HC Deb 21 June 1963 vol 679 cc885-95

As amended (n the Standing Committee), considered.

3.5 p.m.

Mr. Michael Clark Hutchison (Edinburgh, South)

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

The Bill was fairly well considered in Standing Committee, but I think that it would be right for me to say a few words about it on Third Reading. The object of the Bill is to implement the recommendations of the Report of the Lord Chancellor's Private International Law Committee and to enable the United Kingdom to ratify The Hague Convention on Testamentary Dispositions. I am sure that hon. Members on both sides of the House will agree with me when I extend thanks to the members who sat on that Committee and produced the Report.

Clearly, a major aim of the law relating to wills is that documents should be accepted as valid only when it can be said with reasonable certainty that they were executed by the testator with the intention of disposing of his assets after death or revoking previous dispositions of that nature. Equally, a document which fulfils these conditions ought to be regarded as valid, and it is a defect in the law if the document is excluded because of some technical imperfection of which the testator might not reasonably have been aware.

If a testator executing his will complies with the formal requirements of any system of law which he might assume to apply to his case, the will should be treated as valid. Equally, it is desirable that a will treated as valid in one country should be treated as valid in another, as a testator may have assets in more than one territory.

As I understand, at common law the form of a will was governed by the testator's domicile at the time of his death. But a major statutory change took place in 1861, when the Wills Act was passed. Under it, a will disposing of personal property is valid if made in accordance with the formal requirements of the law of the place in which it was executed or his domicile at the time of execution or his domicile of origin—if within Her Majesty's Dominions—in force at that time.

There were two defects in this situation. First, a distinction is made between real and personal property which is no longer necessary since the property legislation of 1925. Secondly, the Act makes a distinction between British subjects and others. As the Act became law in several Commonwealth countries it has become difficult to apply as the concept of British nationality has become much more complex over the years.

Accordingly, the Private International Law Committee recommended, and those attending The Hague Convention agreed, that a will will be held to be validly executed as regards form if it meets with the requirements of the internal law of the following: the place where it was made; the place of the testator's domicile; the country of the testator's nationality; the place where he had his habitual residence; or, so far as it disposes of land, the place where the land is situated.

Those are the short general principles and ideas underlying the Bill. If passed, as I hope it will be, the Bill will enable the United Kingdom to ratify the Convention, which I believe the Government are anxious to do, and, for those reasons, I very much hope that it will receive the support of hon. Members on both sides.

3.17 p.m.

Mr. Leslie Hale (Oldham, West)

This is obviously a very sensible and very desirable Measure, but there are one or two points which I should like to make. I think that I am right in saying that the Bill still has to go to another place and certainly I have no desire to stop its progress. If relevance is found in any of the observations which I have to make, there is a chance that they will be dealt with there.

I know that there is always a passion on the part of all reformers, when they introduce a useful Measure, to make it of almost universal application. I think that the provision introduced by Amendment in Committee in Clause 2(1, a) is a highly controversial and somewhat difficult provision which the courts will have very great difficulty in interpreting, applying or an understanding. One of the reasons for this is the insertion of the words "or other relevant circumstances", which have no definition at all. What is being said is that, if any man makes a will on board ship, it shall be valid if it is made in accordance with the law relating to that ship and that the law relating to that ship shall be ascertained, not only by reference to its country of registration, which in about four cases out of ten is Liberia, but by any "other relevant circumstances."

What "relevant circumstances" are I do not know. I do not know whether they are the nationality of the captain, the nationality of the owning company or the nationality of the flag of convenience; or whether in the case of the "Nancy" brig the fact that only one person remained and the rest of the crew were consumed by him and therefore their nationality had been absorbed in the process of mastication and became consolidated in that of the survivor. These are all matters which might have to be determined by a court, and I should have thought that Her Majesty's judges would express surprise on being called upon to say what was a relevant circumstance in connection with a voyage of Mr. Onassis' yacht in the Mediterranean, possibly under Liberian registration, with a French captain and a crew of international entertainers.

The words in Clause 2(1,b) were "real estate". The phrase has now become "immovable property", because, we are told, that is fully understood on the Continent, although it is not understood here. As I read the Clause, it means that if I as an Englishman make a will which is invalid in England and which attempts to dispose of real estate in Nigeria, if it is not executed according to English law it is invalid but that if it is executed in accordance with Nigerian law it shall be valid only in relation to the disposition of the property in Nigeria. That seems to be what it means and it raises some problems. If we are passing an Act to say that an invalid will can be valid in relation to one clause only because that one clause only, disposing of property outside the jurisdiction of the court determining the validity of the will, would operate to be an effective disposition of that property although all the rest of the Clauses were invalid, we are raising some problems.

My third point concerns Clause 4 There is no definition of "construction". I can well understand that "construction" in its normal meaning would mean the rules which a court would have to apply in ascertaining its meaning, and its meaning only, but in this sense one does not have to go very far to wonder whether "construction" also includes the application of our general laws, in particular provisions like the old Thelusson Act, the statute against perpetuities, and so on. Is it now possible under Clause 4 for someone to avoid all our laws against perpetuities and our restrictions on the disposition of estate to people who go a generation beyond the youngest descendant of the late Queen Victoria, which was the standard clause which was used in my time?

Will this make valid dispositions made by a well-to-do Englishman who has gone on a yacht for the purpose in accordance with Clause 2(1, a), or on a liner or an aircraft, so that he can avoid some of the provisions of our law which restrict the disposition of property over a long period?

Clause 6(1) states: ' internal law' in relation to any territory or state means the law which would apply in a case where no question of the law in force in any other territory or state arose". There is no provision about soldiers' wills, which are a case in point. The hon. Member for Edinburgh, South (Mr. Clark Hutchison) knows perfectly well that we have always had special provisions for testamentary dispositions by soldiers on active service.

I should have thought that a soldier on active service who was making a will in France in the course of a war against some other State was in a situation in which a question of the law of the territory in which he is stationed might arise and that, therefore, it would be desirable, proper and suitable to add words to say that nothing in this Bill should adversely affect our own provisions, because I do not see why a soldier's will should not have the benefit of the Bill. I do not want to be restricted by the Act in relation to the execution of a will made by a soldier on active service.

Subject to these small points, I am happy to give the Bill my individual blessing.

3.23 p.m.

Mr. Martin Maddan (Hitchin)

I intervene on this rather technical and legal subject only to express shortly a few views by a non-lawyer. I was interested to hear that the Bill will take consequential action to bring provisions into line with something that was enacted in 1925. As a layman in these matters, I suggest that thirty-eight years is not too long a period to elapse to enable the lawyers fully to consider these matters. I say this to indicate that in my view the Bill is timely and, perhaps, in some senses overdue.

The hon. Member for Oldham, West (Mr. Hale) raised some interesting and, perhaps, important detailed points and I am sure that he will forgive me if I do not try to answer them. The hon. Member would not be very interested in my opinions. I hope, however, that my right hon. and learned Friend the Attorney-General will answer them, or that my hon. Friend the Member for Edinburgh, South (Mr. Clark Hutchison) will deal with these points, some of which were of importance.

Underlying some of the points made by the hon. Member, however, was the view that British law in respect of wills is superior to that elsewhere. He seemed to fear that some of our provisions might be overthrown in bringing them into line with what is going on elsewhere. I think that we must beware of having too nationalistic, too proud, a view of our own excellence, because, after all, the legal systems of other countries have also had to face many difficult problems, and although they may have quite different ways of dealing with these matters, they may be just as good. I do not think that we should assume, if we have to change our methods of dealing with these problems, that we are necessarily going to be worse off. I hope that my right hon. and learned Friend, in replying to the debate, may confirm that.

I rose specially for this reason that, as I think is probably well known, I personally very much favour the broadening of national outlooks and attitudes into more international outlooks and attitudes and I think it is the duty of this House and of the Government to support and subscribe to The Hague Convention. I myself would be very pleased if the citizenship of live people were not too strictly determined within national boundaries, but at least I think that people who are dead should be internationalised and given international citizenship through the passage of the Bill.

Perhaps for that wider reason more than any other I welcome the Bill, and congratulate my hon. Friend on bringing it forward.

3.26 p.m.

Dr. Alan Glyn (Clapham)

I also wish to congratulate my hon. Friend the Member for Edinburgh, South (Mr. Clark Hutchison). This is the second occasion today in private Members' time when we have been able, through the foresight of private Members, to implement international agreements and integrate them into our law.

I welcome the Bill from that point of view. It remedies certain anomalies, and by amending legal process enables the wishes of testators not to be frustrated. For that reason, I particularly welcome the Bill. It will make very much simpler the making of wills and testaments by those people who live abroad and who are habitually resident abroad. I gather that one thing made clear by the Bill is that those habitually resident abroad are being brought in for the first time. I welcome that. I should like the Attorney-General to comment on that.

I noted with interest what the hon. Member for Oldham, West (Mr. Hale) said, and I would just say to him that it is not necessary to travel in a ship or aircraft to make a will in order to travel in the company of entertainers. We have our entertainers here.

3.27 p.m.

Mr. G. R. Mitchison (Kettering)

I too, welcome the Bill, which has the support of both sides of the House.

I should like to take the opportunity also to welcome the right hon. and learned Gentleman on the Front Bench in the matter of this Bill which was originally introduced by an hon. Member on the other side of the House whose name is not on the Bill and who knew no more about it than what he read out shortly before four o'clock one Friday, and I talked it out. It has now reappeared.

But, really, the Government ought to take these matters a little more seriously. This is, after all, an international convention to which they are parties, and this is, in substance, their Bill. Personally, I think that it is entirely wrong that private Members should be called upon to give up private Members' time on a Friday to carry through things which the Government themselves ought to be able to put through. It is not as though this were a contentious matter, or one likely to take up much of the time of the House; but it is not the only one today.

I trust that those responsible for arranging the Government's timetables, to whatever party they belong, will pay a little more attention in future to enabling Her Majesty's Government to carry out their international obligations, and also to enable this House to put through non-contentious Measures of law reform which it seems incredibly difficult to find time for, except by asking private Members to provide it.

3.30 p.m.

The Attorney-General (Sir John Hobson)

This is, of course, a private Member's Bill, and I should like to add my congratulations to those uttered by the other hon. Gentlemen who have spoken and congratulate my hon. Friend the Member for Edinburgh, South (Mr. Clark Hutchison) upon having brought the Bill to this stage. The Government were represented by my hon. and learned Friend the Solicitor-General during the Committee stage when some points were raised from the other side on this matter. Some improvements were made in the Bill during the Committee stage, when the Government gave their assistance to my hon. Friend, the promoter of the Bill.

So fair a wind has this Bill been given that it would be ungracious not to acknowledge the Government's gratitude to the pilot and give him their good wishes. The whole House will, I am sure, admire the facility and expedition with which he has managed the voyage, and its successful conclusion in this House is a matter of particular pleasure to all of us, because we understand that at the very outset of the voyage my hon. Friend had some difficulty in mustering a crew to carry the Bill through at that stage. Those little staffing difficulties were successfully overcome at the end, however, and with support from both sides of the House, not least from the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes), who took a part in the Committee, my hon. Friend's Measure is now well on its way towards the Statute Book without any of the disasters of the "Nancy" brig. I can see, Mr. Speaker, that if I pursue this metaphor further I may get into very deep water indeed.

I think the House would wish me, as there was no suitable opportunity on Second Reading for the courtesies common on these occasions, to thank also the Private International Law Committee of my noble Friend the Lord Chancellor, whose Fourth Report forms the basis of more than one of the provisions of the Bill. The fact that it reported as long ago as 1958 is not a cause of reproach to the Government and still less to my hon. Friend, since its recommendations involved negotiations with foreign countries which in due course were considered by the Hague Conference on Private International Law.

This seems to me a suitable opportunity to pay a tribute to the work of that Committee in general and to the members who produced the Fourth Report in particular. It may be of some interest to note that although it reported only five years ago, no fewer than three of its members have subsequently become High Court judges, one a judge of the International Court of Justice, and one Counsel to Mr. Speaker in this House. We congratulate them on their advancement. The Private International Law Committee seems to be a royal road to advancement. We regret their departure from it, but thank them once more for their labours in that respect.

Although for a number of reasons, one of them being quite conclusive, my hon. Friend was not able on Second Reading to expound to the House the essential object of the Bill and the effect of its detailed provisions, the House will not, I think, expect me to remedy the position now, and, indeed, I might well be thought to be out of order if I did so. But I think I ought to say that, as has been mentioned, the passing of the Bill will enable the United Kingdom to ratify The Hague Convention on the Conflict of Laws relating to the form of Testamentary Dispositions. This, I am sure, is a welcome advance, and it is something which this country ought to do, and we are very glad that the Bill will enable us to do so.

I am sure that the House will rejoice to see a Measure which is designed to preserve wills which might otherwise fail for a technical defect, because the Bill is dealing with the formalities of wills and not with the substance of them. I think that all lawyers, and many lay men, too, are familiar with a remark made by a Lord of Appeal in Ordinary when he said that as a result of a decision of the other place in its judicial capacity: I anticipate with satisfaction that henceforth the group of ghosts of dissatisfied testators, who, according to a late Chancery judge, wait on the other bank of the styx to receive the judicial personages who have misconstrued their wills, may be considerably diminished. The hon. Member for Oldham, West (Mr. Hale) touched upon a very difficult point in connection with the Bill, and that is the question of wills which are made in aircraft and on ships. I know not why anybody should ever want to make a will in an aircraft or on a ship, but some people may wish to do so. I should have thought that wise testators would have done so before they embarked on the journey; but should they wish to do so the position will be covered by the Bill.

This raises a very difficult problem in addition to those mentioned by the hon. Gentleman. People are travelling in space ships nowadays, and the exact nationality of a particular space ship might well raise a very nice question. It is, I concede, an extraordinarily difficult problem for the draftsmen. The solution that has been adopted is to make it a question of fact for the court to decide what country the vessel or aircraft ought to be taken to have been most closely connected with. I think we can leave it to the courts to determine that upon the basis of not only the registration of the vessel but any other circumstances which will assist the court in determining that particular question of fact.

Mr. Hale

The right hon. and learned Gentleman said that he did not know why people wanted to make a will in an aircraft. I had the privilege of flying in Western Australia with a gentleman called George in a two-engined aircraft and it was recorded that one of his passengers said on being informed that one engine was out of order "What happens when the other goes out of order?" George said "This is when we find out whether that fellow Newton was right. That is when you want to scribble a will".

The Attorney-General

I am astonished that the hon. Gentleman, with his professional experience and skill, should embark on journeys of that sort without making provision beforehand, or at least without having taken the sensible decision to die intestate.

One other point that the hon. Gentleman raised was the question of soldier's wills. I can assure him that soldier's wills will not be affected in any way. The provisions for soldier's wills will remain as they are. This Bill deals only with formalities and does not touch that question.

The other questions that he has raised I have no doubt will be considered by my hon. Friend who is promoting this Bill and by others to see whether it is necessary as a result of the points he raised that some improvement should or ought to be made.

Finally, although as an English lawyer I do not pretend to understand the subtleties of Scottish law that are dealt with in Clause 5, the Scottish element in my blood is warmed by the knowledge that we find in this Bill, whose promoter and all its supporters represent constituencies north of the Border, some small room for a provision dealing specifically with Scotland, which will, I am informed by the Lord Advocate, be of use in that country. With those few words, I commend my hon. Friend's Measure to the House and congratulate him again on his efforts thus far.

Question put and agreed to.

Bill accordingly read the Third time and passed.