§ 4.54 p.m.
§ The LORD CHANCELLOR
My Lords, I beg to move the Second Reading of this Bill, which implements a Report of the Law Commission and is designed to make important reforms in the law of family provision on death. I should like 918 once again to acknowledge the debt which we owe to the Law Commission for their carefully argued recommendations and for their admirable habit of accompanying their Reports with draft Bills, which so happily smooth the path of legislation.
My Lords, the law of England and Wales has for a long time past adopted the general principle that a person is free to dispose of his property by will as he or, indeed, she thinks fit. I describe that as the general principle, because some features of the old and more restrictive property law, such as the widow's right of dower—that is, the life estate in one-third of her husband's real property— and the widower's corresponding right of curtesy, lingered on until they were finally abolished by the property legislation of 1925. After that legislation in 1925, it was possible for a person to give all his property by will to a charity or to individuals outside his family. For example, he could give it to a cats' home or to a mistress—not that I have anything against cats!—and to leave his surviving spouse and children totally destitute. Until 1938, the law gave no remedy to the family in those circumstances.
However, in 1938, the Inheritance (Family Provision) Act introduced a new principle. Without overruling the terms of the will, it gave the surviving spouse and the dependent children the right to apply to the court for maintenance out of a deceased person's estate. These rights are discretionary and they are also temporary. They last only until the surviving spouse remarries or dies and the children cease to qualify as dependent. Thereafter, the provisions of the will are restored to their full authority, although the value of the estate may have been depleted where an order for maintenance has taken the form of a lump sum payment.
Over the years since 1938, the law has been developed by amending legislation and gives greater protection to the family and to dependents. For example, since 1952 the courts' powers have applied also to cases of intestacy, where the law of intestate succession has failed to make adequate provision for the family. In 1958, the right to apply for maintenance out of a deceased's estate was extended to a former spouse who had not remarried, and in 1969 an illegitimate child was given the same rights as 919 a legitimate child to apply for maintenance from the parent's estate. On these and other points, the system has been improved, but its scope still remains limited in a number of very important respects.
My Lords, the Law Commission started its review of the law on family property by asking whether the existing law adopts the right approach. In a comprehensive working paper published in 1971, they considered, among other things, whether the law of family provision should be replaced or supplemented by fixed rights of inheritance, whereby perhaps one-third or one-half of the estate would pass automatically to the surviving spouse and a further proportion to the children. They also considered the principle under which the spouses would share some, or all, of their assets on marriage or, in the case of " deferred community", have defined rights in those assets when the marriage ends in death or divorce. Each of those systems is found, as your Lordships will know, in other countries.
The Law Commission concluded, however, in the light of their usual wide consultation, that neither of these principles should be adopted in England and Wales, except that the matrimonial home should normally be subject to co-ownership between the spouses, and they have promised us a further report on that. They proposed, instead, that the law of family provision should be retained and improved in important respects. It is the purpose of this Bill to make the improvements which the Law Commission have recommended, and to collect the law into a single Statute.
There are four principal changes effected by this Bill. First, it raises the standard of provision which can be made for a surviving spouse and equates it more closely to that which can be made for a divorced spouse in matrimonial proceedings. It was indeed a central part of the Law Commission's thinking that the court's powers over a deceased person's estate should be assimilated, so far as practicable, with its powers over the family assets on divorce. Secondly, it enlarges the class of persons who may apply for maintenance from the estate, to include all children of the deceased (and not only those who through age or disability were dependent on him) and to 920 bring in any person who was dependent on the deceased, whether or not related to him. This will remove the hardship which can arise under the existing law whereby no provision can be made for a distant relative, or a non-relative who may have looked after the deceased for year,s often without reward, and has become financially dependent upon him but derives no benefit under his will.
Thirdly, the Bill gives the court wider powers to make whatever order may be appropriate in the circumstances, whether in the form of periodical payments, a lump sum, a transfer or settlement of property, or variation of a previous settlement. Fourthly, to make these wider powers effective, the Bill makes additional property available for the purposes of financial provision: for example property which the deecased owned jointly with others, and property which the deceased had disposed of in his lifetime with intent to defeat claims for family provision. Those are the central features of the Bill. The basic theme is that the courts should have a wide discretion to deal with each case on its merits, freed from many of the restrictions which the existing law contains. This discretion is to be exercised with the help of some extensive guidelines contained in the Bill.
I turn now briefly to the clauses. Clause 1 specifies the persons who may apply to the court for financial provision from a deceased person's estate— and they are: a surviving spouse ; a former spouse who has not remarried ; any child of the deceased, and any person treated by the deceased as a child of his family ; and any person who was wholly or partly maintained by him at the time of his death. Those persons can apply to the court on the grounds that the will or law of intestacy (or a combination of both, where the deceased died intestate as to part of his property) does not make reasonable financial provision for them. Subsection (2) explains that in the case of a surviving spouse the court can make such financial provision as it would be reasonable for that spouse to receive in the circumstances, and in all other cases can award whatever is necessary for the applicant's maintenance. Remarriage will not automatically terminate a provision made for a surviving spouse, as it does under the 1938 Act, but this might 921 give rise to an application to vary or discharge the order.
Clause 2 sets out the various types of order which the court can make, where it is satisfied that the application is well founded, in exercise of the wider powers whch I have already described. Clause 3 contains extensive guidelines for the exercise of the courts' discretionary powers in the various situations which may have to be considered. Subsection (1) sets out the matters which will generally be relevant, and subsections (2), (3) and (4) provide for additional matters to be considered in particular cases—for example, in the case of a surviving spouse, the duration of the marriage and the contribution made by the applicant to the welfare of the family ; in the case of a child any educational commitments and prospects; in the case of a dependent outside the immediate family the basis upon which the deceased assumed responsibility for that person's maintenance. Clause 4 sets a time limit of six months as the normal period during which applications must be made, but gives the court power to extend it. Clause 5 enables interim orders to be made in cases of financial need.
Clause 6 enables an order for periodical payments to be varied or discharged on the application of any of the persons listed in subsection (5)—that is to say, any person who did, or could have, made an application to the court, the personal representatives, the trustees of any property and anyone benefically interested in the estate. Clause 7 provides for lump sums to be made payable by instalments and enables those instalments to be varied as required. Clause 8 enlarges the definition of the deceased's ; " net estate " by including in it property which he has nominated in favour of any person under any of the enactments (such as those relating to National Savings) which provide for such nomination and property which he has disposed of by a donatio mortis causa, which, as all noble Lords will know, is a conditional gift made by the donor in contemplation of his own death. Clause 9 includes the deceased's severable share of property held on a joint tenancy.
Clauses 10 to 13 contain the new powers which I have already mentioned, to recall, for the purposes of financial 922 provision, property disposed of by the deceased without full valuable consideration and with the intention of defeating claims for family provision. Similar powers already exist in matrimonial cases, and the Law Commission recommend that the principle should be extended into this field. The questionable transactions may be either outright dispositions made within six years of his death or, as sometimes occur, contracts to leave property to a certain person in his will. Clauses 14 to 18 contain special provisions for cases where the deceased's marriage has been the subject of matrimonial proceedings in which the courts have made or approved financial arrangements between the parties and enable the court to review the position. I do not think that any point of principle arises in these clauses, but we can discuss them in Committee if there are any points arising upon them.
The remaining Clauses 19 to 26 are miscellaneous and supplementary. Clause 25 introduces the Schedule, which repeals the existing law on family provision and leaves this Bill as a self-contained code of law. This is in itself a substantial benefit, flowing from the Law Commission's labours for which we are grateful— quite apart from the reforms I have mentioned which are embodied in the Bill. I believe that this Bill will make the law more flexible and better able to meet with justice and with compassion the financial responsibilities which the deceased has failed to discharge towards his dependants. My Lords, that is the outline of the Bill. I commend it to your Lordships as a useful measure of law reform, and of codification, and 1 beg to move.
§ Moved, That the Bill be now read 2a —(The Lord Chancellor.)
§ 5.9 p.m.
§ The Earl of MANSFIELD
My Lords, as the noble and learned Lord observed, this Bill gives the courts very much greater and wider powers in relation to those who, on the death of a testator, or somebody who has left no will, feel they have not been left, so far as their future is concerned, in as advantageous a position as they might have been. As such, it is a matter which is considerably less contentious than those we dealt with last week and to which, I fear, we shall come back next week.
923 Speaking entirely for myself, it is a pleasure to debate something which is of interest and comparatively non-controversial. As the noble and learned Lord observed, the effects of this Bill will enable the courts to give relief, if that is the word, to a very much wider class of persons than any previous enactment has provided. In fact the matter goes further than that. The courts will, when this Bill becomes law, make provisions which are very much wider in character than ever before; and an illustration of that might be provided, perhaps, in Clause 2(1) of the Bill, where, in fact, orders in effect for a settlement to be set up or for the transfer of property may be made by the court.
One is bound to observe that the class of those who can seek relief in Clause 1 is now very wide indeed. For instance, it now includes step-children, as I understand it, and perhaps that is quite right; and it also includes in subsection (3) a person who has been maintained by the deceased either wholly or partly. One of the evening newspapers, when this Bill was first contemplated, described it as a "mistress's charter". The noble and learned Lord was careful not to say that all the world loves a lover; but, so far as this Bill is concerned, lovers are given a much fairer crack of a whip than ever before. I appreciate that the behaviour of such persons has, in fact, been taken into account in Clause 3(l)(g) and I shall come to that in a few minutes.
One matter, which might be a Committee point, I feel should be pointed out. There is no fetter on the powers of the court so far as children are concerned as regards an upper age limit. As I read the Bill, it would be perfectly in order for a court to order the maintenance of step-children well past the age of adulthood for as long as it considered fit provided they suffered from some disability. That would be excellent; but one feels in a way that it might have been an idea to have specified an upper age limit, at least for the maintenance of children who are not directly children of the deceased.
My Lords, I come now, shortly I hope, to the reasonableness, or lack of it, of the provisions which exist before the making of the application, to people who seek relief. Bearing in mind that people who make provision for those who come after them, as I suggest, usually wish 924 to do the best by those to whom they are going to leave their money, I, for one, was a little disappointed by Clause 21 of the Bill which the noble and learned Lord—I certainly do not say this in any criticism—went through very quickly. In a way, I should have preferred Section 1(7) of the old 1938 Act which, as it were, stated perfectly plainly that the court shall have regard to the deceased's reasons for doing or not doing what he did. That is a matter to which perhaps we may return at the Committee stage of the Bill.
The next matter that I wish to deal with concerns Clauses 10 and 11. As noble Lords will be aware, these relate to the powers of the court in relation to transactions intended to defeat applications for financial provision; and the period of time in which the court can, as it were, reverse previous gifts or settlements is six years. The matter was considered by the Law Commissioners and at Paragraph 200 they gave it as a provisional view that there should be no time limit on the transactions which could be investigated but the presumption would apply only to transactions within three years before the death. It is fair to say that the Commissioners eventually reconsidered that in the next paragraph ; but I should have thought, with respect, that that was a better and fairer period than the three years. One can illustrate the matter, perhaps, by saying that, for instance, somebody who owns a farm or land of some kind might, well before his death, want to get everything settled so that the farm could continue to be managed properly by his son. It would be a possible act of injustice if, let us say, five years after he had passed his property on to his son, on his death some other relative or person who comes within the class of Clause 1 were to come along and seek to upset all the arrangements which had been made, bearing in mind that it may be difficult for the donee in such circumstances to realise enough capital (if there were to be an order for that kind of settlement) to pay it.
The only matter that I would ask about —and I scarcely dare refer to it—is the capital transfer tax. If I may postulate the situation I described before, it may be that the deceased (as I shall call him) 925 five years before his death makes provision for his son, gives his son the farm, pays the capital transfer tax which will now be payable when the gift is made, and leaves him with enough working capital to run the farm as his business. Under the amelioration, as I should call it, of the provisions which were enacted in another place, certain fairly complicated rules for the working out of this tax were enacted. If a settlement is made by a court five years later, then, as I understand the position (and it may be that I have not understood it correctly) the whole of the computation may be at risk. One wonders whether, as in the old Act, some reference should not be made to that state of affairs. Subject to what I hope may be described as these probing points rather than criticisms, perhaps I can venture diffidently to give this Bill a welcome.
§ 5.18 p.m.
§ Lord SIMON of GLAISDALE
My Lords, may I venture to say a few words in welcome of this Bill and to congratulate the Government on having introduced it so rapidly. It is an instalment, and only a first instalment, of a much-needed reform of our law of family property. The more important parts are still to come. To a certain extent, this Bill codifies the existing law. I think that in doing so, it clarifies it in a valuable way and, speaking for myself, such changes as it makes seem to me to be improvements almost entirely. Your Lordships will probably gratefully accept it for what it is and for what it does, and as a precursor of the more important reforms which are still to come.
Your Lordships will remember the striking passage at the opening of Aldous Huxley's famous novel, ironically entitled, Drove New World, where one goes into a laboratory and sees all the children in test tubes being treated so that they are differentiated into the various grades where they will be required in society. Our own society depends on the family for the engendering and upbringing of children, and that has important economic as well as social effects. It involves a division of labour between husband and wife. The wife bears the children and generally plays the main part in rearing the children during their early childhood. That divi- 926 sion of labour therefore impairs the wife's economic capacity and releases the husband for his own economic advancement.
My Lords, a functional division of co-operative labour of that sort calls in justice for the sharing of the rewards of the labour. The breadwinner is morally bound to share the loaf that he has been freed to gain. He is bound during his lifetime, and he is bound if he makes accumulation after his death. Our own law has been woefully defective in vindicating the wife's right—and when I speak of a " right " that is not an abstract right; it is a right arising from the very nature of the functional division of labour.
Again, the children do not ask to be brought into the world and their upbringing is necessary for the continuity of society. Our law has been woefully defective in vindicating the children's right in the realm of property. It was not always so. There was a time when our law was similar to that in Scotland, when the property of a deceased was divided into three parts— the wife's part, the bairns' part and the dead's part, as it was called, and it was only that third part of which he was free to dispose freely, as is still the case in Scotland as I understand. But about the 17th century we lost that system gradually and entirely, and substituted for some centuries a system of unbridled testamentary licence. The noble and learned Lord on the Woolsack mentioned the cats' home. I must be very careful, because I can remember once using that very phrase in dictating an address on this subject and I noticed my secretary stopped taking down what I was saying, because she thought it was entirely reasonable that a cats' home should be supported by testamentary bounty. Nevertheless, even the greatest animal lover would think, I suggest, that the first duty was to the family.
Then, as the noble and learned Lord said, in this century—first in the Commonwealth and then, belatedly, in this country—we put some curb on the testamentary licence by a system of discretionary provision. That has been extended in the way that the noble and learned Lord explained so clearly. Nevertheless, the system still has very serious faults, some of which the noble and learned Lord described and which are put right by this Bill, as I think beneficially. One which 927 he did not mention is the fact that there are two Divisions of the High Court which, up till now, have been concerned with this law—the Chancery Division under the 1938 Act, and the Family Division under the postwar legislation relating to divorced spouses. That is particularly anomalous in that where there is a divorced wife and children, the wife goes to the Family Division and the children have to go to the Chancery Division, so you have two separate courts dealing with one estate. The Law Commission recommended that all applications under this Bill when it is enacted should be to the same Division— namely, the Family Division— and I respectfully agree with that. That matter is not, so far as I can see, dealt with by the Bill. I imagine it will be dealt with by Rules of Court and I should be very grateful if the noble and learned Lord on the Woolsack could tell us whether that is the intention.
My Lords, I mentioned that the reform of family property is urgent. It is all the more urgent because of divorce reform. This is not a suitable occasion to debate those issues, which arouse considerable controversy. But what is beyond question is that the recent divorce reform brought into our law for the first time a system whereby a man could take advantage of his own wrong to cause hardship to another person—a woman, his wife—and the law would lend him assistance. Obviously that was unacceptable, unless something was done about matrimonial property, and something was done; although the law still cannot assist a married woman who is solely relying on her husband's pension, which she has enabled him to earn by her share of the functional division of labour. It can assist her only if the loss of that pension would cause not merely hardship but grave hardship, and not always then. Nevertheless, substantial reforms were made in the law of property on divorce; but the effect of that was to make the position of a divorced wife far more favourable than the position of a wife of a subsisting marriage. That makes this Bill very necessary, and the ensuing Bill dealing with the actual property during the lifetime of the spouses and the subsistence of the marriage. I confess that I am still in favour of community of property, although I would very readily accept a division of joint ownership of the matrimonial home 928 and its contents, which I believe would cover about 90 per cent, of the cases that would fall for consideration, and, at any rate, as the first instalment.
I venture to echo what the noble and learned Lord on the Woolsack said about the Law Commission. Its establishment was a brilliant stroke of statesmanship. It has made very valuable contributions to the development of the law. Its first incursions into family law were, perhaps, not particularly felicitous, largely because of an ideological imbalance in the Law Commission, which has now been rectified. This project seems to me to be wholly beneficial. We are very greatly in the debt of the Law Commission, and I should like to welcome this Bill.
§ 5.31 p.m.
My Lords, I am sure that your Lordships will be, as I am, very grateful to the noble and learned Lord the Lord Chancellor for the manner in which he so fully described the provisions of this Bill. He was lucid and clear, and I am sure that both lawyers and laymen will be indebted to him. I should also like to thank the noble Earl for his contribution, together with that of another old friend, if I may say so, the noble and learned Lord, Lord Simon of Glaisdale.
This is a very interesting Bill, not merely because of its provisions but because of the depth of its purport, particularly relating to family relationships. I speak as a solicitor. The Law Society and the members of my own Committee in Parliament, the Solicitors' Group, welcome this Bill for reasons which may not be entirely obvious to those noble Lords who have spoken but which, nevertheless, lie at the root of what we are discussing.
In the course of over 50 years' experience in that branch of the profession, I have seen many changes. At one time we were the profession to whom the whole family came for advice: a solicitor was consulted by families practically from the cradle to the grave, and he was able to give them advice. Solicitors were able to give guidance in respect of the matters we are discussing today. It is interesting for me—and no doubt also for my colleagues in that profession—to see how the Law Commission has grasped what we have experienced year in and year 929 out while, after very careful consideration of all the circumstances, giving advice which has been sought in a solicitor's office on how clients should arrange for the disposal of their estate, after death.
Much of what has been set down in this Bill has been discussed with such clients. It is a very human problem and I would entirely agree that it is a family matter. People would come into a solicitor's office and ask: "What are we to do about this? "They would ask for advice on matters concerning not only their own children or wives but very often concerning children by a previous marriage, illegitimate children and other relatives. They would contemplate for a very long time what they were to do in respect of the division of whatever they were to leave when they died. I have known people change their wills 10, 11 or 12 times in an attempt to be fair. On the other hand, one has come across people who have been vindictive and determined that some members of their families should not be supported, because of some offence which may have been given to the testator in the course of their life. It has sometimes been a difficult task to try to persuade such clients— not in a sense of exerting undue or unreasonable influence but by using arguments of a reasonable nature— not to disregard the means of relatives against whom they may have a dislike, although sometimes even based on proper reactions but which, nevertheless, overlook the fact which has been so well pointed out during this debate, that the family is responsible for its members. Often it is not the family members who have produced the difficulties, but the parents who have produced children and others in the family who have contributed towards general bad family relationshps.
Therefore those who have experienced this kind of matter will be grateful to the Law Commission, which has given such excellent service generally on these and other matters, for their consideration of these problems and for the conclusions they have reached. I should like to say quite categorically that from conversations I have had with fellow practitioners and with persons in the Law Society, it is clear that they feel this Bill is an excellent Bill which—with, perhaps, some Amendments which may emerge in 930 Committee— commends itself to the whole House.
I should like to refer to two aspects of the matter. I want once again to endorse what the noble and learned Lord, Lord Simon of Glaisdale, has said about the necessity for a Bill of this nature, as it were, codifying the law as it now stands. This will be very valuable not only to the practitioner but to the man in the street if, for the benefit of the latter, the Government will produce a document similar to those produced for example in respect of the rent acts, explaining the provisions of the Bill. In the case of a Bill of this nature, which I am sure will ultimately become an Act, it is most important that the public should know exactly what are its provisions, because then they can form their own judgment about how they wish to distribute the assets which are left when they die.
I do not wish to detain the House any longer, although there is a great deal which could be said about this Bill. I am glad, of course, that, for the reasons which I have explained, the law itself is now to be included in one Bill. In passing, perhaps I should say that I am very proud of the fact that one of the Commissioners happens to have been an articled clerk of mine some years ago. Perhaps I ought to declare an interest in that regard! But speaking seriously, we are greatly indebted to the Commissioners. Although I have not had time to consider some of the points which have been made by the noble Earl and by the noble and learned Lord, Lord Simon of Glaisdale, I am sure that the country will be pleased to know that these provisions are being made and that special regard has been paid to the human aspect which is so very important in these matters.
§ 5.41 p.m.
Baroness WARD of NORTH TYNE-SIDE
My Lords, I apologise for not having indicated that I should like to take part in this debate. What I have to say has nothing to do with the legal side; I speak because I feel that a tribute ought to be paid to the originator of the 1938 Act. I am not a lawyer; therefore, I would not dream of trying to make any comments on the points of view which have been put forward by noble and learned Lords this afternoon. However, 931 having been in the House of Commons for a very long time, I feel that tribute ought to be paid to Eleanor Rathbone who in 1938, when the first Bill was introduced, was arguing—because in those days women Members of Parliament had to argue very hard indeed—for that Bill. Today we have been discussing the Acts which followed her original one. As it is International Women's Year, it would be a great pity if the name of Eleanor Rathbone was not mentioned in this very important debate. When one introduces new Bills, one wishes to pay tribute to those who thought out the first idea. It is a long time ago now; 1938 is over 30 years ago. Although my memory is a little rusty now, I still remember Eleanor fighting so hard for her view which was eventually adopted and reached the Statute Book.
Another point which I should like to make is that when a new idea—and Eleanor Rathbone's idea really was new at the time—becomes the law of the land, the first Bill, since it is dealing with a new idea, does not foresee all the repercussions ; nor, indeed, when it is first introduced does a new idea embody in law all the improvements needed after the Law Lords have had time to consider all the implications, and after the legal profession has had experience of putting a new Act and a new creative idea into operation. One of the advantages of our democratic system is that finally we get a firstclass Bill, after all the best brains in the legal profession have had an opportunity to look at its operation both on the human and on the legal side.
I regret that it has taken so long to introduce this new Bill, which I am sure the legal profession will be proud to place on the Statute Book. It is a little sad that a Bill of this kind, which vitally affects so many men, women, children and relatives over a very wide field, should have taken over 30 years to reach this House. When I heard the noble and learned Lord, Lord Simon, say that this is only the beginning of dealing with the property issue, I thought to myself, "I do not suppose I shall be alive to see another Bill dealing with this matter come into operation ".
However, I have risen to my feet only to say that, had she still been alive, Eleanor Rathbone would have been fasci- 932 nated and would have approved of the development of her idea into the best kind of Bill which the Law Lords and all the great people of the legal world could have produced. I thought it would have been unfair— partly because I have lived so long—if Eleanor Rathbone's name had not been mentioned. I dare say that Members of your Lordships' House today hardly remember her name, but because we like to pay tribute to those who are progressive and who have ideas which make for better conditions for a very large number of people, I believe it is right that her name should be remembered. I thought that Peers would not mind if I paid tribute to Eleanor Rathbone. I am delighted that on this occasion her idea has developed so far and that in a new law everybody is trying to make the best legal definition of her idea, for which she had to fight so many years ago.
§ 5.49 p.m.
§ Lord WILBERFORCE
My Lords, may I beg the pardon of the noble and learned Lord for not putting my name on the list. I was not going to speak until I saw the flood of law reform flowing so torrentially that I felt a word of caution might not be out of place. If one is concerned with the right of a man to dispose of his property by will, there are two main approaches which the law can take. One approach, which is quite a respectable one and which has been in our law for many years, is to say that, on the whole, a man is the best judge of where his property should go. I am always a little surprised to find people who are in favour of reform buttressing that argument by saying, "Oh, well, the family is the great unit in social life; we must buttress the family " and at the same time seeming to say that a man is not the best judge of how his property should go to his family. However, there is the other view, that a man is not to be trusted not to leave his property outside his family— to a cats' home, or to a mistress— and that the law must paternalistically intervene.
If one is taking that line, then for my part I have always thought that there is a great deal to be said for both the Scottish and the French systems which intervene, and quite firmly say that a proportion is to go to the wife, a fixed proportion to the children and so on. 933 That makes for uniformity, avoids disputes and, on the whole, it works exceedingly well. In English law we have departed from both those systems. We are interfering with the freedom of testamentary disposition. We are not yet ready to adopt a fixed system similar to the French or the Scottish. We have gone for a typical English compromise, such as the one found in the 1938 Act, and now to be found in this new Bill, under which we leave it to the courts to decide what it is fair, right and reasonable to make by way of financial provision for a man's family. Of course, all that sounds very nice, and one can use the words "fair and reasonable" and "financial provision"; and you can set out a list of considerations. But I should like to assure your Lordships that it is not all so easy as that.
I am speaking as one—I think the only one here—who has actually administered the 1938 Act, and who has sat in court trying to decide cases under it. It really is a very difficult jurisdiction. In the first place, it has the disadvantage that it places a premium upon those persons who can go to good legal advisers, prepare a good legal case and make a good presentation before the court. It certainly encourages disputes between families. It is also a very difficult jurisdiction for the judge to exercise.
We are given in Clause 3 of this Bill a whole list of considerations which are meant to guide the judge. But I can assure your Lordships that when one is sitting there and trying to make up one's mind what is fair and right for a particular man, of whose life history one knows little, what it is fair and right to do as regards his divorced wife, his widow, a possible mistress, illegitimate children—to decide how to distribute the merits and demerits between these people is painful and exceedingly difficult. I am by no means certain that one is able, in many cases, to reach the right result. All one can do is to do one's best and hope that the result is what it should be. But it is not an ideal solution. It is not made ideal by using words such as "fair", "reasonable", "just", and so on. The difficulty of bringing about a good result remains very intense.
My Lords, having legislation such as we had in 1938, of course I am in favour 934 of bringing it up to date and putting it all in one Bill. But I just want to make one or two points about this Bill. One other consequence of legislating in this way, from 1938, to intestacy in 1952 to other cases here, is that one tends to build up too complicated a structure— another example (of which we have so many and about which we are always complaining in this House) of over-legislation. I feel that in this Bill there is a measure of over-legislation.
We have here Clause 10 and onwards which devote page after page to dealing with evasions— again, a theme which is always being developed in this House. The moment something happens, we begin to think of people finding a way round and we enact three enormous clauses designed to stop people making dispositions with the intent of defeating applications. We have a whole clause, if you please, dealing with contracts for leaving property by will— a very rare type of transaction, of which there are few cases in the books. There was one a few years ago, and that is what has prompted this clause, again a form of legislation which I deprecate; that is, legislating by reference to a particular case. Do we really need one and a half pages dealing with contracts for leaving property by wills?—the rarest form of transaction known to the law, I should have thought. Then there are Clauses 10, 11 and 12 which are the difficult clauses in that context.
Finally, there is the point which I would think to be very important, which was mentioned by the noble Earl; that is, Clause 21 which makes certain documents admissible. It surely is extremely important and a matter of principle, not a matter of detail, that the court should have express power to take into account any wishes expressed by the deceased— something which in the 1938 Act was extremely beneficial for the court tried to decide what was the right thing to do. I agree with the noble Earl about not finding it in this Bill. I do not see it in Clause 3, and I do not think it is in Clause 21. If its omission has the effect of giving a wider, more general unfettered and undirected discretion to the courts, it is a pity and I hope we shall put it back. I venture to say this because it seems the pace is getting rather furious in these matters.
935 I hope we shall look at the Bill rather critically, and see whether it does not over-legislate in some respects, but by all means let us give it a welcome. We have this jurisdiction and the Government have done well to bring it up to date and give us one single piece of legislation. In that sense, I am very willing and glad to give the Bill my support.
§ 5.56 p.m.
§ The LORD CHANCELLOR
My Lords, I am grateful for the support which noble Lords and the noble Baroness have given to this Bill, muted as the support was by the noble and learned Lord, Lord Wilberforce, in certain passages of his speech. A number of probing points were raised by the noble Earl, Lord Mansfield, which I will deal with in Committee, including the interesting reference to the implications of the capital transfer tax, which I know he will forgive me for not developing at this stage.
The noble Earl made a reference to the possibility of this Bill going down to posterity as a mistress's charter. However, it is not a charter for promiscuity. Noble Lords will have observed that, in Clause 3(1)0?) of the Bill, the court, in dealing with an application for financial provision, is entitled—indeed, is required —to take into consideration the conduct of the applicant. In its Report, the Law Commission, in dealing with how that matter should be considered by the court, took the view that there should be much the same approach in interpreting that part of the Bill as there is in considering the nature of the conduct which will be relevant in matrimonial proceedings. They expressed the view that the test which ought to be applied in determining the relevance of conduct is, to quote the words of the noble and learned Lord, Lord Denning, whether… it would be repugnant to anyone's sense of justiceto make an order for financial provision. Applying that test, it is unlikely, therefore, that this would be a charter for promiscuity.
My Lords, as my noble friend Lord Janner indicated from the breadth of his long experience as a solicitor, there have been a large number of cases of devoted women who have looked after men of 936 property, and men with certainly property to leave, for year after year, where the emotional link between them was marginal, and yet they are left totally unprovided for on the death of the person for whom they have been, in many cases, the devoted and willing slave. Of course, that has been one of the many defective features in the law up till now, It is right that the noble Baroness, Lady Ward, should have paid tribute, as she has done so eloquently, to Eleanor Rathbone. I am delighted, if I may say so, to see that the translation from another place to this House has in no way diminished her enthusiasm. I have before me the Hansard report of Eleanor Rathbone's speech in 1937 on the Family Provision Bill, where she referred to the then existing state of the law as a long-standing evil, as indeed it was. As the noble Baroness has pointed out, it has taken a long time for Parliament and the Law to catch up with the need for reform.
I am happy, at any rate, that this Government, and, if I may say so, the Government in which the noble and learned Lord, Lord Hailsham of Saint Marylebone, was the Lord Chancellor have not made the mistake of simply putting the recommendations and reports of the Law Commission into a pigeon hole and doing nothing about them. I hope that I shall follow the practice of the noble and learned Lord, Lord Hailsham, and of the noble and learned Lord, Lord Gardiner, who preceded him, in pressing upon the Government the need to implement the invaluable reports of the Law Commission.
As the noble and learned Lord, Lord Simon of Glaisdale, has said, this is really the first instalment of the reform of the law of family property, and while I certainly note the warning sounds from the noble and learned Lord, Lord Wilberforce, that we must not over-legislate, frankly, I think there are decades of reform to catch up on in this field. I know he, while being astute to see that we do not overdo it, will welcome the further instalments that we hope to obtain from the Law Commission.
As the noble and learned Lord, Lord Simon, has said, the law has been woe-fully defective in vindicating the rights of the wife, but if he will allow me to say so. the husband's rights are not entirely irrelevant cither. In the context of a 937 propertied wife, it is right that the husband's rights should also receive reasonable consideration, if I may venture to make so bold as to say that in this important year.
My Lords, so far as the paramountcy of considering the interests of the family is concerned, I think the House as a whole has welcomed that as a basic principle. I venture to say, bearing in mind the warning note of the noble and learned Lord, Lord Simon, that I have absolutely nothing against cats; on the contrary I like them very much; but it was wrong that they should have everthing and the deceased's wife and children nothing. I hope I shall not infuriate the animal lobby by that dangerous assertion.
The points in regard to Clause 21 we shall certainly consider in Committee, and I am very willing to look at whether Clauses 10, 11 and 12 are really necessary, because we certainly do not want to clutter up the Statute Book with the unnecessary. But it is the case, as my noble friend Lord Janner said, that an element of malice and spite, alas!, too often enters into testamentary dispositions, with most elaborate and divers methods—if there is no provision against it—for dodging the law's provision. At the moment I am not disposed to the view that the provisions in the Bill to prevent dispositions intended to defeat applications for financial provision are super-fluous and unnecessary. However, to these matters we can come in detail when we come to the Committee stage of the Bill. As I say, I am grateful for the support the House has given to it.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.