HL Deb 21 November 1996 vol 575 cc1410-2

7.16 p.m.

Baroness Denton of Wakefield rose to move, That the draft order laid before the House on 24th October be approved.

The noble Baroness said: My Lords, the order before your Lordships' House gives effect to a number of minor recommendations contained in the Law Commission Report, Family Law: Distribution on Intestacy, which have already been implemented for England and Wales in the Law Reform (Succession) Act 1995.

The order makes three main changes to the law of succession contained in Part II of the Administration of Estates Act (Northern Ireland) 1955 and the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.

It amends the 1955 Act, which sets out an order of priority for sharing in the estate of someone who dies intestate, by introducing a rule that a surviving spouse should inherit on intestacy only if he or she survives the deceased by a period of 28 days. This is to prevent the somewhat arbitrary result where the family of one of the spouses inherits the property of both should the two die within a short time of each other—a common example of this is after a road accident. It has long been considered good practice for such a survivorship clause to be inserted in wills. The order will now reflect this good practice in the rules governing intestacy.

Secondly, the order will repeal the complicated and unclear "hotch-pot" rule enshrined in Section 17 of the 1955 Act which affects intestacies. Under this rule, benefits received by children (but not other relatives) of the intestate, during the latter's lifetime, must be brought into account against the share of the estate to which the recipients would otherwise be entitled. Not only has this rule proved difficult to operate, it is out of date and its strict application is undoubtedly capable of producing consequences which are not what the deceased would have wished. Consultation has revealed that its abolition will be widely welcomed.

The third change to the law brought about by the order is the introduction of a new category of applicant who may apply under the 1979 order for reasonable financial provision from the deceased's estate where the will or the rules of intestacy have left them without such provision. Under the existing law, cohabitees have to prove that they were actually dependent on the deceased. This can have the effect that a long-term cohabitee who has contributed fully to the running of the common household is unable to rely on the provisions of the 1979 order which was designed as a safety net.

This order will permit a cohabitee who has lived with the deceased for two years immediately preceding the death to bring a claim without having to show dependence. Rather, the court will take into account the applicant's age, the length of cohabitation and the contribution made by the applicant to the deceased's family.

Your Lordships will note, however, that some distinction between married and unmarried claimants is retained in that the definition of what constitutes "reasonable financial provision" is the same for cohabitees as it is for other applicants who are not spouses.

I hope noble Lords will agree that the provisions constitute a useful and uncontroversial measure of law reform which has the support of all those who responded to the consultation on the proposed draft order. I beg to move the order.

Moved, That the draft order laid before the House on 24th October be approved.—(Baroness Denton of Wakefield.)

7.20 p.m.

Lord Williams of Mostyn

My Lords, we positively welcome this order. It is long overdue: the working paper which led to the consultation is dated as long ago as 1988. As the Minister indicated, this has been the law in England and Wales for about a year. The Law Commission has done a first-rate piece of work and we congratulate it on the thoroughness of its research.

One must bear in mind that sense and reason need to obtain at times of bereavement when those who survive are, in the nature of things, distressed and vulnerable. This provides an admirable scheme of additional protection for surviving spouses and also— extremely important— a just, appropriate provision by way of alteration which allows a cohabitee who has cohabited for the whole of the two years prior to the death to make a successful application without having to go through the sometimes rather unseemly formula, and sometimes rather an artificial formula at that, of proving dependency. We welcome the order.

7.22 p.m.

Lord Cooke of Islandreagh

My Lords, as I read the order, and particularly Article 4, I wonder whether it was written with undue regard to the welfare of the legal profession in Northern Ireland. We see the phrase: living… in the same household as the husband or wife of the deceased". Surely that gives a tremendous variety of cases which will be difficult to prove. I presume there could well be cases where, for example, a man lives apart from his wife but has not divorced her. He may live in a house, perhaps with a housekeeper, but they have chosen to "comfort one another", as we say, for perhaps a year or more. I can see that kind of situation being the cause of undue, costly and tedious litigation. I wonder whether a better definition can be given to "cohabitee" in that case.

Perhaps I may also point out that there appears to be a mistake in numbering. In Article 4, the "(1)" is against the article number rather than the first paragraph. The numbers should all move down.

Baroness Denton of Wakefield

My Lords, I thank the noble Lord, Lord Cooke, for those comments and also the noble Lord, Lord Williams, for his welcome.

There is no attempt in the order to provide for the welfare of lawyers in Northern Ireland; that has always seemed to me well taken care of.

The article is specifically aimed at cohabitees. Married couples are already covered in the main legislation but "cohabitees" are further defined by Article 4 so that a man and woman must be living together as husband and wife for at least two years immediately preceding the death of the partner. This is a definition for the cohabitee which is successfully used already in the Fatal Accidents Act 1976 and the Fatal Accidents (Northern Ireland) Order 1977. I shall examine the wording of the Bill. I commend the order.

On Question, Motion agreed to.