HC Deb 11 May 1964 vol 695 cc144-8

Lords Amendment: In page 20, line 20, at end insert new Clause B: A testamentary disposition executed after the commencement of this Act shall not have effect as to evacuate a special destination being a destination which could competently be evacuated by the testamentary disposition) unless it contains a specific reference to the destination and a declared intention on the part of the testator to evacuate it.

Lady Tweedsmuir

I beg to move, That this House doth agree with the Lords in the said Amendment.

The purpose of this new Clause is to ensure that a testator does not evacuate a special destination by oversight or inadvertence, and to avoid any doubts as to his intentions in this regard. It is possible for a person—and I think that if I call him A it is the simplest way—to make a will leaving his property to B and on B's death to a third person whom I will call C. Such a provision in A's will constitutes a special destination in favour of C. Depending on how the special destination is expressed it may be possible for B, who takes the property on A's death, to prevent it from going to C by making a will in favour of yet another person whom I will call D. If B's will simply says, "I leave all my property to D", it may be an arguable question whether he intended to dispose of the property covered by the special destination in this way, or whether he really intended it to go to C, as provided by the special destination, or whether he had simply forgotten about the special destination governing this property. Therefore, the effect of the new Clause removes any uncertainty of this kind. It ensures that B's will does not evacuate the special destination unless his intention to do so is clearly expressed. I should like to stress that this Clause does not place any restriction at all on B's freedom to leave the property where he pleases. It merely provides that the special destination in favour of C is not to be evacuated unless B makes it perfectly clear that that was his intention.

8.45 p.m.

Mr. Lawson

I cannot say that I followed exactly what the noble Lady has said. My understanding of the Amendment is that it relates to a discussion that we had in Committee about what would happen to a tenancy where the tenant had part of the tenancy still to go and there was an expressed or implied understanding that it would go to someone else. We learned that because of the provisions which are being made in the Bill, this need not work out, and very many complications were arising in relation to what would happen to the remaining part of the tenancy in a deceased person's estate. I understand that this was what the Amendment was to deal with.

I am not quite sure that the matter has been cleared up for me. I wonder whether the noble Lady could take it a little further and perhaps describe it—I know that she has tried to use simple language—in language a little simpler than she has so far been able to use.

Lady Tweedsmuir

If I may speak again by leave of the House, I should like to make it clear that new Clause B is not related to Clause 29, which precedes it and which is concerned with the right of a tenant to bequeath an interest under a lease. This is a separate Clause. In the consideration of Lords Amendments we have to place a new Clause where we wish it to be placed in the Bill.

I think that the hon. Member for Motherwell (Mr. Lawson) was referring to a question which we discussed at some length about whether the Bill abolishes the heir at law; but that is not the question under discussion now. What we are discussing is the situation where a person leaves a will and says that he leaves his property to his son, Arthur, and failing him, to his granddaughter, Jean. I made up a family in this connection; they had the most marvellous names, and the most terrible things happened to them, but I do not think I will weary the House with that at this stage.

Mr. Willis rose—

Lady Tweedsmuir

The hon. Gentleman cannot interrupt me at this stage. I am very busy thinking about what happened when the property was left to the granddaughter, Jean.

The fact remains that had the son decided to make a will and leave the property which had been left to him by a special destination away to somebody quite different, perhaps to his brother, then the question arises whether the destination was competently evacuated or not. The purpose of the new Clause is to make perfectly clear that this cannot be so unless it is clearly expressed that the person in question has the intention to evacuate the destination.

Mr. Willis

Before the noble Lady finishes answering my hon. Friend the Member for Motherwell (Mr. Lawson), I assume that the new Clause covers an interest in a lease, which is what my hon. Friend was really asking about.

Lady Tweedsmuir

I was pointing out that the right of a tenant to bequeath an interest in a lease under Clause 29 was a completely different provision from this.

Mr. Willis

We know that.

Lady Tweedsmuir

This would apply under certain circumstances. However, the hon. Gentleman knows perfectly well about the myriad different interests in a lease, and it might not be within the competence of anyone to leave a lease by a special destination.

Mr. Lawson

If I may speak again by leave of the House, I should like to take this a little further in an attempt to understand it. Let us assume that there are a grandfather, his son and a granddaughter, and that the grandfather makes out his will leaving his estate to his son but with the proviso written into the will that, should anything happen to his son, the estate will go to the granddaughter.

Let us assume that the grandfather dies and that his son inherits the estate. Am I to understand that, in consequence of the change being made here, the son is given the right to dispossess his own daughter by leaving the estate to his brother or some other person?

To put it another way, am I to understand that the second person in the line of succession is given the right to will the estate to whomsoever he pleases? Is that the position? Or is the reverse the position, that the second individual is not permitted to cut the third person—his own daughter in this case—out of the estate? I am not sure which is the position.

Mr. Willis

As I understand this new Clause, it concerns anything which a person has a right to bequeath. If it does, surely it includes the right to an interest under a lease. The simple question that I ask is: does it or does it not? In as much as it seems to me to cover anything, then it would obviously cover the right to bequeath an interest in the lease. The hon. Lady can surely answer that "Yes" or "No," without clouding it in a mass of legal verbiage which does not mean very much to the House, and it is doubtful whether it means much to the hon. Lady either.

Lady Tweedsmuir

That may be perfectly true. The hon. Member for Motherwell (Mr. Lawson) asked me whether this new Clause meant that the son, for instance, of the testator had no further right to leave his property away. It does not in any way take away from his right. A special destination means that the father, for example, would leave his property to his son and failing him to his grandson, and, therefore, if it has gone to his son, it does not take away the right of the son to leave the property as he wishes. In reply to the hon. Member for Edinburgh, East (Mr. Willis), it, of course, covers the right to leave a lease, which I think was the simple question he asked.

Question put and agreed to.

Subsequent Lords Amendment agreed to.