HL Deb 23 June 1938 vol 110 cc245-55

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Russell of Killowen.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1:

Power for Court to order payment out of net estate of testator for benefit of surviving spouse or child.

1.—(1) Subject to the provisions of this Act, where a person dies after the commencement of this Act leaving—

  1. (a) a wife or husband;
  2. (b) a daughter who has not been married;
  3. (c) an infant son; or
  4. (d) a son who is by reason of some mental or physical disability, incapable of maintaining himself;
and leaving a will which does not make reasonable provision for the maintenance of such a person as aforesaid (in this Act referred to as a "dependant" of the testator), the Court may at its discretion, on application by or on behalf of that dependant, order that such reasonable provision as the Court thinks fit shall, subject to such conditions or restrictions, if any, as the Court may impose, be made out of the testator's net estate for the maintenance of that dependant.

(3) The amount of the annual income which may be made applicable for the maintenance of a testator's dependants by an order or orders to be in force at any one time shall in no case be such as to render them entitled under the testator's will as varied by the order or orders to more than the following fraction of the annual income of his net estate, that is to say:—

  1. (a) if the testator leaves both a wife or husband and one or more other dependants, two-thirds; or
  2. (b) if the testator does not leave a wife or husband, or leaves a wife or husband and no other dependant, one-half;

Provided that if a claim is made by or on behalf of a dependant who, under a settlement or other disposition made by the testator, is entitled to an income for life or any shorter period, the amount of such income shall be taken into account and deducted from the amount of the annual income of the net estate which during such period the Court would otherwise have directed to be made applicable for the maintenance of such dependant.

(8) The Court shall, on any application made under this Act, have regard to any past, present or future income of the applicant from any source, to the conduct of the applicant in relation to the testator or otherwise, and to any other matter or thing which in the circumstances of the case the Court may consider relevant or material in relation to the applicant, to the beneficiaries under the will, or otherwise.

(9) The Court shall also, on any such application, have regard to the testator's reasons, so far as ascertainable, for making the dispositions made by his will, or for not making any provision or any further provision, as the case may be, for a dependant, and the Court may accept such evidence of those reasons as it considers sufficient.

LORD RUSSELL OF KILLOWEN moved, in subsection (1), to leave out "Subject to the provisions of this Act, where a person dies after the commencement of this Act," and insert "Where after the commencement of this Act a person dies domiciled in England." The noble and learned Lord said: Before speaking to this Amendment, may I be permitted to say that this very formidable list of Amendments consists in the main of drafting Amendments only, with the exception of about four or five points, which I have introduced at the suggestion of my noble and learned friend the Lord Chancellor. The first Amendment on the Paper which I now move is really drafting. It is merely a case of taking a few words out of Clause 5 and putting them into Clause 1.

Amendment moved— Page 1, line 6, leave out from the beginning to end of line 7 and insert the said new words.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN moved, in subsection (1), at the end of paragraph (b), to insert "or who is, by reason of some mental or physical disability, incapable of maintaining herself." The noble Lord said: This is an Amendment which I move at the suggestion of my noble and learned friend the Lord Chancellor, who unfortunately is at the present moment presiding over the Judicial Committee of the Privy Council and cannot be here. The object of the Amendment is to include amongst the class of "dependants" a daughter who, though not a spinster, is nevertheless under some disability, physical or mental, which prevents her from earning her maintenance and therefore makes her in every true sense a dependant of the father or mother as the case may be.

Amendment moved— Page 1, line 10, at end insert the said words.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

The next Amendment is purely one of drafting. It is merely a recasting of the words which appear in the Bill. I beg to move.

Amendment moved— Page 1, line 14, leave out from ("will") to ("order") in line 18 and insert ("then, if the Court on application by or on behalf of any such wife, husband, daughter or son as aforesaid (in this Act referred to as a 'dependant' of the testator) is of opinion that the will does not make reasonable provision for the maintenance of that dependant, the Court may").—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

This Amendment is only drafting. It recasts what is subsection (5) in the present Bill and shifts it to its proper place as a proviso to subsection (1).

Amendment moved— Page 1, line 22 at end insert ("Provided that no application shall be made to the Court by or on behalf of any person in any case where the testator has bequeathed not less than two-thirds of the income of the net estate to a surviving spouse and the only other dependant or dependants, if any, is or are a child or children of the surviving spouse").—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

The next Amendment is also merely drafting. I beg to move.

Amendment moved— Page 2, line 4, leave out ("terminating") and insert ("and the order shall provide for their termination").—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

The next Amendment is consequential on the Amendment which has been made already in Clause 1 at the suggestion of the learned Lord Chancellor. I beg to move.

Amendment moved— Page 2, line 8, leave out ("her marriage") and insert ("or who is under disability, her marriage or the cesser of her disability, whichever is the later").—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN moved to leave out the proviso in subsection (3). The noble and learned Lord said: This Amendment is partly drafting and partly not. It proposes to omit the proviso in subsection (3). The reason for the proposed Amendment is that that proviso is not required in view of the provisions of subsection (8), which confers upon the Court a very wide discretion indeed, and it is considered that if the proviso which we now propose to omit is retained in the Bill it might operate to throw some doubt on the width of the discretion which is reposed in the Court.

Amendment moved— Page 2, line 27, leave out from the beginning to the end of line 34.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

The next two Amendments in my name are drafting. I beg to move.

Amendments moved— Page 3, line 1, leave out subsection (5) Page 3, line 16, leave out subsection (7).—(Lord Russell of Killowen.)

On Question, Amendments agreed to.

LORD RUSSELL OF KILLOWEN moved, in subsection (8), after "future," to insert "capital or." The noble and learned Lord said: This is an Amendment moved at the suggestion of the noble and learned Lord the Lord Chancellor in order to cover a case where what is in the possession of the dependant is not merely an income sum but a sum of capital capable of producing income.

Amendment moved— Page 3, line 26, at end insert ("capital or").—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

The next five Amendments are drafting. I beg to move.

Amendments moved—

Page 3, line 27, leave out ("of the applicant")

Page 3, line 27, after ("source") insert ("of the dependant of the testator to whom the application relates")

Page 3, line 28, leave out ("the applicant") and insert ("that dependant")

Page 3, line 28, leave out ("or") and insert ("and")

Page 3, line 31, leave out ("the applicant") and insert ("that dependant").—(Lord Russell of Killowen.)

On Question, Amendments agreed to.

LORD RUSSELL OF KILLOWEN moved, at the end of subsection (9), to insert: including any statement in writing signed by the testator and dated, so, however, that in estimating the weight, if any, to be attached to any such statement the Court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

The noble and learned Lord said: This is a more substantial Amendment. It is introduced at the suggestion of the Lord Chancellor. If your Lordships look at subsection (9) of Clause 1 of the Bill, you will find that it runs as follows: (9) The Court shall also, on any such application, have regard to the testator's reasons, so far as ascertainable, for making the dispositions made by his will, or for not making any provision or any further provision, as the case may be, for a dependant, and the Court may accept such evidence of those reasons as it considers sufficient. It is proposed to add to that the words of the Amendment which are now proposed. The object of the addition is, in the first place, to make it quite clear that such a statement is legally admissible in evidence, and in the second place to make it equally clear that the statement itself, though admissible in evidence, is not conclusive as to the truth of the statement which it contains.

Amendment moved— Page 3, line 39, at end insert the said words.—(Lord Russell of Killowen.)

LORD STRABOLGI

I hesitate to question anything which has been agreed between the noble and learned Lord and the noble and learned Lord Chancellor, but this is a very important Bill and there are a great many Amendments on the Paper, and it is our duty, as I am sure the noble and learned Lord will agree, to examine them with care. On reading his Amendment it seems to me—I put the point forward with great diffidence—that such statements should not only be signed but witnessed. I do not know if that has been considered. I see that later there are qualifying words as to the weight which the Court must give to the statement, and I should have thought that it might have been well to insist upon the statement being witnessed.

LORD RUSSELL OF KILLOWEN

That matter was considered and we came to the conclusion that it really was not necessary. All we wanted was to admit in evidence some statement which was the testator's own statement as to what his reasons were. There was some question as to whether it would be admissible in evidence, and it was to meet that possibility that the Amendment was framed. Unless it is to be suggested that something in the nature of a forgery is going to be produced no witness is necessary.

LORD STRABOLGI

That is what I have in mind. I only know from reading in the newspapers, but cases are reported in which there are accusations of forgeries in connection with properties that are bequeathed. I do not want to press the matter now, but I thought that when a statement is signed it would be perhaps safer to have it witnessed.

LORD RUSSELL OF KILLOWEN

I do not think myself, if I may give my own opinion, that it would be necessary, or that it would have any really useful result. We are not dealing with a document disposing of property but merely with a statement of why the testator says he made his will in a particular form. I would venture to suggest to the Committee and to my noble friend that it is really not worth while including a provision that it should be witnessed.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Time within which application must be made]:

LORD RUSSELL OF KILLOWEN

The Amendment on the Paper is drafting only and the effect of the words to be omitted is restored later.

Amendment moved— Page 4, line 5, leave out from ("1925") to the end of 6. —(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3:

Effect and form of order.

(2) The Court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under this Act.

LORD RUSSELL OF KILLOWEN moved to add to subsection (2): but no larger part of the net estate shall be set aside or appropriated to answer by the income thereof the provision for maintenance thereby made than such a part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said provision. The noble and learned Lord said: This Amendment is of some substance. It is again one which I move at the suggestion of the noble and learned Lord Chancellor. The object is to make it quite clear that the income which the Court allows for the maintenance of a dependant is not to be treated upon the same footing as if it were a regular annuity. When the Court sets aside funds to meet a regular annuity, not only has the fund to be sufficient to produce by its income that annuity, but a larger fund is set aside to provide a margin of safety. It has been thought that the estate of a testator should not be held up longer than is necessary, and so we want to provide that what should be set aside should be only so much as at the date of such setting aside would be sufficient to meet the income for maintenance, and any subsequent diminution of income should be borne by the dependant. That seems to be fair and accordingly it is suggested that these words should be inserted.

Amendment moved— Page 4, line 22, at end insert the said words.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 [Variation of orders]:

LORD RUSSELL OF KILLOWEN

There is a drafting Amendment to this clause. I beg to move.

Amendment moved— Page 5, line 2, at end insert ("by or on behalf of a dependant of the testator or"). —(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5:

Application of Act.

5. This Act shall not have effect in the case of a testator dying domiciled outside England.

LORD RUSSELL OF KILLOWEN moved to leave out Clause 5. The noble and learned Lord said: It is proposed to leave out Clause 5 because it is unnecessary owing to the present form of Clause 1.

Amendment moved— Leave out Clause 5.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 6:

Jurisdiction of High Court, etc.

6. In this Act the Court means the High Court and also the Court of Chancery of the County Palatine of Lancaster or the Court of Chancery of the County Palatine of Durham where those Courts respectively have jurisdiction:

LORD RUSSELL OF KILLOWEN moved to leave out Clause 6. The noble and learned Lord said: We propose to leave out Clause 6 because its provisions are shifted to the definition clause which comes later.

Amendment moved— Leave out Clause 6.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 7:

Interpretation.

7. In this Act— The expression "will" includes codicil:

LORD RUSSELL OF KILLOWEN moved, after "In this Act," to insert: unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say:— 'annual income' means in relation to a testator's net estate, the income that the net estate might be expected at the date of the order, when realised, to yield in a year: 'the Court' means the High Court and also the Court of Chancery of the County Palatine of Lancaster or the Court of Chancery of the County Palatine of Durham where those Courts respectively have jurisdiction; 'Death Duties' means Estate Duty, Succession Duty, Legacy Duty and every other duty leviable or payable on death; 'net estate' means all the property of which a testator had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and Estate Duty payable out of his estate on his death;

The noble and learned Lord said: Clause 7 is now the definition clause. The definition of "annual income" originally ran: 'annual income' means, in relation to a testator's net estate, the income that the net estate, when realised, might be expected to yield in a year. It occurred to the noble and learned Lord Chancellor and myself that some direction should be given as to the time of expectation. Accordingly it is proposed to insert words providing that the income is the income that the net estate might be expected "at the date of the order" to yield. Then there is a definition of "Death Duties" which is new. That is included because Death Duties are referred to in another clause and it is thought that they should be defined.

Amendment moved— Page 5, line 12, after ("Act") insert the said words.—(Lord Russell of Killowen.)

LORD STRABOLGI

I hesitate to hold up the proceedings, but this Bill came from another place and we have only heard that the noble and learned Lord has consulted the Lord Chancellor. I presume that the promoters of the Bill in another place are agreeable to these Amendments?

LORD RUSSELL OF KILLOWEN

Oh, yes, I need hardly say I consulted them.

LORD STRABOLGI

The noble and learned Lord did not say so. I have had some slight experience of the working of the Public Trustee Act, which works extremely well. I am glad to say that it was introduced by a relative of mine in the first place in the other House. I thought that all these matters were very clearly laid down there for the guidance of the Public Trustee. I do not know whether this has been considered by the noble and learned Lord and his collaborators in this matter. None of these questions relating to the work of trustees is new. I myself happen to be a trustee of certain estates and it seems to me rather curious that we should have to put these definitions in for dealing with routine matters which have been going on for a long time in connection with many estates. I bring this matter forward only because I want to be sure that anything that goes through your Lordships' House is in fact exactly as it should be.

LORD RUSSELL OF KILLOWEN

I am not sure whether I apprehend what the noble Lord has in mind. These are simply definitions of words which occur in this Bill. If a maintenance allowance has to be made the allowance is made out of the annual income and "annual income" requires definition for that purpose and that purpose alone. So again "Death Duties" are defined because they are referred to in Clause 3 of the Bill. I do not follow what the noble Lord means when he says that these matters are of every day occurrence to trustees. This Bill is introducing an entirely new feature into the legislation of this country, enabling the Courts, notwithstanding the provisions of a will, to make some provision in the way of maintenance for the testator's dependants. This clause really defines the meaning of words used in previous clauses of the Bill.

LORD STRABOLGI

Yes, that is what I have in mind.

LORD RUSSELL OF KILLOWEN

Then I am at a loss. I do not understand.

LORD STRABOLGI

The Bill is new but the matters here defined such as "income" and "net estate" and so on are old. Perhaps I ought to look the matter up—I would have done so if I had had the time—but I would like to ask whether these are the same definitions as are dealt with by trustees every day.

LORD RUSSELL OF KILLOWEN

No, they are definitions for the purposes of this Bill and the purposes of this Bill only. They will not in any way affect trustees of an existing will. They only affect the meaning of the words used in this Bill, which is a Bill to enable the Courts, notwithstanding the provisions of a testator's will, to make provision for those of his dependants for whom he has not provided.

On Question, Amendment agreed to.

LORD RUSSELL OF KILLOWEN

These next two Amendments are purely drafting.

Amendments moved—

Page 5, line 13, leave out ("the expression")

Page 5, line 14, leave out ("the expressions").—(Lord Russell of Killowen.)

On Question, Amendments agreed to.

LORD RUSSELL OF KILLOWEN moved to add to the clause: (2) References in this Act to any enactment or any provision of any enactment shall, unless the context otherwise requires, be construed as references to that enactment or provision as amended by any subsequent enactment including this Act. The noble and learned Lord said: This again is a drafting Amendment. It is in common form, and explains really the reason why certain words were omitted from previous clauses.

Amendment moved— Page 5, line 20, at end insert the said new paragraph.—(Lord Russell of Killowen.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Remaining clause agreed to.

LORD STRABOLGI

I hope the noble Lord will understand that this measure came before us from another place as an agreed measure. A large number of Amendments are now brought before us. It is true they are mostly drafting, but we have to make sure that we are not going against the will of those who carried the Bill in another place.

LORD RUSSELL OF KILLOWEN

I can assure the noble Lord that we have restricted these Amendments to the smallest possible limit. I devoted some time yesterday to going through the whole list of Amendments with those responsible for the Bill in another place, and they were all agreed.