Commons Amendment (Hansard, 23 July 1969)

§ THE LORD CHANCELLOR
My Lords, it was undoubtedly the law at one time that such a disposition as is referred to in this Amendment was void. The basis has been said to be, alternatively, that it would lead to uncertainty, or that 988 it would cause people to produce profligate illegitimate children. Whether the law is still in force is a matter on which I could address your Lordships at some length. The Master of the Rolls in a recent case said: I have no doubt that such an argument would have been acceptable in the nineteenth century. The judges in those days used to think that if they allowed illegitimate children to take a benefit they were encouraging immorality. They laid down narrow pedantic rules such as that stated by Lord Chelmsford in Hill v. Crook: 'No gift, however express, to unborn illegitimate persons is allowed by law …'. In laying down such rules, they acted in accordance with the then contemporary morality. Even the Victoria fathers thought that they were doing right when they turned their erring daughters out of the house. They visited the sins of the fathers on the children—with a vengeance. Then the noble and learned Lord added: I think that we should throw over those harsh rules of the past. They are not rules of law. They are only guides to the construction of documents. They are quite out of date. We no longer penalise the illegitimate child. We should replace those old rules by a more rational approach. If they are wide enough to include an illegitimate child, we should so interpret them. It being doubtful in that state of affairs whether or not the rule still exists, this Amendment provides for its abolition in accordance with the modern principle that the illegitimate child should not be penalised. My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 3.

VISCOUNT COLVILLE OF CULROSS
My Lords, I read the Report of the debate in another place when this Amendment was introduced, and I think the noble and learned Lord has quoted rather more of the judgment of the noble and learned Lord, the Master of the Rolls, in Sydall v. Castings than was quoted on that occasion. I am not sure that that case was directly on this point. I think it rather covered the general principle of whether or not one interpreted documents so as to include or exclude illegitimate children. There was a certain amount of dissent about this provision on a technical ground, and it rather goes with one of the other clauses of the Bill about which my honourable friend 989 the Member for Hendon, South, was particularly concerned and on which he produced a Minority Report in the Russell Committee Report raising similar points.
I would not suggest for a moment that this Amendment should be disagreed to, but I believe that what emerges most clearly from what was said, both in the debate on this Amendment and in the debate on Part II in general, is that it will be absolutely essential in future (because none of this is retrospective) that those who draft documents into which this type of interpretation might at some stage come should be fully aware of what is in Part II of this Bill. They should also make quite certain that their drafting takes account of the changes in the law which have been brought about by this Bill. It will no longer be apposite or sufficient to deal with the intentions of testators and settlors, and other people, in accordance with rules which have for so long governed these matters—and, indeed, as the noble and learned Lord said, this rule was rather an obscure one. They will now have to be specific, if they do not wish illegitimate children to be included. So long as the legal profession—and anybody else who has to draft deeds of this sort—realises that this is now the situation, then I believe that the intention of the person for whom the deed is being drafted will be adequately safeguarded. But it does depend upon this, as I think the noble and learned Lord will probably agree.

§ THE LORD CHANCELLOR
My Lords, I am in complete agreement with what the noble Viscount has said.

§ LORD LEATHERLAND
My Lords, may I ask my noble and learned friend a question? Does this mean that, if a man says in his will, "I bequeath my estate to my children to be shared between them", then an illegitimate child of his would automatically rank equally with the other children?

§ THE LORD CHANCELLOR
The Amendment really deals with a different case, where a disposition is made in favour of children not yet born; it was only the child who is not yet born who was subject to the previous rule.