ADMINISTRATION OF ESTATES (NORTHERN IRELAND) ORDER 1979 (Hansard, 15 November 1979)

§ Lord ELTON

My Lords, I beg to move that the Administration of Estates (Northern Ireland) Order 1979, of which a draft was laid before the house on 23rd October, be approved. The Administration of Estates Order will fulfil a recommendation made by the committee chaired by the former Lord Chief Justice of Northern Ireland, Lord MacDermott. This committee reported in March 1970 on the administration and structure of the Supreme Court. The order will fulfil the recommendations by drawing together provisions at present contained in about a dozen separate enactments dealing with probate and administration matters, some of which date from the 16th century. Although the language is technical, the order is primarily one of consolidation, and I do not think that your Lordships would wish me to go through it in detail. I should, however, draw attention to some of those provisions which are new to the law of Northern Ireland.

The order is divided into five parts. Part I deals only with the title and commencement of the order, and with its intrepretation. Part 11 is concerned with the powers of the High Court and, in 1426 contentious matter relating to small estates, of the County Court. These powers are to make grants of representation to the estates of deceased persons. It is largely a re-enactment of the provisions of Part III of the Administration of Estates Act (Northern Ireland) 1955, which generally applies only to the estates of persons dying on or after 1st January 1956. For this reason, Article 3 provides that, in the absence of a contrary stipulation, the provisions of Part II of the order apply only in relation to the estates of persons dying after the end of the year 1955. Article 4 adopts modern practice by providing in paragraph (1)(b) that, in normal cases, the order of entitlement to a grant of administration will be governed by rules of court. At present, the selection of an administrator is determined in accordance with directions issued by the probate judge. This change should make the relevant information more readily available.

Part III deals with the powers and procedures of the court preliminary or incidental to the making of grants. This part of the order consolidates provisions which are at present contained in the Probate and Letters of Administration Act (Ireland) 1857 and the Court of Probate Act (Ireland) 1859. Part IV of the order relates to the rights and duties of executors, administrators and other persons who, although not authorised to act as personal representatives, assume the responsibilities of such. It contains some provisions which are new for Northern Ireland. For example, Article 29 clarifies the position of a person who, having been appointed by a will as both an executor and a trustee, renounces probate or otherwise loses his rights of administration. In that situation his rights as trustee will automatically determine at the same time.

Part V of the order contains one article of special interest. Under the present law the surviving spouse of a person who dies intestate is entitled to the first £25,000 or £55,000 of his estate, depending upon whether or not the deceased left issue. This entitlement is known as the surviving spouse's statutory legacy. Section 7 of the Administration of Estates (Northern Ireland) Act 1955 stipulates that this statutory legacy is to bear interest at the rate of 4 per cent. per annum from the date of death to the date of payment. This has become a wholly unrealistic rate. 1427 Accordingly, Article 41 provides that an alternative rate may be specified by order. This will provide the machinery to stipulate a more realistic rate, and at the same time give the flexibility to enable future moves in interest rates generally to be taken into account.

My Lords, this order will meet a long standing criticism that the law on these matters is scattered over too many different enactments. It is principally a measure of consolidation but, as I have indicated, the opportunity has also been taken to clarify certain elements of doubt and fill in a number of gaps in the existing legislation. I beg to move.