HC Deb 29 April 1938 vol 335 cc476-88
Mr. Holmes

I beg to move, to leave out the Clause.

This Clause as drafted gives the court mandatory directions as to the payment of costs of applications under the Bill. It has been pointed out that this matter is already adequately provided for under Section 5 of the Supreme Court of Judicature Act, 1925, and by Order 65 of the Rules of the Supreme Court. The power of the court includes full power to award costs out of the estate in favour or against any of the parties, otherwise than as against the executors personally, on any application made under the Bill. As the law is sufficiently adequate it is not necessary to keep this Clause in the Bill.

Sir J. Withers

I beg to second the Amendment.

I do so because I think the Clause is wrong. It says: The court may order that the costs of any party to an application shall be paid in whole or in part out of the estate of the testator, or any part thereof or interest therein, and no beneficiary under the testator's will other than an applicant shall be ordered to pay the costs of any other person of an application for an order under this Act. Take what may happen if these words are left in. A beneficiary might take a wrong action, a spiteful action, and try to do something which is improper. Surely the court ought to have power to make an order against that person for the costs of the additional expenses wrongfully incurred. I agree that the point is covered by the Rules of Court, but the Clause as it stands is wrong.

Amendment agreed to.

12.14 p.m.

Mr. Holmes

I beg to move, "That the Bill be now read the Third time."

I should like to trace in a few words the history of the Bill during the present Session. The House gave it a Second Reading on 5th November last, and on that occasion the Attorney-General said that the attitude of the Government towards the Bill would be one of strict nonintervention. Nevertheless, the House gave it a Second Reading. When we met for the first time in Standing Committee B the Solicitor-General asked leave to make a statement, and I want to read a short passage from that statement: This is a private Member's Bill. It is that at present, and as such it will remain. But the Government have not been able to lose sight of the fact that on three occasions the House of Commons has shown a disposition to prevent the injustice which arises in some cases from the exclusion of a widow or child from the bounty of a testator. The difficulties of dealing equitably with that situation were pointed out quite recently by my hon. and learned Friend the Attorney-General, and I need not repeat them. The House took cognisance of this, and nevertheless once again affirmed the principle which I have enunciated. But the Government have had to look at this Bill from the point of view whether, as it is at present or as it is proposed to be amended by this Amendment, any workable measure will emerge, and I desire to suggest to the Committee the limits which in the Government's view would make this a workable Measure at the present time."—[OFFICIAL REPORT (Standing Committee B), 23rd November, 1937; col. 6.] The Solicitor-General named four principle points that the Government would desire to have inserted in the Bill. One was that anything granted by an application under the Bill should be for maintenance only and not refer to a portion of the capital. The second was that the persons entitled to apply under the Bill should be restricted to husband or wife, spinster daughter, infant son or incapacitated son. Thirdly, that there should be an upward limit, that not more than two-thirds of the income of the estate should be granted by the court if there were wife and children, and not more than half if there were wife only or children only. The fourth point which the former Lord Chancellor, the Solicitor-General mentioned, was very insistent upon, was that small cases should not be referred to the county court.

When those of us who were interested in the Bill heard this statement from the Solicitor-General we felt that it was desirable that we should accept the pro- posal; as we could not get all that we wanted we wanted all that we could get; and from that time onwards I had the great advantage of the help of the Attorney-General and the Solicitor-General, to whom I want to express my great gratitude. I also want to acknowledge, if I appropriately may, the assistance which the Parliamentary Counsel rendered to me in helping to draft Amendments and in explaining many difficult legal points. But there are some others whose assistance I want to acknowledge. This Bill went to a Standing Committee at the same time as Standing Committees were considering such important Government Bills as the Films Bill, the White Fish Bill and a Scottish Bill, and the question was whether in the Committee for this Private Bill we should be able to get a quorum. There was a number of hon. Members opposite and others on this side of the House who were good enough to come on five separate days, and only once had we to wait from is11 a.m. to 11.10 a.m. to get a quorum. I want to acknowledge very sincerely what those regularly attending and silent members did.

The position now is that the Bill, if I may briefly describe what it does, provides that where a person dies and leaves a will which does not make reasonable provision for the maintenance of wife or husband, spinster daughter, infant son or incapacitated son, the court may order that such reasonable provision as it thinks fit shall be made, provided that the amount of such annual income should not exceed two-thirds of the total income of the estate if the testator leaves both wife or husband and one or more dependants, or one-half of the total income of the estate if the testator leaves a wife or husband only, or dependants only.

12.20 p.m.

Sir J. Withers

I beg to second the Motion.

Having been connected with all the various attempts at legislation on this subject in past years, I think it only right to say a few words of appreciation and congratulation of my hon. Friend the Member for Harwich (Mr. Holmes). First, I congratulate him very much on bringing this matter to a conclusion; and, secondly, I must congratulate the hon. Lady the Member for the Combined English Universities (Miss Rathbone), whose unfailing zeal throughout kept every one up to the mark and enabled things to be done. I am bound to say that we owe to her a deep debt of gratitude, which I personally feel very strongly.

12.21 p.m.

Lieut.-Colonel Heneage

I have been associated with those who are against this kind of Bill almost as long as any Member of the House, and I would like to say that my experience of Parliamentary procedure in connection with this subject has led me to realise that it is very necessary to take a great interest on Fridays in the Bills that are brought forward This Bill is now very different from the Bill which I, almost single-handed, opposed in previous years, and I am very grateful to the present promoter of the Bill, who has certainly modified it in a way which, from my point of view, makes it much less objectionable. I will go as far as that. I would pay a tribute to the hon. and gallant Member for Penrith and Cocker-mouth (Major Dower) who, seeing that I was single-handed, joined me. Last year together we succeeded in opposing this Bill. I remember how we were told that everything would be all right if everything was left to the courts. Thanks to the Government's legal department and to an association of which I forget the name but which deals with legal matters in the courts, the danger of leaving things entirely to the courts has been recognised, and I think we may take a certain amount of credit to ourselves for bringing the dangers of the Bill as it was to the notice of the House and the country.

As has been said, this Bill is very different from what it was when drafted. It deals only with interest, and it says to the courts what the proportions are to be. Those are two great improvements in the Bill. But I ask the House whether on the whole the Bill is not destined to he a failure. The Public Trustee says that the number of cases with which the Bill is designed to deal is practically negligible. I have consulted important legal firms which draw up wills relating to landed and real estate, and they say that they never find cases of hardship of the kind with which the Bill is intended to deal. We know, however, from the Seconder of the Motion for the Third Reading, that there are such cases. There are perhaps 100,000 wills made in this country each year. There may be 200,000 wills drawn up, but how many cases of hardship are there in a year? Are there 20, or 30 or 100? I doubt very much whether there are more than 100 which this Bill is designed to deal with—100,000 wills and 100 cases to be dealt with. In order to deal with those 200 cases you are interfering with all those 100,000 wills. That is not the way to legislate.

I hope that this Bill will not be taken as an example of the way in which we should deal with legislation, for it deals with everybody for the sake of a few persons who make unjust wills. To my mind that is one of the faults of the Bill. My hon. and gallant Friend the Member for Penrith and Cockermouth and I have opposed this Bill, and I think we have succeeded in bringing about some improvement in it. Although I have been opposed to the promoter of the Bill, I would like to pay a tribute to the way in which he has met us on many occasions. One of the reasons similar Bills did not get through in previous years was that we could not get any concessions, but on this occasion the hon. Member has been very disarming and has shown himself capable of piloting through a difficult Measure. To conclude, I hope that the Bill will not have any deleterious effects, as similar legislation has had in France, but rather that it will have a good effect.

12.27 p.m.

Mr. Lunn

I wish to congratulate the hon. Member for Harwich (Mr. Holmes) on his success in securing the passage of this Bill, which in many respects is quite as good as similar Bills which have been before the House previously. The hon. and gallant Member for Louth (Lieut.-Colonel Heneage) has been a persistent opponent of the Bill, and year after year has put down shoals of Amendments, and sometimes run away from them, as he did last year. This Bill is a necessary one, although I admit that there are hundreds of thousands of people who have no property to leave to anybody when they die. As the hon. and gallant Member for Louth said, there may be 100 very bad cases—we do not know how many there are—which ought to be dealt with, and to-day we are passing a Bill which will deal with them.

I suppose that there is not any hon. Member who has not heard of shameful cases. I have heard of a very glaring case of a man who, for a very long time, lived with a woman who was everything to him, who cared for him and nursed him, a man who was a prominent county councillor and public man, who left his wife with nothing. In such cases, a means must be found for preventing such unfortunate things from happening, when men are so selfish. Fortunately, in our country, everybody is not like that. There are hundreds of thousands of homes that are comfortable and happy, and when a man has lived for 30, 40, or 50 years with a woman, he thinks that there is no lady in the land whom he would swop for his dear old Dutch, and when he passes away he will think of her. Nevertheless, there are bad cases which must be dealt with. I am very pleased that this Bill is receiving its Third Reading, and I hope that it will soon become law.

12.30 p.m.

Mr. Macquisten

It is really astonishing to me that this Bill was not law a long time ago. Even supposing there are only a few cases to be dealt with, what is the hon. and gallant Member for Louth (Lieut.-Colonel Heneage) worrying about? The Bill will not affect the vast majority. One might as well say that we should not have capital punishment because there are only a few people who commit murder. The only thing I regret is that we have not solidly taken over the law of Scotland. If we had taken over that law, with all the precedents laid down through the centuries, there would have been no difficulty in administering the law, and it would have been done justly. One of the things I always regret about the Act of Union between Scotland and England—when the Whigs sold Scotland in 1707, and, as the poet says, they were just a parcel of rogues in a nation—is that it was not provided that the English law should be abolished and the Scots law taken over. If that had been done, you would have had this Act of Parliament for 231 years, and all the poor widows, 100 a year over 231 years, would have been provided for. It is a lesson to hon. Members that when they want to get sound legal principles, besides many other things, they have to go North of the Border for them.

12.32 p.m.

Miss Rathbone

I suppose that I may say that my relationship to this Bill is that of great grandmother. This is the fourth attempt at legislation on this subject, and it is a good example of the way in which Private Members' legislation works out. It requires from those concerned that they should attempt something like the labours of Sisyphus, and year by year roll a Bill up the Constitution hill and see it roll down to the bottom again, but at last get it to the top. So- it has been with this Bill. If the Bill is not a good example of Parliamentary draftsmanship, it ought to be, because it has been gone through again and again in Committee, and on two occasions it has been through the Report stage, and not only on this occasion, but on other occasions, it has received assistance, which has been so amply acknowledged by other hon. Members, and which I am sure we all acknowledge, from the legal advisers of the Crown. This Bill is, so to speak, the result of the fourth boiling down, and I think it ought to be a satisfactory one.

We have to remember that even now, as a result of the very necessary spirit of compromise which has been shown by the promoters, it is a very modest Bill, and of course, it goes very much less far than the hon. and learned Member for Argyllshire (Mr. Macquisten) would have desired. If it had been on the Scottish model, it would have been very much more satisfactory to many of us, but some seven years ago Parliament, in its wisdom, rejected a Bill which I brought forward based on the Scottish model, and the joint Select Committee, to which the matter was referred, preferred what we have been accustomed to call the Dominions model, on which this Bill is based. It merely gives the right to the courts to deal with applications from aggrieved spouses and dependants. But while the Bill is on the Dominion model, it is well to point out that it does not even go as far as most of the Dominions legislation. Limitation after limitation has been introduced.

The Bill does not, as does Dominions legislation, give any opportunity to an adult son other than a permanent invalid to make application. I am sorry for that, because it distinguishes in these matters between sons and daughters by permitting an adult spinster daughter to apply, but not an adult son. That, I admit, is a comparatively small point, but we must all acknowledge that the Bill does tie up very strictly the rights of disinherited spouses and children. To my mind it suffers from the old tendency of British law to put the interests of property above and beyond the interests of flesh and b100d. However, it is our way in this country to proceed by way of homoeopathic doses of reform. There is much to be said for that method and I hope, in view of the extreme modesty of the proposals outlined in the Bill, that it will have as calm a passage in another place as it has had in this House. Modest as the Bill is, there are many widows and orphans who will have occasion to call its promoter blessed, and we have all admired the spirit of compromise which the hon. Member for Harwich (Mr. Holmes) has displayed.

The opponents of the Bill have all along been in the difficulty of trying to reconcile two inconsistent positions. On the one hand, they have pointed out that there are no unjust wills, and yet, on the other hand, they have suggested that the Bill will lead to a mass of litigation. I think the truth will be found somewhere between those two views, and I would remind those who think that there are few unjust wills, that there is little opportunity at present of finding out how many there are. The woman or child who is put in the humiliating position of being totally disinherited, will not go to the courts and will not even go to the expense of consulting a lawyer, and exposing their grievances, when they know there is no legal remedy. Those of us who have been working for years for a Measure of this kind know that once such a proposal is mentioned in the newspapers it brings a little spate of letters from people who have suffered bitterly through the lack of a remedy against unjust disinheritance, but who have never exposed their wrongs to the public, because there was no redress. One bitter reflection about this Bill is that there are so many for whom it comes too late. It is pathetic to have to answer letters from people who think that a will executed five or six years ago can be remedied by this Measure. Many of them will feel that it is something if their hard cases have helped those who have been working to remedy this injustice, and I hope people in the unfortunate position which I have described, will be able to take some consolation from that fact.

12.38 p.m.

The Attorney-General

I have never pretended to be able to look into the future, but I gather that this Bill is going to receive the Third Reading and I should like to thank my hon. Friend the Member for Harwich (Mr. Holmes) for what he said about myself, and still more for what he said with much greater justification about the Parliamentary Counsel. This is one of those occasions on which we are, on the whole, conscious of each other's virtues as, on other occasins perhaps, we are conscious of each other's weaknesses. While preserving my attitude of non-intervention I wish to pay my tribute to those who, starting in the Committee with very divergent views on certain matters raised by this very important Bill, succeeded in approaching those questions in a spirit of compromise, and while not giving away any points of principle, concentrated on putting into a workable form, principles which most people, in the end, recognised as sound. I think it is true to say that the Bill in its present form is a great improvement on the Bill as introduced, and a great improvement on previous Measures of this kind which have been brought before the House. It is a matter of congratulation to those who, approaching this question from different angles, have succeeded in pooling their ideas and producing a workable Measure.

12.40 p.m.

Mr. Pethick-Lawrence

I join in congratulating the hon. Member for Harwich (Mr. Holmes) on having successfully piloted this Bill through its various stages and the hon. Lady the Member for the English Universities (Miss Rathbone) on her persistent advocacy of this reform. Thanks are no less due to the hon. and learned Gentleman who has just sat down and to the Solicitor-General for the assistance which they have given in making this a workable Measure. Even if the cases which the Bill is designed to meet are few, I do not think we have ever taken the view in this country that because cases of hardship are few they are not entitled to a remedy. Where an injustice is perpetrated often of a very serious character it ought to be dealt with and I am very glad that we are dealing with this one. I think there are few countries where these anomalies exist to such an extent as in this country, and though it may be true—and here I am in some agreement with the hon. and gallant Member for Louth (Lieut.-Colonel Heneage) —that in some countries, the boot is on the other leg and the remedy is too drastic, yet I think it would be wrong to leave the position unadjusted in this country. With regard to the form of the Bill, I think it is much better to have a Bill that will work, even if it does not go as far as some of us might desire. The compromise that has been effected is a thoroughly British compromise, and is probably the best way of securing agreement between those who take different views on this question.

After the Bill had received its Second Reading I was discussing it with a number of friends in my country home, and we considered what Amendments could be embodied in it to satisfy reasonable opposition and divergent views. When the Bill came into the blaze of publicity during the Committee stage, I was interested to find that the practical solutions of the difficulties which we had had in mind, were those which commended themselves to the promoters and to the legal advisers of the Government. There was one difference which I, personally, regret. It may be that it is necessary and possibly a further remedy may be found hereafter, but, personally, I regret the provision which amounts to a restraint on marriage. That is in reference to the remarriage of a widow or the marriage of a daughter. I do not see why a daughter who has been left penniless by her father and who has been provided by the court with a small maintenance allowance of £50 a year, should lose that allowance on her marriage possibly to a comparatively poor man. I should have preferred if the court had had, at any rate, the option of reconsidering the matter at the time of marriage, both in the case of the daughter and in the case of the widow or widower. However, these are comparatively small matters, and, recognising the value of the compromise which has been reached, I would not wish to upset it on those grounds.

There is one matter which has not been mentioned in this Third Reading Debate which, I think, is probably the most important of all. What most of us hope from this legislation is that it will never come before the courts at all, but that it will achieve its purposes without coming before the courts. So long as this legislation has been non-existent, spiteful testators have been enabled to cut out of their wills relatives who were entitled to look to them for maintenance after the testators were dead, and they have done it with impunity. The knowledge that this law exists will in future prevent testators from taking that course, and if it results in no cases of this land ever being brought before the courts in the future, that will undoubtedly be the greatest possible tribute to the passage of this Bill. It is for that reason that I heartily commend the Third Reading and congratulate those who have been instrumental in bringing it about.

12.47 p.m.

Mr. Spens

It would not be fitting that the only Member who made a really violent speech against this Bill on Second Reading should allow the Third Reading to go by without saying a word or two. May I say, first, how much I have appreciated the attitude of the promoter and, if I may say so with respect, of the Law Officers of the Crown, and the courteousness with which they have listened the whole way through to the suggestions which some of us have made? This Bill, as it comes back to the House from Committee, is a very different Bill indeed from that which I opposed when it first came before the House on Second Reading. There was then no limit of age or sex or otherwise to the applicants who could make objection to lack of provision or of adequate provision made for them by a will, and there were no directions given to the court as to how the court was to deal with the matter. As the Bill comes back to the House, it has limited the persons who can be applicants, it has limited the amount for which they can claim, and it has given directions to the court as to how to deal with the matter. As a result, I believe the court will have much less difficulty in dealing with the matter.

I wish I could take the view that this Bill was really going to meet the cases that the promoters have in mind, the really vindictive cases. The testator who deliberately in the past has left out of his will his widow or child will still be in a position under our law, if he thinks fit, to see that nothing worth having passes under his will and that his property on his death finds its way to the destination to which he wants it to go. This Bill will deal with the occasional case where a man has left a will which is regarded by the court as unfair, but the really vindicative testator will not, in my opinion, be caught by this Bill at all. In these circumstances, I still cannot view the Bill—I say it with great respect to everybody—with real pleasure, because, whatever anybody else may say, it does mean in the case of every person who makes a will in favour of a widow, an infant child, a daughter, or a son who is suffering from some infirmity, whatever provision he has made or may make for them in the future, that he will always have to remember that after his death that provision may not be regarded by them or by those who act for them as adequate. It is useless to say, therefore, in my view, that there will not be litigation to some extent as a result of the passing of this Bill in cases where I do not think there should be litigation at all.

Still, I have always accepted the view of this House. The House gave the Bill a Second Reading by a very large majority, as it has given similar Bills a Second Reading in the past. The House believes that this Bill will do some good, and I have no doubt at all that in some cases, in a few cases, it will do some good, but I believe that in other cases the results of the Bill will be unnecessary, unpleasant, and expensive and will mean litigation which would never have come into existence had this Bill not been passed by this House. Let me end on the note on which I began, and say that I want to express my thanks for the courtesy with which criticisms which have been put forward by myself and my hon. Friends have been received, and for the very substantial Amendments for the better which the Bill has received in its passage through Committee.

Question, "That the Bill be now read the Third time," put, and agreed to.

Bill read the Third time, and passed.

The remaining Orders were read, and postponed.

Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.

Adjourned at Eight Minutes before One o'Clock, until Monday next, 2nd May.