HC Deb 28 November 1958 vol 596 cc791-7

Order for Second Reading read.

3.36 p.m.

Mr. John Rankin (Glasgow, Govan)

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

Today I invade what is to me novel territory, I profess no skill in the practice of the law, although I know that breach of its statutes brings the appropriate penalties. My purpose is influenced by a higher motive. I seek to breach the law with the most honourable sometimes wonder how the House would conduct its deliberations if on the morning of the debate The Times did not publish an editorial on the subject, thus enabling us to make much more effective speeches than would otherwise be the case. It is not only The Times. Tribute has been paid to The Times for its attitude in this respect, but only a few days ago, in a very powerful if brief editorial on the subject, the Star, urged hon. Members to throw out the Bill. With the opinion of the editor of The Times and the editor of the Star together, we need have no hesitation in throwing out the Bill.

Question put, That the Bill be now read a Second time:—

The House divided: Ayes 30, Noes 26.

Division No. 14.] AYES [3.28 p.m.
Atkins, H. E. Hill, John (S. Norfolk) Parker, J.
Baxter, Sir Beverley Howard, Hon. Greville (St. Ives) Russell, R. S.
Body, R. F. Hughes Hallet, Vice-Admiral J. Simon, J. E. S. (Middlesbrough, W.)
Bryan, P. Hyde, Montgomery Speir, R. M.
Cordeaux, Lt.-Col. J. K. Hynd, J. B. (Attercliffe) Sumner, W. D. M. (Orpington)
Crosthwaite-Eyre, Col. O.E. Joseph, Sir Keith Vane, W. M. F.
Doughty, C.J. A. Lagden, G. W. Wakefield, Edward (Derbyshire, W.)
Duncan, Sir James Legh, Hon. Peter (Petersfield) Webster, David
Fisher, Nigel Marquand, Rt. Hon. H. A. TELLERS FOR THE AYES:
Gurden, Harold Mott-Radclyffe, Sir Charles Mr. Kimball and Mr. Mellish.
Hay, John Nugent, G. R. H.
NOES
Bishop, F. P. Hunter, A. E. Paget, R. T.
Bottomley, Rt. Hon. A. G. Irvine, A. J. (Edge Hill) Rankin, John
Brains, B. R. Jenkins, Roy (Stechford) Robens, Rt. Hon. A.
Deer, G. Linstead, Sir H. N. Robinson, Kenneth (St. Pancras, N.)
Gibson, C. W. Lipton, Marcus Skeffington, A. M.
Gresham Cooke, R. Mabon, Dr. J. Dickson Sorensen, R. W.
Griffiths, Rt. Hon. James (Lianelly) MacColl, J. E. Warbey, W. N.
Grimond, J. Mitchison, G. R. TELLERS FOR THE NOES:
Hicks-Beach, Maj. W. W. Mulley, F. W. Mr. Kirk and Mr. MacDermot.
Holman, P.

intentions. I believe that the "hass" should be modernised, which, of course, is no easy task. Yet as my field of reform is limited, and I think desirable, I trust that my purpose will commend itself to both sides of the House.

Should my Bill reach the Statute Book it will implement an important recommendation of the Committee on the law of Succession in Scotland over which Lord Mackintosh presided. His Report was presented to the Secretary of State for Scotland as long ago as December, 1950.

Prior to 1911, the widow of a man who died intestate was entitled under the law of Scotland to legal rights in the estate of her husband. These legal rights comprised the widow's terce, which is a life rent of one-third of the value of the heritable property included in the estate. There is also the right to one-third of the movable property if there were children and one-half if there were no children.

This in the language of the law is called jus relictae. Similar legal rights were exigible for the benefit of the widower when it was the wife who died. The residue of the estate, including, of course, the ownership of the heritable property, descended according to rules that differed as between heritage and movables.

Broadly speaking, heritable property descended according to the rule of primogeniture and with preference for males over females, while the movable property was divided among the next of kin. The operation of these rules often seemed harsh to a widow, especially if there were no children. In that event, the balance of the estate which remained after payment of her legal rights went to her husband's relatives—sometimes to quite distant relatives whom she hardly knew, and sometimes, if there were no heirs, to the Crown as ultimus haeres. The first step towards reform was taken in 1911 when Parliament enacted the Intestate Husband's Estate (Scotland) Act with the intention of improving the position of the widow of a childless man who had died without making a will. The Act provided that if there were no children, the widow should have a preferential claim to the first£500 of the intestate estate heritable and moveable, without prejudice to her legal rights of terce and jus relictœ in the residue, if any, after the£500 had been paid. After the legal right of the widow had been satisfied, the balance continued to go to the relatives of the husband.

In 1940 a further advance was made when the Law Reform (Miscellaneous Provisions) (Scotland) Act extended to widowers the provision made for widows by the 1911 Act, and also extended those provisions to cover partial intestacies. There the matter rested when the Committee, under the chairmanship of Lord Mackintosh, was appointed on 30th July, 1949, to review the law on intestate succession. The Committee's report was published in 1951. It recommended a radical revision of this branch of our law.

As a layman, I shall not attempt to comment in detail on all the proposals of the Committee. Fortunately, it is not necessary to do so, for this Bill deals only with one of those proposals, namely, the recommendation that the preferential claim of a surviving spouse, where there are no children, should be raised from£500 provided for in the 1911 Act to the sum of£5,000. This Bill, therefore, is a modest Measure. It introduces no new principle, but merely proposes to extend an arrangement which was first accepted 47 years ago and which has existed in its present form for 18 years. A wider reform of the law of intestate succession in Scotland must await a Government Measure. But the present Bill will at least make reasonable provision for the surviving spouse in many of the cases where the existing law operates most unfairly.

3.43 p.m.

The Joint Under-Secretary of State for Scotland (Mr. J. Nixon Browne)

Today I find myself in the rather unusual position of conferring the blessing of the Government on one of the many activities in this House of the hon. Member for Glasgow, Govan (Mr. Rankin). He and I have had many duels across the Floor of this Chamber and in the Scottish Committees and I hope that we shall have many more, but it is pleasant for us both on this occasion to find ourselves on the same side of the fence.

I congratulate the hon. Member on his good fortune in the Ballot and also on the manner in which he has taken advantage of it to introduce this useful Measure. He has already explained why the Bill is necessary and what it does, so that there is no need for me to expand on his admirable commentary. I do not propose to become involved in the Scottish law relating to intestacy, nor do I wish to expand on the miserable plight of the widow whose husband has died without making a will. The Bill will at least ensure that if a husband or wife fails to make a will, the surviving spouse will not be so badly off as at present. That is no excuse for dying intestate.

Furthermore, the Bill should cause many people to look again at the wills they have made. It is a dreary exercise to face the inevitability of death, but once done, the will, like a life insurance policy, leaves us in a more peaceful frame of mind. But are our wills valid? The Bill will affect many people, and I take the opportunity of issuing a dire warning. We have seen what happens, as the hon. Member said, when someone dies without making a will; I wonder how many people make sure that their wills are valid?

There is a common delusion that the printed will-form one can buy in many shops is satisfactory. What I am saying applies to Scotland and I would not presume to comment on English legal practice. I am advised that if a form based on English law is used carelessly it may well prove invalid if brought before a Scottish court. The moral is obvious; when we make a will, as everyone should, we should make sure that what we are doing is right and if we are not sure, we should call in a solicitor. Perhaps I may be forgiven for distorting the old proverb "Where there's a will there's a way", by saying, "Where there's a will it is not always the right way."

The making of wills that subsequently prove defective has been a very serious matter for many people. I hope that what I am saying will be construed as a free advertisement for those who adorn the legal profession. They include many hon. and right hon. Members. What greater justification is there for legal learning and experience than that it should ensure that what a person desires to be done after his death with the fruits of his life's work will in fact be done?

Many mistakes in this field arise from those handy little volumes which encourage every man to be his own lawyer. It is curious that they have almost precisely the opposite effect from the books which tell us how to be our own doctor. After reading one of the latter books people tend to think they are suffering from every disease in the book except housemaid's knee, and the result is probably to send them off to see a real doctor as quickly as possible. The effect of the legal book is to make some people think that they can do without lawyers. The publishers are not to blame, because they all repeat the warning that it is vital to consult a solicitor. The warning, alas, is not always heeded, so people embark upon transactions which involve complicated legal issues without the benefit of professional legal advice. One of the transactions most often undertaken is the disposal of property after death.

There is a special danger in this for the Scots. The handy little volume to which I have referred is, however accurate, often based on English law which, on the subject of intestacy, is different from Scots law on the subject. In England, for example, the widow's rights are very different. I shall not make comparisons, because there are far too many pitfalls for a layman to venture upon them.

The answer—as the hon. Member for Govan, who so clearly understands the Bill would recognise—would depend on the individual case, how big the estate was, of what it consisted and what claimants besides the widow there might be. I want to make it clear to the Scotsman who thinks that, because he has only a few thousand pounds to leave, he can rely on a law book which tells him he need not make a will that he may be seriously wrong. If he wants his widow automatically to inherit his whole property he ought to seek proper advice.

I hope that what I have said today will help to correct any misapprehension which still exists in Scotland and will cause many startled husbands to go to see their lawyers on Monday morning.

Mr. Rankin

And wives.

Mr. Browne

And wives also. Monday morning is not too soon for anyone who has not made a will.

I conclude by thanking the hon. Member for Govan once again for promoting this Bill and thereby implementing one of the recommendations of the Mackintosh Committee. I am glad the hon. Member realises that the Mackintosh Committee covered a much wider field on which it would be quite inappropriate for a Private Member's Bill to embark. I realise the feeling many people have that action should be taken as soon as possible. This is not a party matter, and I hope that as soon as opportunity presents itself whichever party may be on this side of the House in the years not too far distant may try to do more.

The hon. Member has taken us the first step on the right road. He has rectified a difficulty in regard to Scottish wives which was not present in the case of English wives. He has rectified a difficulty as recommended by the Mackintosh Report. Now I can only wish the Bill God-speed. I am sure the whole House will join with me in the hope that the Bill will pass successfully and—knowing Scottish Committees—quickly, through its remaining stages. If it does, many people in Scotland will have cause to thank the hon. Member for Govan in the years that lie ahead.

3.53 p.m.

Mr. A. J. Irvine (Liverpool, Edge Hill)

I wish to commend the Bill to the House. Although I am a Scotsman, no one more so, I do not practise the law in Scotland and I represent a constituency south of the Border. Therefore, I do not wish to become involved in the perplexities of Scottish law. I am not qualified to do so.

It certainly seems very clear that this is a welcome Measure, and I wish to commend it to the House and to congratulate my hon. Friend the Member for Govan (Mr. Rankin) on his action in introducing the Bill. I wish him and it every success.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bill).