Clause 11.—(REPRESENTATION IN, AND DIVISION OF, LEGITIM.) (Hansard, 19 February 1964)

§ Mr. Millan

I beg to move, in page 9, line 8, to lave out subsection (3).

I am moving the Amendment because I should like to have just a little clarification about the question of collation of advances in cases of legitim, which is mentioned in this subsection. This is rather complicated and I do not wish to take up too much of the time of the House with it.

I ought to explain that legitim is the right of children to receive certain legal rights out of the moveable estate of an intestate person. There is a provision in the law at present that where one of the, children has had an advance from the deceased person during the lifetime of the latter, that advance, in certain circumstances, will be taken into account in calculating the right of that child to legitim after the parent is dead.

In other words, the child in those circumstances will get rather less out of the legitim fund than he would have done if the advance had not been given. This is a perfectly acceptable principle, but before this process of collation of advances can go into operation there has to be more than one surviving child, because the whole principle of collation is intended to give justice between the different surviving children.

1287 In Committee, I raised the question of what would happen where there was only one surviving child who had had an advance during the lifetime of a deceased parent. Did the principle of collation also apply? In this case, of course, the principle would not be important from the point of view of regulating the rights of the surviving children, because there is only one surviving child, but the principle of taking, account of the advance is important taking the point of view of the rights of the surviving spouse because the more goes to the children, in one way or another, the less there is for the surviving spouse.

The Solicitor-General for Scotland has written to me about this since the Committee stage. I am very glad to have his letter, but I am not satisfied that the whole position has been taken care of in the present law. I am moving the Amendment so that the Government can have a look at this again before the Bill reaches its final stage. What can happen in present circumstances is that the parent may give to the child an advance during his lifetime which he would intend to replace legitim, or at least replace part of the legitim, which would otherwise be paid to that child on the death of a parent. Yet, because there is no other surviving child, that advance does not fall to be collated and is paid out of the widow's share of the estate.

The hon. and learned Gentleman's letter to me did not completely meet the point which I made in Committee, because he left out of account the fact that not only is legitim paid out of intestate estate but it is also a legal right which can be placed against the provisions of a will. Therefore, a parent might very well give his surviving child something which he would take to be in discharge of legitim, although it may not be described as that, and he might then leave a will leaving the whole of the rest of the estate to the surviving widow, but the child could still claim legitim against the will. In that kind of circumstance this would, as far as I can see, come straight out of what had been left to the widow in terms of the will. This is the point which the 1288 Solicitor-General did not answer either in Committee or in his letter to me.

8.0 p.m.

The point arises because legitim is something which can be settled against a will as well as applying to an intestacy, and in certain circumstances, therefore, a child who has already had, from the parents' intention, all that he is entitled to out of his parents' estate can nevertheless, because of this anomaly that the collation of advances does not apply where there is only one child, insist on his right of legitim out of the testator's estate and frustrate the testator's wishes if he had left the whole of the estate to his widow.

There is an anomaly here. I do not want necessarily to press it at the moment, but I should like to think that the Government would give some consideration to it before the Bill reaches its final stages.

§ The Solicitor-General for Scotland

The Amendment would leave out the subsection which applies the rules relating to collation of advances to cases in which legitim is being claimed under Clause 11 for issue of a pre-deceasing child.

The present rule is that if a child received an advance from his parent during the parent's lifetime and then subsequently claims legitim from his parent's estate, he may be required by any other person entitled to claim legitim from that estate to bring the amount of the advance into the legitim fund.

But under Clause 11 the issue of a pre-deceasing child may for the first time claim legitim, and that is why it is necessary to extend the rule for the collation of such claims, and subsection (3) does that. This is very clearly fair. Therefore, on the part of the hon. Gentleman's remarks about the deletion of the subsection, I submit that his suggestion should be rejected because the subsection serves a useful purpose.

As I understood the hon. Gentleman's further observations, they were related not so much to the content of his Amendment—that is, the desirability or otherwise of striking out subsection (3)—as to a matter which he suggested I had not adequately covered in a letter I had given him explanatory of certain 1289 matters raised in Committee. On that matter I shall be happy to write further to him, but that does not relate to the question raised directly by the Amendment.