HL Deb 12 March 1964 vol 256 cc551-82

4.11 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill deals with five aspects of the law in Scotland. Part I deals with intestacy: Part II with legal rights: Part III with administration and winding-up of estates: Part IV with the succession rights of adopted persons, and Part V with financial provision for the innocent spouse in a divorce. The changes made in these major issues, together with some miscellaneous clauses, make this the most important measure for the reform of the law of Scotland that has been laid before your Lordships for a considerable time.

For many years there has been concern about these branches of Scots law and this concern culminated in the appointment in 1949 of the Mackintosh Committee who reported in 1951. Since then, as your Lordships know, there has been an almost constant discussion about the Mackintosh recommendations and growing pressure for a change. This Bill, as introduced in another place, reflected both the original recommendations and the changes in thought since they were made. The Bill now before your Lordships has again been considerably changed in another place to meet the valid criticisms and constructive proposals made from both sides of the House. I am sure that your Lordships would not wish me at this stage to refer even briefly to the Bill clause by clause, so I shall confine myself to the most important provisions in each part of the Bill.

First, Part I. As the Mackintosh Report points out, our present law of heritable succession belongs to the Middle Ages, when its rules of primogeniture and male preference were admirably suited to the feudal state of society in which they were evolved. Such rules were at that time a common feature of many foreign systems. But when the Mackintosh Committee started their inquiry they found that most foreign countries in Europe and America had already reverted to the principles of the earlier Roman Law whereby all the possessions of the deceased were massed together and, failing a will, devolved on the deceased's heirs equally without any privilege of primogeniture or of male preference. England and Wales made the change in 1922—that is, almost 44 years ago. Since then, as I have stated, responsible opinion in Scotland has stigmatised our Scottish provisions as quite unsuited to the state of society in which the overwhelming majority of our people now live. It was quite clear that rules intended to avoid a subdivision of feudal holdings are inappropriate to a world in which the feudal obligation is no longer a factor and in which the most usual holding of heritable property is a bungalow, a flat or a semi-detached house.

In making their recommendations on this point, the Mackintosh Committee were not breaking new ground. They were merely restating in authoritative terms a conclusion that had been reached more than 30 years before by responsible legal opinion. Part I of the Bill accordingly provides that the whole of an intestate estate, heritable and moveable property alike, shall devolve according to the same rules. These are broadly those which at present govern the devolution of moveable property, but there are some differences. The first is that the surviving spouse of the intestate is for the first time given a place in the line of succession. The second is that where both parents enter the succession the father and mother share equally. Under the present law the mother takes only if the father is already dead. Thirdly, where uncles and aunts enter the succession they do so without distinction between those on the father's side and those on the mother's side of the family.

I must emphasise that Part I of the Bill is concerned only with intestate property and does not affect in any way property that has been disposed of by will. If, therefore, anyone considers that the rules of succession set out in Part I of the Bill would produce results that are not to his liking, his remedy is to dispose of all his property by will, and if he does that then, so far as he is concerned, Part I of the Bill is of no effect. But it happens, for various reasons, that many people do, in fact, die intestate, and the task of Part I is to make for these people, so far as is humanly possible, the sort of arrangements that they might themselves have made had they left wills. It is very difficult, indeed impossible, to do this with accuracy in every case. The best one can hope for is a scheme which will approximate to the likely wishes of the deceased in a majority of cases.

It is a help to know as accurately as possible how many and what sort of people die intestate. The Mackintosh Committee said, for example, that large estates, and even small landed estates, seldom fall into intestacy, and the results of a survey that we have just completed, not on a sample basis, but for the whole of Scotland, confirm the view expressed by Mackintosh and suggest very powerfully that the Bill is on the right lines. We analysed for the complete year 1961 the figures of confirmations granted in all the sheriff courts in Scotland. I shall quote these figures only once in detail. Of 26,943 estates which passed through the sheriff courts in 1961, 17,273 were testate—that is, 64 per cent.—and 9,670 were intestate; that is to say, in 36 per cent. of the cases in which confirmation was granted the estate was intestate. This underlines the importance of ensuring that the rules of law which govern intestate succession are adequate for the purpose and well adapted to the social and economic conditions of our times.

Furthermore, we learn from the figures that intestacy is far more common among persons of small means than it is among the wealthier sections of our society. During the year which we examined, 9,670 intestacies were recorded, and only 32 of these, or just one-third of 1 per cent., were estates of which the gross value, heritable and moveable, exceeded £25,000. Moreover, there were only five cases—that is, about 1 in 2,000—in which the heritable portion of the intestate estate exceeded £10,000 in value. Your Lordships may agree that the correct inference from these figures is that intestacy is very common among people of small means, that it is rather rare among people who have substantial gross fortunes, and very rare indeed among those who own land or other heritable property exceeding the value of a modern eight apartment house or a very modest farm. I make this point with some emphasis because I have heard it argued in good faith that Part I of the Bill may lead to the subdivision of country estates and farms. With respect, I suggest that, in the light of the figures I have just given, Part I of the Bill is most unlikely to have any effect on such properties. Part I deals only with intestate succession and we know that estates with heritable property value over £10,000 must very rarely fall into intestacy. In one whole year, out of 9,600 intestacies there were five.

I turn now to Part II of the Bill, which contains the clauses that make certain changes in our system of legal rights. The first important change is the abolition of the legal rights of courtesy and terce. We have done this because legal rights that take the form of liferents are very difficult to administer and are, under the Bill as it now stands, a quite unnecessary burden on heritable estate. I believe that the abolition of courtesy and terce will be welcomed by your Lordships, that it is generally welcomed by the legal profession, and that it will simplify the winding up of estates at little cost to surviving spouses.

I now come to the surviving spouse's second legal right, which, I understand, is always denoted by the Latin term jus relictae. There is indeed no exact equivalent in English. Unlike courtesy and terce, which are liferents only, jus relictae is a right of a capital nature by which the surviving spouse can claim one-third of the deceased's moveable estate if the deceased is also survived by a child, and one-half of the moveables if there is no child. Your Lordships will observe that jus relictae does not extend to heritable property and that in this respect no change is made by the Bill. The only change, and it is a very minor one, is that in future jus relictae will amount to one-half of the moveables only in those cases where the deceased leaves no issue at all, because under the Bill in future the issue of a predeceasing child may claim the legitim which their parent could have claimed had he survived the deceased.

I now turn to Clause 8 which affects intestacy and which is, in my opinion, one of the most important provisions of the Bill, especially because of the almost complete predominance of small intestate estates. Under our present law, the spouse of a person who dies intestate can claim a share of the moveable estate by way of jus relictae, but has no claim to the ownership of the heritable estate. The significance of this emerges when one remembers that in the vast majority of cases where there is any heritable estate at all it consists solely of the family dwelling-house. The unfortunate widow has now in fact no right to the house in which she has lived, possibly for many years and, unless she can make some arrangement with her husband's relatives, she may, quite literally, find herself out on the street. This cannot have been the normal husband's intention and the present state of affairs does no credit to the law of Scotland.

The normal husband of the sort who dies intestate, if he has a house, has only a small property valued at less than £10,000. In talking to his lawyer about his will he will want his wife to have the house in the knowledge that she in her turn will probably pass on her possessions to her children or to the child who needs them most. The owner of more valuable property normally makes a will and might well leave his widow the liferent of the house. But that is not the average type of spouse for whom this Bill must provide. Clause 8 is intended to reflect what a testate owner of small property normally does in his will, by giving the surviving spouse of an intestate a right to the deceased's interest in any dwellinghouse in which she was ordinarily resident at the time of death and to the furniture and plenishings to a maximum value of £5,000—all free of death duty if the estate can stand it.

There are, of course, circumstances in which it would not be appropriate for the spouse to receive the dwelling-house itself—for example, where it is a farmhouse which is required for the running of the farm—and in such circumstances subsection (4) provides that the surviving spouse shall take, not the house itself but the value thereof. Your Lordships will observe that paragraph (c) as it stands brings a dwellinghouse within the scope of this subsection where there are special circumstances of a historical nature connected with the house which make it proper that the surviving spouse should take the value instead of the house itself. The need to include some provision of this kind in Clause 8 can readily be appreciated.

But we are not satisfied that this part of the clause tackles the problem in the right way, and I should like to give notice that at the appropriate time I shall be proposing Amendments which will leave out the present paragraph (c) and will extend to the dwellinghouse of the intestate passed to the surviving spouse the device of a limit of value which has already been applied to the furniture and plenishings. An Amendment on these lines was put down on Report stage in another place and then withdrawn by the Government for further consideration of the figure proposed.

Clause 9 also deals with rights that arise only on intestacy. Under this clause the surviving spouse is entitled to £2,500 out of the intestate estate if the intestate has left issue, and to £5,000 if he has left no issue. This claim to a sum of money comes after any claims to furniture and plenishings and the dwellinghouse have been satisfied under Clause 8, but before the executor proceeds to the calculation of the amounts that may be claimed by the spouse by way of jus relictae and by the issue by way of legitim. The claim to £5,000 where there is no issue is already available under an Act of 1959, but the claim to £2,500 where there is issue is new. Finally, may I again remind your Lordships that the provision made for the surviving spouse by this clause and by Clause 8 can be claimed only out of property that the deceased has not disposed of by will. There is no question, for example, of the widow claiming the family dwellinghouse under Clause 8 if the deceased has left it by will to someone else.

The only other clause in Part II to which I should refer is Clause 12. By this clause it will no longer be possible to extinguish by an ante-nuptial contract the right to legitim of a child yet unborn. The fact that this could be done was severely criticised by Mackintosh in paragraph 22 of the Report. Under the new provision the child has the right, as it should have, to choose between the benefit under the contract made before it was born and its legal rights. So many changes of circumstance can have taken place since the parents contemplated marriage that we cannot with justice do less. This Bill is rightly full of compromises to meet all conflicting needs so far as practicable. But here we can find no answer to the pertinent question: Why should certain children, unable to speak for themselves, be denied a legal right to which all other children, born and yet unborn, are entitled?

The clauses in Part III of the Bill are almost entirely concerned with the procedural steps that have to be taken for the administration and winding up of an estate. Changes in these procedures are required for two reasons. In the first place, as the Mackintosh Committee recommended, we abandon the present rules that require heritable and moveable estate to be dealt with in different ways. At present the moveables only are included in the confirmation, while the heritable property is dealt with by an entirely separate procedure. The Bill provides that in future the whole estate, heritable and moveable alike, will vest in the executor and will be administered and wound up under the same procedure. This is a worthwhile reform that should simplify the administration of estates in Scotland.

In the second place, some changes in procedure are required because of the disappearance of the heir-at-law: that is to say, the single male heir who has normally taken the heritable property of an intestate. Under the agricultural Statutes, and also under the Common Law, the heir-at-law of a tenant has had a special position in relation to the un-expired portion of the tenant's lease, and since the heir-at-law is disappearing it has been necessary to make new arrangements in Clause 16 for the transmission of leases.

I now come to Part IV of the Bill, which deals with the succession rights of adopted persons. The clauses in this part are based on a Mackintosh recommendation endorsed four years later by the Hurst Committee on the Adoption of Children. Briefly, the recommendation was that for purposes of succession, and for purposes of claims to legal rights, adopted children should be placed in the same position as children of the adopter born of the adopter and his spouse in lawful wedlock. This has been the law of England since 1949. It may be asked why Scotland and England have not moved in step in this matter. The answer was given by the Mackintosh Committee who noted that one of the reasons for their appointment was the difficulty of reconciling the rights proposed for the adopted child with the principle of primogeniture.

I should perhaps make one or two points about these adoption clauses. The first is that they are in no sense retrospective; they do not apply to any succession arising from a death that occurred, or to any deed executed before, the Bill comes into force. Secondly, they apply only to adoptions made under a statutory adoption order. Thirdly, the clauses do not affect deeds executed before the relative adoption order had been made. There is one exception, however, to the rule that the adoption order must come first. This flows from the normal rule that a will takes effect, not when it is executed, but on the death of the testator. Thus, if a person makes a will after the Act comes into force, leaving his property to his children, and subsequently adopts another child, then the adopted child is included among the children entitled to succeed under the will.

I now turn to the last group of clauses in Part V of the Bill that deal with the financial provisions to be made for the innocent spouse when a marriage is ended by divorce. This Part of the Bill implements recommendations that were made in the first instance by the Mackintosh Committee and were later endorsed and extended by the Royal Commission on Marriage and Divorce.

At present, when a divorce takes place in Scotland, the innocent spouse can claim from the guilty party's estate legal rights which are, broadly speaking, the legal rights that he or she could have claimed under the law of succession if the other spouse had died. This is the only financial remedy open to the innocent spouse, and it proceeds on the legal fiction that the guilty spouse has died. Both the Mackintosh Committee and the Royal Commission recommended that instead of this claim to legal rights the innocent party to the divorce should have a right to apply to the court, and the court should have power to order such financial provision as appears to it appropriate at the time in all the circumstances of the case. Clause 25 therefore abolishes the existing legal rights on divorce, while Clause 26 introduces the new financial provision at the discretion of the court.

My Lords, these are the main features of the Bill for which I now seek a Second Reading. It is not an easy Bill, and I am grateful for the patience with which your Lordships have heard my necessary explanations. I believe, however, that in spite of its complexities it is a thoroughly sound measure which will bring our law in a number of its aspects more closely into line with the needs of a modern society. I beg to move.

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

4.35 p.m.


My Lords, I have listened with considerable interest and a little bewilderment to the noble Lord who has just explained this very complicated Bill. I should be deceiving myself if I pretended to have any kind of knowledge of the legal implications of the Bill, or of the legal changes that have been made. Since, however, this is the Second Reading of the Bill, on which details of value can be discussed, it fortunately does not fall to me to do the explaining; and I am rather encouraged by the fact that, included in the speakers on this Second Reading, are three or four outstanding representatives of your Lordships' House who will, I hope, enlighten me in my own ignorance of the law, while I confine myself to what appears to me to be the social implications, and indeed the economic implications, too, of the changes in this Bill.

It is a very complicated Bill. I have read with a good deal of interest, and even a little understanding, what took place in another place. I was pleasantly surprised at the detail in which they examined the clauses of this Bill and their anxiety to improve conditions from what they were. What occurs to me is this. While it is true that we are dealing here with succession, and while it is also true that we are dealing, in the main, with intestate estates, nevertheless one has to remember that, in spite of the very thorough examination of the Mackintosh Report and their rather revolutionary recommendations compared with what existed previously, even since the time that this Report was issued there have been a number of changes which have, if anything, increased the necessity for some kind of change in the hitherto law of succession.

In order to refresh my own mind and bring to the notice of noble Lords the kind of revolutionary changes which the Mackintosh Report made, may I read from Part III of the Report? They say: (1) That for the purpose of intestate succession, heritable and moveable property should be blended and form one estate. (2) That the law of primogeniture should be abolished". That is a kind of built-in part of the Scottish law, a fact that one would think should give a considerable amount of hesitation to any Government before proposing its abolition. The Report goes on: (4) That there should be succession through the mother as well as through the father"— another great change in the traditional beliefs of Scotland. (5) That in any alteration of the law the principle of legal rights should be retained, though these would require re-adjustment consequent on the abolition of primogeniture and the blending of heritable and moveable estate. This background to the whole of the Mackintosh Report is based on a very careful examination of what occurs both in foreign countries and, to some extent, in England, too. What appear to be the views of foreign systems of law in intestate successions are given, and they bear out what the Mackintosh Committee recommend.

As I say, I do not pretend to know a great deal about the operation of the law of succession, but in reading the criticisms and observations of both my honourable friends and my equally honourable opponents in another place, I was pleasantly surprised at the amount of agreement which appeared to exist, in spite of the mild differences that were fought out, and the improvements that were embodied in the final draft of the Bill before it came here, so that on the whole agreement between the two sides was reached. Therefore, one is glad to think that, however complicated the provisions of this measure may be—and one has to admire the ability of the legal mind to be able to sort out this jumble of material in order to put it into some kind of order, under separate headings and to find answers for each of these problems—they have tackled them in so able a manner. That is one reason why I do not even voice the criticism that was made in another place about the time taken in order to carry out as well as they can the Mackintosh recommendations, plus such minor alterations as the Government, on the one side, and the Opposition, on the other, were able to agree upon formerly in another place.

I think that the figures the noble Lord has given to us to-day put into even better perspective than was obtainable in the other place the magnitude of the problem with which we are dealing; and one rather hopes that these figures, presumably official, will allay any kind of anxiety that appears in the minds, either of noble Lords or of Members of another place, to prevent any kind of obstructionist opposition to a measure of this kind by reason, even since the Report of Mackintosh, of the social and economic changes which one recognises have taken place for what we might call the less affluent sections of the Scottish people. I, for one, regard it as a matter of regret that not more people nowadays—in former times it was not perhaps possible—have overcome their fear of entering a lawyer's office in order to get put into proper form the future division of their possessions so that, in the case of death, there is no quarrel or dispute and so that the whole business is arranged beforehand and it is not left even to an all-embracing Act to determine how whatever substance they have left is to be divided up. If they did so, I think it would be a very great advance on conditions as we find them to-day.

If one may dare venture a piece of advice to that section of the community which I have mostly in mind, I would say this. Of recent years municipalities have increasingly adopted the practice of having available to the citizens within their areas bureaux of advice on all matters. It would appear to me to be of enormous help, and it would overcome a good deal of hesitation, if local authorities made known to the people of their cities that these bureaux could give advice on matters of this kind to those people who had any little amount of property to preserve or protect, and that they would take upon themselves responsibility for either providing staff to draw up wills or advising them to go to lawyers whom the local authority could recommend, in order that these intestacy difficulties could be overcome and any apprehensions the people might feel about the little they possess would be done away with. That, generally, I think, would make this Bill, which seems to me to be an almost revolutionary advance on what has hitherto obtained, acceptable to the people of Scotland as a whole.

4.45 p.m.

LORD SALTOUN rose to move, as an Amendment to the Motion for the Second Reading, to leave out all words after "that" and to insert: "this House declines to give a Second Reading to a Bill which while suitable to the circumstances of the population of the burghs, is contrary to the normal life and feeling of the country population, is menacing to the harmony of family life, makes if difficult for families to continue in quite small properties where they have been for centuries and procures intestacy where none need exist." The noble Lord said: My Lords, I recently put down this reasoned Amendment and, therefore, I have to give your Lordships reasons for it. But before proceeding to that task I should like to congratulate the noble Lord, Lord Craigton, upon the very able and clear way in which he has presented this Bill to your Lordships. I should also like to ask him to examine a point in Part III which occurred to me while he was explaining it. It is a small point but it might be very vital.

The point is this—and my noble friend Lord Reid may correct me. If you are a heritable superior of a burgh you can succeed to the feu duties without necessarily being served heir. But if the occasion occurs that you irritate a feu and confiscate the subject for non-payment of feu duty, and then you feu or sell the subject again to somebody else, who erects a building on it, you may be caught because, not having been served heir, the old owners may expunge it by the payment of back feu duties and you may be had up for essential error, and subjected to shocking damages, for having parted with it to somebody else. I have not been through Part III carefully, but I know that the noble Lord wants to make this Bill as good as possible, and this is a point he must look into. Because if the Government are going to cut out the process of serving an heir it may land the superior in trouble that way.

The noble Lord practically quoted what the Secretary of State for Scotland said in introducing this Bill to the Scottish Grand Committee in another place, but as I want to get the point exact I should like, if I may, to quote to the House his exact words. He talked about framing these rules for intestacy and said that, in framing them, he had kept in mind the principle that when a man dies intestate the law should try to provide, so far as it possibly can, for the disposition of his estate in the manner in which he would most likely have chosen himself if he had left a will". That is a principle which I think we all accept—the noble Lord has practically accepted it—and it is in the light of that principle that I should like to examine from my point of view the Bill before your Lordships this afternoon.

We are told that the Law Society of Scotland is in favour of this Bill. That may be so, although those members of the Law Society of Scotland who have practices in the country have not been quite so laudatory. But I think it might be worth while considering for a moment how we come to have this Bill at all. I am told that the mixture of Roman Law and feudal law which at present forms the Common Law of Scotland came to us some 890 years ago, and has operated, with various changes, since then. But it did not operate in the burghs that had their own customary law which governed succession, which worked very well, and which was quite different from the Common Law of the land. It was only 90 years ago that that situation was changed. I suspect that what happened was that things went very wrong: great difficulties arose in the Royal Burghs—difficulties that would not have happened in the regality burghs, which were generally better run—and the lawyers came to the conclusion that it was better to apply the Common Law of Scotland to the burghs indiscriminately. From that moment until this that has caused a grievance and has led to difficulties. It has been entirely contrary to the feeling in the burghs and it has led in the end, after 90 years, to this Bill.

I should like your Lordships to consider very carefully whether, in our anxiety to remedy a mistake that is 90 years old, we may not make an equally great error. There is a certain amount of reason in what I say; because this Bill started in one form, and was introduced; was withdrawn and completely redrafted; and great portions of it were put in to try and make it workable in the rural areas. It was then found, as we all agree, that those provisions were completely unworkable. So they were torn out, and the Bill was left to get along without them. My argument today is that the Bill, though well suited and a very good Bill for the towns, is not such a good Bill for the country; and I have to show that to your Lordships.

The first clause of the Bill abolishes all distinction in an intestate succession between heritable and moveable estate; that is, between real and personal estate. That works very well in the towns. After all (and the noble Lord, Lord Craigton, practically gave me this point), nobody worries about changing a house in the town; people change their houses in a town with far more ease and far less reluctance than they change their bank or their lawyer. It is perfectly right that should take place in the towns. But when we come to the country, matters are a little different; and if the Government are seriously going to try to make a provision such as the intestate would make, had he left a will, then I think it is proper to consider a little the character of the people. Here, I speak with a certain amount of diffidence; your Lordships all know Scotland just as well as I do, and many of you, probably, better. But I put forward what I think to be the principal characteristic of the Scottish people—and it has in fact been common ground in all our discussions on the Bill: that the people in Scotland, in the towns and in the country, have a tremendous sense of family. The family nexus is far wider spread than it is in other places. And in nearly every case that family loyalty is connected with some place or other. I am not talking of the great houses and the great estates. I am talking of quite small families, quite small places, and of all time. I am talking of Cardnos, Cattos, Kings, Watsons—names that do not make any great appearance in history, but are, none the less, good Scots families whom we have to consider. I am not talking of great places: I am not talking only of to-day; I am talking of the past.

I would remind your Lordships of three cases which prove what I want to say, and I could make the list as long as my arm. Your Lordships who remember the history of Russia will remember that General Patrick Gordon was a General of Peter the Great, and he was always trying to get back to Scotland to his own property and his home at Auchleuchries; but Peter would never let him go, and he died in exile. Auchleuchries is only a small farm; it is not a great place. Many of your Lordships may remember that when that great Canadian Prime Minister, Mr. Mackenzie King, was over here some years ago, the one thing he wanted to do more than anything else was to go up to Scotland and see the place—it is only a small farm—where his ancestor had been born. He went up, and he saw the house. He saw the four-poster bed in which the ancestor had been born, and the old 18th century furniture, and he went away and never forgot the people who had done that for him.

Some five or six years ago when I was in Ayrshire, I met an American and his wife, and she told me that her ancestors on both sides had been sold as slaves by Oliver Cromwell. She said to me, "I am a Munro, and I want to see Foulis". Your Lordships all know that I could make that list as long as I liked. That shows your Lordships that family feeling in Scotland is nearly always connected with a place, and for that reason I think that Clause 1, while it is excellent for the towns, is unsuited to the country, and that the distinction between heritable arid moveable is still valid and valuable for the country. Later on in what I have to say, I shall come to the people who actually inhabit these small places but at this stage I wanted merely to establish my picture of the way people feel.

The second clause deals with intestate succession, with the method of succession, and I think that it is contrary to Scottish feeling in the country as I know it to-day. I do not think that the present law is perfect: it is very unsuited to a country in which women have always held property, always transacted their own affairs and in which, as your Lordships will remember, a woman never loses her maiden name, whatever other name she may take. Her maiden name is always put in on all family deeds which she executes. If a woman with land marries a man with land, and they have children, and die, and the children succeed and the heirship fails in the children and you have to seek back through the spouses for an heir, according to the law that I should like to see in Scotland you would seek back for the heir to the woman's land through the woman and the man's land through the man. As the law at present stands in Scotland, you seek back through the man for the heir to both lands. But, at any rate, by that system you do get somebody in possession of the lands.

Under the system proposed in this Bill, if you seek back and there are four grandparents or their representatives (because, of course, representation comes in here), you get the whole thing divided between that generation. If there is nobody there to represent the grandparents you go back, as the clause says, to the grandparents. There is a strong objection to that; namely, that it means the subdividing and the splitting up—what is called fragmentation—of the whole property, or it must be sold and divided, which I believe is not a good thing. In Scotland we always like old properties to be owned by somebody. My kinsmen the Calders failed, and the Campbells came in in their place a long time ago; but I would far rather that that happened, than that the whole property should be split up. There is a worse point, and that is the question of half-blood. The only heir might be a great-grandmother who had in a second marriage married a Greek or Turk, and the whole property would go away to some alien. That is, I think, contrary to Scottish feeling.

I come next to Clause 8, about which the noble Lord, Lord Craigton, was very eloquent, and what he said reminded me of many a conversation I have had with my friends in the Law Society on this subject. They all say that they feel it is very hard that, after many years of domestic felicity, when one of the spouses dies the surviving spouse should have to abandon the house. I quite understand that feeling, but, while it may suit the towns it does not very well suit the country. In the first place, it is a picture, and that is all; and there are a great many other pictures. For example, people do not always live a long life together and then, in due course, die. Very often a wife dies and a man marries again, or the reverse occurs. There are many cases, and I particularly do not want to point at anybody who will be recognised, but I will take the case of a small estate of a few acres—less than 100 acres. On the estate there is a house which incorporates a tower to which Sir John Ramsay retired for refuge after the defeat of William Wallace, and to which the ancestors of the owners came after the success of King Robert.

We in Scotland have few great collections of treasures, but every family has things that it values greatly. They may not be valuable. In the case I am thinking of there is a collection of pictures of members of the family from the reign of James VI onwards. They are not at all valuable pictures. They have no value in the market, but are just a collection in the family. The owner of that collection may marry a second time and then may die. The stepmother may not get on with her stepchildren, which is a common case—I can give your Lordships numerous instances of it—and the husband may die intestate. That may well happen if he does not make a will after his second marriage.

What happens if he dies intestate? The widow comes into the house. You may go to the sheriff and get the house declared an historic house. There are plenty of houses which are not in the least historic, but of which the family are just as fond. You cannot get any declaration about the pictures. The widow can take the house, she can take the pictures, she can marry again, and she can die and leave the whole of it to a stranger and the family be utterly dispossessed; or she can sell back to the family, at blackmailer's rates, the things they feel they must have. Murders have been done for less reason than feelings that would be roused by such a situation, and I think that this clause needs a great deal more consideration than that which the noble Lord, Lord Craigton, said he was going to give to it. It is ridiculous that any widow should carry away out of a family the house and valuable hereditary moveables belonging to that family.

I want now to turn to another subject—namely, Clause 12, which really bothers me more than any other. The ordinary Common Law provisions in respect of a man making a will are so drastic that, if they were enforced, small properties could not be passed on from father to son. I do not know what the situation is in other countries, but it certainly could not be done in our northern climate. For that reason, as your Lordships may know, it has been customary to provide against that by making an ante-nuptual contract in which the provision made for your widow, and also the provisions to be made for the younger children are limited. When you go to your lawyer to make such a provision he warns you that if you make a provision for the children which is illusory the court will interfere and greatly expand it, and therefore you have to make a proper provision. I am convinced that it is only through that practice that it has been possible to hand down property from father to son. I have worked out the figures for small properties, especially small farms, and I find that on the smaller property the effect of the Common Law provision for younger children is very drastic.

When I was an apprentice in estate management a long time ago, we always had to consider the cases of farmers coming to take farms and of the capital they could provide. It was our experience, which was proved again and again, that a farm cannot stand a diminution of more than 20 per cent., in the necessary capital without risking bankruptcy. By that I mean that in taking a farm worth perhaps £100 an acre to-day, stocking and other purposes could be done for perhaps another £100 an acre, and nothing would prevent a man who had capital less than the £80 an acre from going bankrupt. But if he had £80 an acre he could manage.

Many lawyers and those who favour this Bill have said to me, "Oh, but that is nonsense. We have known farmers heavily in debt, mortgaged to the hilt, but they have got away with it. They are rich men." That is perfectly true. You can bond your farm to its full amount; you can buy anything; you can expand in every direction, so long as the money that you borrow is used for expanding your productive capacity. The only thing that stops you is your own ability. I know many men who have done exactly that. I would hesitate to say whether they were millionaires or bankrupt. That is a different thing. If you bond your farm to buy jewellery for your wife or to pay the claims of your brothers and sisters, then 30 per cent. of unproductive debt is ruinous—you go bankrupt. At 20 per cent. you may manage. So the figure can be put between those two amounts.

As proof that I am not talking utter nonsense, I will remind your Lordships that the Inland Revenue have long recognised this fact and have reduced the estate duty on agricultural land. The effect on single farms is quite marked. On agricultural land itself the reduction is 45 per cent. When you work it out, with the necessary stocking of the farm it comes to a reduction of between 70 and 75 per cent. That is a considerable concession from the Inland Revenue. It indicates that what I am telling your Lordships is really the fact. The ordinary legitim fund on an ordinary farm and its capital greatly exceed that amount, and therefore, in the end, either the farmer will go bankrupt or they will have to sell.

We have had long discussions about this. We have discussed it with the Department, and they say they have no objection to farms coming on to the market, but they think that the well-known solidarity of the Scots family will induce the younger children not to press their claim, and that, in any case, they cannot tolerate the continuance of such an inequitable system. It is this inequitable system—and I think my noble friend Lord Greenhill also thinks of it in this way—which I want to tackle.

I agree that when there is a shortage of food, when there are famine conditions, it is right that one should divide equally. But the position of younger children is not quite the same. After all, Scotland is a democratic country and all the children of farm servants start at the bottom; many of the children of farmers start at the bottom; and, when I look back in history in my own family, I find that if the younger children did not start off at the bottom, they certainly started low down the scale. In the course of my practice I have had to read many a will written by citizens of Edinburgh. These wills commonly said, "Having given my children the best possible education, and having started them in life, I see no reason to make further provision for them". And, in general, the money was left to their wives.

When this Bill was first discussed, one of its framers asked me whether I believed in primogeniture. I said, "You must not ask me that question. My younger brothers are the people whom you must ask." I had not then seen the Bill, but I telephoned by youngest brother and said, "The Government have a Bill to abolish primogeniture. Would you agree with that?" The answer came back: "I would not agree with it".

I should like to mention some farming families. I have tried to find out what the younger members of those families think. They are all in the same story. They do not want the abolition of primogeniture. If we pass Clause 12 it is bound to be effective, because if one claims then they have all got to claim. The people who break the agreement are always the husbands of the daughters. If one looks at the Argentine, one finds that this takes place there and leads to fragmentation of farms and that sort of thing. One will not get fragmentation of farms in Scotland, as this is simply impossible; the holdings are just about as small as can economically survive. Under this clause farms will be forced on to the market.

On the question of equity, I should like to put this case before your Lordships. I live on a point of land, and if one drew a circle of fifty miles radius around my house, more than three-parts of that circle would be in the sea. Therefore, I have about one quarter of the neighbours most people have. Yet within five miles of my house there are at least four families who have been in their farms for centuries. They own their farms. My nearest neighbour had an ancestor at the Battle of Colloden. Another has been there since the reign of Charles II. I do not know how long the third has been there, but it is some long time. The fourth is a farmer occupying just over 100 acres, and he is the fourteenth generation to own the farm.

The younger children of these people do not want the abolition of primogeniture. They all get started in life by their parent, and get a better start than most people. Coming as they do from old and respected families such as these, they can command far more valuable jobs and can occupy positions of trust. They have no reason to wish for the abolition of primogeniture. They are very proud of their ancient families and would not ask for a law to change all that. If we pass Clause 12, I am afraid the end of that state of affairs will be very near.

I know that there is a demand for farms; I know that a great many people would be glad to see more agricultural land coming on to the market. Rich men who have made a lot of money in trade want to put their money away as an investment, and they buy farms; this happens every day. Some want to establish their sons in comfortable billets. They are all on the lookout for farms. I can understand the Government wishing to put more farm land on the market. But I strongly object to the passing of legislation which will force these ancient families, humble though they may be—families of long descent, much respected in the countryside, and a social asset—to put farms on to the market to supply that demand. That is what almost certainly would be the result if Clause 12 became the law of the land.

We pleaded with the authors of this Bill that it should be restricted to land under three acres. The answer I got rather astonished me. I was told, "No; they might be three acres in the centre of Edinburgh." I put aside the proposal that the three acres should be outside a burgh boundary, but the real meaning of the answer I received was: "We are going to get our way and you have got to bear it." If this is so, then we are very unfortunate. This Bill has in it many things of value, but so far as the ordinary country in Scotland is concerned it is not a good Bill.

With regard to what my noble friend Lord Craigton said about intestacy, cases of intestacy among wealthier people may be rare, but, on the other hand, they are not entirely unheard of. A man may make a will every day of this life and still die intestate; it can often happen. I sometimes wonder how many wills get lost before they are presented. My Lords, those are the reasons which induced me to put down this Amendment. I beg to move.

Moved, as an Amendment to the Motion for the Second Reading, to leave out all words after "that" and insert the said words.—(Lord Saltoun.)

5.18 p.m.


My Lords, I am not sure how I should proceed in the light of the Amendment; but I hope that it is in order for me to speak on the original Bill which is before your Lordships, bearing in mind the important and valuable contribution to the debate as a whole which has been made by the noble Lord, Lord Saltoun. I rise to speak with the greatest diffidence. We have heard a most clear exposition of the Bill from the noble Lord, Lord Craigton. We have heard the noble Lord, Lord Greenhill speaking, I think, for the first time for a long while from the Opposition Front Bench, and I am sure your Lordships welcomed his contribution. We have heard the noble Lord, Lord Saltoun (speaking with far greater knowledge on these matters than I possess) appealing in a way which I am sure impressed your Lordships. There is great substance in what he said, and I hope that it will be given great weight. And when I look at the list of speakers who are to come after me, when I see the legal talent that is arrayed, I wonder why I am up on my feet at all.

But the fact is, my Lords, that many friends of mine have over the last weeks shown great anxiety about this Bill. They have talked to me, and have pressed me to such a point that I felt I had to try and understand something about it; and the more I studied the Bill the more worried I became. I became worried, not because I think that the purpose behind the Bill is wrong, hut because I feel that the Bill in its present form does not give effect to many things that we want. Indeed, I would say that in its present form it is not a good Bill at all. When I say that, I am speaking only about Part I and Part II; the other Parts, and the Schedules, are, quite frankly, beyond me, and I only hope that not only the Government but others of your Lordships will give the necessary study to these. I hope to show your Lordships that, in Part I and Part II, there are things which ought not to be there at all and which make me fearful that the whole matter is being rushed too much.

We have heard from the noble Lord, Lord Craigton, that this is the most important measure on Scottish affairs for a considerable time. We also know that it involves radical changes in the principles on which we have worked for so many centuries. If your Lordships read the proceedings on the Report stage of the Bill in another place, you will find, I think, that my fears are confirmed on the way things have been rushed. I found such sentences as "undue haste and pressure to hurry up and get the Bill through", or "it was raced through the Scottish Committee" or that, "though altered it could have been better". All those seem to me to be signs that we have a very serious duty to perform. As I read the Report stage in another place, this House is once again being called upon to perform the function of a long-stop to catch out mistakes and try to make the Bill a better Bill. That is fine, and I am sure that we shall all do our best; but I do beg that, on such an important measure, we are not also pressured, for some reason which is not entirely clear to me, to get things done within the next several weeks.

It is no comfort to me to know that in a sense this Bill has been hatching for a very long time. We know that Lord Mackintosh's Committee made their Report as far back as 1949, and that various attempts have been made since then to bring in a Bill.


It was 1951.


What I think we have to remember is that this Bill is not the result of many years of cogitation, but something which has come up in a short time. As other noble Lords have said, very important principles are at stake. Primogeniture is to be abolished. If it were abolished in all things, of course, most of your Lordships would not be here at all—but that is another question. Then we have heard that the differentiation between the sexes in these cases is also to be abolished. And I must be careful what I say by way of comment on that point. Then, again, we find that in cases of intestacy heritables and moveables are to count as one and the same thing. That, again, is an extremely important change. The noble Lord, Lord Craigton, said that the distinction was a relic of feudal times. I am not quite sure whether he is right, or whether if it is only a relic of feudal times the distinction should now be abolished.

I have been looking, as I am sure many of your Lordships have done, at the Mackintosh Report in this respect. In paragraph 8, when the Committee are talking about the question of the agricultural interests, they say: … the general law of succession above proposed might have far-reaching and unfortunate results on agricultural interests and on the social structure of our countryside generally. Or, again, it says Such a result"— that is, the merging of agricultural heritables and moveables— in our opinion would be socially and nationally undesirable and we think that in the interests of agriculture and of our national economy generally provision should be made to facilitate the acquisition of the family farm by one of the heirs from his co-heirs without the subjects having to be put up for public sale. Your Lordships will see that they ask that some provision should be made. Can we find any such provisions in this Bill? We cannot. Some were tried and they were found to be too complicated. A series of endless legal fights were envisaged, and so those provisions were taken out. I am not saying it was not right to take out the Schedule as attempted, but if we had time I wonder whether it would not be possible to find some way of putting in the provisions which Lord Mackintosh felt in his Report were so necessary to avoid national harm. I think the actual word used was "disaster".

It is quite true that the noble Lord, Lord Craigton, has said, "Well, from the figures that we possess from 1961 it can be seen that the issue really affects very few people." I think the possible maximum was five. But I am not very happy, quite frankly, on the de minimis argument and I would ask that this matter should be looked at by all of us again, to see whether we can find some way of ensuring that agricultural land has not necessarily to be split up and sold. I know it could be argued, "Well, it has not got to be sold for certain." But I assure your Lordships that, from examining the matter very carefully, I suspect the cases when it is not sold will be very, very few.

Of course, it may be said, "The answer is to make a will." As the noble Lord, Lord Saltoun, has said, sometimes wills fail. But I should like to comment on the suggestion made by the noble Lord, Lord Greenhill, and say how much I feel with him that not only the Government but a public authority should make a special effort to encourage people to make wills. If this Bill goes through in even something approximating to its present form, and some of the damage which I think could occur without making a will still remains, then making wills will help very much.

Having dealt very briefly with the question of heritables and moveables, on which the noble Lord, Lord Saltoun, was so much more eloquent and spoke with so much greater knowledge, I should now like to take the question which I think is covered in Clauses 2, 8 and 9. I apologise for taking it in this way, but, as I have already said, I am a layman in these matters, and I cannot easily do these things in the proper order. I want to consider what happens in respect of the rights of a wife and the equality of the sexes, and see what is the result. I think in many cases the children are going to get little or nothing in an intestacy. Again, we have heard something about what is going to happen to the family treasures, and I would agree with the noble Lord, Lord Saltoun, that these very often have little, if any, value. They will be dispersed. Lastly, there is the problem of the wife or the husband's family getting a property, an agricultural property in particular, rather than the first cousins of the wife or the husband's family as the case may be. To me all of this adds up to a blow to family tradition and sentiment for Scotland, and we all know how strong those things are for Scotland. Perhaps, above all, it is a blow to the family ties in relation to land.

So far as family treasures are concerned, as I have said, their intrinsic value is little or none—but murder, as we have heard, has been done for less. What are they?—things like pictures, letters, medals which earlier generations may have won. All those may well be dispersed. I had thought there was a glimmer of hope that we might pursue a line similar to that which was envisaged for the historic house, but I heard just now that Clause 8(4)(c), which deals with that and puts forward that suggestion, is likely to come out in the course of the Committee stage. Of course, if something else is put in in its place, all well and good, if it is as good; but, none the less, I hope that, so far as family treasures are concerned, we shall find a method of avoiding their automatic, or almost automatic, dispersal.

Let me come now to the question of children getting little or nothing. If the wife has a child or children, let us first see what she gets. As the Bill stands at the moment, she gets a house, which may be very valuable indeed; she gets plenishings to the value of £5,000—and both of these are free of death duties—and then she gets £2,500. If we add all that up, on a relatively small estate—and it is perhaps the relatively small estates which one has to worry about—it is almost certain there will be nothing left, because, after taking out the value of the house, whatever it may be, the £5,000 plenishings and then the £2,500, the duty has to be paid from the balance. The wife gets all, and there is nothing for the children. Your Lordships may say that this does not matter too much because the wife will perhaps let the children have it later; but, of course, we have no certainty of that. She may marry again, she may have other children, and so forth. Then, of course, that is not all that she gets. She also has, as we know, the jus relictae. I think we ought to examine most carefully whether the wife is not getting too much and the children too little.

On the third point, which is that of the wife's or the remaining spouse's family rather than first cousins, I was very much attracted, as a substitute for what is proposed, by the idea which was put out by the noble Lord, Lord Saltoun—namely, that, rather than saying first cousins as such, one should partition it to the husband's family or to the wife's family, and, in that way, going backwards, try to ensure that the property, whatever it may be, attaches to or remains with the family which has the particular interest in it. Of course, there may be many ways of achieving this. I only hope that we can examine it with the greatest care over the next weeks.

Now I come to Clause 12, about which we have heard a certain amount from the noble Lord, Lord Saltoun. As we know, ante-nuptial contracts are in a large degree to have little purpose if this clause becomes operative. The phrase "ante-nuptial contract" is something which frightens me, but it is very much the same as what I would call a marriage settlement. Perhaps that helps sonic of your Lordships to know what we are talking about. Marriage settlements often help to lessen the impact of legitim. It has been pointed out in the Mackintosh Report that this occasionally caused great hardship and abuse, and I, for one, should certainly want to see the possibilities of such hardship and abuse removed, as I am sure all your Lordships would.

In that connection I wonder why, for example, we cannot follow the English practice—an English practice which was introduced after the Mackintosh Report was written. I refer to the Fourth Schedule of the Intestates' Estates Act, 1952. In that, there was a provision to enable a person to go to the courts and get a reasonable provision for the children if they had not been properly treated under a will. I wonder whether we should not try to introduce some such thought as that in this instance. If we did, the courts could judge whether something was fair, but at the same time it would be clear that they were not being called upon to see that full legitim was being exercised. They would have a discretion.

So much for Clause 12 in general, but I want to draw your Lordships' attention to Clause 12(b) in particular. When I first read Clause 12(b) I thought I could not understand its meaning. I saw various of your Lordships, and I said, "If it means what I think it does, then this is one of the most obnoxious clauses I have ever come across, because it is introducing the principle of retrospective legislation". I said, "I do not believe I can be right, and I will come back to you after I have had an opportunity of asking those who are better informed and have had legal training whether it does mean that". I think your Lordships know the answer: it does imply, and is, retrospective legislation. I feel sure that when we come to the Committee stage your Lordships will support an Amendment which will get rid of that, because it will certainly not do.


Hear, hear!


When I find something like that in this Bill, it makes me the more anxious that we should examine the Bill most carefully, and should be given plenty of time to study it and see that there are not similar, if not as obvious, faults, or other changes which it is necessary should be made. As I have said, I have sympathy with the objective. I am all for trying to devise a law of intestacy which will give effect to what the husband or the wife might have wanted, but I have tried, and others of your Lordships have also tried, to show that we have doubts whether this Bill is doing this at the present time, whether it be on the question of land, whether it be on the question of family treasures, whether it he on the question of what a spouse and her children should have or whether it be on the question of which relatives should inherit what—and lastly, of course, there is Clause 12 and its retrospective feature.

My Lords, I am sure we all want to help to get this Bill into good shape, but I would ask your Lordships to support those who feel as I feel when we ask that we should not be rushed too much: and if, for one reason or another, we must have a Committee stage fairly soon, and if we do not catch out all the things that should be caught out at that time, then we must go after them again at a later stage.

5.38 p.m.


My Lords, I, also, should like to add my word of congratulation to the noble Lord who presented this Bill upon the lucid way in which he dealt with it. Notwithstanding the criticisms of those speakers who have preceded me, I feel that the general provisions of this Bill—and I say advisedly "the general provisions"—will be welcomed by the majority of people in Scotland and by the Scots legal profession. As your Lordships have been told, the need for reform was recognised as early as 1924, and the Mackintosh Committee reported in 1950; so that certainly no Government can be congratulated on their expedition in carrying out this necessary reform.

I have no quarrel with the main provisions of this Bill, which assimilate heritage and moveables and direct that they should descend, roughly speaking, according to the present rule of moveable succession. It is a reform that is long overdue, and one that I feel sure will alleviate many hardships which have in the past been occasioned to widows. The noble Lord, Lord Craigton, will not welcome my approbation of his Bill: he will be anxious that I should come to my criticism, and I come at once to Clause 8, which has already been referred to, under which a widow, on an intestacy, receives a dwelling-house of her choice and furniture to the value of £5,000 free of estate duty. I do not know that that change has been sufficiently emphasised, and it is, I think, a very important aspect. It is necessary to state the present position, in order to see how the widow's rights have been enlarged.

At present she receives £5,000 in cash, as the result of a very recent Act. She also gets her legal rights which are one-third of the moveables, and she receives terce which is a liferent of a third of the heritage. Under the Bill, in addition to the dwelling-house and furniture up to £5,000, she receives, under Clause 9, £5,000 in cash if she is not survived by children, and £2,500 if there are children. In addition, she receives jus relictae, which is preserved, and that amounts to one-third of the moveables. Look, if you will, at what the children receive. They receive only the legitim fund, which is one-third of the moveables, and what is left, if anything, of the residue of the heritage and moveables as assimilated under Clause 21(1)(a). As a result, as I see it, in a small estate where there is little cash and the house and furniture are the main assets, the widow scoops the pool, and what is left will probably go towards paying the estate duty. With a larger estate the balance between the children and the widow will be even worse.

Noble Lords will observe, as has already been pointed out, that after the husband's death the widow can remarry; she can sell her house and turn out the children the next day. I ask, my Lords, is that fair? I suggest that this Bill gives far too generous a provision to the widow. She was undoubtedly unfairly treated before, but now your Lordships may think the pendulum has swung too far in the other direction. Under English law on intestacy the widow does not receive the dwelling-house. The Mackintosh Committee did not recommend that she should, and I am not aware—if I am in error I will be corrected—that any legal body has made such a recommendation; and the Faculty of Advocates recently reported against it.

The origin of this proposal is not uninteresting. I gather it was that some Member of another place said that in 95 per cent. of the cases he had come across where the house was owned by the husband, the husband wanted to "see his wife right"; but that expression is ambiguous. It may mean that the husband wanted to give the house outright; or it may mean he only meant her to have a liferent. As I read the proceedings in another place, this question as to whether it should be a life-rent or a fee was never properly discussed. I may not have been fortunate in the experience I have had, but I have never seen wills which give such generous treatment to the wife at the expense of the children.

The aim of this Bill should be, as nearly as possible, to give the widow and children what they would have received if the man had made a will. I seriously suggest that, if this test is applied, what is likely is that the man would have given a liferent of the dwelling-house for as long as she occupied it, and the furniture, to the widow. This would normally be the result on testacy; it would avoid any question of estate duty and it would prevent any injustice to the widow. So I seriously suggest to my noble friend Lord Craigton that, before the Committee stage, he should give careful consideration to whether a liferent would not be a satisfactory provision for the widow.

I have two minor points on Clause 8. One is in regard to historical furniture, which has already been referred to. I think that if the historical mansion house should be accepted, the historical furniture should also be included. The other matter is merely a question of drafting in regard to Clause 8(4)(c), which deals with the dwelling-house which forms part of premises in which another occupation is carried on. I am not clear that it sufficiently covered the case of an owner-occupied farm. The noble Lord, Lord Craigton, said it did. It certainly should.

The only other point which I wish to raise is in regard to Clause 12, which has already been referred to. I am afraid that I part company with the noble Lord and the noble Earl who preceded me, because it seems to me that the general purpose of the clause is laudable and that is to prevent a child from being shut out of legitim by provision in ante-nuptial contract of marriage, which is illusory, which is made before the child was born, and may in fact amount to nothing. This has been described as unjust and monstrous, and it seems to me it deserves to be remedied. But on turning to Clause12(b) one sees that a very different situation arises. That is, as I understand it, retrospective legislation because it would mean that ante-nuptial contracts made years ago, taking effect after the Bill came into force, would be liable to be upset. I know there are strong objections to retrospective legislation, and this is particularly so when a man may have made his financial arrangements based on an ante-nuptial contract being valid. That ante-nuptial contract is going to be upset under the proposals of this Bill, and it seems to me that that is objectionable. I think—and I say this with diffidence—a misunderstanding arose on this matter when it was discussed in another place, because the answer was given by the noble Lady in charge of the Bill: "Well, if you do not like the ante-nuptial contract of marriage, you can make another one." You cannot very well make an ante-nuptial contract of marriage after you have been married. It may be that if that had been pointed out to her she would not have persisted in that clause. On the general provisions of this Bill I have no other comment; and I should certainly warmly support it. I hope the noble Lord will excuse me from waiting for his reply as I have another engagement.

House adjourned during pleasure.

House resumed.