§ Order for Second Reading read.
§ 11.6 a.m.
§ Mr. Thomas Steele (Dunbartonshire, West)
On a point of order. I should like your guidance, Sir. The Bill which is now before the House is sponsored by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), who is now a Minister in Her Majesty's Government. At the beginning of this Session the Government agreed that Fridays should be allotted to private Members for their Bills and Motions. There is a great deal of competition among hon. Members to secure those days, Sir. A Ballot takes place, under your eagle eye, Mr. Speaker, to secure that there shall be 1078 a sense of fairness in the distribution of this particular honour.
The hon. Member for Hendon, South, was lucky enough to secure a place in the Ballot and, naturally, he wanted to bring forward a Bill. The point I want to raise is that now he is a Minister he is in a privileged position. He can bring pressure to bear on the Government that an ordinary back bencher cannot do and, therefore, if he wishes to bring forward a Bill he can do so as a Member of the Government. I submit that on this occasion the Government are actually using private Members' time.
I have been studying Erskine May to find out if there is a precedent for this, but my researches brought nothing to light, although there may be other Members of the House who are much more alive to the constitutional position and can bring something out of Erskine May to support my case. There are other considerations which guide our conduct in these matters. I believe that the hon. Member for Hendon, South, should withdraw this Bill. Another hon. Member has risen to move the Second Reading and the hon. Member for Hendon, South, is thus handing over his success in the Ballot to another Member. Surely the right which we get as private Members when we are lucky in the Ballot ought not to be transferable in this way. I would thank you, Mr. Speaker, for your guidance in this matter.
§ Mr. Speaker
I listened to what the hon. Member has said, and I am not surprised that the result of his researches into Erskine May was fruitless. The position is well understood. The hon. Member for Hendon, South (Sir H. Lucas-Tooth, as a private Member, was successful in the Ballot and gave notice of presentation of this Bill. The Bill was then read the First time and ordered by the House to be read a Second time upon this day, 28th March, and to be printed.
At that moment it passed out of the control of the hon. Member for Hendon, South, and became an Order of the Day of the House. Thereafter, it was competent for any hon. Member of the House to support that Order of the Day and on this occasion the hon. and learned Member for York (Mr. Hylton-Foster) has risen to move the Second Reading and is exercising the right of a Member of 1079 the House to support an Order of the Day set down by the House for this day. Therefore, the proceedings in that sense are perfectly in order.
The subsequent elavation of the hon. Member for Hendon, South, from the status which he occupied when he presented the Bill to the position he now occupies is quite irrelevant to the further progress of an Order of the Day that was properly set down.
§ Mr. Tom Brown (Ince)
Further to that point of order. I feel that there is a certain degree of unfairness, here. Sir. Do I take it that your Ruling will give an opportunity to any hon. or right hon. Member who secures a place in the Ballot to bring forward a Private Member's Bill and to transfer that opportunity to another hon. Member?
§ Mr. Speaker
That is not quite the position. Any hon. Member who secures a place in the Ballot for a Private Member's Bill can present a Bill. As soon as he presents it, and it is ordered by the House to be printed and to be read a Second time upon a certain future date, the Bill becomes the property of the House, and any hon. Member can thereafter rise on the appointed day to support what the House has decided shall be an Order for that day.
§ The Joint Under-Secretary of State for the Home Department (Sir Hugh Lucas-Tooth)
I felt the force of the considerations which you mentioned in your reply to the hon. Member for Dunbartonshire, West (Mr. Steele), and for that reason it seemed to me that, as my status has changed between the time of my success in the Ballot and the Second Reading of the Bill, I ought not to take any part in the proceedings on the Second Reading. I propose, therefore, not to try to intervene in any way in the debate on the Bill.
§ Mr. Speaker
I hope that the hon. Member for Dunbartonshire, West, has had his query satisfactorily answered.
§ Mr. Hylton-Foster
I am greatly obliged to the hon. Member for Dunbartonshire, West (Mr. Steele) for raising his point of order, because he has relieved me of the obligation of emphasising that 1080 the Bill, which has the backing of hon. Members on both sides of the House, is that of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), who is now Under-Secretary of State for the Home Department. He won a place in the Ballot which was conducted under your eagle eye—if that be the right phrase, Sir—as a private Member, as he then was.
I would like to congratulate him—and I am sure the House will join with me—on his good fortune in the Ballot and on the wisdom which led him to choose this Bill. I would also like, at the same time, to congratulate him upon his promotion, which has separated him from his Bill, and to condole with the House because, as a result of that process, we are deprived of the opportunity of hearing my hon. Friend make the first speech in support of the Bill. As his halting substitute I claim no experience in this branch of the law, certainly nothing comparable with that of my hon. Friend.
Even had it not been that you left the Chair at a rather late hour this morning, Mr. Speaker, I should still find it very difficult to make a useful Second Reading speech about a Bill of this kind, the precise value of which must depend upon the exact form of a number of Clauses drawn to amend the law of intestate succession. It is generally recognised to be the first task of the law of intestate succession to do for the intestate that which he failed to do for himself, which is, in effect, to make a will for him. It must be a good will in the sense that it results in his property being distributed in the way he would want it to be distributed that is to say, in accordance with the general will of persons dying intestate. That can be estimated best by reference to what the great bulk of testators do.
There has of late been a widespread public feeling that, after a quarter of a century in which there have been great changes in the value of money and of house property, the Lord Birkenhead legislation of 25 years ago is failing in part to make that kind of will for the intestate. It has been publicly recognised that the law was not making adequate provision for widows in these days, and was adding impoverishment to their desolation. There have been distressing cases in which, to meet the claims of other beneficiaries, widows just at the 1081 time when they wanted most protection in their bereavement, have had to give up houses in which they have lived and desired to stay.
Representations were made by a number of bodies, including trade unions and the Law Society, which has the biggest experience of anyone in these matters. The question of reform was raised in the last Parliament by my hon. Friend the Member for Enfield, West (Mr. fain MacLeod) and by my hon. Friend the Member for Leeds, North-West (Mr. Kaberry).
There is a further defect in the law of intestacy in that it tends to create a number of life interests that may be quite small. The income from the life interest very often does not provide an adequate basis on which a widow can live, and in any event there is the complication of the administration of the estate by the creation of small trusts without any apparent countervailing advantage to anybody. It was in those circumstances that the last Lord Chancellor appointed a committee under the chairmanship of Lord Morton in the autumn of 1950 to inquire into these matters. The committee contained hon. Members from both sides of the House, including the Parliamentary Secretary to the Ministry for Commonwealth Relations and the hon. Member for Islington, East (Mr. E. Fletcher), whom I am particularly glad to see in his place at this moment.
I would like to pay public tribute to the labours of that committee. No one interested in the law of intestate succession is unaware of the very great debt owing to that committee, which reported quickly and endowed their report with a collection of the cardinal virtues of such documents, in that it was brief, lucid and unanimous. The purpose of the Bill is, broadly—I say "broadly" because we have not followed slavishly the recommendations of the committee—to bring the proposals of the committee into law. They confirmed, above all things, that there was a public sense that inadequate provision is made by the existing law. Since the Bill necessarily has to proceed by way of Amendment of existing statutes, a very free use has been made of the form of schedule which, in chambers and places where they draft, is associated with the name of the hon. 1082 Member for Twickenham (Sir E. Keeling).
It is a kind of schedule which sets out the law, as it is, in lighter, normal print and then sets out what the Bill proposes to do by way of amendment in heavier print. It is much to be hoped that this will be for the convenience of hon. Members, but that was not the only consideration in our minds. It was thought that the House would think it right, particularly in a branch of law of this kind, that the relative provisions should be easy of access and gathered together, so far as might be, in one enactment, so that they might be easily found.
I want to confess at once that in trying to enact these recommendations into law we have encountered a large number of practical difficulties, not at all easy to overcome. What degree of success we have had it will be for the House in due course to say, but I hope that hon. Members will accept that we are most anxious to receive here, and to consider, suggestions and views of hon. Members from all parts of the House to get this Bill as good as can be. We make no claim, we could make no claim, that it is in any way perfect.
If I may turn to the Bill, I will indicate broadly to the House what it does and what it does not do. The first part deals in substance with amending the provisions of the Administration of Estates Act, 1925. The method adopted in making changes in the distribution of intestates' estates hon. Members will find takes the form of a substitution, by Clause 1 of this Bill, of a table to take the place of the existing provisions.
There are four cases to which I should draw the attention of the House. First it will be understood that no changes in the provisions as to distribution of the estate are proposed except in cases where there is a surviving widow or widower. In that matter we follow the proposals of the Morton Committee. The Morton Committee did not think there was any sufficient reason to distinguish between widow and widower, and the Bill does not do it. I hope the House will allow me to talk about the widow when I mean widow or widower, because I find the conventional expression "surviving spouse" something of a sibilant embarrassment.
1083 If I may take the first of the cases, I will ask the House to consider whether they think the right disposition is being made in accordance with the general wishes of persons dying intestate. The first case is the widow and children. If there be a surviving widow and children or children's children, at present the widow would get from the residuary estate personal chattels and a so-called statutory legacy of £1,000 with interest at 5 per cent. from the death until payment.
What is proposed in this Bill is that in such a case the statutory legacy shall be increased and the interest shall be reduced. It is proposed that the statutory legacy should become £5,000 and the interest 4 per cent., as being more in accord with modern yields. It is hoped that hon. Members will think that £5,000 is much more in accordance with the present day value of £1,000 a quarter of a century ago and, far beyond that, would do something to save the widow from impoverishment. After the subtraction of the statutory legacy it is not proposed to make any change in the law as to how the estate should go as to the rest. As the House will remember, it goes as to half with a life interest to the widow followed by the other half straight, on the statutory trusts, for the children.
If hon. Members think that the provision of £5,000 is too generous to the widow—it must be recognised that in the case of all estates up to £5,000 in value the enactment would cut out the children from the inheritance—I would urge in support of the view taken by the Morton Committee, as I understand it, that the essential function which the widow supplies to the family after death is to provide the home, and she can be relied upon, one would hope in all conscience, to look after the children while they are infants and until they can support themselves.
Obviously difficult cases may arise. We may get the case of the marriage being broken up by divorce and then a remarriage. Or perhaps, because one of those strange romances which occur, not necessarily to hon. Members, but to elderly gentlemen who marry little blonde creatures much younger than themselves in the autumn of their days. Those do occur, and so we must consider the difficult case where the affections of the 1084 widow of the second marriage might not be so firmly fixed upon the children of the first. However, one cannot legislate for every conceivable case, and we hoped that the difficulties there arising might be modified by the provisions in Part II of this Bill which I will deal with later on.
That is the first of the four cases about distribution with which I have to trouble the House. The next one is that of the widow, no children or issue, and a parent or parents surviving. In that case the proposal in this Bill is that the statutory legacy now of £1,000 should become £20,000. Whether that is the right point at which to draw the line it would be for the House to decide, but the basis of that line of thinking, and why we submit the Bill to the House with that figure in it, is the following: it is thought that the bulk of persons dying intestate, where there are no children or issue, would prefer to make their widow absolutely secure before any benefit goes to anybody else. That is the intention underlying this proposal.
Then it is proposed in such cases that the rest of the residuary estate, if any—and I do not know, without thought, any friends of mine who would have any, but I think there might be some—would go one half to the widow absolutely and one half to the parents, if there are two of them, equally; or to one parent, if there is just one, absolutely. The House will follow that the provision has, so I submit, the great advantage of getting rid of the life interest which the widow would have had under the old law and which would have increased the burdens of administration in that respect.
The third case would be the same, except that there would be no parents surviving but there would be surviving brothers and sisters of the whole blood. In that case we propose once again that the statutory legacy be £20,000, and the half which in the other case of the residuary estate would have gone to the parents, should in this case go to the brothers and sisters of the whole blood in the statutory trusts.
Then there is the fourth case where the widow alone survives, and there is no issue, no parent, no brothers and sisters of the whole blood surviving. In that case the proposal is that the widow should have the whole estate absolutely. Of course the House will appreciate that 1085 cutting out the remoter kin, half-brothers and sisters would have taken away the interest they now have, and the grandparents, and what, at the cost of misquotation I might call the "H.M.S. Pinafore" classes, the uncles and cousins and aunts. But the underlying idea there is—I hope the House thinks it right—that probably the intestate person dying intestate in these days, if there be no nearer kin than, say, brothers and sisters and the half blood would wish that the widow should have the entirety of the estate. It is altogether improbable that, to protect the interest of a rather obscure cousin he may never have seen, or who departed years ago in a cloud of debts to a hotter climate, he would not rather have the whole go to the widow untainted with interests of that kind. To that end we have in Clause I enacted amendments to the relevant provisions of the Administration of Estates Act, 1925.
I should mention another matter, because it is additional to the proposals of the Morton Committee. As the House knows, when two people, husband and wife, perish in one and the same disaster, or, more accurately, in circumstances where one cannot say with any certainty which survived the other, the law, for the purposes of the law of property deems the younger to have survived the older.
Of course, if that presumption were to apply here it would utterly defeat the purpose of this House in making provisions as to the distribution of the intestate's estate in this Bill, because it would mean that the estate would go in accordance with the legal fiction instead of the reality, because if there were not, in fact, any surviving widow the estate would go as if the widow had survived.
Indeed, that presumption has operated in the past, as the House will know, to shift the intestate's estate altogether from his own family to the family of the widow. That is scarcely likely to be the intestate's intention when his widow has not survived him, and so hon. Members will find an enactment in Clause 1 (4) of the Bill designed to prevent that presumption applying in these cases in relation to the purposes of the Bill.
There is a problem we should like the views of the House upon. It is very tempting to say, "Well you will get just the same result if the widow did not survive for more than seven days or 14 days, 1086 or whatever may be, a short time of survival." That is by no means uncommon, because very often the mere announcement of the death of the husband or wife, as the case may be, is a contributory factor in such a case to the death of the other. It would be in accordance with the practice of many testators in wartime when, with the risk of bombing, it was quite customary for them to provide that their property should devolve in one way if the widow survived for 14 days and in another way if she did not. The difficulty is that wherever we draw the line the period must be an entirely arbitrary one, and that we shall make hard cases outside the timing whatever we do. On balance, we thought the House would think it right to leave the matter as it is, and just enact that the presumption shall not apply in cases where we cannot tell whether one spouse survived the other or not with any certainty.
Then the House will be surprised—those hon. Members who have studied the Morton Report—I have no doubt, to notice that this Bill does not contain a provision to carry out the recommendation of the Morton Committee that the widow should be given a right to acquire her home. There are strong reasons for questioning the wisdom of that proposal. I say it with great respect. Obviously, its application must vary from case to case, but one has to remember that the right to acquire her home may well be to a widow a temptation on sentimental grounds to go on trying to live in a home in which she really cannot afford to live after the death of her man; but it is not wholly on that ground that we have not followed the proposal of the Morton Committee.
The House will appreciate that increasing the statutory legacy to £5,000 or £20,000, as the case may be, may well serve in most cases to enable the widow to acquire her matrimonial home if she wants to or help her to do so. The real trouble is that, it is, as a matter of practice, so extraordinarily difficult to enact any statutory provisions which are satisfactory in order to carry out the proposal. I should be most eager to receive the ideas of any hon. Member who feels that he would like to enact a code of that type and put in the Bill, but I should like to draw attention to the difficulties so as to show that we have good reason for the 1087 course that we have taken in submitting the Bill to the House.
We have to decide, somehow, on what terms the widow is to acquire, and by what method, and at what price. If we leave it to the personal representative to decide, we leave the door wide open to every kind of abuse, and we could not do that. The alternative is to enact some kind of statutory contract or statutory device, which has not really happened, and then our difficulties begin. What is the position if the estate is insolvent? Are we to cheat the creditors to the advantage of the widow? What do we do if it is mortgaged? How do we value the enormous variety of types of interests people have in matrimonial homes?
What about the cases where it would be very unfair to the other beneficiaries if the widow sells the matrimonial home? Let us suppose that the matrimonial home is a farm. The Morton Committee thought of a hotel or a lodging house as the matrimonial home, but one could think of others. Suppose the matrimonial home were a farmhouse, and the widow could sell it? Is that going to be fair to the other beneficiaries? Or a very usual case—take people whose livelihood comes from a shop, and they live in rooms over the shop. That is the matrimonial home, and it would be ruinous to the other beneficiaries if the widow acquired that and sold it.
Then there are of course, great difficulties which arise if the intestacy is not determined at the time of death but afterwards, because the will was declared invalid or because it was contingent upon events after the death. We have made valuable, vigorous and, in the case of those who have the skill, Mr. Speaker, extremely skilled efforts, to enact in this matter, but the more one tries the more and more complex it becomes, and, taking the best advice we could, we were advised that we should probably do more harm than good by trying to enact this.
It would be dangerous at this time of the year, before the Finance Bill, to talk about any "concessional" tendencies of the Inland Revenue, but I would ask hon. Members who are disposed to think that the Bill is giving a statutory legacy that is too big to bear in mind this: 1088 that had it been possible to enact the means whereby the widow might acquire her matrimonial home at the kind of price the Morton Committee has in mind, namely, the price agreed with the Inland Revenue, it might well have been, having regard to the concessional tendencies of the Revenue, if I may use that phrase, that it would have conferred a financial benefit upon her; and to that extent she has not got what she might otherwise have got in accordance with the Committee's recommendations.
Then hon. Members will find, in Clause 2, that we have, in accordance with the recommendation of the Morton Committee, given a right to a widow to elect to have her life interest bought out, as it were—to receive a lump sum for it from the personal representative. The idea of that in the minds of the Morton Committee, I think, and certainly in our minds, was that there was an opportunity to rid the estate of the embarrassment of what might be just a small life interest. The existing powers had not been used very much and it was thought that by giving the right of election to the widow more use might be encouraged to be made of them.
I would like to indicate to hon. Members the extremely limited classes of case in which that would apply and arise. On the best estimate we have from the evidence given before the Morton Committee it would only be about 13 per cent. of the estates of testators which would amount to £5,000 and, of course, it would only be, of that 13 per cent., those estates in which there were surviving issue in which the question of the life interest which might be paid out would arise. So it does not apply in very many cases.
The Morton Committee advised that there ought to be simple tables of value to look at to state the value at which the life interest might be redeemed. They contemplated one for a man and one for a woman and a table in the Act and we have fallen into what looked like more complicated rules instead. The reason is that if you value an income without reference to its source you do not get its true market value. A £100 a year from trustee stocks has a higher market value than £100 a year from rather dubious shares and it was necessary to get the kind of income on an equal basis.
1089 Further, as the House has good reason to know, rates of interest on trustee securities have varied greatly in late years. It was felt that any tables put into the Bill, necessarily based on current rates of interest, might become out-of-date in the future and it would be wrong to leave it in such a way that the Bill had to be amended in that event. So a system of rules has been devised which relates the value of the annual income to the price which one would have to pay to buy an annuity from the National Debt Commissioners or the Post Office Savings Bank. That method has an advantage, because the price varies within small limits according to the market value of 2½ per cent. Consolidated Stock and so gives a sliding scale which will vary effectively at all times.
Last, with regard to the amendments to the Administration of Estates Act, we have proposed, in accordance with the recommendations of the Morton Committee, that these provisions should apply to cases of partial intestacy but we have made one modification to which I ought to draw the attention of the House. The Morton Committee thought that no special rules would have to be made in applying these proposals to partial intestacies. The House will remember that the only class which has to bring into hotchpot any benefit they receive under the will are the issue of the testator—that class only.
We thought that with the increased statutory legacy it would be wise and right to enact that the widow should bring into account anything she took under the will as against her right to the increased statutory legacy. Otherwise, it would seem that it might well be that the increased legacy, plus something taken under the will, might provide for the widow a proportion of the total estate which would be quite unfair to other beneficiaries.
The rest of the Bill relates to what should be done in respect of the Inheritance (Family Provision) Act, 1938 which, hon. Members will remember, gives the court power, in a case where there is a will which has not made reasonable provision for certain dependents of the testator, on an application, to order reasonable provision out of that estate. I am particularly glad that one of the supporters of this Bill is my hon. and learned Friend the Member for 1090 Kensington, South (Sir P. Spens), not only because we all have great respect for his wisdom and experience in these matters and certainly not because I think it will prevent him from being as critical of the Bill as he wishes to be, but because, when the Bill which became the 1938 Act was introduced into this House, he was one of its most vigorous and cogent critics, as I am sure my hon. Friend the Member for Harwich (Sir S. Holmes) will confirm, because it was his Bill at that time.
Both the critics and my hon. Friend the Member for Harwich are right. The 1938 Act, has been very greatly used—there have been 2,000 applications under it, 196 in the last year alone. It is very much used and obviously useful. On the other hand, it has been very severely criticised and opportunity is taken in this Bill to get rid of some of the matters which have created difficulty.
First, the Act did not apply to intestacies at all and it is proposed, in accordance with the recommendations of the Committee, that this Measure should apply in cases of partial and total intestacy, also. In the second place, it turned out on the 12 years' working of the Act that the orders which the court might make for maintenance by periodical payments or capital sums out of the estate were so restricted that in only about half the cases could they make reasonable provision at all.
By amendment, which hon. Members will find in the Third Schedule to this Measure set out at length, we have proposed to enact that in future the court, in appropriate cases, will be able to order periodical payments up to the total annual income of the estate and, in the case of capital provision, we have increased the size of the estate which comes within the provision in which a capital provision may be made and have removed from that Section of the Act the words which had operated to limit the powers of the court in giving a capital sum by way of reasonable maintenance.
I do not think I need draw the attention of the House to any other matters in relation to that on Second Reading, except to say that there is a triumph of tactful enactment in Clause 1 (8)—I do not say that in a personal sense. It appeared to some that it would be most invidious to ask Her Majesty's judges 1091 to declare that the law laid down by Parliament was unreasonable. That is not a very good argument because, with the best will in the world and the greatest skill, one cannot lay down a law which covers every case. The House will find a tactful enactment by which the court in such cases is not bound to assume that the law makes reasonable provision in each and every case.
I know that there are people who complain that the processes for the reform of our law are too slow and I am painfully aware that I have added fuel to the fire by detaining hon. Members for so long; but my defence is that for my part I think it is a most healthy safeguard that the first obstacle which the would-be reformer of the law has to surmount is the criticism of this House. It is because I believe in all sincerity that the objects of this Bill are good, good for the public, and because I have supreme confidence in the judgment of this House, that I venture to commend the Bill to hon. Members and to ask them to give it a Second Reading.
§ 11.49 a.m.
§ Mr. Eric Fletcher (Islington, East)
I beg to second the Motion.
The hon. and learned Member for York (Mr. Hylton-Foster) has moved the Second Reading of this Bill in a speech in which he has dealt so fully and lucidly with a subject not entirely free from complexity that I feel there is very little I need add.
Speaking as a member of the Morton Committee, I am very gratified that the Joint Under-Secretary of State for the Home Department (Sir H. Lucas-Tooth) and his hon. Friends have thought fit to incorporate substantially the whole of the Morton Committee's recommendations in the present Bill. When the Morton Committee met we found that intestacy was much commoner than might have been supposed. I was surprised to find that the number of people who died intestate, in the latest year for which statistics were available, 1948, was about 40 per cent. of the total arrived at by comparing the number of applications made for probate and the number of grants made for letters of administration.
It might be thought that most people who have any money to leave would 1092 have the prudence and forethought to make provision for the devolution of their property.
§ Mr. Philip Bell (Bolton, East)
I should imagine that the figures are much higher, because in the case of a lot of people who die intestate letters of administration are never taken out at all.
§ Mr. Fletcher
The hon. Member is correct. But one has to exclude from the calculation people who do not trouble to make a will, because they have no property to leave. If we exclude them—and they represent a very large section of the population—and if we make a comparison between those cases where probate of a will is obtained and those cases where letters of administration have to be granted, I think I am right in saying that the cases of intestacy are approximately 40 per cent. or 41 per cent. of the total.
As I say, one would think that the prudent course for people who have property would be to make a will. But experience shows that a great many people, either through inadvertence or delay, or perhaps because they have made a will which is technically ineffective, die intestate; with the result that it is the duty of the State to make provision for the distribution of the estate.
Evidence tendered to the Morton Committee indicated that there were, substantially two main subjects of criticism of the law of intestacy as it stands today. In the first place, it was felt, very wisely, that inadequate provision is made for the widow as compared with the children and other relatives.
Second, it was felt that the present law of intestacy tends to produce, as the hon. and learned Member for York mentioned, a large number of life interests in small estates. This is irritating, cumbersome and unpractical; and I am sure defeats the real intention of the legislature. It is those two specific matters which the Morton Committee in its report, and this Bill in its provisions, seek to redress.
The Morton Committee sought, and I invite the House to take the view that it was the right method of approach to this subject, to recommend a law of intestate succession in accordance with what are the general dispositions made by testators when they make their will. The 1093 evidence on that subject shows there is a widespread, and I think, increasing tendency for people who make wills to leave the bulk of their property to the widow, regardless of any other provision. The figures on the subject are significant.
For example, we find that for the period since 1940, in the case of estates of under £2,000, 73 per cent. of the testators left the whole estate to the widow. In cases where the estate was between £2,000 and £5,000, 65 per cent. of the persons making wills left everything to the widow. Even in the case of estates of over £5,000, where one would normally expect the testator to make provision, not only for the widow, but also for the children and other relatives, 45 per cent. of the testators left everything to the widow.
§ Mr. Philip Bell
Has the hon. Gentleman any figures, or any idea at all, of how many were home-made wills and how many were professionally made wills?
§ Mr. Fletcher
I have no such information readily available. In fact, I am not sure whether it is available in that form. I have no doubt that if the hon. Member is specially interested, it could be ascertained, but I do not think that it really has any bearing on the argument before the House today.
The significant case with which it is the object of this Bill to deal is that of people who die intestate leaving about £5,000 or a little more. They represent the largest group. In a typical year—I think in every year for the last several years—it has been found that about 87 per cent. of grants of either probate or letters of administration are made in respect of amounts of under £5,000. Therefore, that is the major problem confronting the House today.
In that case, which is a typical case, as the law stands today, the widow gets £1,000. She may have a house which is mortgaged. The remainder of the estate, if there are children, and frequently if there are not, has to be invested, because the widow does not get the capital. She can take only the income. The income on £3,000 or £4,000 is not sufficient materially to affect the problem which confronts a widow bringing up young children.
1094 Experience proves that the requirements of a case like that are that the widow should be enabled to have more cash, either to pay off the balance of the mortgage on the house or to make some investment or provision for the education of the children. While the income on a sum of from £3,000 or £4,000 is of very little help, when interest rates are low, to a widow in those distressed circumstances, if she had the capital she would he able to cope with the situation confronting her. That, in the majority of cases, is the problem.
The man who makes a will normally leaves all his money to his widow, knowing she will use it sensibly and prudently for the children; and that is what the Bill attempts to provide should be the case in respect of people who do not make a will. It gives the widow the first £5,000 as well as, as is the case at present, the personal effects. If the Bill achieves that object alone, which the main purpose of it, it will have fulfilled a very valuable and much needed reform in our existing law on intestatory. For that reason, I hope that the House will give it a Second Reading.
There are a number of other more detailed technical provisions. In the case of some of them it may be open to doubt whether the correct figure has been chosen or not. But those perhaps are matters which might conveniently be dealt with during the Committee stage. We have thought right to provide that where a man dies leaving no children, his widow should get the first £20,000 and then one-half of the remainder of the estate. That also is in accordance with the provisions made by most people when they make a will.
It is true to say that this Bill seeks to bring the present law of intestacy more in accord with the spirit of the age and social conditions, which have changed during the last 25 years or so. The main change has been to make it more necessary to provide for the widows. The day is receding where a number of people in their wills make provision for distant relatives. It is today unnecessay for our law of intestacy to be cumbered up with provisions for distant relatives which were formerly thought necessary.
I am also glad to find that this Bill brings both the case of partial intestacies 1095 and total intestacies within the scope of the Inheritance (Family Provision) Act, 1938. It is impossible to legislate for every case. Cases vary infinitely. There will always be some anomaly and some hard case requiring special treatment. I thought at first that it was a little incongruous to enable any relatives of a deceased intestate to apply to the court asking the court to change the provision laid down by Parliament for regulating matters of intestacy. But I am persuaded that it is a necessary provision to enable the court, on occasions which I think will be rare, to remove hardship.
The provisions of the Inheritance (Family Provision) Act were themselves a considerable innovation in our legislative provision, because for centuries in this country, unlike Scotland, France and most Continental countries, we maintained in our law the rule that a person has an absolute unrestricted right to deal with his property exactly as he likes. The Act of 1938 was a useful piece of law reform, and I think it desirable to extend it, as this Bill provides, to cases of intestacy.
There will be other matters of detail which can be considered during the Committee stage. I hope that the House will think it useful to give this Bill a Second Reading this morning.
§ 12.4 p.m.
§ Sir Patrick Spens (Kensington, South)
I find myself in rather a delicate position, because although I backed this Bill I am afraid that the bulk of what I am about to say will be critical of it. It would be grossly impertinent, having regard to the most distinguished Committee which sat to consider this subject so recently and which recommended that there should be legislative changes in the laws of intestate succession, for me to suggest that the Bill should not, at least, go to the Committee stage. But I hope that then it will be most drastically put under the microscope and through the smallest possible sieve.
I was surprised to hear that there had been any inquiry into this subject. During 18 years at the Chancery Bar, after the Birkenhead legislation carne in; during the six years that I was overseas and the four years since I have been back in legal circles in this country, I had never received 1096 a single complaint, either in writing or verbally, that the provisions for intestacy made by the Act of 1925 were not made with the general acceptance of the country.
Before I deal with the evidence given to the Committee, I accept completely that the main problem we have to deal with as regards intestacies are estates from a few hundred pounds up to £5,000, £6,000 or £7,000. They are mainly the estates of successful smaller middle-class people. I am strongly reinforced in my view that there is no real public interest in these legislative changes by looking at the benches opposite.
§ Sir P. Spens
It is true that there is a good reason why hon. Gentlemen opposite may not have thought fit to be here today. But it is extraordinary that when this House is discussing fundamental changes in the law of intestate succession, there should be hardly any hon. Members on the benches opposite. There is one, however, and he is an hon. Gentleman who has taken a great part in discussing these proposals. I am glad that he has been able to stay to hear what I have to say.
I took up the Morton Report and read it carefully. I found that two Questions had been asked in the House during 1950 by two hon. Gentlemen, one the hon. Member for Enfield, West (Mr. Iain MacLeod) and the other the hon. Member for Leeds, North-West (Mr. Kaberry). As a result of those Questions, the Lord Chancellor in the last Administration thought fit to appoint this Committee. The Committee then invited evidence. They obtained a good deal of evidence of one sort or another, on their invitation, but as far as I can make out very little evidence was given spontaneously to them.
Two factors were the subject matter of the Morton Report. One was that the statutory legacy under the 1935 Act of £1,000 to the widow was too small, having regard to the changed value of money. The second was that they had received some cogent evidence that persons complained that the widow was constantly unable to obtain possession and 1097 occupy the matrimonial home. It was those two factors, as stated on page 4 of the Morton Report, which set the Committee at work to devise changes in the law.
In passing, I would draw the attention of the House to the fact that it has turned out to be impossible to make any provision in the Bill for the widow to obtain possession of the matrimonial home as such. That is not in the Bill; it is impracticable, and one of the two main grounds why this Committee was appointed, and why it recommended changes in the law, has turned out to be impracticable. Therefore, there is nothing about the matrimonial home in the Bill.
That leads the House to the other point, namely, that a statutory legacy of £1,000 is too little in present circumstances, with the changed value of money, when it would have been a very simple thing indeed to have increased that statutory legacy by whatever was regarded as the proper amount. One Clause would have done that, but, of course, the Committee has, in fact, gone a great deal further than that.
I am not for a moment going to suggest that the recommendations of the Committee are not worthy of the most serious consideration by this House. Of course they are, but I want to emphasise the view I take, which is that if, as I feel certain is right, the great bulk of intestacies occur in a range of estate that works out between a few hundred pounds and £5,000 or £6,000, the effect of the £5,000 net, after duty and costs have been paid, amounts, I think in well over 90 per cent. of the cases, to the widow taking everything there is, and it is from that point of view that I think that, in the first place, we should consider the matter.
May I say at once, so that the House may know what I am working up to, that during my later years of practice at the Bar, I strongly deprecated people providing for anybody by pecuniary legacies, because the value of money changes, even from the time of making the will or the time of death, and other investments change, and it is found that, where a person has left a legacy of a couple of thousand pounds, which at the time of making the will was one-tenth of the estate, when the estate comes to be proved, £2,000 is half of the total estate 1098 or more. The intentions of the testator are, in fact, time after time, not carried out when the will comes to take effect.
Therefore, I start with a very strong prejudice based on some experience that the practice of sums of money being designated for the distribution of estates is a dangerous thing to do, and I suggest to the House that it really would be much easier to get out of a great deal of our difficulties if in the Bill, in place of the figures of £5,000 and £20,000, we specified some proportion of the whole estate. If it is intended that the widow should take the whole of a small estate, let us say so, but, if it is not intended that she should take the whole of it, but that some portion should remain for the children as and when they attain a vested interest, there again let us say so.
On the general principle, I fully appreciate what has been said by the two hon. Gentlemen who have spoken on the Bill about the difficulties of the widow and family, and how much more valuable it is to have a reasonable sum in cash with which the widow can deal as she thinks fit, but it seems to me that one ought to realise that, as children grow up, it is worth almost anything to them if there is a couple of hundred pounds at the beginning of their careers which goes to them as their own and with which they can get started in life.
Even taking the case of a family where the widow is the mother of that family and is devoted to it, if it is a young family, I am very anxious lest, in all too many cases, where the children grow up and need a little money, it will have been spent already earlier in their career. Personally, in these cases I should prefer that the widow should take only three-fifths of the estate or something like that, and that two-fifths should be left for the children, and, of course, it is a much stronger case where the surviving widow is not the mother of the children, but where the case is one in which a man has died and left a widow and children by an earlier marriage.
I think that, in those circumstances, for us to say that the widow shall take the whole estate really amounts to taking a very great deal of risk in a great number of cases, and I am going to refer later to this factor, which, though not a new one, has become of vastly greater importance in 1952 than it was when we 1099 discussed the Bill of the hon. Member for Harwich (Sir S. Holmes) in 1938, and that factor is the prevalence of divorce in this country today.
The number of families in which there are children of different marriages living in the same house is something which the House ought not to forget when dealing with this Bill, and, therefore, I say quite frankly that, first of all, I am frightened of this £5,000 provision, because I have known of too many cases in which the whole estate has gone to the widow, to the possible detriment of the children of the intestate.
Now, in regard to the £20,000, there, of course, there are not children or issue, but that figure hits at what is really the average of all the ordinary, small professional estates in this country. The number of estates of people who die and leave somewhere between £20,000 and £30,000 is a very substantial class, and this £20,000 net again means that, where there are no children, the widow gets away with the whole estate. I do not mind that nearly so much as the £5,000 provision, but the House ought to be reminded that, in that very large class of professional people, the widow will get a very great deal.
I want now to deal with the other provision in the Bill for the widow, which is very important. It is that the widow is to have the right to receive the capitalised value of her life estate in the cases where she takes it, and the hon. and learned Member for York (Mr. Hylton-Foster) said quite truly that, under the present law, where the personal representative can buy out the widow at the present time by paying her a capital sum, it is a practice which is almost unknown and has hardly ever been used. But surely there is a very great deal of difference between that provision for the widow being made by or with the consent of the personal representative and a widow having the right to get the capitalised value of a life estate which is left.
What is to happen? Let us put ourselves in the position of the personal representative. There will be occasions where it will be in the interest of everybody that the widow should receive the capital sum. But, equally—as, for instance, 1100 where a very young widow is left and there is a very limited estate—the personal representative will very much prefer to continue to let the young widow have her life interest instead of getting away with a very large sum of money as the capital value of her life interest because of her age. But under this Bill we are to give that young woman the right to say to the personal representative, "However badly it operates against other people interested in the estate, I am going to have the capital value."1 am afraid that in many cases that would mean that little or nothing would be left for those persons who are supposed to take something under these provisions.
There is another point. There are now some families where the children of various marriages are living together. I think it is dangerous in these days to cut out the half-blood. I can think of three or four families where children or young people are being brought up together and are hardly conscious of the fact that they are not full brothers and sisters. It seems to me a mistake that in such a case when the father suddenly dies the half-bloods should all be cut out.
There was a letter in the "Economist" some time last autumn—somebody sent it to me—in which this example, which is a very typical one, was given. It said:A man marries twice. By his first wife he has a son and by his second a daughter. They are all living in the same home. Father and son are involved in an accident and killed. Both wives are dead. There is no widow"—in one case the wife could not have been a widow because there had been a divorce—The father's property is divided equally between the son and the daughter, but, of course, that of the dead son reverts to the Crown, the daughter being deprived of it because she is only a half-blood sister.It is a well worked out case, but there we have a boy and a girl living together in the same home and because, under certain circumstances, they are half-bloods, some of the property reverts to the Crown instead of going to the surviving half-blood. I think, therefore, that is another point which wants a great deal of consideration.
§ Mr. Charles Fletcher-Cooke (Darwen)
It is even worse than that because, under the 1950–51 Adoption Act, adopted 1101 children are treated as if they were of the whole blood. Therefore, we get the situation where adopted children are preferred to those of half-blood, and thus the half-blood, who cannot get adopted because they are blood relations, will be discriminated against even in favour of persons who are not blood relations at all.
§ Sir P. Spens
I have not had my attention drawn to that, and I am not familiar with the provisions of the modern Adoption Act. If it is so, it merely reinforces the argument I am submitting to the House, that we must be very careful indeed before we cut out people of half-blood.
Some of the other provisions in the Bill are, I think, excellent. Since the Bill was presented, of course, the value of money and rates of interest have changed. That raises in my mind the question whether it is any longer right to reduce the rate of interest from 5 to 4 per cent., although that, after all, is only a Committee point. I entirely agree with the provision—I think it is most valuable—concerning which spouse survived the other.
Finally, I come to the provisions of the Family Provisions Act, 1938. I think it is clearly right that if we are to have that Act at all—and my main reason for objecting to it so many years ago was because, quite frankly, I thought the Scottish system would have been far better than this particular Act—it should, if possible, be improved. It has worked, and has undoubtedly done quite a lot of good service. It is part of our law affecting wills, and I do not think that there is any real reason why we should not have it in regard to intestacy.
I agree with the hon. Member for Islington, East (Mr. E. Fletcher), that although the changes made in 1925 appear to have given satisfaction over the last 25 years, it is wise at times to change the law. I strongly take the view that in a matter of this sort we shall never be able to legislate in a way which will avoid hard cases. Therefore, I personally have no objection to claims under intestacy or partial intestacy, or anything else, having the right to go to the courts for those purposes.
Learned judges in the division in which I used to practice seem to have no objection whatever to administering this very difficult and discretionary branch of law, and have done so, I understand, with 1102 fair success. The proposed Amendments to the 1938 Act will, I think, make it more possible for them to do better equity in the hard cases than has been possible up to date. I remember I argued that they ought to be put carefully between tram lines or that the direction should be given from this House as to how their discretion was to be exercised. I do not think that the hon. Member for Harwich accepted that sort of suggestion on my part, and the Act was passed in fairly broad and wide terms. It has worked, and if it is any satisfaction to the hon. Member for Harwich, I must say I am very glad it has worked as successfully as it has.
An Amendment is proposed to Section 1 of the 1938 Act the object of which, quite frankly, I do not understand. On page 20 we see the proviso to Section 1, where the Amendment is being made. I understood that that proviso was originally put in to prevent applications where there was only a mother and her child. It prevents family squabbles between child and mother. It seems that the purpose of it is to be altered, because it says:Provided that no application shall be made to the court by or on behalf of any person in any case where the disposition of the deceased's estate effected as aforesaid is such that the surviving spouse is entitled to not less than two-thirds of the annual income of the net estate and where the only other dependant or dependants, if any, is or are a child or children of the surviving spouse.This makes possible applications between mother and child in cases which are at present not permissible.
When the Act of 1938 was passed, on principle we wanted to limit as much as we possibly could disputes between mothers and their children. It may be necessary to make this alteration now, but, frankly, I do not understand the reason for it, though no doubt at a later stage in the passage of the Bill we shall be told.
These proposals will go a very long way in altering our present law of intestate succession. It will be extremely difficult to forecast the result, and if, as I fear, the main figures of £5,000 and £20,000 are too big, undoubtedly the result will be to increase substantially the number of applications which will have to be made under the amended Act of 1938. There will be more hard cases where children and other persons will resent the 1103 widow taking everything. The result will be an increase in that type of application. I still think it is an undesirable type of family litigation, however well managed, and it is for that reason, among others, that I hope that when the Bill goes to Committee it will be most drastically examined.
§ 12.32 p.m.
§ Sir Stanley Holmes (Harwich)
The House will realise that the reason I venture to join in this debate is because, as has been mentioned already, when the Ballot for Private Members' Bills took place in November, 1937, I drew first place and introduced to the House, and, with the assistance of a number of my hon. Friends, succeeded in placing on the Statute Book the Inheritance (Family Provision) Act, 1938.
As the hon. Member for Islington, East (Mr. E. Fletcher) has mentioned, this country was, I think, one of only two in the world where a testator had a right to leave his money where he liked without any regard to those who were previously dependent upon him. The 1938 Act was intended to meet the cases of wives and children. There had been far too many cases in the history of our country in which, after the death of a man who had had a wife and children dependent upon him, it was found that in his will he had left his money to a girl friend or a charity or a hospital or, as in one case of which I know, a bird sanctuary and beneficiaries of that kind.
That Act has undoubtedly had the effect of ensuring a great degree of justice to a family after the head of the family had died. My hon. and learned Friend the Member for York (Mr. Hylton-Foster) mentioned that there had been a great many cases in the courts, and I will refer to that in a moment. When I introduced the Act, I thought it would receive general acceptance from the House; but I found, both on Second Reading and also throughout the Committee stage, that there was tremendous opposition to it by what I might call a battery of lawyers.
They first tried to talk it out on a Friday Second Reading, and they persisted right through the Committee and Report stages in trying to prevent it getting on the Statute Book. We have seen lately in the House that when lawyers start 1104 opposing a Bill, the Bill takes a long time to get through the Committee. That has been happening with the Defamation (Amendment) Bill.
§ Sir S. Holmes
It certainly happened with my Bill. I hope it will not happen with this Bill, but one already sees that my hon. and learned Friend the Member for Kensington, South (Sir P. Spens) can hardly wait for the Bill to go to Committee to introduce Amendments. Although my Measure had opposition from so many distinguished lawyers then in the House—and I think my hon. and learned Friend the Member for Kensington, South, is the only one left—I, on the other hand, had valuable support too.
The then Attorney-General, Sir Donald Somervell, now Lord Justice Somervell, and the then Solicitor-General, the late Sir Terence O'Connor, were both in favour of the Bill. I had further support in the House from my right hon. and learned Friend the present Home Secretary. When the Bill went to another place, I had the great fortune to have Lord Russell of Killowen to take charge of it, and I had the support of the then Lord Chancellor, Lord Maugham; and so everything went well and the Bill reached the Statute Book.
I must refer to the last paragraph of the Explanatory Memorandum to the Bill now before the House. It says:In the Third Schedule the whole of the Inheritance (Family Provision) Act, 1938, is set out with the amendments proposed by the Bill shown in the same way.That is not quite correct. There is a sentence in Section 6, of the 1938 Act which has been omitted. That states:(2) This Act shall come into operation at the expiration of one year from the passing thereof.I refer to that because it is a matter of interest. It was inserted at the suggestion of Lord Maugham himself. He put it forward because he said the result of the Bill becoming an Act would not only cause testators themselves to alter their will, but would cause solicitors to advise their clients to do so. He said the people affected might not get to hear of it immediately as they might be overseas 1105 and that time should be given; and that was done.
I want further to call attention to what my hon. and learned Friend the Member for York said about the number of cases that have come into court. More than 2,000 cases have been dealt with by the courts in relation to that Act; but there is no doubt that thousands have never come into court at all because wills were altered, and furthermore because there have been many cases where a testator deprived his wife and children by his will but by negotiation between the legal advisers of the wife or children and the executors of the will a settlement has been arrived at out of court. It is, therefore, a great privilege to feel that it is generally felt that the Act has been a valuable one on the Statute Book of this country.
When my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) presented his Bill to the House last year, the short description which he gave included the words:To amend the Inheritance (Family Provision) Act, 1938.I naturally wondered to what extent the Act for which I had been responsible was going to be amended. The word "amend" is being used in what one might call the Parliamentary sense. The correct thing to say is that my Act has been added to, and I think it has been added to in a way which improves it. Therefore, I wish the sponsors of this Bill every good fortune in getting it through today, and then facing the battery of the Bar upstairs, and I trust that they will in due course see the Bill on the Statute Book.
§ 12.41 p.m.
§ Mr. Ronald Bell (Bucks, South)
I agree with much that my hon. Friend the Member for Harwich (Sir S. Holmes) has said, though I thought he made rather a "Fourth Reading" speech, if he will not mind my saying so.
In relation to the present Bill, I agree with him on the importance of having a commencing date which allows time for consideration; but I disagree with him to this extent, that I think it would be a mistake if the Bill commenced a year after it received the Royal Assent. People may want to make wills rather than rely upon the law of intestacy, or vice versa, as a result of the passing of this Bill. If they do so, it is desirable 1106 that they should know when it comes into force, and it is easier to remember 1st January of a particular year than it is to have a vague recollection that the Bill will come into force 12 months after the date on which it receives the Royal Assent, which is not so publicly known as the turn of the year.
It is true to say of an enactment of this kind what has been said of the commercial law, that it is almost more important that it should be known and certain than that it should be absolutely just, because just as a man may not trouble to make specific provisions in a commercial contract because he is quite satisfied with what the law will put in the blank space, so a man may perfectly reasonably decide not to make a will because he is satisfied with the provision which is made by the law of intestacy. Therefore, I think we should be rather careful in approaching a subject of this kind.
The hon. Member for Islington, East (Mr. E. Fletcher), gave a rather striking figure. He said that about 40 per cent. of all cases where representation is taken out are cases in which there has been no will, that is, involving letters of administration and not probate. That indicates, as my hon. and learned Friend the Member for Kensington, South (Sir P. Spens) said, that there has been a wide measure of satisfaction with the hitherto prevailing provisions of the law.
There are many cases where failure to make a will is due to negligence or oversight, or where the will is invalid for some technical reason, but in very many cases where no will is made it is because a man believes that the provision of the law of intestacy meets his particular case, and, indeed, makes a generally fair provision when a man dies without a will. Therefore, the rather high figures for intestacies should make the House consider whether there is not a fairly general degree of public satisfaction with the main provisions of the 1925 legislation.
As to the increase of the £1,000 statutory legacy, there is an unanswerable case. The value of money has changed substantially since 1925, and we are not really doing very much more than carrying out the original intention of Lord Birkenhead's legislation. I disagree with my hon. and learned Friend the Member for Kensington, South when he argues 1107 against the statutory legacy, or indeed almost any legacy, as distinct from a proportion or part of the estate. One advantage of the legacy is that it can be paid out almost immediately, whereas it is not possible to get payment out of a proportion or part of the estate until whoever is administering the estate knows at least approximately the size of it.
Certainly in the case of small estates—and we are mainly concerned with those in this Bill—it is desirable that the widow should have the wherewithal to live upon as soon as possible. I can see that she would be greatly delayed in this respect if we abolished the statutory legacy; and, after all, that has been in existence ever since 1925.
Nevertheless, I am rather worried about the actual form which this provision takes, because, as my hon. and learned Friend pointed out, in 87 per cent. to 90 per cent. of the cases the particular figure of £5,000 will mean that the children get nothing. It may be argued that this apparent harshness can be mitigated by the terms of the Inheritance (Family Provision) Act, 1938. I do not think that is so. I cannot remember the original terms of that Act, but the provision of that Act as amended, shown on page 20 of the present Bill, to which my hon and learned Friend referred, says:… no application shall be made to the court"—under that Act—in any case where the disposition of the deceased's estate … is such that the surviving spouse is entitled to not less than two-thirds of the annual income of the net estate and where the only other dependantis issue.
That means that the 1938 Act exists for the benefit of a widow and not for the children. I appreciate that a child can apply, but a child can only apply where the provision made for the widow on a deceased's estate is not less than two-thirds of the annual income. If, for example—to take the case of the testator—he leaves everything to the widow, then, of course, a child cannot apply. At least, I suggest not; that is the point I put forward. I do not know that the Inheritance (Family Provision) Act helps very much in that respect.
On the question of the £20,000 legacy, I strongly support the arguments put for- 1108 ward by my hon. and learned Friend. I think that the exclusion of the half-blood is a real defect in this Bill. As I understand it, the exclusion extends also to cousins as well as to relatives of the half-blood. I cannot follow the argument upon which this innovation in the law is based. It applies where there is no issue, and, therefore, when a man dies the money is made to go to his wife—either the first £20,000 or possibly all of it. Then when the wife dies, she presumably has no issue, unless she remarries, and even if she does it would then presumably go to her children; but whether she disposes of it by will or whether it goes under the law of intestacy, it would either finish off with her remoter relatives or revert to the Crown.
Who is better entitled to that money—the cousins or the brothers and sisters of a half blood of the deceased, or the brothers and sisters of the whole blood of the widow when she dies? The argument seems to me to be unanswerable, and that fact is demonstrated by the Amendment introduced in this Bill to the provisions of the law relating to people who are killed in the same disaster.
My hon. and learned Friend the Member for York (Mr. Hylton-Foster), in moving the Second Reading, said that the presumption under the 1925 legislation is that the younger survived. With this Bill that presumption is not to apply to intestate succession because, as he said, it would be absurd that the husband's estate should then pass to the relatives of the wife upon the presumption that she had survived him by a few minutes. Precisely the same is true if the wife survives the husband and lives for several years. It is not logical that, ultimately, the money should go into the wife's family to the exclusion of the cousins, brothers and sisters of the half blood of brothers and sisters of the half-blood of the deceased.
Finally, I should like to refer to Section 2 (1, b) of the 1938 Act as it is proposed to be amended. That is on page 22 of the Bill, which refers to the consequences of an adjustment made under the 1938 Act of my hon. Friend the Member for Harwich. The Bill gives power for the court to vary the original provisions and to do so even after a period of six months. There is a discretion to extend the period to more than six months.
1109 It then goes on to say that where the court has interfered to alter the distribution after a period of six months that shall not add any liability to the executors or administrators for anything they may have done in distributing the estate… but this subsection shall be without prejudice to any power to recover any part of the estate so distributed arising by virtue of the making of an order under this Act.In other words, the estate, as distributed, can be followed to the beneficiaries, to the people to whom it has been distributed, although the court has extended the period and allowed the alteration to be made beyond the normal time.
The people to whom the money was to be distributed under the original provisions of the will—and quite rightly so, because they were the people who were legally entitled to it at the time—may have used the money and they may be put in an extremely difficult position if they are sued for it and have to restore it. It seems to me to be completely unjust that by a discretionary alteration made later the original distributees—if I may coin a word—should be forced to yield up money which they had some time previously. I know it is the general law in these matters that estate money can be followed to the beneficiaries. It is rather a harsh law and it has caused a great deal of hardship in its ordinary application.
It will cause much more hardship where the money has been distributed to people who were plainly entitled to it at the time it was distributed, and then by discretionary interference later, out of time, by some subsequent application an order is made and actions are commenced to make the original beneficiaries disgorge the money. I think that is rather an unjust example of retroaction and I hope that when the Bill reaches the Committee stage matters of that kind can be remedied.
Like my hon. and learned Friend the Member for Kensington, South I have spent my whole time criticising the Bill, but in spite of that I am in favour of it. In its main outline it is a beneficial provision. It will bring the law up to date, and I think that in many respects it will give a truer expression of what has been the intention of a wise and prudent deceased. That is rather an illogical expression, but I think the House 1110 will know what I mean. I refer to the man who, if before his decease he had taken the precaution of making an actual will, would have used wisdom and prudence in doing so.
I hope that the House will give the Bill a Second Reading, though when it gets to Committee upstairs it will certainly meet the barrage of lawyers to which my hon. Friend the Member for Harwich referred. I hope that they will use their fertile and subtle minds, if I may repeat a phrase which was used in the House yesterday, to improve it in its more unsatisfactory aspects.
§ 12.57 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I believe that there is much more interest in the subject of wills and intestacy than the number of hon. Members present today would seem to imply. In the last century the subject of the will was the great subject for friction and I believe, even today, the question who is to get "Aunt Maude's" money is still of great interest to thousands of people. Therefore, anything that seeks to put the law of intestacy upon a real basis and to reflect more accurately the wishes of this figure of myth—the average testator—is to be welcomed.
The hon. Member for Islington, East (Mr. E. Fletcher), gave some figures of the number of people who died intestate. The number is staggeringly large. He explained that it was not due to the fact that they had forgotten to make a will but because wills are often technically faulty and those testators are included among the intestates.
But there is another branch to be included among the intestates. It is a branch the size of which nobody will ever know but which I believe to be very large, and which covers the case of a person who has made a will but has left it somewhere, having told someone who is looking after him where he has left it. Often, the first thing that person does upon the death of the testator is to have a quick look at the will and put it in the fire.
I believe there is a good deal more of that than we would sometimes care to admit, and it is, therefore, very important that the rules of intestacy should not work hardship on the population. It is no good criticising either the Morton 1111 Report or this Bill on the grounds that they do not provide for hard cases. The number of hard cases will be large but I think it will be less than at present.
What we have to discover is whether this Bill reflects the wishes of the average testator. It should be noticed that the average testator is still a man who has only had one wife. The hon. and learned Member for Kensington, South (Sir P. Spens) explained very cogently how hard it might be upon the children of a first marriage if £5,000 were to go to the children of the second one.
We still live in a country where one husband and one wife is the rule, and it would be a great mistake to make provision for the exceptional though growing circumstances which my hon. and learned Friend instanced, because that provision would undoubtedly take away from the rights of the surviving spouse, which everybody admits must be strengthened.
Less than justice has been done to the proposed amendment to the Inheritance (Family Provision) Act, which provides for this situation. My hon. and learned Friend the Member for Kensington, South, and my hon. Friend the Member for Buckinghamshire, South (Mr. R. Bell) both referred to the proviso on page 20 of the Bill amending Section 1 of the Act of 1938, and my hon. and learned Friend the Member for Kensington, South, said he could not understand why it was put in. All it does is to adapt the proviso already in that Act to cases of intestacy.
That proviso is already there in the 1938 Act for people who leave wills, and all this Bill does is to adapt the same form of words to intestacy. It has no application to limit the rights of the children where those children are the offspring of a previous marriage; for the provision to operate the dependant or dependants have to be the children or the child of the surviving spouse. If they were the children of the first marriage, they would not be the children of the surviving spouse.
I think it must be right, on the question of balance of hardship, that if hardship is to be suffered, it should fall on those who are getting towards their period of earning capacity, that is to say, the children, who may be expected to be able to earn their livelihood in the future 1112 rather than on the widow, who in nine cases out of 10 will be a person who is unable to earn her living, is unused to earning her living, or whose effort to earn her living is far greater than that of the children. It is impossible in the case of widows of 50, 60 and 70 to expect them to start to go out to work at that time of life, and, therefore, our first concern must be for their protection.
§ Mr. Philip Bell
But there is another point about that. If the children are those of an average family, they would not be able to have any money to start them in life. That is the sort of dead end—keeping the widow going at the expense of the children—whereas the children might help their mother.
§ Mr. Fletcher-Cooke
They might, but they might not. If everyone is going to help everyone else there is no need to make legal rules as to where the money goes, but the object of this provision is to guard against the natural selfishness of people and to see that the money goes to the people who need it most. On balance the widow needs it, because she cannot earn in the future as the children can. If the widow is going to take care of the children and the children are going to take care of the widow, it does not matter what we do.
§ Mr. Fletcher-Cooke
It is a perfectly fair point, but I think we have to proceed on the basis, as is done in the courts, that we must not trust anybody too far, because if we are going to trust everybody all the way there is no need to make provision such as this at all. The argument for giving it to the widow is not made because she will not do the best for the children. In nine cases out of 10 she does, and where there is going to be a family fight anyhow, the widow's need will be greater than that of the children.
I think, however, that the Morton Committee and those who drafted the 1113 Bill have rather lightly favoured the inclusion of the provision that the £5,000 or £20,000 which is to go to the surviving spouse should be free of tax or death duties, because the rate of tax being what it is that is giving a benefit to the widow far greater than the mere figures would indicate.
When the figure was only £1,000 free of Death Duty it was not so alarming, but when it comes to £20,000 the estate will be bearing an enormous weight of death duties and we are therefore putting up the benefit to the widow more than those figures would lead one to expect. I suggest that in Committee the rate of Death Duty and the freedom from Death Duty provided in those figures be closely scrutinised.
There is a difficult point on death duties in this matter. The hotchpot provision, Clause 3 (2, a) is one which I thoroughly welcome, but it is not clear whether the benefit that the widow is obliged to bring in when she has to bring in the benefit she receives in partial testacy has already borne tax or not. I am not at all clear whether like has been compared with like, because the benefit she is getting in intestacy has already borne tax, and I suggest that that point needs clarification.
The redemption of her life interest, which was criticised rather violently by my hon. and learned Friend the Member for Kensington, South, seems to me to be a most reasonable provision. It is also the policy of the law now to try to obviate life interests as much as possible. They cannot be altogether abolished, but they should be diminished because their administration is expensive and in a small estate—and we are dealing here with small estates; 90 per cent. of the cases if not more—it is to everybody's advantage that the administration should be cheap.
So long as life interests subsist and administration proceeds, professional trustees have to be paid, and it will be found that the fees will swallow up all the small estate which is there. The option which was given to trustees in the past to redeem these life interests was very rarely exercised. They did not know they had it, and when they had it they were not anxious in many cases to exercise it, no doubt perfectly rightly, 1114 and it has become something of a dead letter.
The provision by which the widow with the life interest has an option to redeem is one which will make for greater simplification in administration, which is something we all desire. But I would go further. There is a bar against such redemption in a case where the trustees might have to satisfy redemption out of reversionary property, and it is said it would be a hardship upon other beneficiaries if the reversions were to be forcibly realised in that way. Reversions often have to be realised forcibly, and if it is right that this option can exist, I see no reason for making an exception for reversionary property in the case of those widows' options.
I feel strongly that the abolition of the "half-blood provision" as it has been called, is wrong. The reason I interjected earlier was that it is fantastic that brothers and sisters who are not blood relations, because they were adopted, should be regarded as of equal status, in pari materia, with others who are blood relations, and yet half-blood relations, are not, but being blood relations cannot be adopted. It would be ridiculous to expect them to be adopted, but they should not be cut out. That cannot be right, and I do not believe that that is supportable on any basis at all.
There is another matter which it is somewhat difficult to discuss in the absence of lady Members. It is strange that the great advantages which are being given to widows should also be given to widowers. Before the Administration of Estates Act, 1925, the widower was often in a stronger position than the widow, because by right of courtesy and many other things he frequently got the whole estate. In 1925 that was remedied, but there should not be complete equality in this matter.
The widow is often in greater need of protection than the widower. It may be that the universal panacea the Inheritance (Family Provision Act), as strengthened by this Bill will take care of that situation. It may also well be that, in the interests of uniformity and of concise, cogent and readily understandable legislation, which has been achieved in the Bill, the widower will, by a side wind, be given advantages which, in his own right, he does not deserve.
1115 Why, in the case of a widower who takes money from the estate of his deceased wife, a rich wife it may be, at the expense of her children and her family, should the £1,000, which he now gets as a life interest—I do not quarrel with it, although I think it is generous—be treated with further generosity by the Bill, at the expense of her family? It seems to me to be carrying equality much too far. I would like to hear if there are other reasons for doing it except those of brevity, clarity and ease of understanding, which are in themselves not to be despised.
I was interested in the remarks of my hon. Friend the Member for Buckinghamshire, South, and other hon. Members, about the fact that many people take the law of intestacy as a model for their own wills. Those of us who have experience of dealing with wills often come across wills in which people simply leave their estates according to the provisions of the Administration of Estates Act.
That being so, there is a gap in the Bill and a new Clause may be needed comparable to Section 50 of the Administration of Estates Act, 1925, dealing with people who have already made their wills in that form. It is not yet clear whether wills already made, the testator being still alive, will be governed when he dies by the old method of distribution or by that method as amended by the Bill. That point ought to be put beyond doubt, because it is the sort of doubt which produces a welter of litigation in the Chancery Division.
The option to purchase the matrimonial home, is the major omission from the Bill. I would urge, in support of the omission, that the object of the great 1925 legislation, which is always linked with the name of Lord Birkenhead, was to simplify the transfer of land and to enable people to buy and sell land freely, uncluttered and unclogged by a mass of investigation, difficulty and uncertainty. That object seems to have been achieved for some years, but the difficulties are increasing again in recent times.
The process is getting clogged up again, not in the way which it was clogged before, but by the innumerable number of searches, charges and other impedimenta that land transfer carries now with 1116 it. If we are to put in another impediment, that is to say, this option of the widow to purchase, it will be another example of the tendency to defeat the objects which were achieved with such difficulty and so successfully. Searches into registers have become the bugbear of solicitors and we want to reduce them to the minimum.
Another objection to the option to purchase the matrimonial home is the existence of a mortgage. Most houses bear a mortgage. Why should the mortgagee be compelled to accept forcibly as his mortgagor somebody who, almost ex hypothesi, will be in a very much worse position than the original mortgagor? Then there is the problem of the purchase price. There is the extra statutory concession introduced by Sir Stafford Cripps when Chancellor of the Exchequer. The value of property due to the fact that there was vacant possession, was not to be taken to account for Death Duty purposes because of the increase of the value of property since 1939.
If we take this into account for the purchase price which a widow has to pay, this concession gives her an immense benefit over other beneficiaries when we remember the £5,000 or £20,000 free of tax that she is already given. We are giving an increased advantage to the widow, and some people may think that it already goes beyond the limit. It gives a substantive increase to the widow's portion over what the law already requires.
The Amendment to the Inheritance (Family Provision) Act, 1938, is the most important part of the Bill. Bouquets have been thrown on both sides of the House about that Act, but its limits have been so narrow and some of its consequences so unexpected and absurd, that its work has been very largely nullified. One of the great defects it suffered from was that the court approached the estate from the angle that there was only a limited portion of the estate available for dependants as defined in that Act.
There could be the following situation. Supposing a man died with three children, one son hale and hearty, one son disabled and a daughter. For some reason he left nothing to the daughter but left his estate divided equally between the able son and the disabled son. The daughter applied to the court for maintenance and the court said it was right 1117 she should have it. The provisions of the Act were so worded that the court was obliged to make provision for the maintenance of that daughter; not, as one might have expected, out of the provision already made for the able son, but out of the provision made for the disabled son or from no one else.
A situation like that is obviously Gilbertian and quite wrong. It was brought about by the fact that it was only within the slice available for dependants, among whom was grouped the disabled son and daughter but not the able son, that there could be any movement of funds. This Bill puts an end to that.
It also puts an end to the extraordinary interpretation the courts felt obliged to put upon the provision for estimating capital in the case of small estates. It has increased the figure of capital for distribution from £2,000 to £5,000 and it has said that this really means £5,000 and not, as interpreted by the courts, some diminution of £2,000 based on an actuarial calculation of the interest on £2,000. So that in those two respects this Act, and the ability to use it as a weapon to mitigate the evil effects both of wills and of intestacy, has been now much improved.
The objection that my hon. Friend the Member for Buckinghamshire, South raised about the extension of the period of six months in which application can be made is, of course, a strong one. Nobody likes trying to claw back money that has already been distributed, but I can assure him that the difficulty—in many cases the undesirability—of forcing people to make their application within six months has been found to be a most evil bar to the proper administration of this Act.
One always hopes that families will come to some private binding arrangement without the need for going to court. In many cases, until nearly the last week of that six months is up, the different members of the family do not know what their financial situation is likely to be owing to the great length of time taken in the administration of estates, so that they cannot really have any basis upon which to try to come to a private agreement out of court.
The result is that applications are put in and ill-feeling caused quite unnecessarily, 1118 because an application of this kind, even though done with great discretion, causes feeling amongst families, as nearly all litigation must. I believe that this provision by which time can be extended will mean that fewer applications will be made because families will have time to see if they cannot adjust their differences amongst themselves instead of going to court. Now, if they do not go to court immediately, they cannot go at all.
This is a good Bill. It has come quickly off the stocks, and all those who have promoted it and done so much work on it are to be congratulated. We read in the Press of, and we are bombarded from time to time with demands for, a Ministry of Justice on the grounds that the reform of our law is lagging woefully behind. In my short experience of this House, I have found very much to the contrary. On these Friday afternoons reforms in the law are proposed and carried with great success and speed. This Bill is an example which must commend itself, at least on Second Reading, and I have pride in supporting it, and regard it as a great privilege to be able to do so.
§ 1.25 p.m.
§ Mr. Michael Higgs (Bromsgrove)
The greatest tribute that I can pay to my hon. and learned Friend the Member for York (Mr. Hylton-Foster) is that I came in here with an empty sheet of paper to see whether there was anything I could say which might help the House and, having heard the speech in which he moved the Second Reading of this Bill, I find that my paper is now something of an apology. That is a much greater tribute than he knows.
My hon. and learned Friend put the Bill to the House in this way, that his speech not only contained a survey of the Bill but he picked up the kind of points upon which a Second Reading discussion is useful because they lead to a much more satisfactory Committee stage. I believe that I am only the second solicitor who has spoken so far, and, if I may say so with all deference to the much more learned branch of our legal profession, I believe that those solicitors who sit closeted with testators from time to time are even better able than they are to give the House the kind of points which will guide it aright.
1119 The fact that some amendment to the law of intestate succession is now necessary seems to be agreed by all. When I came back from the war in 1946, I returned to a house which I had built in 1936 at about what it now costs to put up a council house, or perhaps £100 or £200 more. I was told by my neighbours how fortunate I was that, while I had been fighting with the Manual of Military Law for my King and country, in foreign parts, the value of my house had gone up to about £7,000 or £8,000.
That provided an excellent excuse for one or two little celebrations until I reflected that the only benefit I might receive would be the rather doubtful one of paying a great deal more for a new house if I sold that one, and that the two would cancel out. Secondly, I realised that the ever hungry Chancellor of the Exchequer would take a great deal more from any unfortunate widow I might leave should the time come for me to die. That is a fact of life which has been forced upon all of us who have any responsibilities, and in my view that is quite sufficient argument for this Bill to go through. Like the hon. and learned Member for Kensington, South (Sir P. Spens), I look forward to some Amendments on the Committee stage, though perhaps not quite so drastic as some of those which he would propose.
The first note I have which may help the House arises out of a point made by my hon. and learned Friend. He referred to the possibility that some testators have in mind of providing a period by which the spouse must survive before she—should she be a widow rather than a widower—shall inherit under the will. The advantages of making some such provision as that are obvious. It may well save a double payment of duty because of winding up two estates where, as the result of the same accident, a widow survives her husband by only an hour or two.
Although I have never yet met a layman who had ever thought of asking for such a provision as that in his will, because the possibility is not widely known, every layman to whom I have mentioned it has welcomed it with open arms. Whatever else they may have argued with me while I made suggestions as to what should go into their wills, they all 1120 accepted that; and so did their spouses, when we discussed the wills, as is usually done, in the family.
It may be said that, if we say that the survival should be by one week, there will be spouses who survive by eight days; and that if we say 14 days there will be spouses who survive by 15. However, that is no worse a hardship to anybody than the fact that the spouse who dies at the same time as the husband must necessarily, if younger, be presumed to have outlived him. Surely the ideal period by which the spouse must survive to inherit is the period which, experience shows, normally is taken before the statutory legacy is ready to be handed over.
If a husband dies on 1st January, then, I suppose, in the ordinary way, unless there are complications, it is possible in something like a month to hand to the widow a cheque for her statutory legacy. I have always taken that as being the yardstick by which to measure what is a reasonable period when making provisions in wills. The time at which, in the normal course, in a normally expeditious solicitor's office, the cheque for the statutory legacy is ready, is the moment when the decision should be made.
Some anxiety has been expressed about the desirability and the impossibility of making some provision by which a widow may secure to herself the matrimonial home. There is no doubt that we are making adequate financial provisions for widows in the Bill. I am one of those who think that justice has been done, having regard to the experience we have had of what is the normal size of estate in normal and average intestacies. I think we are going a bit further in this Bill. We are not only giving a widow resources, but we are giving her a bargaining power; we are giving her something to bargain with.
Then the question arises of her coming along as a stranger to take advantage of an opportunity of purchasing herself the house, just as a stranger would purchase it. The suggestion I make is that we should consider—and I do not propose to go any further on this on Second Reading, but that we should consider it in Committee—whether Amendments are necessary to the existing law to enable a widow, not indeed to have any privilege, but simply to go to an auction sale of the 1121 family home and there bid in the ordinary way and buy it.
At present the sort of difficulty that arises in almost every case, as lawyers will recognise, is that when somebody who is a trustee or in the position of a trustee goes to buy the trust estate, there are infants. It may be that we could give the widow sufficient latitude to enable her to have a full opportunity of continuing to live in the matrimonial home if we were to give her the money, which is already provided for in the Bill as it stands, and if, in addition, we were to smooth the way for her against the technicalities of the rules of equity as applying to one who is probably in the position of a trustee, and so as to enable her to purchase part of the trust estate.
The next matter upon which I have rather strong views is the question of the brothers and sisters of the half-blood, particularly as it will arise where there is no widow and there are no children, or where the widow and children have been provided for. The simplest way in which to consider this case is this: where the elder son of a father who has left some estate dies and where the only relative is a half brother—a half brother or sister, of course—just because of sharing the same father rather than the same mother.
In a case like that the position that arises under the Bill as it is drawn is that the father who left the estate sees it go to his eldest child by the first marriage and thus go away out of his family, to the detriment of the second child who has, after all, almost an equal right to inherit. I do say that, whatever else we may do—and I think we ought not to do it in any way which would prejudice either the widow or the children—having safeguarded the widow and children, we should provide that the half blood ought to come in next, after the full blood.
In passing, and on this same point, I rather wonder whether the time has now arrived at which the parents in order of succession should come before brothers and sisters. We have, of course, to cater for every case, and that means that we have to cater for the average case. When the average man—or woman—dies, his parents are exceedingly old. In these cases, is it really right—and we are not now sitting in our capacity of a body which controls the Revenue: we are looking after the interests of individuals 1122 —that where a man dies in his fifties or sixties, leaving parents in the seventies and eighties and some estate, that that estate should go to the parents and pay duty once, and then, in a year or so, go back to the brothers and sisters and pay duty again?
Surely the much better way of doing it is to leave the parents, who may have been dependent upon the deceased son in his lifetime, under the Inheritance (Family Provision) Act—if they can make out a case—and leave the estate of the intestate to go to the brothers rather than the parents. I know that that is to break with traditions that go back as far as the law of succession goes, but, after all, we have come to a time now in the development of the economic outlook of this country at which Estate Duty is a very much more potent factor than it was even in 1925, let alone when these rules first grew up, when there was no such thing as Estate Duty at all. It does seem unfortunate that when a man with some wealth to leave behind him dies, it has to suffer Death Duty once by going to his father and then again when it comes down to the brother. It would be better to leave the father the right, should he wish it, to go under the Family Provision Act.
The Inheritance (Family Provision) Act is proposed, by this Bill, to be extended to cases of intestacy. I personally welcome that—with certain little reservations which, I think, ought to be made for a safeguard. First of all, of course, it is likely that, as a result of the Bill, and of the extension of this procedure to intestacies, there will be a considerable increase in the number of cases which go before the courts. At present, one only goes under the Inheritance (Family Provision) Act in a case where the will is said to be inequitable, but the number of cases in which the best Parliament can do produces anomalies or hardship must be very much greater. It further follows that the cases in which this Inheritance (Family Provision) Act is invoked will in many cases represent very much smaller estates.
I wonder whether we ought to consider giving jurisdiction under this Act to local county court judges in cases where the estate is of moderate size. County court judges, in my experience, in appearing before them in family matters and in 1123 cases of dispute between spouses as to the contents of the matrimonial home, or the home itself and so on, know very well indeed the people amongst whom they practise.
Very often in matters of this kind local outlook and the local way of life are quite important, and I believe that in small cases which come under the Inheritance (Family Provision) Act, as a result of its extension under this measure, they might well perform a very useful function. A matter which might well be considered on the Committee stage is whether, and if so, how, and in what way, we might extend their jurisdiction to include smaller estates now that there are likely to be so many more of them.
My final point is also one of practical experience. It is said that if this Bill passes all stages it should not come into effect for a period of, say, 12 months to give those people who may want to alter their wills as a result, or to make their wills because of it, an opportunity for doing so. I have never come across anyone who has deliberately left his will to the Administration of Estates Act, 1925. I have never come across anyone who has said, "I want to know whether in my circumstances the Administration of Estates Act does what I want it to do; I want to know whether I need make a will." Everyone who gives thought to these matters would very much prefer to see it written out and signed by himself. Consequently, I do not think there is a class of case in which there would be a rush to make wills as a result of this Bill reaching the Statute Book.
§ Mr. Hylton-Foster
Perhaps my hon. Friend will not forget, because we have toiled with these rather complicated-looking provisions, that the legal profession, of which he is so distinguished a member, and their clerks, have to be educated in these provisions. We thought there should be a chance for a few lectures to be given before the Act came into force.
§ Mr. Higgs
That I would not dispute. Solicitors are ever struggling against the mountain of law which piles up, and I would entirely agree with a month or so to enable us to do that, but with any long period being allowed to lapse, so that the news of the new Act can reach all quarters of the land, I would not agree, 1124 particularly because I have a disquieting picture in my mind of widows with rapidly failing husbands trying to fan the flames of life and keep a little spark there so that they might get £5,000 instead of £1,000.
§ 1.44 p.m.
§ Captain J. A. L. Duncan (South Angus)
I rise with some diffidence, as a Scottish Member, to intervene in a lawyers' holiday, because I think that when lawyers start to argue like this a layman can sometimes put some balance into the highly legal arguments. On the other hand, I must confess that I am certainly not competent to discuss the legal aspects of the matter. I think the layman's part is mainly to bring the experience of life into these discussions and the lawyers have to draw a lesson from life.
The hon. Member for Islington, East (Mr. E. Fletcher) quoted a figure today which to me, as a Scot, seemed an astonishing figure. He said that of the total number of wills and letters of administration over a certain period—the figures were in the Morton Report—40 per cent. were intestate. That seemed to me, as a cautious and careful Scotsman, to be an astonishing figure. It throws a strange light on the English mentality. It is often said that the Englishman never thinks ahead, but when he is roused the English lion really does roar.
In our political life, and in 1914 and 1939, we have seen that aspect. We are never ready because we have never thought ahead, but, given time, we always win a war because when we do get roused the British race as a whole are invincible. It is an interesting sidelight on the English character that, according to recent statistics, of all the people who died in this country 40 per cent. did not bother to make a will.
§ Mr. A. J. Champion (Derbyshire, South-East)
Is the hon. and gallant Member suggesting that we shall now be able to raise those who have died intestate?
§ Captain Duncan
As the hon. Member is getting a little biblical, I would point out that last night—about 10 hours ago—this House was a raging, blazing, inferno and that I feel like the "still, small voice."
1125 The hon. Member for Islington, East, quoting from the Morton Report, talked of 23 per cent. of the majority of cases having been satisfactorily dealt with by previous legislation. My hon. Friend the Member for Bromsgrove (Mr. Higgs) said that in dealing with these legal matters, we had to cater for the average case. I, as a layman, want to put in a plea for the non-average case. It seems very important that, in cases where individuality plays so important a part in family life, we should be careful not to concentrate too much on a majority view, or on majority experience.
We have to do that in a democratic assembly like this. We have to win by the majority and the majority must carry the day, but, in the case of the law of succession, it seems to me, as a layman, that as far as we can avoid it we ought not to rely too much on the figures of the majority, but must pay some attention to the desires of the individual testator, or the person who does not bother to become a testator.
In Scotland, as I think that the right hon. and learned Member for Edinburgh, East (Mr. Wheatley), the former Lord Advocate, will agree, we have a form of law in this matter which is and has proved successful. We do not have much trouble with this sort of thing. I was particularly struck by some of the remarks of my hon. and learned Friend the Member for Kensington, South (Sir P. Spens), about the cash figures mentioned in Clause 1, the £1,000 and £5,000. We in Scotland have no figures in our law; we have proportions. My hon. and learned Friend advocated proportions rather than figures. I know there are objections.
§ Mr. John Wheatley (Edinburgh, East)
I am sure that the hon. and gallant Member does not wish to mislead the House, but even in Scotland the widow has a prior claim to the first £500 of an estate, as it is £1,000 in England. Is he also aware that I asked the Mackintosh Committee to report on the law of succession in Scotland and that they did so and made recommendations, which, if not so sweeping as those contained in the Morton Report, would substantially alter the law of succession in Scotland?
§ Captain Duncan
I must admit I was not aware of the recommendations of the Mackintosh Committee, nor was I aware 1126 that they had received any consideration from the Government. I am dealing, as a layman, with the law in Scotland as I understand it, not as it may be.
The objection to a proportion rather than a cash value is the delay in paying it out. My hon. Friend the Member for Bromsgrove said that we ought to be able to pay out the £1,000 or whatever it is, within a month. That is the timing he gave—
§ Captain Duncan
If it was a cash payment, that payment may be made much more quickly than if it was necessary to wait until the total financial value of the estate had been ascertained and divided up to obtain the proportion. But my opinion is that it would be better to wait, in fairness to the children and other dependants, even if it meant a delay of 18 months. The hon. and learned Member for Kensington, South is right, in my opinion. It would be much better to have a proportion.
There is another reason. In this Bill the figures are being altered from the previous figures, and one of the reasons given was that the value of money is less than it was. That process may well go on, as money seems these days to become worth less as the years go by—at any rate, that is my experience. So it would seem to me that that is another argument in favour of putting a proportion rather than a fixed cash figure in the Bill, because the proportion would vary with the value of the money, whereas a cash figure would be fixed. I hope that on Committee stage there will be a careful scrutiny of that point, to see if it is possible to obtain an alteration from a cash figure to a proportion, although I recognise that there is also a danger in the other way.
Clause 2 of the Bill deals with the case of a surviving spouse—which, I agree, is a horrible expression—who might require the personal representative of the intestate to redeem a life interest. I have not come across that sort of case personally, because I do not think they go 1127 to a Member of Parliament, but rather to a solicitor. I have, however, had pension cases where a man has said, "What about the little shop?" Or perhaps they want to buy equipment for a smallholding, or they may have a dozen different reasons. They ask me to intervene with the Ministry of Pensions with a view to capitalising their pension.
I am very glad that in making the new pensions Regulations the previous Government refused that absolutely. In my experience between the wars, when, under the old pensions Regulation, it was possible to capitalise a pension, or part of it, many cases of real suffering or hardship resulted. A man who, in a moment of optimism, had sacrificed his life interest and then fallen on evil days really did suffer, maybe through no fault of his own, and the same sort of situation might well arise here. It would, therefore, seem to me unwise to give the unilateral, unqualified right, even though under the conditions in the Clause, to a surviving spouse to demand that the personal representative should hand over the capitalised value of a life interest.
§ Mr. Wheatley
I do not understand this line of argument from the hon. and gallant Member. A few minutes ago he was extolling the virtues of the Scottish system as compared with the English system. Is he aware that in Scotland there is no life interest paid to a surviving spouse? As he previously said, the spouse gets a capital proportion of the estate of the deceased.
§ Captain Duncan
Yes, but I am now talking about Clause 2 of the Bill and I am also talking about English widows.
§ Captain Duncan
I was dealing with Clause 1 when I referred to the differences between the Scottish and English law, particularly on the question of proportion or cash.
§ Mr. Wheatley
Does not the hon. and gallant Gentleman appreciate that what he is objecting to is an English widow having the right to do what, in Scotland, is done under the existing law, namely, get a capital sum?
§ Captain Duncan
I am not objecting to the right of an English widow to get a capital sum, but I do not think that 1128 that right ought to be completely unqualified as it is in the Bill, and I hope that on Committee stage it will be looked into. If there were an Amendment to the Scottish law to deal with that, I would say the same thing. I do not think in either case that there should be an unqualified right of the widow to demand the capital, because in certain cases it might lead to hardship and suffering.
I have had a case drawn to my attention regarding the question of half blood. An elderly widower has a daughter. He re-marries a young lady and dies, leaving £5,000. The widow inherits the whole, instead of the £1,000 as now, leaving the daughter nothing. The family may have been living together for years, amicably or otherwise. But the daughter is left penniless, even though her stepmother re-marries. Why should half-blood relatives be treated as strangers? I. consider that kind of case requires careful consideration.
I welcome this Bill and congratulate my hon. and learned Friend the Member for York (Mr. Hylton-Foster) on the way in which he moved the Second Reading. His speech was admirably clear, even to a layman like myself. I welcome this piece of legislation which is one of those which Private Members are privileged to have the opportunity to introduce in this democratic House of Commons.
§ Mr. Steele
On a point of order. We have had a fairly long and very interesting debate, Mr. Deputy-Speaker, which has now proceeded for three hours, on a Bill the principle of which has not been opposed by any hon. Member who has spoken. The speeches to which I have listened have dealt mainly with points which could properly be discussed during the Committee stage of the Bill. Other hon. Members who wish to take part in the debate are just beginning to come into the Chamber. It appears that it is the intention to carry on this debate.
I would point out that a most important Bill is next on the Order Paper. It is most important in the interests of the people of Scotland. I therefore ask you if you will be prepared to accept a Motion, "That the Question be now put."
Mr. Deputy-Speaker (Mr. Hopkin Morris)
As hon. Members know, I have no power to accept a Motion of that kind while I am in this Chair.
§ 2.1 p.m.
§ Mr. Frederick Gough (Horsham)
I feel immensely encouraged by the speech made by my hon. and gallant Friend the Member for Angus, South (Captain Duncan). I, too, am a layman and I was rather trembling on the brink among this galaxy of legal eminence. Further, I have an apology to make to my hon. and learned Friend the Member for York (Mr. Hylton-Foster) for not being here when he opened the debate. That was entirely due to the comings and goings of the past two days, as a result of which urgent private affairs made my early attendance impossible.
I do not intend to take up the time of the House for more than a few minutes. I, too, support this Bill completely. If I may be allowed a lighthearted moment, the only quarrel I have with it is in connection with its Title. In the condition which some other hon. Members perhaps share with me this morning. I find it a little bit of a mouthful. If, as I hope, it reaches the Statute Book, perhaps it may acquire unexpected fame by being coupled with the "British Constitution" and the lady who "sells sea shells" and be used by our police force as a test for sobriety.
Within a few days after I first saw this Bill, the problem was brought home to me most vividly. A business colleague of mine died tragically and suddenly. Earlier today we have heard the amazing statement that 40 per cent. of the people die without making provision. My friend was a professional man who had promise of a great future. He was a person who, one would have thought, would have been most careful in his private affairs, yet he died intestate. He left a widow with no children. Under the law she is left with £1,000, and she finds herself—and this is the ludicrous part of it—having to share the remainder of the estate with a relation with whom neither she nor the husband had a great deal in common and whom neither of them had seen for 20 or 25 years.
In the course of conversation I have heard criticism that this Bill is rather too narrow and that it is a Bill for the lawyers. But, on reflection, one sees that this Measure will cover an enormous section of people. It covers, for want of a better name, that large body of people called the middle-class. It includes a 1130 range from professional people—such as those in my constituency who are farmers and horticulturists—civil servants, managerial staff, and the like.
This Bill gives protection to widows. I hope that, even if nothing else happens after this debate, public opinion will be stirred and that people will realise the enormous number of husbands and fathers who are so careless that they do not make reasonable and simple provision for the people with whom they live and for whom they are responsible. This Bill does not relieve them of that responsibility.
I recall that during the war one of the responsibilities of a regimental officer was to ensure that all under his command made a will. It is on that note that I wish to conclude. I welcome the Bill. I have purposely not gone into detail. I hope that it will reach the Statute Book, but it should be borne in mind that it does not absolve the father of the family from doing his duty by making proper provision. I hope that as a result of this Measure the figure of 40 per cent. will be reduced.
§ 2.6 p.m.
§ Squadron Leader A. E. Cooper (Ilford, South)
I do not propose to detain the House for very long, more especially as I have no legal training. Like some of my hon. Friends, I enter this discussion with a certain amount of diffidence, but I hope the fact will not be lost upon the House that the debate on this most important matter has been completely one-sided in two senses. The Bill has been universally accepted, but the speeches have come almost entirely from hon. Members on this side of the House.
§ Squadron Leader Cooper
I hope that it does not mean that the rigours of the present week have been too much for Her Majesty's Opposition.
When this Bill is considered in Committee, I hope that hon. Members will not lose sight of its main purpose. I was somewhat disturbed to hear one of my hon. Friends say that when this Bill went to the Standing Committee the full barrage of legal opinion would be put against it to see that it was improved. When the lawyers get hold of these Bills 1131 they sometimes become so surrounded with legal verbiage that the ordinary layman ceases to have any idea of the meaning of the Bill. We must not lose sight of the provisions as laid down in the Explanatory Memorandum.
We have heard some interesting arguments about half-blood and other remote relations, but my interest is primarily to protect the spouse, and the children of a deceased person. This Bill is further evidence of the paramount importance of woman and it will undoubtedly assist to strengthen our British way of life. When two people marry the husband accepts certain obligations. My submission is that those obligations do not necessarily cease upon the death of the husband; but it may be academic at this stage to discuss just how far beyond death the obligations extend. I submit, however, that it is a primary obligation upon any man to ensure that upon his death his wife and children will be properly looked after. It cannot be right or just that the husband should leave his wife and children penniless if, at the time of his death, he is in a position to make some provision for them.
One point in the Bill of which I am critical is the provision to raise the statutory legacy from £1,000 to £5,000, which may not be enough. I can foresee that this may lead to certain difficulties, and may mean that the children of a marriage will not be provided for. It can happen in this way. I suppose that the main beneficiaries who will be covered in this Bill will be those of moderate income groups, and it is probable that, in these particular income groups, the persons concerned are owners of their own homes.
Such is the value of houses today that a modern house with three bedrooms, with its contents, could reasonably be valued at about £5,000, or perhaps a little less, so that the result of this provision of raising the figure from £1,000 to £5,000 may mean that a widow is left the house in which she lives, together with its contents, and with no income at all. Any capital remaining in the estate would, of course, be disposed of in any other way. Therefore, it seems that, as the widow must need an income, the property must be sold, and that, in consequence, hardship may result.
1132 Secondly, and I think the two points hang together, I feel that there should be some specific provision in the Bill for the children. It need not be very large, but, if the widow is going to take the whole estate, as she can easily do under this Bill, it means that the child or children might not receive any sum whatever, and that at a time of their lives when they might need it most.
For example, let us consider the case of a boy who is taking up an apprenticeship, or who wants to buy tools or something of that kind to assist him to make a start in life. A sum of money—£50 or £100—left to him in those circumstances would be of inestimable value at that time of his life, and I feel that we should seek in Committee to make some provision along those lines.
In my own division I have come across one or two cases which have impressed upon me the necessity for this Bill. The ordinary man in the street is not fully conscious of the number of cases of the nature to be dealt with in this Bill, but a Member of Parliament receives correspondence from all over his division, and is, therefore, seized of the very great importance of matters of this kind. It is not right that relatives should prejudice the mind of a man, as they do in some cases, to make him will his money away from his spouse, and we must correct that situation.
I sincerely hope that this Bill will receive a Second Reading, but, more important still, I hope that my right hon. and learned Friend the Attorney-General, when he replies to the debate, will be able to tell us that the Government will provide facilities for the speedy passage of the Bill into law.
§ 2.13 p.m.
§ Mr. Philip Bell (Bolton, East)
My hon. and learned Friend the Member for Kensington, South (Sir P. Spens), said that, in his experience, he had found that the passing or introduction of a family inheritance Act would probably cause litigation. I think it is important that one taking part in this debate should declare his interest and say that, notwithstanding the temptations, he has a rather neutral mind about it.
As it is after lunch, I hope the House will bear with me if I voice the toast which, as a student, I found used to be 1133 submitted at certain functions. It goes like this:Ye lawyers who live on litigants' fees,And who need a good many to live at your ease,Grave or gay, wise or witty, whatever your degree,Plain stuff or Queen's Counsel, take counsel with me.When a festive occasion your spirit unbends,You should never forget the profession's best friends,So we'll send round the wine and a bright bumper fill,To the jolly Testator who makes his own will.The point which I want to put concerns this contrast between capital and income. An interesting thing about our law is to be found in the contradiction, or the apparent contradiction, in that the Inheritance (Family Provision) Act is meant to provide maintenance, and is meant primarily to supply an income to a widow and the present proposals deal with capital. It is true that, as the Act stands, when the estate is not more than £2,000, capital sums can be granted to those who are assessed in relation to income calculations, as appears from reported cases, and these sums are intended to provide maintenance.
The Act was not intended to be one by which pecuniary legacies were paid to widows, but was meant to be an Act to provide the means of maintenance. That has been reinforced by other cases, in which, if the family went to the court, with estates of about £300 or £400, when they had paid the costs—and quite heavy costs are involved in these cases—it was found that there was left about £180 which, in fact would provide no worthwhile maintenance.
There are certainly some recorded cases in which the court has refused to make an order, and in which the court has said that it could not make a grant of a capital sum for private maintenance, because this was really an abuse of the process of the Act. That is what the Inheritance (Family Provision) Act provided. If a person has wholly disregarded his obligations, the court could step in and say that he should have made provision to maintain his wife and dependants, but not that large capital sums should be allowed.
On the other side of the law of intestacy as it stood, the position was substantially the same. The widow having got the £1,000, which is a special grant and an 1134 immediate grant, but which is probably not meant to be a maintenance grant at all, these income provisions apply. The emphasis is placed on maintenance not being provided by large capital sums, but the significant thing is that the machine has simply run away with us.
This habit of spending capital as income is not good for one, and is certainly not good for the family. This state of affairs was simply encouraging the spending of capital. It is easy enough to say "We will give somebody £5,000, because they can buy a house." Widows sometimes do buy houses costing £5,000; they also buy fish and chip shops which are unsuccessful; and they are induced by interested suitors to invest money in other businesses. I wish we had some hon. Ladies present here today, because all this sounds too masculine.
Speaking for myself, I should like my widow to have an annuity which nobody can get at or take advantage of, and that is what I think people want to provide. They do not want large capital sums to go to their wives. It is said in this most useful Morton Report and in such statistics as we can get that, when we look into the records, we find that, in most cases—I think it was 75 per cent. of all the wills which have been looked at—the property goes substantially to the widow. These are the small estates, those under £2,000. Therefore, it is said. "Let us continue with that."
I do not find that point very convincing because, as the hon. and learned Member for Kensington, South, said, people make wills and then die, but they do not usually die at the time they make their wills, and what they really want at the time of their death is probably not put in their will. What about the home-made wills? They will lead to the litigant's fees. We see a lot of the home-made wills. The point is that the testator does not know how he can protect his wife. No one has told him he can settle property on protected trusts, and therefore he sometimes makes incomprehensible provisions. In despair he says to himself, "I really do not know what to do. I will have to give my money to my wife."
I am not convinced that by merely looking at a few records one can interpret what husbands want, and I am 1135 not sure it is the duty of the Legislature necessarily to interpret what they want, because sometimes over a great period of years they want a good many things about which their wives were not so happy.
It is interesting to look at the history of this matter. Everybody in this debate seems to regard the 1925 Act, as if it were one of the Ten Commandments. The view is that it must be right, and that we are now going to improve matters. The position before 1925 was interesting as regards capital. The point is that the 1925 Act went the right way about improving the income position and taking away the capital from the wife. In my view we are now proposing to reverse that trend and to give the widow a better capital position at the expense of the income provisions.
The Intestates Estates Act, 1890, which, of course, following the Married Woman's Property Act, improved the position so far as capital was concerned, though she was not recognised as having any interest in land, a custom which is not very savage because I am told it prevails in the country of the right hon. and learned Member for Edinburgh, East (Mr. Wheatley) where, I understand, even to this day they exclude the succession of women to land on intestacy—
§ Mr. Wheatley
Females may have certain interests in land in Scotland on intestacy and a widow at the present time has a life interest in heritable property which otherwise devolves to the heir at law.
§ Mr. Bell
But the widow has no capital interest. I was dealing with capital. In 1890 the position of the widow was that if it was a small estate she got £500. If the estate was more than £500 she got half the personalty—that is, a widow without children—which is a good deal more than she got in 1925. If there were children she got one-third absolutely and the issue got two-thirds. In 1890, her capital position was stronger than her income position. She had the whole of the estate if it was small, and even if there were children she had one-third. 1136 So far as land was concerned she got one-third of the interest of the land.
What happened under the 1925 Act? We do not find there any circumstances in which the wife gets one-third absolutely or half the personal estate. She takes instead the personal chattels and £1,000 with interest, as we have heard. Her position from the capital point of view was probably worsened, but she was coming in on an income point of view. Whatever the position and the size of the estate she was to be provided with income.
I want the House to consider whether the new provisions in regard to small estates of £5,000 are really to the best interest of widows and of the issue, if any. The suggestion which I make with some diffidence is that we should make the position possibly a little more complicated but a bit safer. I think there is a case for increasing the capital grant of £1,000. I would prefer to make it proportionate to the estate, but I think we are now rather used to dealing with a capital sum, and I think we might probably make it £2,000.
I do not like these arbitrary interest rates because it seems to me quite improper that somebody should get interest at a rate which the money is not in fact earning, and I cannot understand why the widow should not be entitled to interest on her £2,000 in the same proportion as it bears to the rest of the estate.
What about the rest after the £2,000? I would submit some other sum, about which, after all, it is difficult to be positive, should be settled on the widow for life—if necessary the whole estate—on what I call a protected life interest. That means she could always deal with the income, but could not dispose of it, charge it, or assign it to anybody. It would protect her from wasting it away and from mortgaging it.
If she had this protected life interest in the whole of the income—we are still dealing with the £5,000, and the £2,000 capital and the rest—set on a protective interest for her, with an obligation to maintain the children up to 18. I suggest that the children should have some right to be maintained out of that income.
The difficulty about all these provisions is that circumstances alter cases, and one 1137 suddenly finds it necessary that a capital payment should be made. I believe that can be dealt with quite advantageously by inserting in these provisions a power of advancement. It has been said that life interests are unwieldy and difficult to deal with in the case of small estates, that they hold up the distribution, that they keep the trustees there, and that they cause money to be expended.
I should have thought that the way to deal with any capital sum which was to be used for the benefit of the widow was to invest it in the purchase of an annuity. It should not be handed over to the widow, but should be used, or a part of it, for the purchase of an annuity with provisions for allowing advancement in her case.
There is only one other point which many of my hon. Friends made, and about which I feel strongly. I note that we have to assume that mothers and children always get on, that they are always treated fairly and that everything is satisfactory. As a father, I do not want to encourage too much independence amongst children but I think that a little capital, as has been said already, would be most beneficial to the family. It would give the children some token recognition of their father and of family life and its responsibilities.
Even in the case of small estates, unless the amount is very negligible, a little sum should be received at 21 years of age. Indeed I think I might make it 18 years or 16, with trustees or executors having discretion to apply this capital for their benefit.
If hon. Members are thinking, like myself, of their own impoverished affairs, I think what they would want in their own case would be what I want here—that is, for their widows to have income first and next capital to provide for the occasion when something grievous like a serious operation happens; and finally, these small sums to go to each of the children as some token representation. I regret to say that probably the sum would be a very small token, especially if we go on with these long Sittings. Those small sums would help to pay for training for six months in things like shorthand-typing or, in these scientific days, in some more advanced subjects.
§ Mr. Wheatley
Does the hon. Member not realise that the last Administration provided all these safeguards—a widow's pensions for the widow, National Health Service for the operation, and childrens' allowance for the children?
§ Mr. Bell
No, I am not speaking of curtailed benefits but of the National Assistance Board benefits which have been extended.
When the State deals with money or we as workers—if I may associate myself with the Opposition without offence—give money in a deserving cause we do not give capital grants but make income payments. When we want to help the great family which is the nation we do so by income payments and not by capital payments. And the gravamen of my argument is that even in this House we must ensure income payments not capital payments.
It is suggested that in intestacy, up to £5,000 should be automatic, that part of the payment should be income and the trustees should have powers to advance capital in an emergency. But even in the smaller estates that should not take legacies away from children. It is not going to make much difference if one-tenth or one-fifth is preserved for the infants.
Those are substantially my objections to these proposals. I agree that the time has come to make alterations to the existing Act but I do not know whether this alteration does not go a little too far. I think there is substance in the argument advanced about the half blood relationship.
Incidentally, I find in practice that many people are confused on the subject of whether divorce revokes a will. Marriage, of course, revokes a will but most people do not realise that divorce does not also revoke one.
These are the only observations I would make in a general discussion, though I think there are a good many more which 1139 would be appropriate on Committee. There are difficulties that arise in assessing these various claims and in guessing what would be the right thing to do, and indeed it is a matter of guessing. I notice that the principle of the Inheritance (Family Provision) Act remains still on the basis of maintenance. I believe that is the latest law—even later than 1925—and that principle of maintenance is the one which should be applied primarily in dealing with the division of estates.
Mr. Deputy-Speaker (Mr. Hopkin Morris)
Mr. MacLeod. [HON. MEMBERS: "Oh!"] I have called Mr. MacLeod.
§ 2.36 p.m.
§ Mr. Iain MacLeod (Enfield, West)
I have been here with the exception of one absence, to which I shall refer, since 11 o'clock. Hon. Members will see from the Bill that I am its third supporter and it will he seen from the Command Paper that I was one of those who set the wheels in motion—
§ Mr. MacLeod
I have been here, with the exception of a period of about one hour, since 11 a.m. Among the galaxy of legal talent named on the back of this Bill I am the only layman as far as I know, but I think it is not a bad thing that, among lawyers, the layman's voice should also be heard.
I want, first, to refer to the remarks made by my hon. and learned Friend the Member for Kensington, South (Sir P. Spens), who said that there was little public desire for this Bill. I know better than that. I have had experience of cases in my constituency, which led me to put down Questions to the Attorney-General in the Socialist Government, and which were one of the factors which led to the setting up of the Morton Committee. It is true there has been a considerable increase in public disquiet about the working of the intestacy law. I believe it is true that the Law Society approached the legal authorities of the Socialist 1140 Government as far back as 1948, and it is true that this matter has been raised in and out of the House on a number of occasions.
What I am about to say I would have said to my hon. and learned Friend the Member for Kensington, South, if he had been here, and I think it answers the point that the right hon. and learned Member for Edinburgh, East (Mr. Wheatley) made. It is true I was out of the Chamber for a period of about one-and-a-half hours. In that period I was fulfilling a long-standing luncheon engagement with a party of blinded people from St. Dunstan's.
The relevance of that to this matter is that one of the legal advisers to St. Dunstan's was at the lunch. He did not know that I was a supporter and was interested in this Bill, but he said he was delighted that the House of Commons was discussing this matter today because he knew perfectly well from his own experience among ex-Service men how very much this Bill is needed. That shows in a rather interesting way, from something which happened quite by accident since this Sitting began, the very serious need for this Bill.
It seems to me that today we are trying to do in this House about the most difficult thing that possibly can be done, namely, to interpret the wishes of men and women who are dead as to how they wish to dispose of their private property. I will suggest, first of all, what seems to me to be the main complication in this issue, and, here again, this is a matter upon which I have an extremely close personal knowledge. A close relative of mine died four or five years ago and left a very common form of will whereby the income was to go to support his widow and then ultimately to his children who became the trustees.
Owing to the fact that the size of the small estate was miscalculated because the interest rates were not as adequate as was thought at the time the will was made, it was not, in fact, possible to carry out that will. I myself was one of the trustees, and still am. Another of the trustees, my brother, is in Africa, and another is in Canada. It is almost impossible to get the trustees together, and the will cannot efficiently be carried out.
1141 What has happened is this. By agreement, and without going to the courts—I know this may be bad law, but if it is bad law it is good sense—the trustees have so arranged affairs that the will of the testator is being carried out. That happens in many cases where there is a normal friendly relationship between the family, and where the will is carried out, if not always strictly to the letter, at least in the spirit. If that will had been lost, or if this relative of mine had died intestate, it would have made no difference at all because the children, the trustees, would have carried out what they knew perfectly well to be the testator's wish whether or not there was a will.
The great difficulty which faces us in this Bill is this. As I have said, where normal friendly happy human relations exist, by and large the problems that this Bill seeks to solve do not arise. It follows, therefore, that we have to take particular note of cases where there may be an unhappy relationship, where there may be bad blood and where, for one reason or another, one or other members of the family are estranged.
Indeed, that was the case in the matter that was brought to my notice, which led me to put down a Question to the Attorney-General, and which is referred to in the Morton Report which says, amongst other things, that a petition signed by over 3,000 persons was considered by that Committee. That petition was organised in my constituency and refers directly to the case that I mentioned. Therefore, we have a special responsibility in matters like this to see that the exceptional case is not overlooked.
Reference is made in page 7 of the Report to the fact that, according to such evidence as is available, most men—73 per cent. where the estate is under £2,000 and 65 per cent. where the estate is between £2,000 and £5,000—leave the whole or most of their estate absolutely to the surviving spouse. As one would expect, as the size of the estate goes upwards so the amount given directly to the spouse declines.
The difficulty with that argument is that we are assuming that men and women who are intestate follow exactly the same pattern of behaviour as men and women who make their wills. I am not convinced by any means that that is 1142 a valid argument, although I know there can be no statistical proof of this. There may be cases where people are satisfied with the intestacy law as it is, and for that and for many other personal reasons do not take the ordinary steps to make a will. We are, in fact—and this has been said many times—cutting out children altogether in the small estates, and these, of course, form the large majority.
It is said in the Report that one hopes one can rely upon widows to look after the interest of the children, and, of course, in the overwhelming majority of cases that is true. But bad feeling and bad blood is not always the fault of the children. It may well be the fault of the surviving spouse. We must be careful, while giving much more justice to the widow, to see that the interests of the children are not overlooked. I suggest—and this has been put forward today—that perhaps the sums of £5,000 and £20,000—very considerable sums indeed, because they are net—might conceivably be replaced more profitably by a sliding scale which would diminish the share of the spouse as the estate climbs upwards. I realise that that is mainly a Committee point, and I do not wish to do more than indicate it today.
The only other comment I have to make on this point is that it seems to me a little dangerous to give an automatic option to the surviving spouse whereby she may capitalise the life interest. I can imagine cases—for instance, survival for a time after an accident, and many others—in which it would be undesirable that that power should be unfettered, and I think it right that the court should perhaps come in there.
On the question of the matrimonial home, mentioned by my hon. and learned Friend the Member for Kensington, South, it is quite true, as he said, that that was one of the mainsprings which induced me to put down a Question in, I think, April, 1950. It is quite true, as he said, that the Committee, for reasons which I found most convincingly put by my hon. and learned Friend the Member for York (Mr. Hylton-Foster) in his opening speech, found it impossible to meet that point. But in a sense the increase from £1,000 to £5,000 does meet the case, or to a large extent meets the the case, for some larger measure of 1143 justice in regard to the matrimonial home. On the question of the half blood and the rather strange relationships enumerated in the Report, I frankly agree with the Report. In so far as it narrows, I believe it to be right, although I know the arguments against it.
My last point is this, and in my view it is by far the most important. It is fully desirable that we in the House of Commons, in the best way we can in a non-party sense, should try to guess—for we can do no more—what the average man and woman—and there is no such person—who dies intestate would wish to do with his or her property. It is, as I said, an impossible task. It would be a far better solution to these problems if there were no intestacy—and it seems to me that this may well be the greatest value of this debate.
If this debate is reported in the Press and on the radio—and, perhaps, even more important, in the local papers—it will have done more to solve this problem than the House of Commons can do. If it induces people who have not made wills to look into their own affairs and make a will now, we shall have done a great deal this afternoon. If they do it now, so much the better. I was going to say, "If they did it themselves," but in view of the toast which my hon. Friend the Member for Bolton, East (Mr. Philip Bell) proposed, I feel that I should enter a caveat in favour of the legal profession.
There are so many things that men and women know that they want to do that we cannot hope to cope with in a Bill. It may be that a man wants to re-arrange the disposition of his property if his wife remarries, or perhaps if she does not remarry. That is a matter for him. Then there is the problem of the children. It may be that in one of his children he discerns special gifts and that he wants to make absolutely certain that that child will have his or her chance.
This Bill does not apply to Scotland. In many ways that is a great pity, because the law in Scotland, as I understand it, is a great deal simpler or a great deal better than ours. What I want to say is of particular relevance to Scotland, and I hope to get agreement on this 1144 point if on nothing else. Perhaps the greatest tradition in Scottish education is that every family in Scotland, whether it be a laird's family or the family in a manse or croft, seeks to ensure that the child should have his chance. Very many great men have come from Scotland because the family has given the able and gifted child every opportunity to go forward.
It may be that people who have not made a will want something like that for their children. The answer is to make a will and say so. On the other hand, a child may be dull, or there may be mental or physical reasons why it is less capable of bearing its full share in the ordinary struggle for life, and it may be that the parent wants to protect that child. Again, he can do that by making his own will and indicating his wishes.
We know that this Bill will get a Second Reading, although there are grave rocks ahead as in all private' Members' legislation. Whatever the ultimate fate of this Bill, I should like to feel that if this debate makes more people make better wills and put them in places where they may be kept safe, instead of putting them in places where they are burnt or thrown away—and the reason why many of them come under the law of intestacy is not that a will has not been made but that it has not been discovered—we shall do more good than even passing this Bill this afternoon.
§ Mr. Steele
On a point of order. I should like to draw attention to the fact that this debate has now been proceeding for the past four hours. The debate has been on a subject on which the whole House is agreed. There has been plenty of comment, but no criticism, as the hon. Member for Enfield, West (Mr. Iain MacLeod) has said, and most of the speeches to which I have listened have dealt with Committee points, which could be well put upstairs.
In view of that fact and as the Measure following the one that is being discussed is very important to the people of Scotland and my constituents in particular, who are waiting to see what the House will do about the particular problem that it raises, I beg to move, "That the Question be now put."
§ Mr. MacLeod
Further to that point of order. We have heard that this is a Bill that is not contentious, and that is 1145 so. Three or four weeks ago, on a Friday, the House spent five hours discussing the entirely non-contentious question of whether fire-guards should be put on fires. That debate ran from 11 o'clock to 4 o'clock without a single person speaking against the Bill. That is the position today and I submit, with great respect, that if we can spend that much Parliamentary time on fire-guards we can spend as much on the rights of women.
§ Mr. Wheatley
May I call your attention to the fact, Sir, that we are now dealing with the right of private Members, a right of the House which is very jealously protected both by the Chair and both sides of the House. According to custom we ballot three Bills for each private Members' day, and I submit that the theory is that each of these Bills should have an opportunity of being discussed during that day.
In practice, that is sometimes not possible because of the controversy that may take place on the first Bills; but where we have a Bill which is accepted in all parts of the House, I think we should be allowed to pass on to the next Bill. I have listened to most of this debate and I have heard no criticism of this Bill. I have heard comments, as my hon. Friend said, and points which are essentially Committee points; but there has been no objection whatsoever.
For quite a substantial period of time there were only four hon. Members on the Government benches, with a Government Whip, and something like three hon. Members on this side of the House. The position got so bad that the hon. and learned Gentleman the Attorney-General—and I trust that I am not doing him an injustice—adopted the role of Government Whip and went round to see if he could get people to join in the debate.
§ Mr. Wheatley
If the hon. and learned Gentleman wishes to intervene I will certainly allow him to do so, but I will not allow him to take my place on the Floor.
§ The Attorney-General
What the right hon. and learned Gentleman has just said is quite untrue. I did have a conversation with several hon. Members in order 1146 to discuss with them the points they wanted to mention, to ensure that there would be no duplication of the matters that we covered. The right hon. and learned Gentleman ought not to attribute to other people his own motives.
§ Mr. Wheatley
I would have been quite willing to withdraw the suggestion I made, but it was rather obvious to us on this side that an S.O.S. was going out to bring people into the House to continue this debate. I do not want to get drawn along side-tracks, but the hon. and learned Gentleman has, by his last remark, removed from himself the right to receive any withdrawal. It was quite obvious that the hon. and learned Gentleman was going from Member to Member.
Be that as it may, the point I am raising is that this debate has been kept going by Government supporters largely with the intention of preventing the next Measure being reached. In any event, the principle of this Bill has been discussed for four hours without any dissent or objection. There has been reference only to Committee points.
On the question of the Closure, may I remind you, Sir, that in the early hours of this morning, when we were discussing the National Health Service Money Resolution, the Chairman of Ways and Means accepted the Closure after only 50 minutes' discussion—a very short time on a very important Measure—when many of the points of information which were being sought had not been given. In those circumstances, I respectfully submit that if the Closure can be accepted after 50 minutes discussion on the Money Resolution of the National Health Service Bill, it would be quite competent and proper for you to accept the Closure after four hours on this Bill.
§ Captain Duncan
In the course of his submission to you, Sir, the right hon. and learned Member for Edinburgh, East (Mr. Wheatley) said that the next Bill was a very important Bill so far as Scotland was concerned. I am not prepared to argue that at this moment, but I should point out that the importance of the Bill is not reflected in the number of hon. Members present on his side of the House, because there are only three Socialist Scottish Members in the Chamber at present.
§ Mr. Speaker
This seems to be an attempt to support with speeches a Motion for the Closure of the debate, and that is quite irregular. I hope that this tenuous atmosphere will not become overcharged with electricity which is more appropriate to a more densely packed House. I understood the hon. Member for Dunbartonshire, West (Mr. Steele) to move, "That the Question be now put." The answer is that I decline now to put that Question.
§ 2.59 p.m.
§ Lieut.-Colonel Marcus Lipton (Brixton)
Now that ample opportunity has been afforded to other hon. Members who may wish to take part in this discussion, 1148 I should like to avail myself of the opportunity which, expectedly or unexpectedly, falls to my lot, of adding one or two comments. The hon. Member for Enfield, West (Mr. Iain MacLeod), during the last day or two has made a number of extraordinary statements. Not the least extraordinary of the many statements he has made is a sentence which I hope I may quote from the speech he—
§ Notice taken that 40 Members were not present;
§ House counted, and, 40 Members not being present, the House was adjourned at Two Minutes past Three o'Clock till Monday next.