INHERITANCE (FAMILY PROVISION) BILL. (Hansard, 31 May 1938)

§ LORD RUSSELL OF KILLOWEN

My Lords, in moving that this Bill be read a second time I present it to your Lordships as a measure which deals in a modest, but I hope useful, way with cases which occur from time to time when a person dies disposing of his or her property in such a way as to make no provision or very insufficient provision for the maintenance of those who in that person's lifetime depended on him or her for maintenance. This country, England, stands, I do not say alone but in a very small minority of countries which claim to be civilised, in that her law enables a man to dispose of his property without making any provision at all for those who during his life were dependent upon him. Other countries—and, in the case of the Dominions, many of the States and Provinces of those Dominions—have as part of their legislation provided that in such cases protection should be given to those dependants of a testator who have been left unprovided for. Scotland has always had as part of her legal system the provision that the widow and the children of a testator—or rather I should say the spouse and children of a testator—are entitled respectively to a fixed part of the estate, varying from one-half to one-third, over which the testator has no disposing power at all. The form of protection given in various countries varies with the provision made. In some it is very drastic, Compared with that I would venture to describe this present Bill as a very mild brew and a very small measure.

If your Lordships will allow me, I will give a very brief outline of its contents, which will occupy only a few minutes. But, first of all, I would say this. Some ten years ago the noble Viscount, Lord Astor, introduced a measure to a similar effect in your Lordships' House and since then from time to time Bills have been introduced in another place, but owing to the vicissitudes, which, as your Lordships know, usually attend, or very frequently attend, Private Bill legislation, 800 none of them has succeeded in reaching the Statute Book. But in 1931 a Bill then under consideration was referred to a Joint Committee of the two Houses to report upon it. The Report, while condemning that particular measure because it adopted an arbitrary and fixed standard of relief, concluded in these words: The Committee, however, are of opinion that it is wrong that a surviving spouse or child, who is otherwise without adequate means of support, should be left without such means of support, owing to the terms of the deceased spouse's will, and that such spouse or child should be able to obtain such means of support by application to the Court, the amount to be measured by the amount of the estate and the circumstances in which the family had been living. The present Bill has been framed upon those lines, and its provisions may be shortly stated.

It enables the Court to make a limited provision out of a testator's estate for the maintenance of the testator's dependants. The dependants in question are a spouse, unmarried daughters, infant sons, and sons incapable either through mental or through physical capacity of maintaining themselves. They also include sons or daughters of those categories who have been adopted by the testator. The estate out of which provision is to be made is defined in such a way that the creditors and all other liabilities of the testator are paid before any provision is made. The nature of the provision is of this kind. It is a maintenance out of income with power in certain small cases to make a payment out of capital, but only in small cases. The maintenance provision ends in the case of a spouse with her marriage, in the case of an unmarried daughter with her marriage, in the case of an infant son with his attaining majority, and in the case of an incapacitated son with cesser of the incapacity. There is a limit to the provision which can be made: that limit is the maximum amount of income applicable at any one time, and it varies from two-thirds, which is the limit in cases where there are in existence both spouse and dependent children, to a half if there is no spouse but dependent children or if there is a spouse and no dependent child.

The Court which has to deal with the matter, which is largely one for the discretion of the Court, is the High Court, presumably the Chancery Division, and the two Palatine Courts of Lancaster and 801 Durham. There is a time limit within which the application must be made—namely, six months from the date when representation in regard to the estate for general purposes is first taken out. Finally—and the House will perhaps think this most important—the Court has in every case a discretion, and must in exercising that discretion take into account the applicant's other means, past, present and future; the conduct of the applicant in regard to the testator; and the reasons, such as they may be, prompting the testator to disinherit that particular claimant. Those are the provisions of this Bill, and I venture to submit them to your Lordships as reasonable and proper provisions to make.

Your Lordships have before you copies of the Bill. It is a short Bill. Clause 1, subsection (1), defines the dependants in the way which I have stated, and provides that the Bill is to apply where there is a will which does not make reasonable provision for the maintenance of such a person as aforesaid. Subsection (2) provides for the nature of the provision out of income and its determination in the events which I have indicated. Subsection (3) imposes the limits. Subsection (4) enables an advance out of capital to be made in cases of small estates which do not exceed £2,000. Subsection (5) is in these words: No application shall be entertained by the Court by or on behalf of any person where the testator has bequeathed not less than two-thirds of I he 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 such surviving spouse. That subsection is put in to meet the case, which not infrequently occurs, of a testator who, having full confidence in his wife or her husband, as the case may be, leaves the estate to him or her in full reliance that he or she will make proper provision for the children who are dependent. Subsection (6) is put in to guard against any improvident realisation of the estate for the purpose of making the maintenance allowance, and subsection (7) defines the expression "net estate" so as to ensure the payment of creditors and other liabilities of the testator. Subsections (8) and (9) impose upon the Court the obligation to take into consideration 802 the matters which I have indicated.

Clause 2 is the time limit section. Subsection (2) of that clause is a technical matter and is put in simply to enable a dependant to apply for administration of the estate in case the executors delay in making such application. Clause 3 is a technical matter, again; it is put in to ensure that the State shall receive legacy duty in cases where provision is made. Clause 4 deals with variation of orders and says: On an application made at a date after the expiration of the period specified in Section two of this Act the Court may make— an order, in certain circumstances when the case for that arises, as, for instance, when there has been a change in the circumstances of the applicant. Finally, Clause 5 limits the application of the measure, necessarily, to the case of a testator who has died domiciled in England. Clause 6 defines the Court in the manner which I have mentioned, and Clause 7 includes in the expression "son and daughter" an adopted child. With that brief explanation I leave the matter to your Lordships' consideration, and I beg to move.