§ 2.55 p.m.
§ Report of Amendments received (according to Order).
§ THE LORD CHANCELLOR (LORD GARDINER) moved, after Clause 5, to insert the following new clause:
§ Interim orders on applications under Inheritance (Family Provision) Act 1938 or under Section 26 of the Matrimonial Causes Act 1965. 1938 c. 45. 1965 c. 72.
§ ".—
- (1) After section 4 of the Inheritance (Family Provision) Act 1938 there shall be inserted a new section 4A in the terms set out in Schedule (Interim orders on applications under Inheritance (Family Provision) Act 1938) to this Act.
- (2) After section 28 of the Matrimonial Causes Act 1965 there shall be inserted a new section 28A in the same terms, except that—
- (a) in subsection (1) of the new section the words 'under this Act' shall be replaced by the words under section 26 of this Act'; and
- (b) in subsection (3) of the new section the words 'section 3 of this Act' shall be replaced by the words section 3 of the Inheritance (Family Provision) Act 1938 as applied by section 28 of this Act';
§ The noble and learned Lord said: My Lords, the sole object of this Amendment, and indeed of the succeeding Amendments, is to give effect to a suggestion made by the noble and learned Lord, Lord Denning, during the Committee stage of the Bill, when he told your Lordships that in a recent case the Court of Appeal had been hampered by the fact that the Court was unable to make an interim order. My Lords, it was the case of re Ferrar's Application which was reported in The Times of June 10. In that case there were applications to the High 11 Court both under Section 26 of the Matrimonial Causes Act by a former wife and under the Act of 1938 by the children of the marriage for maintenance out of the estate of the deceased. The proceedings under Section 26 came on first, and the Court of Appeal were not directly concerned with the application under the Act of 1938. The Court held that there was no power under Section 26 to make interim orders, and, although they were not directly concerned with the Act of 1938, it is apparent from the judgment that they would have felt themselves compelled to reach the same conclusion on an application under that Act.
§ The need for the power which is conferred by these Amendments is felt particularly in the case where the husband, or former husband, has been maintaining the applicant up to the moment of his death; the maintenance may thereupon suddenly cease, either because the husband's own source of income has come to an end, and there is a necessary interval before his estate can be gathered in and payments made by the executors, or because the wife was receiving payment under a separation agreement which was expressed to end at the date of his death; or because there is some kind of estrangement between the wife and the executors who are unwilling to make any payments unless they are ordered to do so by the court; or (and this was the case in re Ferrar) because, in the case of a deceased former spouse, an order for maintenance under the Matrimonial Causes Act by way of periodical payments is automatically terminated on the death of the husband.
§ My Lords, in all these cases, the widow or ex-wife may be left in great need for an appreciable time. How long that interval may be will naturally depend on the difficulty of getting in the estate. In a complicated case it may be months, or even years, before the value of the net estate can be accurately estimated and the court is in a position to make a final order. In other cases, the interval may be very much shorter, but there are always bound to be situations in which the widow or ex-wife is urgently in need and in which it is reasonably obvious that an order of some sort will in the end be made in her favour. In such cases there is manifestly an advantage 12 in giving the court power to give her immediate relief.
§ It may, of course, in practice be difficult for the court to form an accurate estimate in the early stages of the amount that ought to be fixed by the final order. It should not, therefore, be readily assumed that the court would always exercise the power conferred upon it by these Amendments. In practice, it will be essential for representation to have been taken out, so that, in the first place, there may be a respondent to whom the order can be directed, and, in the second place, the provisional valuation of the estate for the purposes of the Inland Revenue affidavit may be available to give the court some idea of the size of the net estate. Nevertheless, my Lords, the power is likely to be useful to relieve hardship in an appreciable number of cases. Moreover, since, by the Bill, jurisdiction under the Act of 1938 in respect of small estates is to be conferred on the county court, a poor widow will be able to get an application before the court comparatively cheaply and comparatively speedily.
§ My Lords, the terminology on the Order Paper is, or may perhaps seem, a little complex, but this is only because if the Amendment is to be made, it has to be applied both to the Act of 1938 and to the Matrimonial Causes Act, and, of course, the necessary Amendment is also required to the Keeling Schedule. I beg to move.
§ Moved, After Clause 5 insert the said new clause.—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSSMy Lords, it is a matter of congratulation to the noble and learned Lord the Lord Chancellor that he has succeeded so quickly in implementing the desires of the noble and learned Lord, Lord Denning, on Second Reading, particularly as the difficulty in its final form arose only last month. It is perhaps a pity that the noble and learned Lord's view in the Court of Appeal did not prevail, that legislation is not necessary, but if it is enacted this provision is obviously needed in the Bill.
I would ask the noble and learned Lord two questions. The first is related to the situation under the 1938 Act. It seems to me that, even if the Court is not going to have power to use this 13 new clause until representation has been taken up and somebody knows what there is in the estate, because otherwise the actual terms of the wording of the Schedule cannot be implemented, there may be cases where it is not going to be clear whether or not the general power which governs the whole position and is to be found in Section 1 of the 1938 Act will be applicable at all.
Section 1 gives the Court power only where the disposition of the deceased's estate, either under a will or in intestacy, is not such as to make reasonable provision for the maintenance of a dependant. If a complicated situation arises under the will—for example, if there is a trust, which may or may not be valid—it may look as though it is impossible at that time to say whether there is a disposition which will be unreasonable. It may be unreasonable if the trust finally turns out to be invalid and the law of intestacy is subsequently found to apply, but, until that matter has been determined, I am not quite certain that the Court will be empowered to entertain an application for maintenance under the 1938 Act at all. I am certain that this is not what is required because we want to have the interim power to deal with an emergency situation, in circumstances where it obviously will not do any appreciable harm to the bulk of an estate, and to avoid, for example, the difficulty which the noble and learned Lord, Lord Denning, mentioned last time, of a widow being unable to keep up mortgage payments. I wonder whether it is right to tie the application which is required to bring in this interim power, to an application for maintenance under the 1938 Act. It may be that there ought to be a specific power to apply for an interim order simply under this clause.
I see the difficulty that if we do that, we may be giving the Court power to deal with a situation where in due course an adequate amount of money will be available to the dependant which is merely held up, but I am not sure that I see any great difficulty or disadvantage in doing that. Suppose there is the estrangement, which the noble and learned Lord mentioned, between the widow and the executors and for some reason they refuse to give her any money although in due course she will be entitled to a large amount. Why is it that we are taking power under this Amendment to allow 14 her to make application for an interim order in these circumstances? I believe that this should not be necessary. I shall be grateful if the noble and learned Lord the Lord Chancellor will give his view on this, because I am sure that we want to get this right.
My second point applies equally to the 1938 Act and to the Matrimonial Causes Act of last year. The essence of interim orders under this new provision, I have no doubt, is that they must be flexible. Perhaps, in the first instance, it is the wife or widow who applies and then someone else may come along, a dependant within the terms of the Act, and wish to make another application on his own behalf. In these circumstances, the Court may feel that the original order ought to be varied to take into account any money which it orders to be paid on a temporary basis under the second order. I realise that the order the Court makes is subject to the conditions in the order itself and to any further order. But is the noble and learned Lord the Lord Chancellor certain it is clear in this provision that there is power to make any application at any time, that once an application has been made by one person for an order it would be possible to make another under this provision.
I hope that these two points are of substance. If they can be dismissed as being unnecessary complications in a measure which is already satisfactory, then I am content, but I hope that the speed of drafting this may not have led to a slight rigidity in this proposed new clause which I feel ought not to be there.
§ LORD MITCHISONMy Lords, may I, with great diffidence and off the cuff, ask another question? Is my noble and learned friend the Lord Chancellor satisfied that there is no case for a general look at the power to make interim dispositions and interim orders so as to avoid hardship? If not, it would probably be a matter for the Commission dealing with law reform. I have an impression that in matters of this kind we are rather better at preserving property than at avoiding hardship.
§ THE LORD CHANCELLORMy Lords, on the first point, which was raised by the noble Viscount, he was good enough to tell me that he was anxious to make sure that the widow will not be debarred from getting an interim 15 payment solely by the fact that at that stage she cannot say whether the deceased's will does or does not make reasonable provision for her. As he has told us, he has in mind the possibility that there may be a substantial doubt about the validity of some of the bequests made by the will. I have consulted the Chief Chancery Master on this point and he assures me that the noble Viscount's fears are not well grounded. It is by no means unknown for a claim for maintenance to be made while a construction summons is pending. In the Chancery Division arrangements are made to keep both proceedings before the same Master. At present, it may be necessary to defer the decision on the application for maintenance until the construction summons is disposed of, but this would not be the case if there were an application for an interim payment. The Court would have to deal with it on the facts of the particular case and, where appropriate, make an interim order before the constructions summons was disposed of. In view of that, I think that I should be justified in assuring the noble Viscount that the case he has in mind is provided for by the Amendment.
On his second point, subsection (1) expressly refers to the order being subject to further orders, and again I am advised that it is quite clear that a further order can be made at any time by an interested party. I hope, therefore, that the noble Viscount will be satisfied with these assurances.
With regard to the point raised by my noble friend Lord Mitchison, there may be something to be said for having a general look to see whether the courts should always and in every case be able to make an interim order. He suggested that it might be a proper matter for the consideration of the Law Commission and, if I may, I will take it up with them.
§ Clause 6 [Extension to county court of jurisdiction under Inheritance (Family Provision) Act 1938 and s. 26 of Matrimonial Causes Act 1965]:
§ THE LORD CHANCELLORMy Lords, this Amendment is consequential upon the previous Amendment. Its total effect will be that Section 26(6) of the Matrimonial Causes Act will now begin: 16
In this and the three next following sections—'Court' includes 'County Court'".I beg to move.
§ Amendment moved—
§ Page 5, line 32, leave out ("after the words 'In this and the next following section'") and insert ("as the first of the definitions there set out").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 7 [Amendment of reference in Inheritance (Family Provision) Act 1938 to adopted children]:
§
THE LORD CHANCELLOR moved to add to the clause:
(2) Accordingly in clause 26(6) of the Matrimonial Causes Act 1965 (which provides, among other things, for the word 'dependant' to have the same meaning as in the Inheritance (Family Provision) Act 1938) after the words the Inheritance (Family Provision) Act 1938' there shall be inserted the words 'as amended by the Family Provision Act 1966'.
§ The noble and learned Lord said: My Lords, this Amendment applies expressly to Section 26 of the Matrimonial Causes Act 1965 the extended meaning of adopted children provided for in Clause 7 as drafted. Under Section 26(6) the definition of "dependant" in the Act of 1938 is attracted for the purposes of Section 26 itself and Section 27. "Dependant" is expressed in Section 1 of the 1938 Act to include sons and daughters and, under Section 5(1) of that Act, "son" and "daughter" include an adopted son or daughter. The original description for this purpose of adopted children has been extended by subsequent adoption legislation to include children adopted under orders made anywhere in the United Kingdom, the Channel Islands or the Isle of Man.
§ That extended description already operates for the purposes of Sections 26 and 27 of the 1965 Act. It might, however, cause confusion (and would certainly cause inconvenience) if this expressly extended description as set out in Clause 7 for the purposes of the Keeling Schedule were not also expressly extended to the Act of 1965: it is plainly for the convenience of practitioners and others who may wish to ascertain which adopted children are covered by either Act to be able simply to refer to the Keeling Schedule where the answer to the question is set out in express terms. But if Clause 7 were left as drafted, the 17 practitioner faced with the same question in relation to the Act of 1965 would have to go back to the original form of the Act of 1938 and see how it had been extended by the subsequent adoption legislation, instead of referring at once to the Keeling Schedule. He would, in effect, reach exactly the same conclusion, but by a much more roundabout route.
§ I beg to move.
§ Amendment moved—
§ Page 6, line 14, at end insert the said subsection.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, before Schedule 1, to insert the following new Schedule—
§ "Interim orders on applications under Inheritance (Family Provision) Act 1938
§ (1) Where on an application for maintenance under this Act it appears to the court—
- (a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made on the application for the provision of maintenance for the applicant; and
- (b) that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant;
§ (2) In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, take account of the same considerations as would he relevant in determining what order should be made on the application for the provision of maintenance for the applicant; and any subsequent order for the provision of maintenance may provide that sums paid to or for the benefit of the applicant by virtue of this section shall he treated to such extent, if any, and in such manner as may be provided by that order as having been paid on account of the maintenance provided for by that order.
§ (3) Subject to subsection (2) above, section 3 of this Act shall apply in relation to an order under this section as it applies in relation to an order providing for maintenance.
§ (4) Where the deceased's personal representative pays any sum directed by an order under this section to be paid out of the deceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment. unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient."
18§ The noble and learned Lord said: My Lords, this Amendment is really covered by what I have already said in relation to Amendment No. 1. This Schedule contains the terms of the new Sections 4A and 28A inserted by the new clause in the Act of 1938 and the Act of 1965 respectively. The reason for inserting these new sections I have already explained. I beg to move.
§ Amendment moved—
§ Before Schedule 1, insert the said new Schedule.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, all this Amendment does is to insert in the Keeling Schedule the new Section 4A of the 1938 Act. I beg to move.
§ Amendment moved—
§ Page 10, line 43, at end insert—
§ Interim orders
§ ("4A.—(1) Where on an application for maintenance under this Act it appears to the court—
- (a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made on the application for the provision of maintenance for the applicant; and
- (b) that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant;
§ (2) In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, take account of the same considerations as would be relevant in determining what order should be made on the application for the provision of maintenance for the applicant; and any subsequent order for the provision of maintenance may provide that sums paid to or for the benefit of the applicant by virtue of this section shall be treated to such extent, if any, and in such manner as may be provided by that order as having been paid on account of the maintenance provided for by that order.
§ (3) Subject to subsection (2) above, section 3 of this Act shall apply in relation to an order under this section as it applies in relation to an order providing for maintenance.
19§ (4) Where the deceased's personal representative pays any sum directed by an order under this section to be paid out of the deceased's net estate, he shall not be under any liability by reason of that estate not being sufficient to make the payment, unless at the time of making the payment he has reasonable cause to believe that the estate is not sufficient.".—(The Lord Chancellor.)
§ On Question, Amendment agreed to.