§ 4.12 p.m.
§ Order of the Day for the House to be put into Committee read.
§ LORD MANCROFT
My Lords, I think I am in order in saying a few words on the Motion that the House do resolve itself into Committee on the Bill. I should like to do so for this reason. It is now over two and a half months since this House was good enough to give a Second Reading to what I am afraid is a very dull, complicated and technical Bill. I suspect that in the course of that time one or two noble Lords may have forgotten what the Bill seeks to do. I should like, therefore, to remind your Lordships of the object of this Bill. It is to amend the existing law to make more generous provision from the estates of those who die either without having made a will at all, or having made a will which is only partially good. The existing law is now over twenty-five years old, and experience has shown that it is out of date in many respects. A Committee presided over by the noble and learned Lord, Lord Morton of Henryton, went into this matter very carefully, and it is the recommendations contained in their Report upon which my Bill is almost entirely based. It is a Private Member's Bill which was initiated in another place. Since its Second Reading in this House the skilled hands of the draftsmen have been at work upon it, and I think that many imperfections and ambiguities have now been removed. With those few words, I beg to move that the House do resolve itself into Committee on the Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Mancroft.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DROGHEDA in the Chair]
§ Clause 1 [Succession to estate of intestate leaving a surviving spouse]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ LORD SILKIN
I should like to say a few words on the Motion that Clause 1 stand part of the Bill. I would subscribe to what the noble Lord, Lord Mancroft, has just said as to the value of this measure. It is undoubtedly a good 721 measure, in so far as it makes additional provisions for the spouses of persons who die intestate. I agree with the noble Lord that the existing law is out of date, and we are all obliged to the noble Lord, Lord Morton of Henryton, for having presided over a Committee and made valuable recommendations. If I am a little critical about Clause 1, I hope that it will not be regarded as derogating from the value of the work done, or as ignoring the need for some improvement in the present position. I should also like to make it clear that I am speaking entirely for myself and not necessarily for any other noble Lord on this side of the House, or indeed on the other. The view that I am about to express is one which has been expressed in another place by no less a person than Sir Patrick Spens, and by other honourable Members, and it is one which is obviously not a Party view.
I might have put down an Amendment to set out more definitely what my views are, but, apart from the drafting difficulty in putting down an Amendment of that kind, I have little hope, in the present congested state of business in another place, of such an Amendment being accepted; and it might even have been regarded as an Amendment designed to kill the Bill. And that is the last thing I desire, because, however critical I may be of this clause, and of one or two others, I nevertheless feel that this is a step in the right direction, and that it is better to have this Bill, imperfect as it may be, rather than to have no Bill at all, which might have been the position if an Amendment had been accepted in this House.
My criticism of, Clause 1 is that, while recognising that a substantial increase in the provisions for the surviving spouse is necessary, the actual amounts bear no necessary relationship to the amount of the estate. Take the case of the person who dies leaving a widow (and in another place references to the word "widow" were defined as including references to "widower," and I use it in that sense) and where there are surviving children. These may be children of the marriage, or children of an earlier marriage. In such a case the widow is left with £5,000 absolutely and a life interest in one half of the remainder of the estate. This £5,000 has no relationship at all to the 722 size of the estate. It may be an estate worth £1,000,000, or it may be an estate worth £5,000. In my submission, therefore, the £5,000 may be too little or it may be too much. It may be too much where the size of the estate is not much more than £5,000 and where there are children surviving—either children of the marriage or perhaps, worse still, children of an earlier marriage. En the former case, one may assume that normally the widow will, where necessary, look after the children, either out of the £5,000 or out of the life interest in the other half. But where there are children of an earlier marriage, that presumption is not necessarily a valid one, and where the amount of the estate is very little more than £5,000 there is a danger that the children of the earlier marriage may be left unprovided for. In such a case the £5,000 which goes to the widow may be too much.
On the other hand, where there is a very large estate, £5,000 may have little relationship to the style of living to which the widow had been accustomed. She may be virtually left stranded with the £5,000, even with a life interest in one-half of the remainder; and in such a case there might be good grounds for her getting a larger amount. It is true that there is provision in a later clause by which such a widow can make application to the court for the amount to be increased. I very much doubt, however, whether the court would take upon itself the responsibility of altering the law—which is what they would be doing—in any case of that kind, and I imagine there would have to be extraordinary circumstances in which a court would feel justified in departing from what has been laid down in Clause I of this Bill. The alternative I should have preferred would be to give the widow a fixed sum, but to give her also a proportion of the estate as a lump sum. Admittedly, that would require a good deal of drafting, and I imagine that the drafting might be difficult; but I think that would have been more in harmony with the justice and ethics of the case than a lump sum of £5,000 in all circumstances.
When we come to the case of the £20,000 which the widow is to receive where there are no surviving children, there again I submit that the fixed amount may well be irrelevant in the circumstances. I cannot conceive of a case 723 where it would be regarded as too much, but it might well be too little in the case of a very large estate. Here again I doubt very much whether, even though the widow could make an application to the court for a larger sum, she would get much sympathy where the facts were simply that the estate was a large one and she thought that she ought to get a larger share. After all, the obvious answer to such an application is that the Legislature must be deemed to have intended what is laid down and must have considered cases of this kind; that if the Legislature had desired that a widow, where there was a large estate, should get more than £20,000, it could very well have said so. I doubt, therefore, whether, unless there are very exceptional circumstances, a court would be disposed to depart from the strict provisions of Clause 1. Therefore, we may find that an injustice has been done to a widow who is restricted to £20,000, even though the estate may be a very large one and even though the residuary beneficiaries may be people who have had little connection with the deceased and are quite undeserving, from the point of view of participating in the estate. I should have welcomed as an alternative to this provision some machinery by which the benefit to be derived by the widow would have some relationship to the size of the estate. I know that there is some relationship in the residuary estate, but nevertheless I should have liked the lump sum to be a bigger one and a more certain one in all the circumstances. Having made this point, I am afraid that I have to leave it at that, because I am moving no Amendment. I certainly do not desire to oppose Clause 1, because I think that in all the circumstances it is better to have Clause 1 as it stands than nothing at all.
§ 4.27 p.m.
§ LORD MORTON OF HENRYTON
It might be appropriate if I dealt very briefly with some of the points made by the noble Lord, Lord Silkin. I hope your Lordships will forgive me if I repeat at all what I said on the Second Reading of this Bill, because that Second Reading took place some time ago. As regards the £5,000 which the widow gets as a first charge if there are children surviving, it was universally felt amongst those who gave evidence before the Committee over 724 which I had the honour to preside that there should be some increase, and the noble Lord, Lord Silkin, recognises that that was necessary.
The figure of £5,000 was arrived at, I think, principally for two reasons. First, the suggestions for an increase varied between £2,000 and £5,000. The Council of the Law Society—the body appointed by the profession to which the noble Lord belongs—was one of those who thought that £5,000 was the appropriate figure. But another fact which influenced the Committee very strongly was this. We had statistics supplied to us as to what testators having comparatively small estates did when they made wills. In respect of wills executed since 1940, we found that when the estate was under £2,000 73 per cent. of testators gave the whole of their estate absolutely to their widow—I use the word "widow" for convenience, as did the noble Lord. When the estate was between £2,000 and £5,000, 65 per cent. of testators gave the whole of the estate to the widow. Now it seemed clear to us that the majority of testators, if their estate was £5,000 or under, wished to give everything to their wives and to trust them to make provision for the children. I will come in a moment to step-children, to which the noble Lord has referred.
Of course, it saves a great deal of complication if this is done. We on the Committee thought it gave effect to the wishes of the majority of testators that the wife should have the whole estate where it was £5,000 or under. Then she gets a life interest in half the remainder, and she has a right to elect to take that in the form of a lump sum, which may save administrative difficulties. Admittedly, the question of step-children does raise a difficulty, but we hope that it has been adequately met in Clause 8 of the Bill. Under that clause the provisions of the Inheritance (Family Provision) Act, 1938, which enable the court to intervene in cases where a will has made inadequate provision for the children, are extended to intestacies, and it is open to the step-children to make an application under that Act. I personally should hope that the cruel stepmother who makes no provision for stepchildren is rare. But if such still exist, the court is there to help the step-children. That is a very brief summary of the 725 reasons which led the Committee to adopt the figure of £5,000.
About the figure of £20,000 in cases where there are no children surviving, there was a great deal of discussion, and a great many suggestions were made. A good many of the witnesses who submitted memoranda or gave evidence thought that if there were no children the widow should take the whole estate. It was thought, however, that that would be very hard on, for example, parents or brothers or sisters of intestates; and the figure of £20,000 was in some respects a compromise figure. It was felt that the first duty of every testator was to make adequate provision for the widow, and that after that he would wish his parents, brothers and sisters to have a share in the estate. The noble Lord, Lord Silkin, referred to relatives who might have little connection with the intestate. I would say only that under the Bill those distant relatives who were formerly brought in to share with the widow are now cut out. and (I am speaking now without re-reading the Bill for this purpose, but I think I am right in saying this) no relatives further off in blood than the parents of the intestate, the brothers and sisters of the intestate, and the issue of the brothers and sisters, come in to compete with the widow. That, we thought, was probably in accordance with the wishes of most testators. This, briefly, describes the reasons which induced us to decide to give the first £20,000 to the widow and to let her share the estate, if over that figure, with the relatives whom I have mentioned.
THE LORD CHANCELLOR: (LORD SIMONDS)
I am going to say only a few words. The difficulty which the noble Lord, Lord Silkin, has expressed was one which occurred to me when I thought it my duty to peruse this Private Member's Bill. Of course, it is the fact that, whether you choose the figure of £5,000 or the figure of £20,000, or whether you give a certain proportion, you are choosing an arbitrary and capricious figure which may, in certain cases, do an injustice. But then, I thought to myself, here we have had a Committee presided over by a noble and learned Lord who is extremely familiar with the administration of estates, supported by a Committee—which I can say was well chosen, since I did not choose it myself: it was chosen 726 by my noble and learned predecessor—who have heard a wealth of evidence on this subject and, having heard that evidence, have come to this conclusion. And, accustomed as I am to weigh matters by evidence and by precedents, it seemed to me that that was a most cogent reason for myself to accept, and to invite your Lordships to accept, the conclusions to which they have Come. Therefore, although, as I have said, I might have adopted some other figure than £5,000 or £20,000. I thought it was better that the Legislature should enact in terms of the unanimous recommendation of the noble and learned Lord's Committee. Accordingly, Her Majesty's Government propose to accept Clause 1 as it stands, and I invite the Committee to accept it.
§ LORD SILKIN
If my comments on Clause 1 have done nothing; more than evoke the two speeches from the noble and learned Lord. Lord Morton, and the noble and learned Lord, the Lord Chancellor, to which we have just listened and which have in some small measure justified my own apprehensions, I am satisfied, and I do not wish to carry the matter further.
§ Clause 1 agreed to.
§ Clause 2 [Right of surviving spouse to have life interest redeemed]:
§ 4.35 p.m.
§ LORD MANCROFT moved, in subsection (6), to leave out "several" and insert "two or more personal representatives." The noble Lord said: This first Amendment is merely a drafting Amendment. It seeks to omit the word "several" and to insert the words on the Marshalled List. I am given to understand that in the English language the word "several" has two or more, if not "several" meanings, and some confusion apparently exists in this case. I have therefore put down this Amendment, and I am comforted to find that I have in this matter the support not only of Dr. Johnson, but also of the Lord Chancellor. I beg to move.
Page 6, line 13, leave out ("several'') and insert ("two or more personal representatives").—(Lord Mancroft.)
§ On Question, Amendment agreed to.727
LORD MANCROFT moved to add to subsection (6):
and a notification in writing under this subsection shall not be revocable except with the consent of the personal representative.
The noble Lord said: This Amendment has slightly more substance. Clause 2 of the Bill gives the surviving spouse the right to require the personal representative of the intestate to redeem the life interest, if any, to which she may be entitled on the intestacy by paying the capital value to her. It seems to me clearly important that once the surviving spouse has exercised her election, which has to be in writing, the personal representative should be free to proceed with the distribution of the estate. We all know that women, and particularly widows, are free to change their minds from time to time. It is as difficult to get some women to make up their minds as it is to fold the pages of a newspaper in a high wind. But in this case it seems to me undesirable that there should be doubt or possible vacillation, since the distribution might be held up indefinitely. Thus it has been thought desirable to state expressly that the widow's notification in writing shall be irrevocable except with the permission of the personal representative. I think that that is a matter of administrative convenience. I beg to move.
Page 6, line 14, at end insert ("and a notification in writing under this subsection shall not be revocable except with the consent of the personal representative.").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
LORD MANCROFT moved, after subsection (7) to insert:
(8) An election under this section by a tenant for life who is an infant shall be as valid and binding as it would be if the tenant for life were of age; but the personal representative shall, instead of paying the capital value of the life interest to the tenant for life, deal with it in the same manner as with any other part of the residuary estate to which the tenant for life is absolutely entitled.
The noble Lord said: In the course of going through this Bill my attention has been drawn to the position under this clause of a surviving spouse who is still an infant at the date of the intestate's death. I am told that as the clause now stands it is probable that she would have no right to exercise the power to require her life interest to be redeemed. At any
rate the position is uncertain: even if she has the right the matter is in doubt. There appears to be no valid reason why she should not be given this power, and the purpose of this short Amendment is to clear up that doubt. I beg to move.
Page 6, line 24, at end insert the said subsection.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 2, as amended, stand part of the Bill?
§ LORD SILKIN
I hope the Committee will forgive me if I say a word or two about one apprehension in my mind with regard to Clause 2. This clause, as the noble Lord has already explained, deals with the right of a surviving spouse to have a life interest redeemed, and as I read the clause this is an absolute right: the widow can simply demand that, whatever the nature of the estate may be. I can see the merits of such a proposal, but I would invite the Committee to consider the dangers and difficulties that may arise. The estate may consist of securities and other assets which it would be extremely difficult to realise, or which could be realised only at a great sacrifice.
Let me give just two examples. They are only examples, and I hope that the examples I actually give will not be picked on, because there may be better ones. Take the case where the estate consists of an interest in, say, a small private company which is going very well, and suppose that the widow demands that her interest shall be redeemed. The only way for the personal representative to redeem it may be to dispose of those shares in the private company. It may be a private company in which the shares are not readily saleable, or are saleable only at a great sacrifice. Is the personal representative to be compelled virtually to throw away the estate in order to permit the redemption of the widow's life interest? It may be said that, generally speaking, widows will not be so foolish as to demand redemption when they know that it will be very difficult to deal with the estate in order to provide them with a lump sum, but the noble Lord, Lord Mancroft, has already made certain reflections on some women. Once they have stated in writing that they want the redemption to take place, they cannot withdraw it; and 729 in any case people are not always alive to their own best interests. And the disposal of an estate in order to meet the amount necessary to redeem may involve other people besides the widow; it may involve the children as well. They may suffer through the forced realisation. That is one example. It may be detrimental to the interests, both of the widow and of the children, that there should be a forced realisation in order to enable the redemption to take place.
Another much more common thing is where an estate consists of real property. Suppose that such a case arose. It is common knowledge that at the present time it is extremely difficult to dispose of real property, except at a great sacrifice. Money is scarce. People cannot raise money on mortgage, and in these circumstances if a widow insisted upon redemption which would involve disposing of real property, the forced realisation at a very low figure might create hardship on those who had an interest in addition to hers. These are just two examples. Others may occur to noble Lords where it would be extremely inconvenient and would involve great sacrifices if a redemption were forced.
Moreover, as I read this clause, there is no provision for anybody to go to the court and point out that this is a very unsatisfactory time to sell and that it ought to be postponed for a period which may be in terms of years rather than months. There is that point. Another point is that it may not always be in the best interests of the widow that her interest should be redeemed; it may be desirable that she should be protected against herself. Incidentally, I am not clear whether she has to give this notice within any particular period or whether she is able to give this notice requiring redemption at any time.
§ LORD SILKIN
That is so. I had forgotten that. At any rate, even within twelve months there may be influences at work which are not exactly in her own best interests, and the widow's own interests would be better served by retaining the life interest. I agree, of course, that there are other cases, cases of small estates, where it would be extremely convenient and satisfactory to all parties to 730 dispose of the life interest. If this provision were optional, and if it were possible for the personal representatives to go somewhere and to point out that it would be damaging to an estate to have this forced realisation, I should feel much happier. The reason I am apprehensive is that the widow is able to force a realisation, and this may not always be to the advantage either of herself or of the estate.
§ LORD MORTON OF HENRYTON
I confess that the difficulties which the noble Lord, Lord Silkin, has pointed out certainly do exist. I think they were present to the minds of the Committee on the Law of Intestate Succession. It is really a question of weighing the advantages and disadvantages under this proposal. Under the existing law, the Act of l925, the personal representatives could, if they thought fit, redeem the surviving spouse's life interest in a residuary estate with his or her consent. That provision of the Act was, I think, very little acted upon, and the primary reason which led us to suggest an alteration in the law in that respect was this. There must be a great many estates where, unless some such provision is inserted in the Act, there is a life interest in being in a comparatively small amount. That requires, as a rule, the intervention of professional people to keep the trust accounts, to look after the annual income, to pay it to the widow and the children and to manage the rest of the estate. This life interest is still dragging on, in possibly a small sum, and it was thought that it was desirable to enable the widow, if she so wished, to claim a lump sum down and put an end to it and simplify the administration of the estate. It is true that a thoroughly unreasonable and spiteful surviving spouse might take some such action as the noble Lord has suggested, but I hope that there will be very few cases in which a surviving spouse will be so foolish as to wish to kill the goose that lays the golden eggs of a life interest for him or her annually. We in the Committee thought that, balancing the pros and cons of this situation—and I admit there are certainly two sides to the question—it was better to give this power to the surviving spouse than to withhold it.
THE LORD CHANCELLOR
May I just add this in regard to this difficulty 731 which the noble Lord has pointed out? It is a difficulty which I think Lord Kershaw, who took a prominent part in making this Report, will also realise. It is a difficulty which in any case has to be faced, because the sum of £5,000, to which the widow is in any case entitled, or it may be £20,000, may itself involve the realisation of assets which, if held, could be more valuable and eventually perhaps produce a much larger sum. We have to face that there may have to be a realisation of assets, possibly amounting to £5,000, or it may be £20,000, which might cover almost the whole of the estate. That is a difficulty which in the one case has to be faced and, on balance, we think it is better that it should be faced in the other case also, and that we should give the right of redemption which this Bill provides.
§ Clause 2, as amended, agreed to.
§ Clauses 3 to 5 agreed to.
§ Clause 6:
§ Rights of surviving spouse as respects a business.
§ 6. The Third Schedule to this Act shall have effect for enabling the surviving husband or wife of a person dying intestate after the commencement of this Act to acquire a business owned solely or in partnership by the said person.
§ 4.50 p.m.
§ LORD MANCROFT moved to omit Clause 6. The noble Lord said: This is a matter of some substance. Clause 5 of the Bill and the Second Schedule give the widow the right to require the personal representatives to exercise their power of appropriation in respect of the matrimonial home in or towards the satisfaction of their interest in the estate. Clause 6 was inserted in the Bill in another place on the motion of a private Member after little or no discussion at all. As the Committee will see, Clause 6 and its accompanying Third Schedule give the surviving spouse a similar right to require appropriation of any businesses owned by the intestate either alone or in partnership with the spouse. That matter was never before the Morton Committee, they heard no evidence of it whatever, and upon the Second Reading of this Bill in your Lordships' House every speaker, without exception, condemned this clause. Since 732 the passing of the Second Reading I have examined the clause again, and I have now received confirmation of the fact that the Law Society have also joined in condemning it. I believe that if the Committee will think for one moment of the situations that might arise, it will be seen that the clause is really quite unworkable.
§ The aim of this Bill is to make a will for a man who has not done it himself, and the Morton Committee were naturally influenced by the sample wills which were before them, based on normal sets of circumstances, and they found that to leave a matrimonial home to a widow was a normal state of affairs. That stands to reason. I am not saying anything derogatory about the capacity of women nowadays to run businesses, and to run them extremely efficiently; but I think there are very few testators, or very few men who have not yet made their wills, who would face with equanimity the prospect of their wives acquiring their business or taking an interest in their partnership. Furthermore, it may be a job beyond the wife's capability. The fact that in some small business, for instance a tobacconist's shop, the wife has helped at the counter on a busy Thursday afternoon, does not mean that she has the ability or the capacity to run that business; and to give her the right to acquire it seems to me to be going far beyond the scope of what we are trying to do.
§ The other point is that on the mere wording of this clause, which copies Clause 5, and the Schedule of which copies the Second Schedule, the thing is completely unworkable. Innumerable sets of circumstances and types of business can be imagined in which this clause will inevitably lead to complications, to bad blood and litigation. Therefore, in carrying out the threat which I made upon Second Reading, I am going to ask the Committee to agree to the deletion of this clause—which I am certain was well intended in the first place—together with its attendant Schedule, on the ground that it is undesirable and unworkable. I beg to move.
Leave out Clause 6.—(Lord Mancroft).
§ On Question, Amendment agreed to.733
§ Clause 7 [Interpretation and construction]:
§ LORD MANCROFT
This is a purely drafting Amendment, designed to resolve a technical ambiguity. I beg to move.
Page 8, line 10, leave out from ("as") to end of line 12 and insert ("including references to this Part of this Act and the Schedules to be read therewith.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Remaining clauses agreed to.
§ First Schedule [Sections 46 to 49 of Administration of Estates Act, 1925, as Amended by Part I of this Act as respects Persons Dying after the Commencement of this Act]:
Page 14, line 37, leave out ("several") and insert ("two or more personal representatives").—(Lord Mancroft.)
§ On Question, Amendment agreed to
Page 14, line 38, at end insert ("and a notification in writing under this subsection shall not be revocable except with the consent of the personal representative").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
Page 14, line 47, at end insert—
("(8) An election under this section by a tenant for life who is an infant shall be as valid and binding as it would be if the tenant for life were of age; but the personal representative shall, instead of paying the capital value of the life interest to the tenant for life, deal with it in the same manner as with any other part of the residuary estate to which the tenant for life is absolutely entitled.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ First Schedule, as amended, agreed to.734
§ Second Schedule [Rights of Surviving Spouse as respects the Matrimonial Home]:
§ LORD MANCROFT moved to leave out the Second Schedule and to insert in its place:
§ "RIGHTS OF SURVIVING SPOUSE AS RESPECTS THE MATRIMONIAL HOME
§ 1.—(1) Subject to the provisions of this Schedule where the residuary estate of the intestate comprises an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the intestate's death, the surviving husband or wife may require the personal representative, in exercise of the power conferred by section forty-one of the principal Act (and with due regard to the requirements of that section as to valuation) to appropriate the said interest in the dwelling-house in or towards satisfaction of any absolute interest of the surviving husband or wife in the real and personal estate of the intestate.
§ (2) The right conferred by this paragraph shall not be exercisable where the interest is a tenancy which at the date of the death of the intestate was a tenancy which would determine within the period of two years from that date or is a tenancy which the landlord by nonce given after that dale could determine within the remainder of that period.
§ (3) Nothing in subsection (5) of section forty-one of the principal Act (which requires the personal representative, in making an appropriation to any person under that section, to have regard to the rights of others) shall prevent the personal representative from giving effect to the right, conferred by this paragraph.
§ (4) The reference in this paragraph to an absolute interest in the real and personal estate of the intestate includes a reference to the capital value of a life interest which the surviving husband or wife has under this Act elected to have redeemed.
§ (5) Where part of a building was, at the date of the death of the intestate, occupied as a separate dwelling, that dwelling shall for the purposes of this Schedule be treated as a dwelling-house.
§ 2. Where—
- (a) the dwelling-house forms part of a building and an interest in the whole of the building is comprised in the residuary estate; or
- (b) the dwelling-house is held with agricultural land and an interest in the agricultural land is comprised in the residuary estate; or
- (c) the whole or a par. of the dwelling-house was at the time of the intestate's death used as a hotel or lodging house; or
- (d) a part of the dwelling-house was at the time of the intestate's death used for purposes other than domestic purposes,
§ 3.—(1) The right conferred by paragraph 1 of this Schedule—
- (a) shall not be exercisable after the expiration of twelve months from the first taking out of representation with respect to the intestate's estate:
- (b) shall not be exercisable after the death of the surviving husband or wife;
- (c) shall be exercisable, except where the surviving husband or wife is the sole personal representative, by notifying the personal representative (or, where there are two or more personal representatives of whom one is the surviving husband or wife, all of them except the surviving husband or wife) in writing.
§ (2) A notification in writing under paragraph (c) of the foregoing sub-paragraph shall not be revocable except with the consent of the personal representative: but the surviving husband or wife may require the personal representative to have the said interest in the dwelling-house valued in accordance with section forty-one of the principal Act and to inform him or her of the result of that valuation before he or she decides whether to exercise the right.
§ (3) Subsection (8) of the section forty-seven A added to the principal Act by section two of this Act shall apply for the purposes of the construction of the reference in this paragraph to the first taking out of representation, and the proviso to subsection (5) of that section shall apply for the purpose of enabling the surviving husband or wife to apply for an extension of the period of twelve months mentioned in this paragraph.
§ 4.—(1) During the period of twelve months mentioned in paragraph 3 of this Schedule the personal representative shall not without the written consent of the surviving husband or wife sell or otherwise dispose of the said interest in the dwelling-house except in the course of administration owing to want of other assets.
§ (2) An application to the court under paragraph 2 of this Schedule may be made by the personal representative as well as by the surviving husband or wife, and if, on an application under that paragraph, the court does not order that the right conferred by paragraph 1 of this Schedule shall be exercisable by the surviving husband or wife, the court may authorise the personal representative to dispose of the said interest in the dwelling-house within the said period of twelve months.
§ (3) Where the court under sub-paragraph (3) of paragraph 3 of this Schedule extends the said period of twelve months, the court may direct that this paragraph shall apply in relation to the extended period as it applied in relation to the original period of twelve months.
§ (5) Nothing in this paragraph shall confer any right on the surviving husband or wife as against a purchaser from the personal representative.
§ 5.—(1) Where the surviving husband or wife is one of two or more personal representatives. the rule that a trustee may not be a purchaser of trust property shall not prevent the surviving husband or wife from purchasing out of the estate of the intestate an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the intestate's death.
§ (2) The power of appropriation under section forty-one of the principal Act shall include power to appropriate an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the intestate's death partly in satisfaction of an interest of the surviving husband or wife in the real and personal estate of the intestate and partly in return for a payment of money by the surviving husband or wife to the personal representative.
§ 6.—(1) Where the surviving husband or wife is a person of unsound mind or a defective, a requirement or consent under this Schedule may be made or given on his or her behalf be the committee or receiver, if any, or, where there is no committee or receiver, by the court.
§ (2) A requirement or consent made or given under this Schedule by a surviving husband or wife who is an infant shall be as valid and binding as it would be if he or she were of age and, as respects an appropriation in pursuance of paragraph 1 of this Schedule, the provisions of section forty-one of the principal Act as to obtaining the consent of the infant's parent or guardian, or of the court on behalf of the infant, shall not apply.
§ 7.—(1) Except where the context otherwise requires, references in this Schedule to a dwelling-house include references to any garden or portion of ground attached to and usually occupied with the dwelling-house or otherwise required for the amenity or convenience of the dwelling-house.
§ (2) This Schedule shall be construed as one with Part IV of the principal Act."
§ The noble Lord said: This Amendment is little more than a series of drafting Amendments. A large number of small ambiguities in drafting presented themselves in the Second Schedule, and rather than correct them word by word we have put down a completely new Schedule. The greater part of the change consists of purely technical or drafting Amendments. There are, I think, only two matters of any note to which I need draw attention. The only changes of substances are, first, the imposition of a time limit on the surviving spouse's right to exercise her powers under the Schedule. I 737 think that is obviously desirable, to prevent an obstructive widow or widower interfering with the administration of the estate. The other point of substance is that the court's power to grant the surviving spouse a lease of the property in certain cases has been dropped from the Bill. It has been pointed out to me from several sources that this provision would almost prove unworkable, and in any case as long as everything was harmonious the same effect could perfectly well be achieved by the personal representatives. I hope that this meets the objections which were raised in another place and which have been raised by the Law Society. I beg to move.
Leave out the Second Schedule and insert the said new Schedule.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Third Schedule [Rights of Surviving Spouse as respects a Business Owned Solely or in Partnership by the Intestate]:
§ LORD MANCROFT
The deletion of the Third Schedule is consequential upon the removal of Clause 6. I beg to move.
Leave out the Third Schedule.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Remaining Schedules agreed to.