CONFIRMATION OF EXECUTORS (WAR SERVICE) (SCOTLAND) BILL [Lords]. (Hansard, 10 July 1940)

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

This is another small Bill but one of very considerable importance as far as Scotland is concerned. It relates to the disposal of the estates of persons who may, unfortunately, die, either on active service or owing to the loss of a British ship. At present the law is that unless evidence can be produced of the death 1205 of a particular person, confirmation cannot be granted to the executors and the estate cannot be distributed, and in the absence of evidence you have to wait seven years before there is a presumption that the man is dead. There must be a number of cases where there is no evidence, or so little evidence as to be of no value, regarding the death of a particular person, but nevertheless it is a, practical certainty that he has died. The same difficulty occurred during the last war and it was solved by an Act which was very much on the lines of the present Bill.

The scheme of the present Bill is that where a Department issues a certificate, as Departments are in the habit of doing, presuming a man, for official purposes, to be dead, that certificate shall he a warrant for the executor to go to the court and ask for immediate confirmation in order that the estate may be immediately distributed. There is this safeguard, that the court can order such inquiry or delay within limits as, to the court, may seem proper and intimate to the appropriate people, and if there appears, notwithstanding the certificate, to be any doubt, that can be investigated. But in the general case the furnishing of this certificate will be warrant for the sheriff to allow the proceedings to go forward immediately, and there will not be any embarrassment by reason of the holding-up of the distribution of the estate of a man who may be lost, though the circumstances of his death may not be fully known.

§ Mr. R. Gibson

I welcome this Bill, which is, as far as it goes, a necessary Measure. All through the history of this branch of the law—the law of succession—special provisions have had to be made in the case of deceased soldiers, and in the last war that was so, and it is right and proper that they should be made here and now. Our Scottish law is directly connected with the Roman law on this particular point, and very definite provisions were made in the Roman law in regard both to soldiers' wills and to the estates of soldiers who had died. Our Scots law has always made similar provisions. I regret that, in dealing with the confirmation of executors, certain matters affecting the estate of the deceased soldier have not been provided for in this Bill. An executor in going into the 1206 question of the estate of a soldier may very well be met with a claim for maintenance of an illegitimate child. That is a child that neither the deceased soldier nor the mother intended should be illegitimate. That difficulty could be overcome during the last war because there was in our law at that time a remedy available whereby the child had the status of a legitimate child. Most unfortunately, in my humble view, that remedy is no longer available. But there was, through the pressure of the party Whip, put on to our Statute Book the Marriage (Scotland) Act, last year. I very much fear that we shall have serious cause to look on that Act as being a stain on the Statute Book of Scotland.