WILLS (SOLDIERS AND SAILORS) BILL. [H.L.] (Hansard, 9 January 1918)

§ THE LORD CHANCELLOR (LORD FINLAY)
My Lords, a discussion on this subject was initiated by Lord Rathcreedan in the summer of last year, and it was afterwards pointed out that soldiers and sailors were under certain disabilities under the present laws in making their wills, and I undertook to set the matter right. Various public bodies and Departments have since been consulted, and the result is the Bill to which I now ask your Lordships to give a Second Reading. The main matter with which this Bill deals is the incapacity which at present applies to the case of disposition of real property by a soldier on service in the summary form which is allowed with regard to personal property in that particular case.
I now pass to the matter to which Lord Rathcreedan drew attention—namely, the incapacity of a soldier to devise real property. The result of this incapacity may entail considerable hardship. If a solder has a cottage of which he desires to dispose by his will, he cannot do so except in the form provided for the devise of real property in the Wills Act, with all the formalities there described. There seems to be no reason why, if a soldier can dispose of his personal property in the way in which he can, he should not be able to dispose of his real estate. As matters stand at present, the cottage which the soldier might wish to leave to his wife or to his mother goes away from her to some heir owing to intestacy with reference to real property. Under the provisions of the Intestate Estates Act of 1890, if a man makes no will at all, his wife, if there be no children, would take the whole of the property, real and personal, if it did not exceed £500. If a soldier on active service makes a military will leaving everything to his wife, that will would be 404 ineffective as regards real property, but good as regards personalty. Some trifle of personalty in some conceivable circumstances would go to the wife under a will; therefore there would not be an intestacy. But instead of getting, as in the case of complete intestacy, the whole of the property which was not of greater value than £500 altogether, she would get only a portion. Consequently the effect of the husband making a will in her favour leaving her all his property would be to deprive her of a good deal which she would have received had he died altogether intestate.
Clause 2 of this Bill redresses that matter, and extends the power of making a soldier's will to real property. In the majority of cases, of course, the value of the real property is very small, and, unless your Lordships should be of a different opinion, it may be thought right to leave the matter without any limit at all, because large properties will no doubt be provided for in the ordinary way. A separate provision is made by subsection (2) of this clause with regard to Scotland, because the Scottish law admits of wills being made with less formality than in England. This subsection provides that a will which would be good by Scottish law if it related to personal property, shall also be good with regard to heritable property.
There is another anomaly in the state of the law at present. The right of making these summary wills is preserved by Statute in favour of soldiers on active service and of sailors at sea. But very often now a sailor may be serving on shore; and the result of the law is that with two men serving side by side in the trenches, one a sailor and the other a soldier, the latter can make a will in this summary fashion while the former, who is for all practical purposes on the same footing, cannot do it. That state of affairs is to be remedied. It practically comes to this, that after men have been mobilised for active service the power of making such a will would apply to the case of a sailor as well as to that of a soldier.
Further, a soldier on service may get news that a child has been born to his wife at home, and he may desire to provide for the guardianship of that child in the case of his wife's death. As the law stands at present, according to a decision of the Courts, such guardian can be appointed only by the process laid down in a Statute, passed in the reign of Charles II, entitled 405 the Statute of Frauds. The formalities prescribed by that Act must be followed, otherwise the appointment of a guardian in such a case as that to which I am referring is not a good appointment. This Bill also provides for the disposition of property by a properly appointed guardian.
I respectfully ask your Lordships to give the Bill a Second Reading. As far as it is possible to gauge the feeling of the House as shown during the discussion initiated by Lord Rathcreedan last year, the Bill accurately embodies that feeling. I beg to move that it be now read a second time.

§ LORD MUIR MACKENZIE
My Lords, as I took part on the former occasion in bringing this subject to the attention of your Lordships, I venture to say a word or two. I should be very much surprised if this Bill did not meet with very strong sympathy from all quarters of the House, and I feel convinced that Lord Rathcreedan, who brought this matter before your Lordships, must experience great satisfaction in the fact that the Bill has been presented to the House by the Lord Chancellor himself. It is a matter for congratulation that the noble and learned Lord on the Woolsack has seen his way to deal with the subject in so sympathetic a manner. The Bill undoubtedly took some time for consideration, but that was because there were many difficulties which no doubt occurred to the mind of the noble and learned Lord, and which also were brought to his attention by others. I am glad to see that the result of his consideration of those matters has been the production of what I venture to call a most admirable Bill. It is a short Bill, and I believe that it really does all that is required, and at the same time does not attach too much importance to the difficulties to which I have referred.
There are two points in the Bill which I should like to mention in case it should be possible to deal with them. As to one I confess I have not much hope, although I think it is a matter of considerable importance—namely, that so much time of the war having already passed, there must have been a great many wills made, and a great many deaths of those who made them, to which it would have been desirable that these provisions should have applied. I do not know whether it is possible in any way 406 to give a retrospective effect to this Bill. It only occurs to me at the moment, and I can quite well see the difficulties that might arise.

§ THE LORD CHANCELLOR
If the noble Lord will read the second clause, he will find that it answers the object he appears to have in view in the case of all persons dying after the passing of the Act.

§ LORD MUIR MACKENZIE
That is just the difficulty that I feel. It applies only to persons who die after the passing of the Act. I say there must have been a great many cases during the three and a-half years of the war where wills have been made and the persons have died, and where, of course, the provisions of the Act do not apply. I see that great difficulties might arise in attempting to deal in that way with property already disposed of, but if possible I am quite sure that everybody must feel that it would be desirable. The other point is one that I ventured to mention on a former occasion—namely, whether it is possible that a simple cheap procedure could be provided in the case of very small wills. I think it is probable that the Lord Chancellor has considered this subject and has found either that it cannot be done or that it is unnecessary, but I am sure everybody would wish, if it were possible, that there should be a cheap, expeditious, and simple way of dealing with these small wills.