HL Deb 12 May 1975 vol 360 cc532-5

3.2 p.m.

Report of Amendments received.

Clause 10 [Dispositions intended to defeat applications for financial provision]:

The LORD CHANCELLOR (Lord Elwyn-Jones) moved Amendment No. 1: Page 12, line 11, after (- will ") insert (" any such nomination as is mentioned in section 8(1) of this Act or any donatio mortis causa").

The noble and learned Lord said: My Lords, I should explain that this is a drafting Amendment to remedy a technical defect in Clause 10(7) which describes the types of disposition to which the clause applies. Clause 10 enables the court, on an application for financial provision, to review dispositions made by the deceased with intent to avoid the claims of his family and dependants for financial provision on his death. The court can order the donee of property or money under a disposition to which the clause applies to make funds available for the purposes of financial provision for the family and for dependants. Clause 10(7) describes the dispositions to which the clause applies and is drawn in wide terms. It includes any payment of money and any appointment or gift of property of any description, whether made by instrument or otherwise. The subsection at present contains only two specific exclusions. The first of these is for "any provision in a will". Property disposed of by will necessarily forms part of the estate of the deceased and is the main source of funds for financial provision. Clearly, therefore, the clause cannot relate to property for disposition. That is already at the court's disposal. Secondly, the subsection excludes any appointment of property made otherwise than by will in the exercise of a special power of appointment.

The Amendment provides a further exclusion. Under Clause 8, property which has been the subject of a nomination, which is explained in the clause, or a donatio mortis causa by the deceased, which, as your Lordships will know, is a conditional gift made in contemplation of death, is automatically treated for the purposes of the Bill as part of the net estate. It is therefore available without any order of the court for the purposes of financial provision. Such property could, accordingly, never be the subject of an application under Clause 10 and it ought to be specifically excluded from the dispositions referred to in Clause 10(7). That is what this very technical Amendment will achieve. I beg to move.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, my noble and learned friend Lord Mansfield asked me to apologise to your Lordships for not being present at the Report stage of the Bill as he had been at the Committee stage. I know that had he been here he would not have found reason to oppose the Amendment.

On Question, Amendment agreed to.

Clause 12 [Provisions supplementary to sections 10 and 11]:

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 2. Page 14, line 3, leave out ("sole").

The noble and learned Lord said: My Lords, again I am devilling my brief on this occasion, and my instructions are somewhat meagre. Perhaps, however, it would be for the convenience of the House if I were to deal with Amendment No. 3 at the same time because the two Amendments seem to me to be related. As your Lordships are aware, Clauses 10 and 11 deal with the powers of the court to deal with certain dispositions. There was an exchange between my noble friend Lord Mansfield and the noble and learned Lord, the Lord Chancellor, at the Committee stage. That led my noble friend to devise the present Amendments, and if your Lordships will turn to line 3 of page 14 you will see that the conditions required to be fulfilled by those clauses as drafted will be so fulfilled: If the court is of opinion that, on a balance of probabilities, the sole intention of the deceased, or a substantial part of his intention, in making the disposition … was to prevent an order for financial provision being made under this Act or to reduce the amount of the provision.…

The purpose of the Amendments is to leave out the word "sole" where it appears before the word "intention" and the words which read "or a substantial part of his intention" and to substitute the words, though not necessarily his sole intention". It seems to me that this is little better—I was going to say "little worse"—than a drafting Amendment, and I hope that it will commend itself to the noble and learned Lord. I beg to move.

The LORD CHANCELLOR

My Lords, I think that this is a marginal improvement on the drafting of the clause as it now stands, and I advise the House to accept it.

On Question, Amendment agreed to.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I beg to move Amendment No. 3.

Amendment moved— Page 14, line 3, leave out from ("deceased") to ("in") in line 4 and insert ("(though not necessarily his sole intention)").—(Lord Hailsham of Saint Marylebone.)

On Question, Amendment agreed to.

Clause 24 [Interpretation]:

The LORD CHANCELLOR moved Amendment No. 4: Page 21, leave out lines 27 to 37.

The noble and learned Lord said: My Lords, it may be convenient to take Amendment No. 5 with this Amendment. These Amendments remove any reference to adopted children from the interpretation provisions in Clause 24. They are, in effect, consequential upon provisions recently inserted in the Children Bill which is now before Parliament. The provisions of that Bill make it unnecessary to make the references to adopted children which are presently contained in Clause 24. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR

I beg to move Amendment No. 5.

Amendment moved— Page 22, line 5, leave out (" or adopted ").(The Lord Chancellor.)

On Question, Amendment agreed to.

The Schedule [Enactments repealed]:

The LORD CHANCELLOR moved Amendment No. 6:

Page 25, line 13, at end insert— ("1969 c. 46. The Family Law Reform Act 1969. Sections 5 (1) and 18.").

The noble and learned Lord said: My Lords, this is an Amendment which adds to the statutory provisions which are repealed by the Schedule to the Bill certain provisions in the Family Law Reform Act 1969 which were omitted by inadvertence. I beg to move.

On Question, Amendment agreed to.