HL Deb 29 July 1952 vol 178 cc388-401

2.57 p.m.

Order of the Day for the Second Reading read.


My Lords, twice this month already I have been rash enough to weary your Lordships with two Private Members' Bills of quite unusual dullness and technicality. To-day, for the third time in the month, I much regret that I am doing the same thing—but with one slight difference: this Bill, the Intestates' Estates Bill, to which I shall ask your Lordships to give a Second Reading, is nearly twice as long as the other two Bills put together. I myself am also labouring under the disadvantage that I am to be followed in this debate by several noble Lords who have a profound knowledge of this difficult and technical subject whereas, unfortunately, my knowledge could be put into a nutshell, while still leaving ample room for the nut. The general purpose of this Bill can however be stated in a very few words. What the sponsors of the Bill are seeking to do is to provide more generously for the widow and the dependants of a man who has died wholly or partially intestate. I use the word "widow" advisedly, though inaccurately, because throughout the whole of this Bill the same principles apply to the widower as apply to the widow. I use the word "widow" only in order to avoid having to use throughout the course of my remarks the distressing expression "surviving spouse."

It may be asked at once: Are there enough people concerned in this matter to make it worth while bringing forward Private Members' legislation? Are there sufficient people who die intestate to make it worth while thus occupying Parliament's time? The inquiries that I have been able to make produce a remarkable result. Of the number of people who die leaving anything that can be considered an estate—by which I mean anything over a few pounds—nearly 40 per cent. die intestate; that is, either having not made a will at all or having made a will which is partially bad. The reasons for that are various. One is, of course, that these people may never have bothered to make a will; or they may have been taken by surprise. The will may have been lost. Another good but unexpected reason is that many people think that the State under the present law makes a very good will for them—and hitherto it has indeed done so. And the other reason, which may be the most common, is the frequency with which a man makes a will for himself and makes such a nonsense of it that the law cannot enforce it. It is often thought that a statue should be erected in Lincoln's Inn to the man who first invented the sixpenny will form. I am reminded of the old toast: When a festive occasion your spirit unbends You should never forget the profession's best friends, So we'll send round the wine and a bright bumper fill To the jolly testator who makes his own will. In order not to appear too cynical, I must say that by far the worst home-made will I ever set eyes on in my life was made by a High Court Judge.

I have said enough, I think, to show that there are a large number of people involved in this matter. I think I had now better outline briefly what is the present state of the law. That is contained in Sections 46 to 49 of the Administration of Estates Act, 1925, and these clauses were drafted by the late Sir Benjamin Cherry. This is how the law stands at the moment. The spouse is entitled to all the personal chattels of the deceased, excluding those used for business, and up to £1,000, free of death duties, with interest at 5 per cent. If, in addition to the spouse, the deceased leaves children or remoter descendants, the spouse takes a life interest in half the remainder of the estate, while the other half goes immediately to such issue. Upon the death of the spouse the first half also passes to the issue. If the deceased leaves no issue, the surviving spouse takes a life interest in the whole of the remainder of the estate and upon his or her death this passes to the intestate's next of kin in order of priority. Then follows a table of a complexity and confusion equal only to that in the Table of Affinity in the Prayer Book, concluding with certain nefarious characters which could have stepped only from the pages of Saki or P. G. Wodehouse—namely, "aunts of the half-blood." I never met a case of a man being disinherited by a half-blooded aunt, but presumably Sir Benjamin Cherry did not want to take any risks!

That was the 1925 property legislation—Lord Birkenhead's great Property Acts, which have now become almost sacrosanct. One feels a certain timidity in attempting to amend them at this date. They have, of course, not always had that air of sacrosanctity. I remember once being shown, by the head of my chambers, some papers from a West Country solicitor containing the instructions: "Counsel is requested to settle these documents without reference to the 1925 property legislation, for which we have little use in this part of Cornwall." Sir Benjamin Cherry, when he drafted these clauses, was acting largely on guesswork, and experience has proved that he guessed pretty accurately, and gauged very nearly what were the needs of the public of the day. But since his day the value of money has changed enormously; the value of house property and the cost of repairs have changed enormously; and there has been, in the last few years, a feeling that the law as it now stands is not in keeping with public opinion and is not working justly.

Some few years ago there were a number of Questions in Parliament. The Trades Union Congress took a look at the subject; the Law Society also started to make investigations. Finally, the Lord Chancellor of the day—the noble and learned Viscount (as he then was), Lord Jowitt, appointed a Committee to look into the whole question That, if I may be allowed to say so, was an extremely sensible thing to do. But Lord Jowitt went one better: he appointed the noble and learned Lord, Lord Morton of Henryton, to preside over the Committee. This was not only a very wise thing to do: it was a very fashionable thing to do, because nowadays if a Government finds itself faced with a difficult social and political problem the correct solution is to appoint a Committee and to see that Lord Morton of Henryton is the Chairman. Then it can be sure of a quick, sympathetic and practical answer to the problem. That is what we had in this case. The Committee first sat in October, 1950, and in June, 1951, they produced the Report of the Committee on the Law of Intestates' Succession, which is before your Lordships at the moment. It is, if I may say so, with great respect, an admirable Report, and we owe a great debt to Lord Morton of Henryton and to the Committee themselves, including the noble Lord, Lord Kershaw, who is to speak later in this debate.

The essence of this Committee's Report is embodied in this Bill. What this Bill tries to do is to provide a will for the testator who has not made a will. The Committee looked at the matter in the light of present circumstances and said to themselves, "If this man had made a will, what sort of will would he have made?" Then they tried to make it for him. I am not going into further details as to the factors which governed their decisions because I am sure that the noble and learned Lord, Lord Morton of Henryton, would like to give his view to your Lordships; but that is the method in which, as it appears to me, the Committee brought forward their proposals. The Bill has already been through another place where certain of its provisions were discussed in full; others not so fully.

Now, perhaps, I had better briefly ask your Lordships to consider the main points of the Bill. Clauses 1 and 2 provide that when a person dies intestate, leaving a spouse and issue, the spouse should take £5,000 free of death duties, with interest at 4 per cent. per annum, and in addition, as at present, a life interest in one-half of the remainder of the estate, with the right, which is not given at present, to claim a lump sum representing its capital value in lieu of the life interest. If there is no issue the Bill proposes that the surviving spouse should take £20,000, free of duties. In addition, if there are parents, brothers or sisters of the deceased the surviving spouse is to take one-half of the rest of the estate; and, if there are none, the spouse is to take the whole estate. Where there are parents, brothers or sisters, they should take half the residue of the estate. For the benefit of noble Lords who are now feeling a little giddy, these details are given in the explanatory memorandum to my Bill.

There has been criticism of the figures of £5,000 and £20,000. But I can tell your Lordships that the figures were not chosen at random; they were chosen after examination of fairly complicated statistics and based on wide inquiries. Similarly with the rate of interest, which is now reduced from 5 per cent. to 4 per cent. That again is more in keeping with modern financial conditions. It has also been proposed that the sum should not be set as a figure at all, but as a percentage of the estate. That proposal, I think, was brought forward by the right honourable and learned Member for South Kensington, who speaks with great authority. But, with respect, I feel that the contrary view should prevail, that certainty is better than a mathematical calculation. If any of your Lordships should think that these provisions may wreak hardship on any members of the family, I can only defend them by saying that elsewhere in the Bill we attempt to make some provision for those who feel that they have been hardly done by.

There are two other small points in this clause to which I feel I should draw your Lordships' attention. We are making provision for the widow to redeem her life interest, if she so wishes, for a lump sum. That has always been possible in the past if the personal representatives so agreed; but now we are giving the widow the right to claim it. I think that is more in keeping with modern ideas, and it has the practical, administrative advantage of not leaving a multitude of small life estates lying around. The other point to which I think I should draw your Lordships' attention is this question of two people dying together. Section 184 of the Law of Property Act provides that In such circumstances, the younger is deemed to have survived the elder. For the purposes of intestacy only, we are proposing that the younger spouse shall be deemed not to have survived the elder so, if either dies intestate, his or her estate will be distributed on the footing that there is no surviving spouse. If your Lordships work out this jig-saw puzzle, you will realise that the whole purpose of the provisions of this Bill would be defeated if that were not done.

Clause 3 of the Bill deals with the question of the partial intestacy—that is, where some of the will is good and some is bad. The general purpose of this clause is to provide that, if the widow takes any sum on a partial intestacy, that sum must be taken into consideration when the statutory sum—that is, either the £5,000 or the £20,000—comes to be paid. I think your Lordships will agree that that is obviously fair. Clause 4 sets out the Act of 1925, as amended by the provisions of this Bill. Clause 5 and the Second Schedule are important. They give the widow the right to ask that the matrimonial home shall be set-off and appropriated to her. The personal representatives have always been able to do that, if they so wished. We are now turning that right into an obligation, because I think it stands to reason that most men want to provide for the widow being able to continue living in what has been the matrimonial home. That is what the Morton Committee said.

Unfortunately, great difficulty arose in working out the machinery for this provision and, in the first place, this was not included in the Bill. But the Law Society have now come forward with a suggestion that Section 41 of the Administration of Estates Act, 1925, provides a possible solution: the power of appropriation granted to the personal representatives in that section might be the solution. All the other solutions put forward would inevitably have resulted in litigation of some sort. This clause is not perfect, and I shall be the first to admit it; but I think we have now hit upon a solution. I hope that your Lordships, if you can improve ii, will not hesitate to do so at a later stage. I am certain, however, that the principle is sound. Certainly statistics bear out that the vast majority of men in these circumstances would desire their widows to continue living in the matrimonial home. Of course, there are circumstances of hardship which one can readily envisage—for instance, where a man marries for the second time, late in life, and the children who have lived for many years in the family house see the house going to the second wife for whom they have little or no affection. But we cannot legislate for everyone, and I think the legislation in this clause covers the large majority of cases.

Clause 6 is a perfectly horrible clause. I am going to ask your Lordships if you will be good enough to allow me at a later stage to withdraw it. It crept in at the later stage of the Bill in another place and, with the greatest respect to those who sponsored it, I do not feel it had quite the consideration it deserved. What it is suggesting is that the same principle with regard to the house should be extended towards the family business—that is, that the widow should have the right to demand that the personal representatives hand over to her her husband's business. I do not suggest for one moment that some women are not just as capable of running businesses as their husbands. One can think of many examples: Mrs. Proudie, for instance, who was certainly just as capable of running the Bishopric of Barchester as was the Bishop himself; and, no doubt, Mrs. Beeton, of the Cookery Book, had circumstances so dictated, would have managed to edit the Boys' Own Paper and act as clerk of the course at Epsom just as well as Mr. Beeton did, but that is not the sort of thing we want to put into an Act of Parliament. That is quite a different matter. Giving the widow the right to demand that the business be appropriated to her seems to me quite wrong. It would give rise to endless complications. I am sorry that this clause has found its way into this Bill. The machinery which the pro-poser has put forward, which is "cribbed" directly from the previous clause about the matrimonial home, quite frankly will not work. Therefore, I would ask your Lordships, as I say, to allow me at a later stage to withdraw Clause 6.

Clause 7 is purely interpretive. Clause 8 and the Fourth Schedule extend to an intestacy the provisions of the Inheritance (Family Provision) Act, 1938. Your Lordships will remember that that Act enables certain dependants to go to the court and ask for relief when a testator has not made a reasonable provision for them in his will. It is a very narrow and confined Act. It is restricted to a small class of people. The conditions in which applications can be made are strict. The Act came in for a good deal of criti- cism in 1937 and 1938 when it was before the House as a Private Member's Bill. Indeed, I believe certain of the Chancery Judges pointed out several serious flaws in it but, thanks to the Lord Chancellor of the day the noble Lord, Lord Maugham (whom I am happy to see in his place this afternoon) the Cabinet were prevailed upon to accept what was admittedly an imperfect Bill but was, socially and politically, a desirable Bill.

I speak from some slight personal experience and I think it is a good Act. I believe it has relieved much hardship. Over 2,000 cases have been before the courts since 1938 and I should have thought that that was proof enough that there was need for some such Act as the 1938 Act. Flaws there have been, and judges have pointed out many discrepancies and many anomalies, but we feel that it is a sufficiently useful Act to extend it to the provisions of the Intestates' Estates Bill. We therefore provide in this clause that, where hardship is thought to have been occasioned, application may, in roughly similar circumstances, be made to the court. We also take the opportunity to correct various minor ambiguities in the 1938 Act and make certain small amendments to it.

Clause 9 is the 1938 Act, as amended by my Bill. Clause 10 is the short title and the date. The date at which this Bill is designed to come into operation is January 1 next year. That date was chosen when we hoped that this Bill would receive the Royal Assent by the end of July, but at the moment that is clearly not possible. I am wondering whether your Lordships may not consider it necessary to postpone the operation of this Act. That is for consideration, perhaps, at a later date.

I apologise for having omitted a large number of details. I have entirely ignored the vexed question of relatives of the half-blood. I have made no mention of the fact, so far, that this Bill does not apply to Scotland; it applies only to England and Wales. I know little enough about English law and even less about Scottish law, but I am told (and I see the noble Lord, Lord Saltoun, straining at the leash, or whatever it is that Scottish Peers do when they wish to have a crack at English Peers) that English law is twenty-five years in advance of Scottish law in this matter and superior in all respects. This Bill has had the great assistance of the draftsmen and I believe it is now in a tolerably workmanlike condition. I think it will do good. I believe it will fulfil a much needed public want, and I think it is uncontroversial. I believe it has the support of Her Majesty's Government and I very much hope that I have said enough to ensure that it has the support also of your Lordships' House. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Mancroft.)

3.21 p.m.


My Lords, as I was the Chairman of the Committee which sat on the Law of Intestate Succession, it is perhaps appropriate that I should explain to your Lordships the reasons which led the Committee to make some of the recommendations contained in this Bill; and I am glad to see Lord Kershaw here, for if I should go wrong at any point he will be able to correct me. May I say, before I come to the proposals made by the Committee, that I entirely share the feelings of Lord Mancroft as to Clause 6 of the Bill, which provides for giving the widow—and I use the word "widow" as he did, for convenience—the option of purchasing the intestate's business? As the noble Lord has intimated that he wishes to withdraw that clause, however, I shall refrain from any further criticism upon it.

May I first turn to the provision which increases the wife's legacy from £1,000 to £5,000? That is, of course, a very striking increase but I think we have five reasons for it; and I can state them shortly. First, there is the great change between 1925 and the present day in what the pound will buy; and there has been a great change in the value of house property. The result is that the wife's £1,000 is quite inadequate to enable her to buy the matrimonial home, should she so desire, and, as happens in many cases to-day, the home has to be sold, against the will of the widow, in order to provide for the shares in the estate which are taken by the intestate's children. Secondly, we had many suggestions for this sum of £5,000 from those who sent us memoranda and evidence, and one of the bodies which suggested it was the Law Society. Now, of course, the solicitors' profession has every opportunity of gaining an intimate knowledge of the difficulties which arise when a man dies intestate. We thought that was a strong reason for deciding on that figure.

The next reason is this. We obtained, as Lord Mancroft has said, certain statistics from the Probate Registry, and they revealed very striking facts. We found that in the case of testators who left estates of £2,000 and under, 73 per cent. gave the whole of their estate, or substantially the whole of it, to the widow; and in the case of testators whose estates ranged from £2,000 to £15,000, 65 per cent. took the same course. The object of the law of intestacy is to try to make for the intestate the sort of will he himself would have made if he had been a sensible man and had taken the trouble to get down to his desk. I think the figures I have quoted are of great importance. Lastly, we were impressed by the necessity for simplicity in the administration of small estates. If you have a life interest in a small sum that necessitates trustees, possibly accountants, and certainly the assistance of the legal profession: and while I am reluctant to withdraw any work from a most deserving body I think the benefit to beneficiaries in small estates will be very great if this provision becomes law.

There is one objection to this provision which has been made quite strongly in another place—and it is this. It is said that in the case of an estate of under £5,000 the children will get nothing. It is said that still worse is the position if the children are children of the first marriage and the surviving widow is the second wife. I think there are three possible answers to that suggestion. First, in the case of the mother of the children I think that most men show a tendency to trust their wives to do what is right for the children: if they wish to make a special provision to the contrary they will probably make a will. The second is that, even in the case of the stepmother, I think the number of "wicked step-mothers" is smaller to-day than I might have been led to believe from recollections of fairy stories which I read in my youth. I believe that there are few step-mothers who would live on the bounty of the intestate and allow their step-children to starve. But even for that, I hope, rare case there is some provision in this Bill, for, as your Lordships will have heard, the Bill seeks to apply to cases of intestacy the provisions of the Inheritance (Family Provisions) Act, 1938. The result is that, if the stepchildren do not get adequate maintenance as the result of the intestacy, under the law of intestacy they are enabled to apply to the court for reasonable provision to be made for them. There is a provision which limits that right in the case of children of the surviving spouse, but the limitation does not apply in the case of stepchildren of the surviving spouse.

May I come shortly to the £20,000 which it is suggested the widow should get in the event of there being no children surviving the deceased but only the widow and, possibly, other relatives? I confess frankly that the figure of £20,000 is a compromise. There were many persons who sent in memoranda and there were several members of the Committee—I think it is not improper to say that—who felt that there was a great deal to be said for giving the whole estate to the widow if there were no children. But there were other members of the Committee who felt that that was not entirely fair, especially in the case where the estate was a substantial one. They felt that the intestate in that event would have wished to make some provision for his brothers and sisters, or for his parents, if they survived him. But the Committee were all agreed on this: that the first care of every man ought to be to make provision for his widow, and the figure of £20,000 was agreed upon because it was thought that that would make reasonable, ample provision for the widow and, in any event, should prevent her being in real want. The balance of the estate, according to the Bill, will be divided equally between the widow, on the one hand, and the parents of the intestate, should they survive him, on the other. If the parents do not survive the intestate then the widow shares equally with the brothers and sisters of the whole blood of the intestate.

Now I come to another criticism of the Bill which was made in another place, and which was repeated to me more than once. It is suggested that the Bill cuts out or leaves out brothers and sisters of the half-blood of the deceased and that many a man has a very real affection for his half-brothers and half-sisters and would desire to make some provision for them. I entirely agree with the second proposal but I would point out two things. First, the Bill does not Cut out brothers and sisters of the half-blood. If there is no widow surviving and no children surviving, the brothers and sisters of the half-blood come in exactly where they do to-day, immediately after the brothers and sisters of the whole blood, which seems, I suggest, not an inappropriate position. It is only when the widow survives under the will that the brothers and sisters of half-blood do not take in competition with the widow. I apprehend that there are some testators who would prefer children who are brothers and sisters of the half-blood. There may be other testators who would share the estate between the widow and the brothers and sisters of the half-blood. I realise that there is room for difference of opinion. But the Committee thought that probably the majority of men, if they made a will and if there were no parents, children or brothers and sisters of the whole blood, would prefer to give the whole estate to the widow; and so the Bill provides.

The third point is as to the option given to the widow to acquire the matrimonial home. On that I need say very little. There was a general demand among those who submitted memoranda to the Committee for such provision. It seemed to us that it was a provision which was really wanted and which will work justice if the Bill is approved. The widow will get either her £5,000 or £20,000, as the case may be, and probably she will have enough funds to acquire the matrimonial home. As I have said, I share the views of the noble Lord, Lord Mancroft, on Clause 6. That is the only part of the Bill which I cannot at the moment honestly commend to your Lordships. With that one exception, I venture to think that this is a good Bill, and I hope that your Lordships will accord to it a Second Reading.

3.33 p.m.


My Lords, I rise to occupy the attention of your Lordships for two or three minutes only. This is not a subject with which I pretend to be familiar. This Bill is certainly no easy measure to read; indeed the Table of Affinities seems to me to be child's play compared with it. But I rise because when I was Lord Chancellor this matter was brought to my attention by the Law Society, who indicated that in their view the present system was working harshly. I thought they had made out their case—a case for inquiry, as Lord Mancroft said—and I was extremely fortunate in getting the noble Lord, Lord Morton of Henryton, to act as the chairman of that Committee. With great celerity he induced all the members of that Committee to agree, and in about six months or so they had produced a unanimous, and, I think I may say, a very valuable Report indeed. I should like to express my appreciation of the work which Lord Morton of Henryton did. I did assist him, as I think he will agree, by giving him a powerful Committee—my noble friend Lord Kershaw was one of the members. This is, therefore, a matter which comes to us with great authority.

When the Report came out I read it, and I must say it seemed to me to be completely convincing. When I read this Bill I was appalled to find how difficult it was. But if I am right in understanding that in substance, apart from Clause 6, it merely reproduces the recommendations of the Morton Committee—well, the Morton Committee's Report is easy to read, and I shall go through the Bill in the hope that I shall find in it substantially what is there. So far as the members of my Party here and myself are concerned, we shall most certainly support the Motion for a Second Reading of the Bill. But I should like to say this. This is a Private Member's Bill and, as so often happens with a Private Member's Bill, it does not come to us until the very end of the Session. Of course, if Private Members' Bills are not passed in the Session, they lapse. I wonder sometimes—I dare say that the noble Marquess the Leader of the House has looked into this matter—whether it is really necessary that Private Members' Bills should lapse at the end of the Session.

I am not expressing an opinion, but it may be that if there were a rule that they could, at any rate, be carried over, then the House would find itself in this position—it could discuss them at much greater leisure and with much greater care. We never obstruct in this House, and we do not waste time. I think, if we are to do our job properly, we do want ample time to consider Bills of this kind. It is very important in connection with Bills of this sort that this House should be able to exercise its revising powers—that is in Bills in respect of which there is no political controversy at all, and which we simply want to put into as good and satisfactory shape as possible. To do that we have a great number of noble Lords who have technical knowledge to apply to the task, and though their time is often otherwise occupied, yet there are occasions when they can come here. But it does demand time. I am not making any complaint; I am merely throwing out the suggestion that it might be well to consider whether a new scheme could be devised, a scheme which has not been devised hitherto, whereby Private Members' Bilk need not lapse at the end of the Session, if the Government thought it proper and wanted to save any Bill. I do not want to impose an unpleasant legacy.

My suggestion is simply designed to ensure that Bills which the Government might desire to be so dealt with should go over to the next Session in order that this House might have greater leisure to go through them. In saying this, as I have indicated, I have in mind particularly Bills of a non-controversial type like this one. Whether we are going to pass this Bill through all stages very promptly, I do not know, but having regard to what Lord Morton has told us—that in substance this Bill merely reproduces what the Committee stated—I certainly should not raise any objection if we were asked to do that, so long as the Lord Chancellor takes the same view as Lord Morton and is able to tell us that this Bill merely reproduces the subject matter of the Report.

My Lords, I rose merely to say those few words and to add that, so far as I know, this Bill certainly merits support. I think that Lord Morton made out a very strong case, both in his Report and in his speech, for the £5,000 provision and for the £20,000 provision. I understand the provision about half-brothers and sisters and the option to acquire the matrimonial home. I gather that Clause 6 does not find favour with the noble Lord, or, indeed, with the noble Lord, Lord Kershaw, either. For myself, I do not pretend to have understood the intricacies of the drafting of Clause 6. That is all I wish to say. I think this Bill should undoubtedly receive a Second Reading.