one in a thousand, and then said there were 8,000,000 or 9,000,000 families and she made a statistical deduction from those figures. Most of the 9,000,000 families did not come into the matter at all. The great mass of the workers is not affected by it. Estimates are often made of the great amount of money that the workers have. Business men sometimes get up and tell us that the workers have so many millions of money invested in this society or that society, but no business man ever deals with business except by way of assets and liabilities. If you set the workers' assets against their liabilities you would find the true position. If you go round a working class locality you will discover that the workers are paying so much a week for clothes, furniture and other things, and that they have loads of debt. You must take their debts as well as their savings into account.
I remember one of my earliest experiences on visiting a music hall. I heard some gags that made me laugh. The same old gags are still being worked off to-day to make the younger generation laugh. One of those gags was that a comedian came on and said to another: "I am sorry to hear that your brother died to-day." "Yes," said the other, "He passed away very suddenly." "Did he leave you anything?" "He left all he had to a town." "How much did he leave?" "Seven children." That applies very generally to the great mass of the people of this country. The Bill would benefit only a very small section of the community which in the main consists of the wealthy class. We have heard much from the other side to-day; we have heard a very frank estimation of the other classes in society. We on this side often speak about the wealthy classes, but we never say anything half as bad as has been said to-day from the other side.
1351 Much has been made of the argument that if a man cut off his wife and children he would have to make a statutory declaration according to the Bill, and hon. Members have said that that would mean washing his dirty linen in public. I am not concerned about washing dirty linen in public, but I think it should be washed. Hon. Members who oppose the Bill do not seem to want dirty linen washed at all. If dirty linen is not washed it will produce lice and disease. I know that hon. Members opposite are not accustomed to do washing of any kind, and if it were not for the workers their dirty linen would not be washed at all. Nevertheless, we must face the fact that dirty linen has to be washed. It is not necessary to wash it in public, but it must be washed, and if injustice is being done, we should endeavour to overcome the causes of it. Not a member of this House to-day but has admitted that injustice is being done in many cases. If we cannot give this vital thing, security to widows and children, we should pass the Bill in order to protect those who can be protected by its clauses.
§ 2.42 p.m.
§ Sir J. Withers
I have always been in favour of the principle that when a man has married a wife and produced children, he ought to pay an adequate and reasonable maintenance to them if he leaves enough money to do so. That applies only to the people who leave a reasonable heritage behind. This was the principle put forward in the Scottish form of dealing with this problem, and I believe it was embodied in the first Bill. When that form went before the Select Committee the Committee repudiated it as being too fixed and too likely to cause trouble. They wanted a much more fluid arrangement, and the best arrangement that was suggested was the present Bill. Something has to be decided, and I think the reference to the courts is the best form of doing it. I do not think there would be any objection to the method adopted in the Bill, and the court would see fair play.
The only real objection that has been raised to the Bill is that it is not wanted at all. I am prepared to meet that objection from my own experience. I have now had 50 years of actual work in a lawyer's office connected with family business, and I can tell the House by 1352 practical experience that although the cases are comparatively few, there is a fair number and quite enough to warrant the introduction of legislation to deal with them. There are not many people who commit murder, but that is no reason why we should not make laws to prevent murder being committed. The present position is certainly very unsatisfactory. A case not so long ago came to my notice in which an extremely rich man with a wife and children made his will leaving practically the whole of his huge fortune to his mistress. The wife and family had a small marriage settlement, and they were actually thrown back on their own resources in that respect and could do nothing.
The Bill itself seems to be all right. Attention has been drawn to many of its Clauses, of which I think the most important is Clause 1, which prescribes what the court can do. It provides that the court may make reasonable provision for the maintenance of a spouse or child. That does not mean that it can divide up a large proportion of the testator's estate. All that the court has to do is to see that a reasonable provision is made for the wife and children.
§ Sir J. Withers
That is decided every day. It is left to the judge in the particular case. Every Monday in Chancery Chambers each judge has half-a-dozen cases in which what is a reasonable provision has to be decided, and it is decided for the benefit and to the satisfaction of all concerned. Another Clause to which objection has been taken is Clause 4. I see the point of the objection, but it must be remembered that the Clause includes the following proviso:Provided that the court shall not direct any provision to be made for the maintenance of any person in excess of that directed to be made for his maintenance by the order which is being varied.Therefore, when once the amount has been decided and set aside, there need be no delay or embarrassment in regard to the winding up of the estate. The objection which was taken by the Solicitor-General on the last occasion when the Bill was before the House was perfectly right, and one which I support, namely, that, in regard to the question of settlements, a voluntary settlement made by the 1353 testator can upset the provisions of the Bill. That is true. But, curiously, it has been found that people do not like to part with the disposition of their property to any large extent, and I do not think that voluntary settlements will be found to provide a real objection to the Bill. On the other hand, if the Bill goes to a Committee, a Clause might be inserted providing that voluntary settlements made within one, two, three or four years of the testator's death should be brought into review under the provisions of the Bill. The amount of legislation which the Bill would entail is, I think, largely overestimated. I am told on very good authority that in Australia, where this system has been working for some time, the amount of litigation is very small, while, in New Zealand, in one year there were seven cases, and in the next year four.
§ Sir J. Withers
That may be so. As to the question of privacy, I do not think there will be any "raking up." My hon. and learned Friend the Member for Ashford (Mr. Spens) will agree with me that applications under this Measure would come, in the first place, at any rate, before a judge in chambers, and a judge in chambers is one of the very best tribunals that could possibly be found for this purpose. No one is present except the people interested, though of course members of the family and so on can get leave to attend, and the judge's order would be made in their presence. The only way in which privacy could be invaded would be in the case of an appeal to the Court of Appeal, which, unless some special rules were made, would be heard in open court, and the same in the case of the House of Lords.
Clause 5, which deals with the question of costs, has not perhaps been sufficiently looked at. My own view is that it ought to be very much strengthened, especially by giving power to the court to award costs specifically against any frivolous or vexatious application. I think that that would be fair in most cases, at any rate where people had any means. Again, I think the court ought to be given power to award costs against any vexatious defence or intervention by any third party. I am sorry to have taken up so much of the time of the House, but these technical matters rather appeal to me. I 1354 hope very much that the Bill will be given a Second Reading, and will be dealt with somewhat strenuously—because there are a good many things in it that need changing—by a very competent Committee.
§ 2.53 p.m.
§ The Attorney-General
I intervene at this stage, not with a view to deflecting the Debate from its course, but in order to give subsequent speakers the opportunity of either applauding or criticising the attitude which the Government take towards this Bill. As nobody else rose, I thought that this would be a good opportunity. I should like to associate myself first of all with what was said by the right hon. Gentleman the Member for East Edinburgh (Mr. Pethick-Lawrence) with regard to the discussion we have had to-day as compared with the one or two earlier discussions on the Bill that I have heard. We have had a much fuller discussion to-day, and the case against the Bill has been stated more cogently, by my hon. and learned Friend the Member for Ashford (Mr. Spens) in particular, and also by other speakers, than it has been on previous occasions. I have noted that some 15 speeches have already been made, of which seven were for the Bill, two were non-committal, and six were against the Bill.
The hon. Member for the Combined English Universities (Miss Rathbone) made two appeals to the Government to come out in support of the Bill. One of those appeals was on a high plane, and the other on a low plane. With the hon. Member's appeal on a high plane everyone in this House will sympathise. The hon. Lady also made an appeal to the Government on the grounds that if we actively supported this Bill, we might at the next election obtain the votes of the wrongly disinherited. Much as we sympathise with those who have been wrongly disinherited—and who, I think, will exercise their franchise on wider and broader grounds—I am afraid that I cannot, on behalf of the Government, give way to the hon. Lady's appeal.
If I may interrupt the hon. and learned Gentleman, I would point out that I did not put the matter exactly in that way. I pointed out that if the Government supported the Bill, it would please the electorate generally, on unselfish as well as selfish grounds.
§ The Attorney-General
I did not mean to suggest that the hon. Lady put it exactly as I stated. The attitude of the Government towards this Bill will be one of strict non-intervention. I would like now to deal with one or two points that have been made and questions that have been asked. The right hon. Gentleman the Member for East Edinburgh asked me a specific question of law, namely, how recently in our legal history has this right of full testamentary disposition existed? As far as personal property is concerned, I think it has existed, to all intents and purposes, for all time, and as far as real property is concerned, there was the right of the wife to what was called the dower in freehold land, but that has been to all intents and purposes ineffective since 1833.
More than one hon. Member has referred to the saying that hard cases make bad law. I always feel that that remark is true only with certain qualifications and limitations. Obviously, many of the best laws are good because they avoid hard cases or deal with them. But I think it is fair to say that hard cases do not in themselves make good law. There may be a number of hard cases that one would like to remedy, but it does not follow that in legislating to remedy them, one does not create other evils which may outweigh those that have been remedied. This subject, to some extent, raises the general conflict which goes on in all our minds when we try to arrive at a decision on questions of this nature—the conflict between the ideal of liberty and measures to prevent the abuse of liberty.
The point was made that this Bill proceeds on the assumption that a Chancery judge will be able to arrange the testator's property better than the testator arranged it himself. That is the idea of the Bill. I admit that on many occasions in my own life, if I had been able to go to a Chancery judge, he might have compelled me to take a much more reasonable course that I did in fact take. But one has to view with caution the argument that if one leaves full liberty to the individual, that liberty may be abused. If the fact that liberty might be abused were an argument for taking it away, then human nature being what it is, there would soon be no liberty left. However, that does not determine the matter; it is a general argument to be borne in mind. Obviously we are in this House 1356 daily restricting liberty on grounds which we believe to be good arid sensible. Therefore, the question in the case of this Bill is to what conclusion do the arguments lead?
I would like to say a few words, not to influence hon. Members in their votes, but to indicate matters which seem to me to require consideration. It has been pointed out that the Bill gives very little guidance to the Judges. In refreshing my memory by looking at the proceedings before the Joint Select Committee with regard to the earlier Bill, I found that the Senior Burgess for Cambridge University (Sir J. Withers) observed that in the sort of Measure that was then being proposed, it would be possible to lay down guiding lines. I think it is fair to say that in this Bill there are no guiding lines. Of course guiding lines have been suggested in speeches by hon. Members, but it is a little significant that those who have interested themselves in the Bill, in spite of the fact that they agree with the idea of guiding lines, have, at any rate so far, not succeeded in formulating for submission to the House any guiding lines on which the discretion of the judge should be exercised.
Another point to which I would like to refer, although it is rather a Committee point, is that hon. Members will have been struck by the remarks made by the right hon. Member for East Edinburgh in distinguishing the position of the spouse from the children. I think many people will agree that a widow, particularly during widowhood—if she remarries the position is different—is in a different position, from the point of view of the questions raised by this Bill, certainly from the grown-up children and possibly any children. That is a matter which may require consideration later if the Bill is given a Second Reading.
Another point which requires consideration is the extent to which the form of this Bill will encourage legal proceedings and litigation. Those who heard the speech of my hon. and learned Friend the Member for Ashford, who spoke with great knowledge and authority, realise that he felt that the dangers created in that respect by this Bill are very great. I think I do not exaggerate his statements when I say that he felt very 1357 strongly on that point, and he was reinforced to some extent by the hon. Member for North Edinburgh (Mr. Erskine Hill). There is a story of a Chancery Judge who said that he contemplated that, when the time came for him to cross the Styx, he would find waiting for him on the other side a group of indignant testators, whose intentions he had misconstrued, and whose charity he had diverted into channels which they had never intended. If that is to be, to some extent, the nightmare for a Chancery Judge under the existing law, his apprehensions will be greatly increased if this Bill is passed.
There is another matter that has been referred to, arising out of the difficulty of determining the position, as the court wall have to, after the death of the testator when an application is made. None of these matters is conclusive, but obviously the difficulty of arriving at the true facts when the thing comes before the Judge is very great. The Judge will be faced with the duty of seeing that reasonable provision is made for the maintenance of the spouse or child, having regard to any present or future income of the applicant from any source, to the conduct of the applicant in relation to the testator or otherwise, and to any other matter or thing which in the circumstances of the case the court may consider relevant or material. The man who made the will will be dead. Therefore, he will be incapable himself of giving evidence. The Bill provides that statutory declarations may be accepted. That is not, of course, very satisfactory. The Bill is designed to deal with people who are actuated by malicious motives, and such people are quite capable, if sufficiently carried away, of leaving behind untrue declarations. There is the further disinclination arising from motives which have respect to the washing of dirty linen either in public or private.
Reference has also been made to loopholes in the Bill. I do not think, myself, that one should attach too much importance to the loopholes, and the fact that a settlement can be made, and so on. There are always loopholes. In spite of the possibility of settlements being made, and all the rest of it, I think undoubtedly that although nobody knows the number—the House is indebted to 1358 the hon. and learned Member for Ashford for showing, at any rate, the vagueness of the evidence—there would be a number of claims made under this provision.
§ The Attorney-General
I think that everyone would like to see hard cases met, if they could be met without creating greater difficulties or hardships. This Bill, in this form, I think, undoubtedly creates difficulties, and they have been put very cogently and ably before the House to-day. The Scottish system, or the system based on the Scottish system, has found support in several quarters of the House. The promoters of the Bill point out, and with some force from the Parliamentary point of view, that when they introduced a Bill on these lines, it was sent upstairs and the Committee upstairs said, "We think that this is the best method of procedure." Whether the House gives this Bill a Second Reading is a matter which we shall very shortly know, but all I have sought to do, and all I am here to-day to do, is to try to indicate certain points which appear to me to require consideration before hon. Gentlemen come to a decision.
§ 3.11 p.m.
§ Mr. Maxwell Fyfe
I should like to take up the matter from the point at which it has been left by the hon. and learned Attorney-General, and ask the House whether, on the difficulties which have been suggested, there is really anything which tells practically against this Bill? My hon. and learned Friend the Member for Ashford (Mr. Spens) commenced by saying that there was not evidence of a sufficient number of cases upon which the House ought to act, and that the evidence which had been brought forward was flimsy. But my hon. and learned Friend himself stated that we were dealing with an admitted wrong. It is not a question for the House on evidence to prove that there is a wrong; the wrong is admitted. The question is, Is there sufficient evidence upon which we should act? I respectfully suggest to the House that, if the only evidence we had was that of my hon. Friend the Senior Burgess of Cambridge University (Sir J. Withers) from his vast experience, that alone would 1359 be sufficient for the House to say that there are such cases of injustice and hardship and that we should attempt to put the matter right as soon as we can. We know that it does not remain there. There is the evidence of the society to which my hon. and learned Friend referred, and there is the evidence of my right hon. Friend the Minister of Transport, speaking in his professional capacity, and there is, in addition to all that, the experience as men and women that each one of us has had in our knowledge of the world. On that point in the formidable indictment of my hon. and learned Friend, there is no substance when we consider the matter and the position in this country to-day.
I turn from that to the question, Can this Bill be worked practically? It has been said—and my hon. and learned Friend the Attorney-General has indicated the importance of the matter—that there is not sufficient guidance given to the learned Judges who have to consider it. With the very greatest possible respect, I would ask the House to consider the way in which this matter has been most carefully set forth in the Bill. In Clause 1 (1) we are dealing with reasonable provision for the maintenance of a spouse or child. "Maintenance" is not a word which comes out of the blue; "maintenance" is a term of art. It is a matter which is discussed in at least two Divisions of the High Court every day and upon which Judges are experienced, and, as far as that is concerned, there is no difficulty. But we have gone further than that in this Bill. In Sub-section (2) it is set forth that we shall not only consider the financial position of the estate, but that we shall consider certain matters that appertain to the applicant, and it is set out that we shall consider his past, present or future income, his conduct and in words which give very clear and very wide powersany other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to the applicant.I suggest to my hon. and learned Friend the Member for Edinburgh, North (Mr. Erskine Hill), that these words do give the Judge power, if he so desires, to look at the previous amounts that that applicant has had, along with the other circumstances. There can be no better or quicker words to indicate the practicality 1360 of these words—"in the circumstances of the case". We ask the Judge to deal with the matter on the question of fact in the evidence brought before him. With the very greatest respect for what my hon. and learned Friend has said, I cannot see that it can be suggested that this is putting an intolerable burden on the judiciary, who are there to deal with cognate matters, and have done so for many years.
From that we come to the question of litigation. May I on this point say this personal word? I belong to a branch of the law which will not benefit from any litigation that may be started under this Bill. Therefore, I can speak somewhat dispassionately in regard to it. Again, it is a question in which we have to keep matters in their proper perspective and proportion. We shall always get claims that are fradulent, or a try-on. Those are bound to happen as long as human nature remains imperfect as it is to-day, but why should this legislation produce such a large crop of that class of claim? That is a question on which the opponents of the Bill have not convinced me.
§ Mr. Erskine Hill
In those cases the question is this, that the court tries to give effect to the wishes of the testator, but here it would have a directly opposite effect.
§ Mr. Fyfe
I must deal with one contention at a time. I was dealing with the point made by my hon. and learned Friend the Member for Ashford, that the man who could tell most about the matter is not there. [Interruption.] An hon. Member who makes a sotto voce interruption has evidently had a more unfortunate experience of litigation than most of us. I want to deal with the argument of my hon. and learned Friend, which is a superficial argument, as he must know. There are innumerable sources from which you can gain knowledge of the ideas, the actions, the intentions of someone who has gone, even if 1361 the provisions of this Bill were not there. That applies in exactly the same way when you are endeavouring to consider whether the will has been properly executed and has been executed with the mind acting properly at the time. In this Bill we have gone beyond that. We give the specific right of a testator to make a statutory declaration. Opponents of the Bill have suggested that that is a difficult matter, but representatives of the other branch of the profession who deal with these matters will bear me out when I say that there is no document in law which is less formidable or less difficult to prove, and no document in law for which the solicitor receives a smaller remuneration, than a statutory declaration. It is a perfectly easy document which can be put into form and represent as clearly, and with less legal technicalities, than any other the wishes and desires of a testator.
§ Mr. Fyfe
That depends on the testator. To say that the document is unreliable is saying that when a man lays down in his own words what he intends to do it is entirely unreliable. I suggest that such a proposition will not commend itself to the House, but will rather commend itself as being a reasonable method of allowing a testator to express his views. If the claimant has to face not only the mind and wishes and intentions of the dead being expressed, but this additional right, is he going into it not for a slice of the estate but simply for maintenance to be calculated on well ascertained rules? You will always get a number of people who will bring trumped-up actions, but I suggest that there is no real compulsion in the argument which says that in this case you will get a large crop. I would call the attention of the hon. and learned Member for Ashford to the point that if this matter is under £2,000 it can be taken to the county court, and very often in matters of this kind the costs are put in a very small compass indeed. I think one could make an improvement and give power to the court to demand security for costs from any applicant unless there is good cause why he should not pay them. In that way the estate would be able to recover against a fraudulent applicant and, equally, if it was a good claim the costs would come out of the estate, and if it was wrongly resisted the 1362 costs could be made personal against the people who resisted.
I want to ask the House to approach this matter practically, to deal with the practical matters which will have to be considered. If it is going to result in a welter of litigation that would be a matter which no one, least of all lawyers who care for their profession or the common weal, would desire. I ask the House to say that when this question is considered, not as a matter of size but as a matter of legal practice, these difficulties dissolve on the practical touch being applied, and I would ask hon. and learned Members who differ from us and the House in general to remember that when you are dealing with an admitted wrong of this kind it is vital, first of all, that we should show that we do appreciate the wrong and, secondly, that we should find some means of dealing with that wrong which is in accordance with our English genius, something that has flexibility, fluidity, something which will meet the circumstances of the case, not something which suits other countries and other systems of law which have laid down far more rigid rules which have often been found to work injustice in other directions. Here we have something flexible which accords with the way in which our law has been worked, something which will do justice. I ask the House to vote for the Second Reading of the Bill.
§ 3.24 p.m.
§ Mr. Lewis
We are grateful to the hon. Member for Harwich (Mr. Holmes) for the use he has made of his good fortune in drawing first place in the Ballot for Private Members' Bill by introducing this Bill, which arouses such widespread interests among hon. Members. At first sight it seems a little curious that year after year there should be, as there undoubtedly is, great support for the principles of this Bill in this House, when we reflect that the purpose of the Bill runs counter to the whole trend of modern legislation. The old idea that a man should not marry unless he can support his wife and should not beget children unless he is in a position to educate and bring them up, is one of which we do not hear much about these days. We in this House are constantly invited to impose burdens on the taxpayer, in order to provide for the education and, to an increasing extent, the general upbringing 1363 of other people's children. But, interesting as the question may be, this is hardly the moment to debate whether the future of the nation is more benefited by developing parental responsibility or by substituting for it State responsibility.
At any rate, hon. Members, whatever views they may take on that very interesting question, would all agree upon this proposition—that if in this Bill we are invited to extend parental and marital responsibility even beyond the grave, we must in doing so remember that rights imply duties, and be careful that we do not merely substitute one injustice for another. It has been admitted on all hands that the number of cases for which the Bill would provide a legal remedy is comparatively small in relation to the number of wills proved every year. But it has been argued by the supporters of the Bill that the number is substantial enough to make legislation of this kind desirable. What has not been sufficiently emphasised is that out of that number, substantial if you will, though small, of people who would be entitled to a legal claim under this Bill, there are many cases where the moral claim would be extremely bad. In other words, while it is true that here and there you may get someone who will disinherit a spouse or children for capricious or, indeed, evil motives more often than not, where such disinheritance occurs, you will find that the testator has had good and sufficient reason for it. After reading the Bill carefully and listening to the whole Debate, I find it very difficult to be quite certain as to the intention of the promoters with regard to this question.
Let me put a simple case to the House. Suppose a man who is a penniless scoundrel marries a woman for her money and ill-treats her while they live together as married people. Then she dies and leaves the whole of her property to a sister. That man is to be entitled under the Bill to bring an action. The point that I find difficult to understand is whether, in the view of those who support the Bill, he should be entitled to succeed in his action because he is destitute or whether he ought to fail in his action because he is a scoundrel. I cannot make out which of those two results it is the desire of the promoters of the Bill to bring about in that case, and I think it would be of 1364 interest if someone who knows their minds in this matter could perhaps, before the close of the debate, inform us. It is true that the hon. Member for Harwich the mover of the Bill, said in a general way that in his opinion there was no better way to ensure that justice should be done than to leave the matter to the discretion of the court, but I think that, attractive as that argument may sound, it was well answered by the hon. and gallant Member for Louth (Lt.-Col. Heneage), who pointed out that it is the duty of Judges to interpret the law, but it is the duty of Parliament to make the law, and I do not think we can shuffle off the responsibility by leaving a wide discretion to the Judges in this matter.
It seems to me that if this Bill is to be proceeded with, it is most desirable that it should be amended in two ways— first of all, that some provision should be inserted to secure that a surviving spouse or a surviving child, able to earn a living, should not benefit under the Bill if, in the opinion of the court, the testator had good reason for the disinheritance. That is not clear in the Bill, which says that the court shall take it into consideration, but it speaks elsewhere of the aggrieved person not having reasonable provision for maintenance, and it does not say anywhere that, if the testator had good reason for disinheriting, in those circumstances the court either cannot or shall not provide maintenance. Some provision in that regard should be inserted.
The other respect in which I think the Bill might well be amended is that some guidance should be given to judges as to the limit of the amount that might be considered reasonable for maintenance. There has been a good deal of discussion on that subject. The right hon. Member for East Edinburgh (Mr. Pethick-Lawrence) pointed out that the surviving spouse or the surviving child might be in that respect in very different circumstances and should be considered in a different way, and the hon. and learned Member for Ashford (Mr. Spens) had a good deal to say on the same subject. I think other hon. Members too pointed out the desirability, with a view to preventing uncertainty and limiting possible litigation, of there being some limit laid down in the Bill to the amount that could be granted for maintenance in any case.
There is one other minor point which I had intended to raise, in regard to costs. 1365 I notice that the Senior Member for Cambridge University (Sir J. Withers), whose name appears on the back of the Bill, stated that he did not consider the provision for costs quite satisfactory, and we may take it that an effort will be made to remedy that. It certainly seems unfair that, as it stands at present, anybody could bring a frivolous or unreasonable claim against the estate, and that after the claim had been disallowed the estate should have no means of recovering any costs from that person.
With regard to the Bill as a whole I would say this: There is in the House undoubtedly a widespread desire that this matter should be gone into further. There are many who feel that some amendment of the law is desirable. As the hon. Member for Harwich has taken the trouble to introduce the Bill, it might be well to give it a Second Reading. There are many of us who feel that it has many serious weaknesses. If those weaknesses cannot be or are not remedied in Committee, we shall have an opportunity at a later stage of voting against the Bill.
§ 3.36 p.m.
§ Mr. Hutchinson
I am going to ask the House to give the Bill a Second Reading, although I confess that if I had a free choice in the matter, like the hon. and learned Member for Ashford (Mr. Spens), I should have preferred a Bill which proceeded upon the lines of the Scots law. I do not feel that I have a free choice in this matter, because, as the Senior Burgess for Cambridge University (Sir J. Withers) has pointed out, a Bill on those lines was introduced and went to a Select Committee. I have not had an opportunity of considering the evidence which was given before the Select Committee, because hon. Members have been so assiduous in consulting it that I have not been able to obtain the copy in the Library. In those circumstances, and having regard to the fact that the Select Committee were of opinion that the principle of this Bill was to be preferred to the principle of the Scots law, it seems to me that we have not a free choice and that it would in a sense be a frivolous thing if those of us who would have preferred to proceed on the lines of the Scots law were not prepared to give this Bill a Second Reading.
I regret that I have not heard the whole of the Debate, but it seemed to me that 1366 the strongest case that was made against the Bill was made by the hon. and Learned Member for Ashford when he pointed out that one of the consequences of the Bill might be to open the door to what he seemed to think might amount to a flood of frivolous litigation. It is possible to over-estimate that possibility. I would remind the House that the frivolous litigant, who is also penniless, is not by any means a stranger in our courts. Indeed, he is very often a familiar figure, and certain means have accordingly been devised for dealing with his activities and for limiting as far as it is possible the unfortunate results that follow for other litigants from the course of action which he takes. The House ought not to suppose that the methods which have been devised for dealing with these unpleasant gentleman will not be applied in the administration of this Bill. The draftsmen who framed it have to some extent contemplated that it might happen and have made certain provisions to meet it.
The discussion this afternoon has turned very largely on the assumption that proceedings in these applications were going to be made in the most expensive tribunals. If, however, Members look at Clause 7, Sub-section (2), they will find that what is contemplated is that in the case of the smaller estates these applications would not be made to expensive tribunals but to county courts, which day by day have to deal with the affairs of people of small means and do so without involving large expense. I do not want to occupy too much time on this part of the Bill. Another method of restricting the activities of the sort of litigant that the hon. and learned Member had in mind is to require him to give what is called security for costs. If there is danger of the Bill being abused by the activities of people of that sort, I suggest that it would be a very simple matter at a later stage to amend the Bill in such a way that the court would have power to require a person to give security, which would be a safeguard against those dangers.
I want to refer to what was said by the hon. and learned Member for Edinburgh, North (Mr. Erskine Hill). He pointed out what is undoubtedly the fact, that the court is naturally faced with a difficulty in having to determine 1367 what is reasonable in any particular set of circumstances. But the circumstances in which the court has to determine what is reasonable under this Bill are restricted in this way: The court has to determine not what a reasonable testator would have done but what is reasonable maintenance for any particular individual. I suggest that it is a very different matter to have to determine what is reasonable for the maintenance of any particular individual from having to try to put yourself into the mind of a testator and to draw what might be thought to be a reasonable will for any particular testator. I am sure that when the time comes for the Judges to cross the Styx they need fear no greater difficulty because of this Bill than they have now. They need not be troubled, because of this Bill, by the fear that they will encounter embittered testators, who complain that they have misinterpreted their wishes, or by indignant beneficiaries who complain that they have not been awarded what they thought was reasonable.
For these reasons I hope the House will give the Bill a Second Reading.
§ 3.45 p.m.
Mr. David Adams
Those of us who have listened to this debate throughout have been abundantly rewarded by the high quality of it. Its diversity and catholicity must have done substantial good in the way of settling the mind of the House, and possibly the minds of many people in the country, on this important question. We all have had sufficient experience to know that there is a substantial case before the country for the provision of remedies for the disabilities which are dealt with in the Bill and whether this Measure obtains a Second Reading or not legislation to deal with the position cannot be long deferred. The main objection of the opponents of the Bill lay in the lack of guidance which it gives to the courts, but they have given little indication of their remedies for dealing with this matter of guidance, and they seem entirely to overlook the fact that, should the Second Reading be passed, there will be further stages of the Bill both here and in another place in which those disabilities can be remedied. The opponents of the Bill 1368 have described a number of imaginary cases which would come before the courts, suggesting, indeed, that the courts would be overflowing with cases but they appear to overlook the fact that many of those cases would not arise ii testators knew that the courts could vary unreasonable provisions in a will, and what would be reasonable the courts would have little or no difficulty in determining.
Speaking as a layman I have been greatly entertained by the part which legal Members have played in this debate. We have witnessed them picking up a point in the Measure and arguing it along a particular line, and later have heard the same point argued in an opposite sense. That would seem to me, again speaking as a layman, to be one of the disadvantages of a legal education, training and practice. Those who have been trained in engineering or medicine or the scholastic profession have no difficulty at arriving at common sense judgments and agreements, but those in the legal profession appear to be prevented from doing so by their training and practice.
We are told that the liberty of the individual will be infringed by this Measure. It is curious to sit on this side of the House and hear Members on the other side who belong to a party which has done more than any other to restrict individual liberty declaring their adhesion to the idea of the preservation of individual liberty. Almost all legislation infringes individual liberty. The Income Tax laws, the housing laws, the health laws all infringe the liberty of the individual for the common good. What is liberty in one period may be licence in another. What was looked upon as liberty in the early days of Factory Acts would to-day be regarded as licence. The argument that we ought to adopt the system of laissez faire in legislation to-day does not bear much examination, because with the passage of time legislation is bound to infringe individual liberty in the general interests of the entire community. We were advised also that the Bill would give us an additional reason for the restriction of families, but surely the reverse is the case. When it is known that by the action of the testator or of the courts justice would be done, there would be sound reason why, in all those individual 1369 cases, there should not be restriction of the numbers of a family.
The seconder of the Motion for rejection admitted that there would not be many more than one case in 10 which would require the attention of the courts. That is a very important and serious admission. Surely it is the duty of Parliament to remedy any such admitted injustice. An undoubted case has been presented, and was presented previously in this House, for the remedy of known abuses of this character, some which have come before my notice. For that reason I hope that the defects of the Measure will be remedied at a later stage, and that the Second Reading will be carried by an overwhelming vote of the House to-day.
§ 3.51 p.m.
§ Mr. Lipson
I realise that the House is ready to vote on this Bill, and, therefore, I ought not to take very much time. I should like to reply briefly to two or three of the objections that have been made to the Bill. One was that the Bill was something different from what it ought to have been and that if it had been based on Scots law it would not have met with that opposition. I cannot help feeling that the real objection is to the principle of the Bill, and that even though a Bill based upon Scots law had been introduced we should equally have had arguments against it. My opinion is strengthened by the fact that most of the arguments used against the Bill would apply with even more force against the Scots law. The argument is that at present a testator might have justification for depriving his widow or his children of some benefit under a will. The Bill would leave it to the discretion of the judge to go into the circumstances and to decide what provision should be made. Under the Scots law, provision would have to be made, anyhow.
Another objection is that there is not sufficient evidence that there are enough cases of people suffering to justify a law of this kind. My answer is that every other country in the world has, apparently, found it necessary to take action in this matter. Are we prepared to assume that only in this country are there not enough cases of people suffering under the present law to justify action being taken? I sympathise very much with the argument in favour of liberty, and I hope that whenever I 1370 speak or vote in this House it will be on the side of liberty; but I do not feel in supporting the Bill that I am doing anything against the cause of liberty. I feel, on the contrary, that I am advancing it. A rigid application of the principle that I may do what I like with my own is one of the most fatal enemies of liberty in this country. If we are to preserve such liberties as we have, we must be prepared to face such abuses of liberty as exist. Liberty must justify itself by its performance and by its results. If we allow liberty to degenerate into licence, as it obviously does in the cases of injustice against which the Bill is directed, it means that we are providing the opponents of liberty with a very strong argument.
I should like to draw attention, also, to the fact that, while every consideration is to be given to the testator who feels justified in leaving his wife or his children out of his will because of some grievance, fancied or real, no opportunity, apparently, is to be given to those who have been left out of the Bill, and upon whom, therefore, some reflection must inevitably rest, to defend themselves against any charge that may be implied. Under the law as it stands, if a wife or child is disinherited, obviously there must be some suggestion that they have been guilty of some serious offence to justify this act. But if it is possible under the Bill for the matter to be brought into court, it will be possible for justice to be done to the living, and I agree with the remark of one hon. Member that we ought to remember the living as well as the dead. I am satisfied, after listening to the Debate to-day, that the principle of the Bill is justified. Apparently it will be necessary—I think the opposition to the Bill has at least proved this—to amend the Bill in some of its particulars, but nothing that has been said in the House to-day has weakened my determination to vote for the Second Reading of the Bill, because it is the principle of the Bill that we ought to recognise, leaving any Amendments to be dealt with when the proper occasion arises.
§ 3.58 p.m.
§ Mr. Bull
I have listened with a great deal of interest to a number of the speeches on this Bill, and one point has occurred to me which I have not heard mentioned in the Debate so far. It may 1371 sound frivolous, but I think it must have occurred to some hon. Members, and I cannot quite understand why it has not been advanced, because it is not altogether negligible. It seems to me that, if we pass this Bill, a wife will then be able to nag her husband with impunity for the rest of his life, and there will be nothing that he can do to stop it. I think that that is a point which ought to be borne in mind. [Interruption] An hon. Member says it can be stopped, but I think there is a large fortune waiting for anyone who can provide such a remedy as he apparently contemplates.
I entirely agree that some amendment of the law in this respect is highly desirable, but I am not at all certain that the Bill as it stands would really deal fully with the case. For example, a man could leave all his property by a deed inter vivos, and I think that that is what would often be done by the type of man against whom this Bill is aimed. [HON.
§ MEMBERS: "Divide!"] Therefore, while I am thoroughly in favour of some amendment of the law in this respect, I think that, before we pass this Bill, a different Bill should be drafted taking into account all these points which have been mentioned-—
§ Mr. Holmes rose in his place, and claimed to move, "That the Question be now put," but Mr. SPEAKER withheld his assent, and declined then to put that Question.
§ Mr. Holmes rose in his place, and claimed to move, "That the Question be now put."
§ Question put, "That the Question be now put."
§ The House divided: Ayes, 159; Noes, 29.1373
|Division No. 4.]||AYES.||[4.0 p.m.|
|Acland, R. T. D. (Barnstaple)||Evans, D. O. (Cardigan)||McCorquodale, M. S.|
|Adams, D. (Consett)||Evans, E. (Univ. of Wales)||MacDonald, Sir Murdoch (Inverness)|
|Adamson, W. M.||Fildes, Sir H.||Macdonald, Capt. P. (Isle of Wight)|
|Albery, Sir Irving||Fletcher, Lt.-Comdr. R. T. H.||McEntee, V. La T.|
|Allen, Col. J. Sandeman (B'knhead)||Fox, Sir C. W. G.||MacLaren, A.|
|Ammon, C. G.||Furness, S. N.||MacNeill, Weir, L.|
|Anderson, F. (Whitehaven)||Fyfe, D. P. M.||Maitland, A.|
|Attlee, Rt. Hon. C. R.||Gallacher, W.||Makins, Brig.-Gen. E.|
|Barnes, A. J.||Gardner, B. W.||Marshall, F.|
|Barr, J.||Garro Jones, G. M.||Mathers, G.|
|Beamish, Rear-Admiral T. P. H.||George, Major G. Lloyd (Pembroke)||Maxton, J.|
|Beit, Sir A. L.||George, Megan Lloyd (Anglesey)||Mayhew, Lt.-Col. J.|
|Benn, Rt. Hon. W. W.||Gower, Sir R. V.||Meller, Sir R. J. (Mitcham)|
|Birchatl, Sir J. D.||Grant-Ferris, R.||Mellor, Sir J. S. P. (Tamworth)|
|Bossom, A. C.||Granville, E. L.||Messer, F.|
|Bower, Comdr. R. T.||Grattan-Doyle, Sir N.||Moore, Lieut.-Col. Sir T. C. R.|
|Boyce, H. Leslie||Green, W. H. (Deptford)||Moreing, A. C.|
|Braithwaite, Major A. N.||Griffith, F. Kingsley (M'ddl'sbro, W.)||Morrison, G. A. (Scottish Univ's.)|
|Broad, F. A.||Grigg, Sir E. W. M.||Morrison, R. C. (Tottenham, N.)|
|Brown, C. (Mansfield)||Groves, T. E.||Nall, Sir J.|
|Browne, A. C. (Belfast, W.)||Guest, Lieut.-Colonel H. (Drake)||Nathan, Colonel H. L.|
|Butcher, H. W.||Guest, Dr. L. H. (Islington, N.)||Naylor, T. E.|
|Cary, R. A.||Hall, J. H. (Whitechapel)||Noel-Baker, P. J.|
|Cazalet, Thelma (Islington, E.)||Hannah, I. C.||Oliver, G. H.|
|Channon, H.||Harris, Sir P. A.||Parker, J.|
|Charleton, H. C.||Henderson, T. (Tradeston)||Petherick, M.|
|Cluse, W. S.||Hepburn, P. G. T. Buchan[...]||Pethick-Lawrence, Rt. Hon. F. W.|
|Cooke, J. D. (Hammersmith, S.)||Hills, Major Rt. Hon. J. W. (Ripon)||Radford, E. A.|
|Cove, W. G.||Hume, Sir G. H.||Raikes, H. V. A. M.|
|Crooke, J. S.||Hurd, Sir P. A.||Rathbone, Eleanor (English Univ's.)|
|Cruddas, Col. B.||Hutchinson, G. C.||Reid, W. Allan (Derby)|
|Daggar, G.||Hardie, Agnes||Rickards, G. W. (Skipton)|
|Davidson, J. J. (Maryhill)||Jagger, J.||Ridley, G.|
|Davies, S. O. (Merthyr)||Jenkins, Sir W. (Neath)||Roberts, Rt. Hon. F. O. (W. Brom.)|
|De la Bère, R.||Johnston, Rt. Hon. T.||Roberts, W. (Cumberland, N.)|
|Denman, Hon. R. D.||Kelly, W. T.||Samuel, M. R. A.|
|Denville, Alfred||Kennedy, Rt. Hon. T.||Selley, H. R.|
|Dorman-Smith, Major Sir R. H.||Kerr, J. Graham (Scottish Univs.)||Shaw, Captain W. T. (Forfar)|
|Duggan, H. J.||Lambert, Rt. Hon. G.||Silkin, L.|
|Duncan, J. A. L.||Lawson, J. J.||Simpson, F. B.|
|Eckersley, P. T.||Leslie, J. R.||Smiles, Lieut.-Colonel Sir W. D.|
|Ede, J. C.||Lewis, O.||Smith, Ben (Rotherhithe)|
|Edwards, Sir C. (Bedwellty)||Lipson, D. L.||Smith, Bracewell (Dulwich)|
|Elmley, Viscount||Lovat-Fraser, J. A.||Smith, E. (Stoke)|
|Entwistle, Sir C. F.||Mabane, W. (Huddersfield)||Smith, Rt. Hon. H. B. Lees- (K'ly)|
|Sorensen, R. W.||Walkden, A. G.||Wilson, C. H. (Attercliffe)|
|Stephen, C.||Walker, J.||Windsor, W. (Hull, C.)|
|Strauss, E. A. (Southwark, N.)||Ward, Irene M. B. (Wallsend)||Windsor-Clive, Lieut.-Colonel G.|
|Strauss, G. R. (Lambeth, N.)||Watkins, F. C.||Withers, Sir J. J.|
|Taylor, R. J. (Morpeth)||Wayland, Sir W. A||Wood, Hon. C. I. C.|
|Thorne, W.||White, H. Graham||Young, Sir R. (Newton)|
|Thurtle, E.||Whiteley, Major J. P. (Buckingham)|
|Tinker, J. J.||Whiteley, W. (Blaydon)||TELLERS FOR THE AYES.—|
|Viant, S. P.||Williams, H. G. (Croydon, S.)||Mr. J. S. Holmes and Mr. Ross|
|Assheton, R.||Harvey, Sir G.||Shaw, Major P. S. (Wavertree)|
|Blair, Sir R.||Hewitt, Dr. A. B||Smith, Sir R. W. (Aberdeen)|
|Brown, Brig.-Gen. H. C. (Newbury)||James, Wing-Commander A. W. H.||Southby, Commander Sir A. R. J.|
|Bull, B. B.||Levy, T.||Spens. W. P.|
|Campbell, Sir E. T.||Lyons, A. M.||Touche, G. C.|
|Chapman, A. (Ruthergien)||MacAndrew, Colonel Sir C. G.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Clarke, Lt.-Col. R. S. (E. Grinstead)||McKie, J. H.||Winterton, Rt. Hon. Earl|
|Donner, P. W.||Neven-Spence, Major B. H. H|
|Eastwood, J. F.||Ropner, Colonel L.||TELLERS FOR THE NOES.—|
|Erskine-Hill, A. G.||Russell, S. H. M. (Darwen)||Lieut.-Colonel Heneage and|
|Gluckstein, L. H.||Salmon, Sir I.||Major Dower.|
Bill read a Second time, and committed to a Standing Committee.
§ The remaining Orders were read, and postponed.1374
§ Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.
§ Adjourned at Eight Minutes after Four o'Clock, until Monday next, 8th November.