HL Deb 26 June 1940 vol 116 cc694-6

Read 3a (according to Order).

Clause 1:

Procedure in petitions or applications for appointment or confirmation as executor of persons engaged on war service and presumed dead

1.—(1) Where there is produced with any petition or application for appointment or confirmation as executor of any person who, at any time during the war period, has been or shall be engaged in war service, a certificate or intimation issued by or on behalf of the competent authority that a report of the death of any such person has been accepted for official purposes, or that such person was missing on a specified date and that it has been presumed or concluded for official purposes that such person is dead, an oath or affirmation that to the best of the deponent's knowledge and belief such person is dead shall, for the purposes of such petition or application, be equivalent in all respects to an oath or affirmation that such person died on the date appearing in the certificate or intimation as the date on which he was missing or reported to have died:

Provided that the provisions of this subsection shall not apply unless between the last-mentioned date and the date of presenting the petition or application a period of not less than twelve months shall have elapsed, or unless between the date when such certificate or intimation has been issued and the date of presenting the petition or application a period of not less than six months shall have elapsed.

(2) On any such petition or application being presented the sheriff, without prejudice to any other powers and duties, may order intimation thereof to the competent authority, and may direct such advertisement (if any) as he may think fit.

4.5 p.m.

LORD ALNESS had given Notice of three Amendments—namely, to omit the proviso in subsection (1), to insert, after "authority" in subsection (2), "and to any other person who may appear to him to be interested" and to add to subsection (2) the words "and may, if the circumstances seem to him so to require, delay the granting of the petition or application to any date not later than six months after the date when the certificate or intimation was issued." The noble and learned Lord said: My Lords, in putting down these Amendments to this Bill I have endeavoured to meet the wishes expressed by my noble friend Lord Strabolgi on the occasion when we last discussed the measure. The effect of the Amendments is broadly this. The waiting period of six or twelve months, which was mandatory under the Bill as drawn, disappears and in its place I am proposing to confer the right on the Sheriff, in the exercise of his discretion, to postpone the application for confirmation for a period not exceeding six months, if he thinks proper in the circumstances to do so. I have no doubt that the Sheriff, who is a public and responsible official in Scotland and is generally a member of the Scottish Bar, in exercising that discretion, will bear in mind any hardship to the applicant which might occur from any undue delay which might be involved.

I hope that my noble friend will appreciate not only the propriety but also the expediency of this provision. I feel sure that the last thing that he would desire to do would be to have confirmation prematurely issued, with the result that the true owner of the estate might reappear and complications might ensue. My noble friend will bear in mind also that this Bill, differing from the Presumption of Life Acts, contains no provision for the reappearance of the true owner of the estate. Accordingly it behoves one to proceed with care and with circumspection, and I venture to think that the provision which I have suggested satisfies that requirement. I have done my best to meet my noble friend's wishes, and I hope I have succeeded. I hope, too, that he will regard these provisions which are now proposed to be substituted as both just and reasonable. The Bill is no longer an intractable measure but an elastic measure, and in that particular I venture to think that it is considerably improved. I am obliged to my noble friend for enabling me to make that improvement. I beg to move the first Amendment.

Amendment moved— Page 1, line 22, leave out from the beginning of the line to the end of line 6 on page 2. (Lord Alness.)

LORD STRABOLGI

My Lords, I am very much obliged to my noble and learned friend for going into this matter and for the Amendment he has just moved. He was courteous enough to send me a copy of the proposed Amendments and I sent it to those for whom I was speaking—namely, the Scottish section of the Officers (Mercantile Marine) Navy Federation—and they have written as follows: This Federation, having consulted its solicitors, is of the opinion that the proposed Amendments would meet the case completely. I think that is a very satisfactory result. I am much obliged and on their behalf thank my noble and learned friend.

On Question, Amendment agreed to.

LORD ALNESS

My Lords, I beg to move the next Amendment.

Amendment moved— Page 2, line 10, after ("authority") insert ("and to any other person who may appear to him to be interested").—(Lord Alness.)

On Question, Amendment agreed to.

LORD ALNESS

My Lords, I have explained the third Amendment, which I beg to move.

Amendment moved— Page 2, line 11 at end insert ("and may, if the circumstances seem to him so to require, delay the granting of the petition or application to any date not later than six months after the date when the certificate or intimation was issued").—(Lord Alness.)

On Question, Amendment agreed to.

Bill passed, and sent to the Commons.