§ Mr. Banks
I beg to move Amendment No. 12, in page 3, line 10, leave out paragraph (f).
Clause 2 deals with the varying of any ante-nuptial or post-nuptial settlement, including that made by will, which the court may order for the surviving marriage partner, any child or any person treated as a child of the family. First, this raises the principle whether the law has the right to intervene and break a solemn and binding settlement made perhaps many years ago for the security of, say, the wife and perhaps, through her 181 wisdom, offering the prospect of future inheritance to the children of the marriage.
Suppose this were for a settlement made on a first marriage and the applicant to the court is a surviving spouse or a child of the second marriage. Is it right for the court to take on these powers to vary an earlier settlement perpetuated for so many years? Here is both principle and far-reaching legislation, which can and probably will involve many tax considerations as well.
§ The Solicitor-General
The arguments which could be deployed on both sides in relation to this amendment have already been rehearsed and I shall not repeat them ad nauseam. I accept that it is an inroad into testamentary freedom. But the hon. Gentleman will not overlook that what is here in question is a power of the court, when it has decided to intervene, to intervene in one way rather than another. If it did not intervene in this way it might do so by some other method. Again, the court does not have to do it. It is merely conferring a power which the court may use if it considers it right in all the circumstances.
As in the case of the last amendment, all that is being done is to equate the position of the wife of a subsisting marriage with the position of a divorced wife. It would be odd if the wife of the subsisting marriage were in a substantially different position from that of the divorced wife. The equivalent position in divorce is to be found in the Matrimonial Causes Act 1973.
This provision applies only when the court is dealing with an application by a wife or child, not with an application under paragraph (e), which was the subject of one of our earlier debates. Normally it would be likely to be used only for a surviving spouse. There may be times—I do not think it would arise very frequently—when it might be to the wish of no one concerned that the court should make either an order for periodical payments or a lump sum, which would entail the selling of some asset at a time when there was a bad market.
All that is being done is to give the court one further power to deal with the situation in the kind of way which might 182 meet with the approval of all those concerned.
§ Mr. Banks
Will the Solicitor-General tell us what sort of settlement anybody could make for perhaps a child or a wife that would not be interfered with by a court on the death of the person who made that settlement? Is there anything anybody can do to make a solemn, binding settlement, giving some property to a wife, perhaps, which could not at a later stage, through circumstances which would be completely changed, be called upon to be altered by a court order?
§ The Solicitor-General
Of course, there is no ante-nuptial or post-nuptial settlement which does not fall within this provision. The provision says that the court shall have power if it considers it right in all the circumstances, and if someone who is in the qualified category has established that the provision was not reasonable, in those circumstances the court may interfere.
Perhaps I should add that we are dealing with a situation where someone in the required category has come before the court and convinced the court that the provision which was made was not a reasonable provision. There may be circumstances in which a failure to make any provision at all would be held by the court to be not unreasonable, so the onus is on the applicant to establish that what has been done is an unreasonable way of dealing with his obligation.
In those circumstances it is true that there is no kind of ante-nuptial or postnuptial settlement which could not be interfered with. If the hon. Gentleman thinks that is the wrong way of dealing with the matter, I cannot argue it further. That is precisely what is proposed in the Bill and that is what commended itself to the Law Commission and has commended itself at each stage up to now.
§ Amendment negatived.
§ Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, and Prince of Wales's Consent signified.]
§ 10.40 p.m.
§ The Solicitor-General
I beg to move, That the Bill be now read the Third time.
The House has heard me on more than one occasion on this Bill, and I do not 183 propose to add anything further at this stage. I may, of course, be called upon to speak at a later stage.
§ 10.41 p.m.
§ Mr. Banks
This Bill sets out to do two things which, in my simple layman's opinion, should not be mixed. It sets out, first, to distribute fairly, taking into account all those closely connected with the deceased, the estate of someone who dies intestate, someone who has not made a will, and it includes many areas of hardship amongst people, particularly those who may have helped him or lived with him but are not blood relations and have no close family connection. For that I applaud the Bill.
I should like to look in more detail to the second area with which the Bill deals. It is here that the Bill gives the court the authority to alter a person's will when a person described in the schedule has been left out of the will. It means that those people can claimsuch financial provision as would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.He may not have received maintenance in the past. We do not know.
The court is to have regard to certain matters contained in Clause 3. When we look at these matters that the court has got to take into account, we find that there is not one provision which refers to the will of the deceased, that is, the wish of the person who made a document to establish who was to have what when he died. There is nothing to say that the court should regard this as of prime importance to carry out the wishes of the dead person.
This is a Bill that seeks to regulate by a court order the dispossession of beneficiaries under a person's will, to distribute the proceeds according to the interpretation that the court may put on the fairness of the distribution of the will if asked to do so by an applicant who claims entitlement. The Government are seeking powers in this Bill to deprive an individual of his or her cardinal freedom to choose inheritants. It destroys the sacred last word for the disposal of whatever a person has saved or collected and wishes to distribute under his or her will. I accept existing legislation to be right to deal with the very sad cases that arise.
184 I should like to refer to the Second Reading of this Bill, and to the speech of the hon. and learned Solicitor-General when he posed two vitally important questions. The first question was:…to what extent should a person be free to say while he is alive who is to receive his property when he no longer has a use for it, or to what extent should the law prescribe what is to become of it?The second question was:to what extent should a person be accounted the best judge of what his obligations are and how to discharge them?"—[Official Report, 16th July 1975, Vol. 895. c. 1681–2.]The Bill enables the court to decide what those obligations are if they are contested by people who are not included in the will, or indeed by people who may be included in the will. It creates a situation in court which, to my mind, will lead to a great family squabbling ground. Lord Simon in another place sees this legislation as upholding the family as an institution. It see it as a recipe for monumental family squabbles. It is a Bill laid by the Law Commission, hatched by the Solicitor-General and, if enacted, presented for a lawyers' feast. For a period of six months, disgruntled applicants may apply to the court for benefit after the date of the decease.
Thus, as my hon. Friend the Member for Orpington (Mr. Stanbrook) said, for six months there will be a virtual freezing of the will while the word goes round the family that persons listed in the designations in the Bill may put in a claim for some financial maintenance. Perhaps there will be children of a previous marriage who have gone abroad and fallen on hard times who will come back and make a claim against the estate.
One can imagine the situation in the family. Perhaps the grandfather has spent all his life building up a small business and wishes to leave it to his elder son, with something to second son, while providing for his widow, but he misses out one or two members of the family who are not terribly well off, and they may now make application to the court for a portion of the estate left by the deceased.
What will be the effect if the court gives the order? There is no reason why it should not do so. After all, if these 185 persons can satisfy the terms laid down in the Bill, they can extract something from the estate. It might mean that the business had to be sold to provide some ready money for these people. Perhaps they will not want a share in the business; they may want only ready cash.
The result will be that the will and the decision of the deceased, in my view, will be flagrantly overruled by a court of law. There will be most unenviable family situations. It is never easy when someone dies and the will is read out. Generally, I think, people are jolly glad to get anything that they are left—they do not necessarily expect to get anything—but inevitably there may have been the odd quarrel, perhaps, and other members of the family may feel that they should have had a little more than the sister or somebody else who did rather well.
These disaffections or disappointments are part of the warp and weft of family life, I suppose, but now we shall have a situation in which litigation will take over. Once the will has been read and challenged, litigation becomes the order of the day.
What happens to the beneficiaries? They must apply to the court as well to safeguard what they have been chosen to inherit. We shall see people pleading poverty—never something people want to plead in public—with one or other saying "I am worse off than someone else, and therefore I am entitled to more from the estate", and acts of care, help and kindness will be enumerated in strictly monetary terms. That can never be pleasant.
The tragedy is that if the Bill is passed no longer can anyone rely on his or her decision for the disposal of the estate. This will be so even in one's lifetime, because there is a provision in the Bill that, if the deceased gave away some goods or chattels or a portion of money with the object of bypassing the legislation, then, during the last six years of his life the court may have recourse to that other person and say, "We have claims on the estate, and you, because of your present financial situation, must return the goods which were given to you"—perhaps as long as six years previously—" or you must return the money". That will be so regardless of whether the person is able to do so or 186 has the money to return. Moreover, how can it be proved anyway that the deceased gave those goods, chattels or money, whatever it may be, with the object of bypassing the Bill?
I take the example of a charity. In a generous moment, someone may decide to give a reasonably large sum to a charity. Perhaps, because of trading conditions and other factors towards the end of his life, that man might die pretty hard up. The family could then go to the charity and ask for some of the money donated to it. How can the charity prove that the money was not given in an attempt to bypass this legislation? Who is to know the man's thinking and that he did not do it for that purpose?
It is very dangerous, particularly where families are concerned, to try to open up the past to this extent. If a grandmother gives one of three sisters a piece of jewellery worth £100, the two sisters who received nothing could make a claim. Is a court to probe a person's generosity? The clear answer is "Yes". How can anybody be sure of the conclusive proof that will be necessary or gauge the family controversy this sort of law may arouse? The dead may be proved guilty of offences they did not knowingly commit. This is an arrogant and presumptuous piece of business.
I hope very much—though I doubt it—that the Solicitor-General will think again about this Bill. It has come a long way in a short time—it was introduced at a most busy time in Parliament and has not been debated before on the Floor of the House—and has great ramifications. It deals with the vitally important but separate areas of a person who dies and leaves a will, with problems arising because of the terms of the will, and the person who dies without leaving a will. I hope that the Government will delay this Bill and allow the House to re-think it.
§ 10.53 p.m.
§ Mr. Ivan Lawrence (Burton)
Those who believe that the family is a vital and fundamental unit in our free society must be greatly uneasy that this Bill will extend the benefits of the family system to a unit outside the family.
In a sense, the sanctity of the family is undermined when the good things of 187 family life are readily available without the constraints of that unit. Marriage creates obligations as well as rights and if the rights are easily obtained outside marriage and without the obligations, how long will it be before no one wants the obligations and the family concept collapses? If the benefits of the financial aspects of marriage are easily devolved to those outside the unit, is that not a blow to the family concept?
If that sounds like an old-fashioned 19th century lawyer speaking, I apologise. As a 20th century lawyer, I appreciate that human relationships present problems which are not so easily solved by reference to rules which are unnecessarily harsh. I appreciate also what has been said at the various stages of the Bill about injustices which might exist where there has been a dependent relationship and people's natural rights, if not their strictly legal rights, are denied. Many people more experienced than I in this subject, particularly the former head of the Family Division, the noble Lord, Lord Simon of Glaisdale, support the Bill. Therefore, although I consider it to be a difficult problem, since the family is a unit of great sanctity which we should strive at every stage to uphold, I appreciate that advances have to be made and that perhaps there should be changes along the line of the Bill.
If the course to be adopted were to give the deceased, whether he leaves a will or not, the complete right to devolve his assets as he wishes, regardless of all claims which might reasonably be made, one would not be entirely happy. If, however, the power of the deceased were to be taken completely away and centred in the hands of the State to decide who should benefit from it, I and my hon. Friends would certainly resist that.
The Bill seems to be a reasonable compromise whereby the will of the deceased is the matter of primary importance, but where considerable injustice may result in personal relationships, it is not the State but the court which will decide whether that injustice should be rectified out of the estate. It is perhaps because, due to my training and experience as a lawyer, I have such a high regard for the courts that a lot of the uncertainties and inhibitions I would 188 otherwise have about the Bill have been removed.
I trust the courts and I trust them to continue to lean in favour of the will. They will be prepared to make exceptions, according to this proposed legislation, where injustice is caused to family relationships which are outside the strict form of the family. And because this is the solution advocated in the Bill, I am reluctantly driven to accept the Bill and its objects.
There is, however, cause for concern because hardship will be caused by the Bill when it becomes a statute, and one feature of the Bill in particular has caused alarm among solicitors. This matter has been touched on at various stages, but it has not been answered. It is the recognition that nowadays the situation surrounding mistresses and illegitimate children has changed. I do not suppose that one could argue or prove that there are more illegitimate children or mistresses than there were. At one time these categories of person had no claims and therefore legal problems did not arise. That may have been harsh and, in many cases, unjust. Now, however, the problems will arise.
Let us postulate the situation where the executor gathers into his room the family of the deceased. He will now have to say to the family, dressed, as they may be, in black, and almost certainly sorrowing in the memory of the deceased, "Are there any mistresses or illegitimate children?"
One smiles now in the calmness and detachment of this august Chamber, but one must consider not only the feelings of someone who has lost a loved one very recently but also the hard facts of life. A wife may not necessarily know if the husband whom she loved, respected and admired kept a mistress. She may never have known that he had illegitimate children to be maintained. She might say to the solicitor "No, of course not. Not my Harry. He was always true to me", and then a flood of understandable tears will follow. She will ask "How can such a bizarre suggestion be made?".
But the solicitor, particularly in this day and age, will have great difficulty in accepting the wife's word. He will say to himself "I can protect myself against the implications of distributing the 189 estate before the six months are up, before any claims may be made, only by holding up the distribution of the estate for six months." This will cause hardship to families. It used not to have to happen, but now it will. More and more the solicitor will have to say "No distribution for six months." Therefore, apart from the emotional distress caused by the making of the unfounded and distressing suggestion, the wife of a deceased person may undergo a degree of financial suffering which is not easily relieved.
The Solicitor-General will know that the matter has caused concern in the legal profession. One solicitor, Mr. Bruce Cowles, of Cowles and Co. in London, wrote to the Law Society:It seems that in this permissive age in an effort to indulge and legislate for those who do not conform to the principles in society of marriage and legitimacy we make life quite intolerable for those who do.That statement might possibly be said to be exaggerated. If one talks to solicitors who do family law work one will receive different replies.
I raise the matter because it seems to me a significant factor of the legislation that harm might result. I do not think that that by itself it is sufficient to invalidate the principles or objectives of the Bill. But I hope that the Solicitor-General and future holders of his office will keep an eye on the matter, and that the courts will also do so. I hope that they will see that if it is causing hardship to families this element of the Bill is removed as soon as possible.
It will remove a substantial thorn in my side as I contemplate the Bill's becoming law if the Solicitor-General will give me an undertaking that he is aware of this aspect, and is fully alive to the hardship which may result; that he will require those within his authority to monitor the working of the Bill; and that if we should continue under the present régime, and evil is seen to result, he will bring the matter to the attention of the legislative process for amendment as soon as possible.
§ 11.5 p.m.
§ Mr. Roger Moate (Faversham)
I cannot claim a lawyer's expertise or familiarity with the Bill, nor am I likely to have any personal concern with the issue of inheritance. However, some of the contributions made by my hon. Friends 190 have stimulated me to make one or two comments on this legislation. I hope that I can persuade the Solicitor-General to give some greater reassurance on some matters of concern before the debate is concluded.
Naturally we hesitate to question in any way the recommendations of the Law Commission, but it seems clear from what the Solicitor-General has said that it is engaged not only in tidying up the law but in extending it considerably. I think that the hon. and learned Gentleman said that it has gone so far as to take a social survey. If the Commission can conduct a social survey, that encourages the layman to express opinions on the matter.
It seems that the validity and integrity of a will is being reduced. In future, when a person makes a will he will be less sure that his positive intentions will be carried out. I would have thought this was a considerable invasion of personal freedom. Parliament should be careful about taking such a step.
I was reassured to a degree when the hon. and learned Gentleman said earlier that all that the Bill was doing was extending the powers of the courts to decide. If that is so, that is a considerable reassurance. Like my hon. Friends, I have great trust in the courts exercising discretion, but there seem to be references in the Bill that may leave a degree of free judgment on the part of Parliament as to who is and who is not entitled to fair and reasonable provision. If we are saying that there are those newly into this category of dependence for whom a reasonable financial provision should be made, it seems that we are expressing an opinion that the courts are bound to take into account. If we are saying that the courts can make fair and reasonable provision for such people and that they are in no way being influenced by Parliament to do so, that reassures me considerably.
It seems that we are making a further extension into the rights and the freedoms of the individual, the rights of a person to dispose of his property as he so wishes. There must be cases where a person for very good reasons, for his own reasons, might positively wish to disinherit someone with whom he has a personal feud or dislike, in which case it might be unreasonable for him to leave that person 191 part of his assets. I would have thought it unreasonable that the presumption should be bestowed by Parliament upon the courts that a will can be changed to benefit somebody by disposing of a testator's assets when it was positively his intention not to do so. I hope that the Solicitor-General can offer a suitable word of reassurance that the integrity and validity of a will properly drawn and clearly setting out the intentions of the owner of the assets is not reduced in its effectiveness or its integrity.
§ 11.9 p.m.
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
At this time of night I shall not pursue at great length the arguments that we have heard from some Conservative Members. They appear to be suggesting that not only should we never speak ill of the dead, but never suggest that they could have made an error of judgment or have had a lapse in their kindness. They seem to be saying that we should never be entitled to suggest that somebody can be malicious through his will as he can be malicious in life. As a practising solicitor I have had experience of people coming to me with the intention of making thoroughly vindictive wills. I hope that I have successfully dissuaded many of them, but it has probably been done at the expense of losing a few clients.
Regrettably, some people take positive pleasure in exercising antagonisms which in old age are frequently generated towards those who have cared for and loved their relatives, or indeed friends or servants or companions. People who have devoted their lives to looking after some cantankerous old lady, with the assurance, "Don't worry, my dear, because when I go you will be well provided for", often find that when the old lady dies they are not provided for at all or that only a contemptuous provision is made for them.
I do not propose to speak at length on Third Reading, but merely wish to point out that I, and I am sure many other hon. Members, was not conscious of this Bill until the Whip arrived on Friday morning. Unless one reads the enormous amount of literature that thumps through the letter box every morning, one is liable to miss the fact that a Bill, having begun 192 its life in another place, is to be given a Second Reading in Committee. In that way it is possible that important pieces of legislation may slip through without opportunity being given for a thorough examination of that measure to be carried out.
I have taken part in proceedings in Second Reading Committees, and I wish that I had taken part in that earlier stage on this legislation because I would have pressed a number of points. I am concerned about the person who has a genuine expectation of favours coming to him from a will—expectations that are disappointed when, say, an employer dies, and who perhaps is inadequately protected by the provisions of Clause 1(1)(e). Perhaps the Minister will be able to say a few words on this matter in his reply.
I hope that we shall be given a little more explanation about the effect of Clause 11. I had always understood that a contract to make provision by will was not enforceable by the courts. The Bill contains a provision to give power to the court to set aside such a contract or override its provisions. From a cursory reading of the Bill, do I understand that it is implicit that in some circumstances contracts making provision for a will will have legal force?
I hope that we shall have an assurance from the Solicitor-General that in future, even though a Bill is the fruit of the Law Commission's deliberations, we shall have that legislation in such a form as to enable hon. Members to raise matters and that we shall not be prevented from so doing because the time has passed.
This legislation is highly desirable. It may well be that it should have gone further, I cannot judge that. Those hon. Members who took part in the Committee proceedings are in a better position to form an opinion than I. However, I have had some experience, as have many other hon. Members. We would like to have contributed. We have not had that opportunity as a consequence of the procedure adopted tonight.
§ 11.15 p.m.
§ Mr. Daniel Awdry (Chippenham)
The hon. Member for Mitcham and Morden (Mr. Douglas-Mann) has raised an important point. Had the Opposition not put down a motion this Third Reading debate would not have occurred. We put 193 down that motion as we felt it essential that a Bill of this great importance should be properly discussed on the Floor of the House. This is the first opportunity for a general discussion on the implications of this Bill, because it received its Second Reading upstairs.
The Bill involves a major development of the principles enshrined in the Inheritance (Family Provision) Act 1938. It does so in four ways. First it increases the provision which can be made for spouses by equating that provision more closely with the provision which can be ordered for a divorced spouse in a matrimonial case. Secondly, it enlarges the class of persons who can apply for maintenance. We had an interesting debate on an amendment which sought to restrict that addition.
Thirdly, it gives to the court much wider powers to make whatever orders are appropriate. The new powers include power to transfer or settle any property for the benefit of the applicant and to vary settlements. We have discussed those this evening. Finally, the Bill makes additional property available for applicants, including property which was jointly owned, and even property which the testator had given away at any time within six years of his or her death.
These are major changes. My hon. Friend the Member for Harrogate (Mr. Banks) made an interesting speech on the fundamental principles of the Bill. He argued the case for greater testamentary freedom. He feels that the Bill is an interference with freedom and that it will cause many family quarrels and more litigation. That is a serious charge. I think that the answer is contained in the Second Report on Family Property of the Law Commission. No doubt practitioners may wish to read the reports of this debate in Hansard. It might be helpful therefore if I quoted the existing state of the law as set out in paragraph 12 of that report which explains the position that has existed for the past 37 years.
Paragraph 12 of the report reads:The aim of the present family provision legislation is to ensure that reasonable provision is made for the maintenance of the widow or widower, the former spouse and dependent children. If the court considers that the disposition of the deceased's estate does not make reasonable provision for the maintenance of an applicant, it may order that such reasonable provision as it thinks fit be made out of the 194 estate by way of periodical payments or by a lump sum, or both, taking into account the means, needs and conduct of those concerned and all relevant circumstances.Those who say that this Bill will set up a new court are wide of the mark. The court has been there for the past 37 years dealing with these types of cases, although it is fair to say that there have not been a great many of such cases in recent years. Solicitors have been able to guide and help people in making wills. They explain the present state of the law to their clients and assist them in making wills so that future difficulties are avoided. That is the present state of the law, which has existed since 1938.
What this Bill does is to introduce two new principles, set out in paragraphs 16 and 19 of the same report. The first principle, in paragraph 16, is thatmaintenance should no longer be retained as the objective in determining family provision for a surviving spouse and that the court's powers should, so far as practicable, be as wide as its powers to award financial provisions on divorce.That is why the powers granted to the courts by the Bill have been enlarged, because recent legislation on matrimonial property has given much wider powers to courts to make greater provision for divorced spouses. It seems sensible that a widow should be in no worse position than a divorced spouse.
The second principle, contained in paragraph 19, states:The second principle on which the detailed recommendations of this report are founded is that for other dependants, including former spouses and the judicially separated spouse above referred to, the function of family provision legislation should be confined, as it is at present, to securing reasonable provision for their maintenance.For anyone apart from spouses the provisions are confined to maintenance. I accept both principles. I believe that it is right that any child of the family, including any person treated by the deceased as a child of the family, should be able to claim.
The answer to the fears of my hon. Friend the Member for Harrogate about more litigation is fully dealt with by the Law Commission in paragraph 17 of that report when it says:We think that these guidelines would afford sufficient guidance to the court in determining what would be a fair or reasonable share of the estate And while there may 195 be some increase in litigation in the early days after the legislation implementing our recommendation, we think that such litigation is likely to diminish once the courts have developed the principles on which they will in general exercise their new powers.For these reasons I think my hon. Friend need not worry quite so much. There are safeguards in the Bill.
There are in this Bill major fundamental changes in the law. In Committee I asked the Solicitor-General, and I ask him again now, to consider preparing a short pamphlet so that the general public and the legal profession can be immediately made aware of these changes. The hon. Member for Mitcham and Morden is a solicitor and he has just discovered that this measure is soon to become law. No doubt he would like early guidance so that he may advise his clients. There must be many solicitors who are trying to cope with new legislation, who find it difficult to keep abreast and who would find such a guide helpful.
This measure will come into force in about six months' time if it is passed tonight and will affect the estate of anyone who dies after 1st April next. In Committee I raised the question of protection for personal representatives when they distribute the estate. Up to the present time the classes of applicants have been reasonably ascertainable by the executors. When this Bill becomes law there will be a new situation. There may be applicants whose existence has been deliberately hidden by the deceased. Therefore, a totally unexpected claim may be received by the executors in future.
It is my anxiety—and I speak as someone who is an executor of several estates—that certain personal representatives, particularly banks and institutions, will be reluctant to make any distribution at all until the six-month period provided for in Clause 20 has elapsed. This may cause hardship to widows and other close relatives. The Law Society has suggested that the period in which claims should be lodged should be cut from six to two months from the date of the granting of probate. In Committee the Solicitor-General said that the Lord Chancellor would monitor the Act so that if difficulties arose the necessary amendments could be made at a later 196 stage. I hope that he will give the assurance asked for by my hon. Friend that the Lord Chancellor is seized of this point. It is a practical one which may result in widows and other beneficiaries being deprived because executors dare not make a distribution for at least six months.
Most hon. Members welcome this further instalment in the reform of family and property law. There are further and more important reforms shortly to come. We await the Law Commission's proposals on the principle of co-ownership of the matrimonial home and its contents. That will be of an even more far-reaching character.
The whole House owes a deep debt of gratitude to the Law Commission. The Law Commission has been criticised a little tonight, but without it we should not have achieved the reform so urgently needed in the family law. The Law Commission helped us on the reform of the divorce law. I was a member of the Standing Committee which sat on that Bill and I was a sponsor of that Bill. No Bill during my time in the House has done more to remedy the bitterness which existed in domestic disputes. The Law Commission helped a great deal on that Bill and on all the reform of matrimonial property law which followed. We owe a debt of gratitude to the Law Commission not only for its reports and recommendations but for drafting this Bill and providing such helpful explanatory notes. I am glad that the Bill will receive its Third Reading tonight.
§ 11.26 p.m.
§ The Solicitor-General
The hour is late and I hope that the House will forgive me if I do not dwell at length on every point that has been raised. There are one or two matters with which I have been invited to deal on which I should say a word or two.
I have every sympathy with the views of my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) on the difficulties at present entailed in legislation. They arise because the problems with which the House has to deal become more numerous and more varied as year succeeds year. Most of us are familiar with the difficulty of keeping abreast of legislation. It happens to me. It happens even 197 more when one is in Government and more narrowly encompassed by the problems of a Department. I do not know the answer, and I cannot tonight suggest how to deal with it.
§ The Solicitor-General
I will not be enticed into that kind of party argument at this stage in the evening.
The proceedings appeared in the Official Report at each stage. I appreciate that none of us has time assiduously to read everything in the Official Report, but the real difficulty is that the Bill was initiated in this House in a Second Reading Committee. Perhaps this is not the place in which to discuss the merits and demerits of Second Reading Committees, except to say that without that procedure a great deal of the law reform referred to by the hon. Member for Chippenham (Mr. Awdry) would not have been possible. I do not know the answer.
The hon. Member for Harrogate (Mr. Banks) deployed with great skill the case for testamentary freedom. He fairly pointed out what was said by the noble Lord, Lord Simon, that the other side of the equation is the necessity to uphold the family as an institution. The speech made by the hon. Member for Chippenham has spared the House from hearing me at much greater length because he dealt with many of the arguments. As he said, the principle of complete testamentary freedom was breached as long ago as 1938.
If I understood the hon. Member for Harrogate correctly, he was particularly concerned with interference with a will, and less concerned with interference with an intestacy. It is interesting that it was specifically in relation to wills that Parliament first thought it right to intervene. The 1938 Act related to wills and not to intestacy. The power to interfere with an intestacy was not conferred until 1952. Since then it has existed and from time to time been extended. Perhaps it is too late now to seek to maintain the simple principle of testamentary freedom.
It would be wrong to speak as though testamentary freedom were always exercised, when it is exercised in a way which would engage our sympathies. As my hon. Friend the Member for Mitcham and Morden said, there are many occasion 198 when the right to make a will is exercised in a way which we would not wish to uphold.
The hon. Member for Harrogate said, looking at all the matters the court is required to have regard to in Clause 3, that there is nothing to be found about the words of the testator himself. It is true that there is not, but it is assumed that the court will have regard to the intentions of the testator. In Clause 21, there is provision for looking at what the testator had to say. It is an evidential rule, but the fact that it is there and is intended to facilitate the powers of the court to look at what the testator had to say, makes it clear that the intention is that his voice should be heard and regarded.
§ Mr. Lawrence
The hon. and learned Gentleman keeps referring to the powers which the court shall take account of. He will recall that on Second Reading in another place, Lord Simon of Glaisdale asked the Lord Chancellor whether the court which was referred to was to be the Family Division or the Chancery Division or both, because the existing situation is anomalous in that inheritance matters may be raised as far as the wife is concerned in the Family Division, and as far as children are concerned in the Chancery Division. The Law Commssion decided to recommend that it should be all in the Family Division. Lord Simon of Glaisdale asked the Lord Chancellor to tell him whether that would be so. The Lord Chancellor, as often happens when questions are raised to which no answer is known, omitted to reply. I would be grateful to the hon. and learned Gentleman if he would be good enough to indicate whether it is the Government's proposal that the court referred to shall be as the Law Commission recommended, the Family Division.
§ The Solicitor-General
I can answer that briefly. Those who were present may recollect that I gave a slightly more detailed answer in Second Reading Committee. The proposal by my right hon. and learned Friend the Lord Chancellor is that it would be wrong within the Bill itself to exclude one or other of the two divisions from considering these matters, because there might be occasions when it is more convenient to bring a matter in one or the 199 other. The intention is that the jurisdiction of both shall be retained and that the matter shall be dealt with by way of rules of court.
I think it is right to echo what the hon. Member for Harrogate said—that there is no presumption in the Bill that the court should intervene. It is entirely open. It is a matter for the discretion of the court. Traditionally, in handling these matters, the courts have required to have evidence very much to their satisfaction that there is a case for intervention, that the provision which was made was not reasonable.
The hon. Member for Burton (Mr. Lawrence) and the hon. Member for Chippenham pointed out, properly, that whenever one adds a new right to any legislation one adds to the complications of administering whatever it is one is dealing with, in this case the administration of estates. It is true that the addition of certain classes of people will entail solicitors having to ask embarrassing questions, and will mean delays, often for the full six-month period, before the personal representatives feel safe in distributing the estate. I hope that there will still be cases where, looking at all the facts, the personal representatives will feel that they can at least make an interim distribution of the estate, but obviously there will be occasions when when there will be delays.
The alternative, as the hon. Member for Burton fairly said, would be not to legislate at all where the particular category we are dealing with is one which might not engage the sympathies of the public—the category of those who do not conform. Certainly it would make it much easier to argue the case that we should not legislate for them, but I am sure that that is not what the hon. Gentleman would advocate. Certainly it would be less than compassionate to say that a mistress should have no rights because it would be more convenient in distributing the estate, and downright unjust to say that illegitimate children who have not behaved in any blameworthy way should have no rights.
However, this is certainly a matter which should be kept under review. I repeat the assurance which I gave earlier that these matters will be monitored. The 200 hon. Member for Burton asked me to monitor them. I am sure that he understands that the responsibility lies with my noble Friend the Lord Chancellor, who has authorised me to say that the matter will be kept under review. If anyone has any specific examples of difficulty which have arisen and which could be dealt with by administrative action or future legislation, my noble and learned Friend will be happy to hear about them.
My hon. Friend the Member for Mitcham and Morden raised the question of the debt of gratitude which is not included in the Bill. Perhaps it is a little late to embark on a full rehearsal of the arguments on both sides of that matter. To do what my hon. Friend referred to would go very much further than any other provision in the Bill or any other legislative provision because it would not deal merely with dependants of the deceased but would bring in a wholly new concept which did not depend on dependency. It would bring in someone to whom a debt of gratitude was owed who might have reasonably expected repayment of a debt.
Mr. Deputy Speaker
For the sake of the record, and so that my broad-mindedness shall not go unnoticed, may I say that we shall now consider merely what is in the Bill.
§ The Solicitor-General
I am grateful to you, Mr. Deputy Speaker, for what you have said because it may enable me to cut short what I proposed to say on the other point raised by my hon. Friend the Member for Mitcham and Morden, namely, the question of the contract to make provision by will. As I understand it, the Act provides that where there is a contract to make provision by will, and where it appears to the court that it may have been intended to defeat the provisions of the Bill, the court may, in certain circumstances, say that the contract shall be disregarded. The normal rule of course is that a contract to make provision by will is enforceable. That is the effect of the clause.
The hon. Member for Chippenham raised the possibility of publishing a pamphlet explaining the legislation for the lay public. I echo what he says about the need to make it clear to everyone, including those who are not in 201 regular contact with solicitors, what their rights may be in various combinations of circumstances. My noble and learned Friend the Lord Chancellor is very much aware of the need to do this. I cannot give an undertaking that a pamphlet will be issued, but my noble and learned Friend will consider how best we can ensure that people are aware of their rights.
It only remains for me to echo what the hon. Member for Chippenham said about the debt which we owe to the Law Commission. If it were not for the Law Commission, law reform would be an even slower and more painful process than it is. We are particularly grateful to the Commission in cases such as this legislation, when in other circumstances we may have wanted to rehearse all the arguments at greater length, that it took account of the arguments, weighed them, canvassed them among the various interests it consulted and told us the results of its deliberations. Whatever else it may have done—and it has done many other things—the Law Commission has spared us from what might have been much lengthier debates in the House.
I am grateful to all those who have taken part in the debate. It has been a good tempered and helpful debate which we shall bear in mind as we see how this legislation works out.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed, without amendment.