§ The Lord Advocate
I beg to move, in page 7, line 7, to leave out subsection (6) and insert:(6) Subject to the foregoing provisions of this section, any question arising with respect to the validity or effect of the bequest shall be determined by any court having jurisdiction to determine the validity and effect of the whole testamentary writings of the deceased crofter.There was considerable discussion on the Clause during the Committee stage, particularly as to whether any question of the validity of a bequest should ultimately be decided, if taken to court, by the Land Court or by the sheriff court. A Government Amendment was then introduced by the terms of which such a matter was to be remitted to the sheriff court or to the Court of Session.
On further consideration, we think that those words were not very appropriate. It is just conceivable that the will of the crofter might not be a Scottish will. It might conceivably be an English or Canadian will, or a will from a foreign country; and to meet that extremely unlikely eventuality, we propose the Amendment.
The House will notice also that in the Amendment we refer tothe whole testamentary writings of the deceased crofter.The purpose of that is to ensure that the matter should go to a court of appropriate jurisdiction only when anything other than purely the croft itself is in issue.
I am not anxious to argue the point, and I approach this legal problem with my usual diffidence. I 231 simply want to understand that last phrase of the right hon. and learned Gentleman. When he says that the Amendment refers to " the whole testamentary writings ", does that mean that where nothing else than the croft is involved any decision would be taken by the Land Court; or do I misunderstand the Lord Advocate?
§ Mr. Willis
I wanted to ask the same question and to know how exactly the new subsection affects the present functions of the Land Court. As I read it, it means that cases which at present go to the Land Court will continue to do so.
§ The Lord Advocate
The position is that the Land Court has been accustomed, since it was set up in 1911, to deal with a large number of matters, some of which were within the terms of the Act and within the Court's jurisdiction and others which it is arguable were outwith its jurisdiction, and it has been a great convenience that the Land Court should deal with those matters. It is perfectly arguable, certainly on the construction of the statute by the Land Court, that the Court is entitled to deal with the bequest of a croft, but it is much more doubtful whether it is entitled to deal with a will which bequeaths something over and above the croft.
If the Amendment is accepted, a testamentary disposition which includes something over and above the croft will have to be dealt with in a court of appropriate jurisdiction, which is not the Land Court. If the disposition deals only with a croft, the Land Court, subject to anyone disputing its jurisdiction in the matter—which is unlikely at this date—will continue to adjudicate. It has been very convenient to go to the Land Court for certain of these testamentary questions in the past, because it might well be that the parties were already in the Land Court because of other things such as the suitability of legatees. While the parties were having those matters considered, it was obviously desirable that the Land Court might consider other matters as well, but, as will be seen from Clause 10, the question of the suitability of legatees will be now considered by the Commission, and, therefore, the parties are not so likely to be in the Land Court in the future.
§ Amendment agreed to.