WILLS (Hansard, 8 August 1972)

§ Mr. Greville Janner (Leicester, North-West)
I beg to move, That leave be given to bring in a Bill to amend the law relating to the making, execution and attestation of wills. I appreciate that this application is somewhat depressing at this stage of the Session and in particular at this stage of the evening. However. It is a matter of vast importance to literally hundreds of thousands of people, not least perhaps to hon. Members. It is also sadly appropriate at a time when people are going on holiday when they have the leisure to make wills and, alas, because of the carnage on the roads when they also have the need to make them.
It is vital that people should make wills, if only so that they will be loved by those they leave behind. Those who do not make wills find that their heirs have to obtain letters of administration, which takes much longer and is much more expensive, and in any case the complicated laws on intestacy almost always mean that the dead person does not leave his property, however little or much it may be, to those he may have wished to have it.
The object of making a will is to enable the testator's wishes to be put into effect. The trouble with the ancient, archaic formalities which tie up the law on wills is that they often frustrate the wishes of the testator himself. There are many nonsenses, of which I shall give a few examples.
The most recent appeared in the case of In re Colling (deceased) and it concerns Section 9 of the Wills Act, 1837, an ancient Act which ought to have either been properly amended or repealed a long time ago. It provides that a will shall be in writing and signed or acknowledged by the testator in the presence of two witnesses at one time who shall attest the will.
On this occasion the deceased was in hospital. He got a patient and a nurse to act as witnesses to his will. The nurse had to go out before the testator, Mr. Colling, had finished signing. Having attended to another patient, she returned and witnessed the will. The man died and the will was contested by people who 1576 were entitled to money under a previous will but not under the new one. They won the case because the new will, which clearly expressed the intention of a perfectly sane man who was desperately ill, was of no effect. It was a nullity because the two witnesses were not together when he and they signed. This is a nonsense and the section ought to be amended. I was pleased to see that in answer to a Written Question from me, it was stated that the Lord Chancellor was giving consideration to the amendment of Section 9 of the Wills Act.
But that is not all, because there was another case in which a testator signed at the top of the will, having covered up the bottom with blotting paper so that the witnesses would not read it. There is no rule that says a witness must read a will. Indeed, there is no law that says that a witness must even know that the signature is being put to a will. Nevertheless, because the will was then signed by the testator at the top rather than at the foot, it was a nullity and it died along with the testator.
Another strange example is if the testator calls in his best friend or his friend's wife as a witness to the will and then wishes to leave him some money. The witness cannot obtain any bequest from that will. He will get nothing because he or his wife has witnessed it.
Many of these rules do not apply if the testator happens to be a soldier, sailor or airman on active service, however young he may be. The rules apply to old-age pensioners, and in the main they do not apply to a young Serviceman. If they do not apply to young Servicemen, there is no reason any more why they should apply to policemen, prison officers or Members of Parliament making their wills.
There is too much archaic out-of-date nonsense applicable to this branch of the law. Experience shows that ordinary people who make ordinary wills very often do not succeed in doing what they wish with what they leave behind. The law needs changing.
Judges have held that a will can be written on an eggshell. Why anyone would do that I do not know, but someone did. One can write one's will on a brown paper bag if one wishes. But if 1577 one writes it on a form obtained from a local stationer, one is asking for trouble.
This is a problem we are all bound to face in due course. Are we or are we not to make a will? Testators go to a shop, buy a will form and complete it. If the testator is lucky, so will be the people to whom he leaves his money or house, however modest his possessions may be. If he is unlucky, it will have an entirely different effect.
A very strange example occurred recently. Someone I know very well was made an executor under the will of a neighbour, the neighbour's wife having predeceased him. As a result, when the neighbour died this person became guardian of the neighbour's child and acquired a child of the age of 15. This is something which quite clearly the testator never contemplated. He had never asked the person concerned whether or not he was agreeable to being an executor. The man could theoretically have renounced probate and have refused to be an executor. In practice this was not possible.
The whole law on wills requires careful consideration. Meanwhile, anyone who makes an informal will is asking for trouble. In my view, the will forms on sale should be withdrawn because they so often lead to difficulties. I shall be accused of drumming up trade for the other branch of the legal profession. I appreciate that there are certain hon. Members who regard lawyers as useful only when they themselves are in trouble.

§ Mr. Kevin McNamara (Kingston upon Hull, North)
They themselves are lawyers.

§ Mr. Janner
But there are occasions when even a solicitor can be of great service to his fellow man. One of these is when there is a will to be made. A person may feel that he cannot afford to get a solicitor to draw up his will, but if his bequests and means are modest the chances are that the charges will be modest. He can obtain advice from a citizens' advice bureau, or under the Legal Aid and Advice Act or the Law Society's scheme.
A man who makes his own will is asking for trouble. A man who is his 1578 own lawyer in this sort of case has a fool for a client. Unless and until the law is simplified, people ought to be warned. I fully appreciate that there is no chance of the Bill passing through the House this Session. However, I hope that if the House is willing to allow the introduction of the Bill, it will at least serve as a signal of concern from hon. Members and that it will also enable people to realise the importance of making a will and of making it properly.
In the circumstances, and I hope with sufficient brevity, I beg leave to introduce the Bill.

§ Mr. Michael Havers (Wimbledon)
I have listened with interest to the hon. and learned Member for Leicester, North-West (Mr. Greville Janner). He makes me wonder whether A. P. Herbert did not miss his opportunity when he confined himself to only matrimonial cases. The heart-rending descriptions given by the hon. and learned Member would obviously provide the basis for many one-act plays.
The hon. and learned Member says that the man who makes a will is loved by those left behind but that the man who does not leave a will is loved by the next of kin and by the lawyers. It may be that the hon. and learned Member is right when he says that this is a matter of vast importance. It is of such imporance that it needs more consideration. What must be done is that all these proposals must be considered by the many professional bodies which would be interested. It is no good putting forward a Bill of this sort until the most careful consideration has been given to it, and not only by the various review bodies set up by the Lord Chancellor. We have seen already the amount of time required by those concerned with the Criminal Law Revision Committee's report. They are not satisfied with simply a few months. This will obviously need much longer.
In all the circumstances, it seems that much more research must be given to this matter. When it comes to the scale of priorities, it ought to be put back for at least some time until this consideration has been given.

§ Mr. Janner
Until we are all dead?