§ 12.4 p.m.
§ Mr. HolmesI beg to move, in page 4, line 8, after "Act," to insert:
then, for all purposes, including the purposes of the enactments relating to death duties.This Amendment is moved on the suggestion of the Government to make it quite clear that legacy duty will be payable, as it ought to be, in respect of what is specified in the order for giving effect to the provision for maintenance.
§ Amendment agreed to.
§ Mr. HolmesI beg to move, in page 4, line 14, to leave out Sub-section (2).
I will explain what happened in regard to this Sub-section. This was an Amendment moved by the hon. and learned Member for Ashford (Mr. Spens) and at the time when it was considered in Committee we had not the advantage of the presence of the Attorney-General or the Solicitor-General. I accepted the Amendment but pointed out that as we had not the benefit of their advice it must be reconsidered later on. I want to point out that Sub-sections (1) and (2) of this Clause are wholly inconsistent with each other. Sub-section (1) leaves it to the court to mould the will as required to give effect to the provision for maintenance made by the order, and makes the provision take effect as a legacy, while Sub-section (2) makes the proposal take effect as a debt. The reasons given by the hon. and learned Member were partly formal and partly substantial. The formal reason was that if the Bill fixes the beneficiary who is to suffer by an order, it will become unnecessary to make any other beneficiary a party to the proceedings. It is submitted that this is a misconception in so far as it is wrong to suppose that all beneficiaries will have to be 475 made parties if the principle of Subsection (1) stands. In fact, rules of court will be made providing for a preliminary hearing and for directing which beneficiaries are to be served.
The substantial point is that the hon. and learned Member thought the burden of the provision for maintenance ought always to fall on the residue. That is admittedly a matter of policy, but the promoters take the view that the proposal is wrong. One might cite the example of a testatrix who leaves a large legacy to a charlatan who has acquired undue influence over her and a small residue to a hospital. In such a case why should the hospital bear the whole burden? The proposal also involves impossible complications where some of the dependants are legatees, and is also objectionable from the Death Duty point of view.
§ 12.8 p.m.
§ Mr. SpensI beg to second the Amendment.
I am still rather in some doubt as to this Sub-section. I think it would be much better if it were laid down in the Bill what portion of an estate should bear this burden following an application made under the Bill. I still feel that if it is left at large, as it is in the Bill, there will be in very many cases serious fights at the preliminary hearing between the various beneficiaries under an estate as to whether or not they or some other legatee or residue should bear the burden of an allowance made under the Bill. My own view is that if it is left at large it will lead to a great deal of unnecessary and expensive litigation, but I am not going to be so pigheaded in favour of my own view as to try and persuade the House to stick to the Sub-section. I admit that the moment I heard it was the intention of the authorities to have Rules of Court providing for a preliminary hearing in chambers I felt that in a great number of cases this would get rid of most of the practical difficulties I had in mind. I still feel that where you have an estate distributed between a number of legatees with possibly a small residue, that if it is left at large to the court to decide which of the legatees is to be the unfortunate person to be deprived of his or her legacy, there will be grounds for long and expensive fights behind the scenes in the division I have the honour to represent. But if it is thought that 476 the machinery will work better if the Sub-section is left out, I am quite ready that it should go.
§ Amendment agreed to.