§ Mr. Dempsey
I beg to move, in page 7, line 14, after "wife" to insert:who is the first husband or wife of the intestate".My object in moving the Amendment is to seek clarification of an implication. I want to make it clear at the outset that I agree wholeheartedly with the terms of the Clause in relation to the amount of entitlement of a surviving spouse. A decision of this nature is unobjectionable. After all, a surviving female spouse is certainly the legitimate wife of the husband who has died intestate. No doubt any estate which she might inherit will benefit the family, either directly or indirectly. Moreover, I am sure that, if the surviving wife in due course were to die intestate, the family would still be protected and would benefit from the remainder of the estate which might be left at her death.
What happens when the surviving spouse is a second wife? In such a case, what protection is there in the Clause for the children of her first marriage, the children of her deceased husband? I am raising this point because it is a thorny one with many members of the legal profession. It is a well-known fact that we have some very regrettable cases whereby, under circumstances of this nature—there have 1276 been some in my own constituency—it is found that the surviving wife, being the second wife, has died intestate and the remainder of the estate has gone to a nephew. The family of her late husband, who first passed on the estate, is completely unprotected. I understand that the sums mentioned in the Clause are of a nature as to convey a very definite impression that the majority of cases with which members of the legal profession in my constituency are concerned cover instances of this kind.
We are dealing here with a number of individuals who would come within the ceiling limits of £2,500 and £5,000. It is because I have this in mind that I wish to raise this very pertinent point. It has come to my attention that, in one case, the surviving spouse eventually died and left a will which was challenged. In the courts it was decided that relatives of the surviving spouse who had passed away were entitled to the estate and not the children of the husband who created and passed on the estate to the surviving spouse. This raises some points which should be clarified.
I want to be brief, otherwise I could quote a number of cases where the experience is similar to the one that I have mentioned. It would seem to me that in this case—and I hope that the Solicitor-General will give us his view of the law in Scotland—if this Clause means that there is little protection for the children of the deceased's father because their step-mother is in a position to leave the estate to her relatives to the exclusion of the husband's family, then, obviously there is some need for further thought on this subject.
I was hoping that this matter might have been raised and discussed this afternoon, because I feel it is something worthy of deliberation. I did not raise this matter just because I scrutinised some of the speeches, had a look at the Bill and then the Notice Paper. I have had consultations with a very eminent member of the legal profession and he advises me that this could be almost evil in content if it is allowed to escape the notice of the House.
I would like to ask the Under-Secretary, or particularly the Solicitor-General, because I think that a question 1277 of law arises out of the nature of my Amendment, if, in the event of the surviving spouse herself dying, and leaving the remainder of her former husband's estate intestate, he is satisfied that the remainder of the estate would go to her relatives to the exclusion of her late husband's family. This is a point that should be clarified. I would certainly welcome some legal advice on the matter.
I am not a lawyer, but I have met problems of this nature in the course of my public life and I feel that this is sufficiently important for an Amendment to be placed on the Notice Paper to ascertain from the Solicitor-General what protection there is under this Clause for the family of the deceased husband should the stepmother die intestate and leave the estate.
Is the hon. and learned Gentleman satisfied that the family of that husband will be protected and provided for, or does he believe, being a Scottish lawyer, that the step-mother's relatives could claim the estate? If that is so, I think that the Minister should have further thoughts on this principle, because it is obviously fraught with dangerous trends if such a state of affairs exists.
My advice legally is that it does exist and there is nothing in the Bill to eliminate such an anomaly. I hope as a result of my remarks that we shall have some words of wisdom from the Solicitor-General on the Scottish law relating to this problem.
§ Miss Harvie Anderson (Renfrew, East)
As the Minister knows, I have also had this question raised with me. I think that there is substance in the inquiries which we are now seeking to make. What the hon. Member for Coat-bridge and Airdrie (Mr. Dempsey) has said applies equally in the case where the wife dies leaving the estate to her husband—and the sequence of events is the same as if the husband dies.
If I understand it correctly, the two difficulties which my noble Friend is likely to present is, in the first instance, the question of tracing the money through the second intestacy. I can see that there is substance in this difficulty, but it would seem to me that this could be got over by there being some financial figure 1278 attached to the second intestacy which would match the figure originally left. It might be that, if provision could be made, it would have to be made in relation to the first intestacy, otherwise one would not be able to identify the sum left in the first instance which subsequently becomes a partial sum of the second figure.
If it were accepted that it was desirable to make provision for the family likely to be left out in the circumstances described, I would have thought that a safeguard would be to identify the figure first left and take that figure out of any subsequent figure which would be left by the second intestacy.
The second and most important thing is the principle of what we seek to do in this Bill. The more I think about it, the more I believe that if we seek, as I think we do, to make a will which a testator would himself or herself have made, we should seek to make in these instances provision for the first family as well as for the second family. I do not think that there can be many instances where, by deliberate intent, the first family, who, after all, would under this Bill have a right to an interest in the first estate, would through intestacy have that right removed, and yet it seems to me that it is removed by the Bill.
I should like my noble Friend to look at the plight of those who appear to me to be left cut of the Bill. I hope that if it is not possible or in order for us to carry this to a conclusion today, consideration may be given to a suitable alteration in another place and that my noble Friend will not reject this outright without consideration along the lines which have been presented.
§ 7.30 p.m.
§ The Solicitor-General for Scotland
As the hon. Member for Coatbridge and Airdrie (Mr. Dempsey) suspected, it is the case that it the £2,500, once inherited by the second spouse, is regarded as her estate without any strings or qualifications attached. The law does not look at the source from which that estate came. Accordingly, upon her death intestate, the £2,500—which might have started life with her husband—would under the Fill go to her relatives in the state we discussed earlier.
1279 We are really back in the same region which obtained earlier today, of determining between various possible hard cases and the desirability of avoiding the creation of new ones in an attempt to legislate to avoid other hard cases. There might, for example, be the case of a wealthy husband who had married twice and who had left, say, £30,000 to £40,000. Under the proposed Amendment, as I understand it, the second wife, the step-mother, would get no £2,500, even though she might be an old lady much in need of support. The children, her step-children—the children of the husband by the first wife—would obtain the appropriate proportion, subject to Estate Duty and so on. This example concerns a substantial sum and it is at one end of the scale. It is possible, however, to visualise hard cases at the other end of the scale.
I entirely agree that the guiding principle is that the law should try to put itself into the mind of the deceased, in this case the husband who died leaving the second wife, and see—using a fairly broad axe, so to speak—what he would have done in the average case, realising that there must be at either extreme cases which might not, on the face of it, be entirely fair.
§ Miss Harvie Anderson
Surely, considering the first case instanced by the Solicitor-General, we cannot base this on the lines he suggests because the Under-Secretary said earlier, in relation to Clause 2, that what we must not do in the Bill is to change from the principle of blood relationship to a family relationship—yet this is precisely how Clause 9 now works. I am seeking to keep the principle of the blood relationship through this Clause just as the Under-Secretary instanced the position in relation to Clause 2.
My hon. Friend has made a sound point, I am happy to say, for it illustrates that it is possible to get a perfectly straightforward conflict between the two principles, each of them sound. The problem is to resolve which principle should prevail in that case. This is really a matter of judgment.
§ Mr. Dempsey
Is this really a matter of judgment? This is a question of real 1280 principle. Should the family of the deceased husband share in the estate or should the second surviving spouse collar the whole of the estate? I mentioned the distinct case of a man who died and whose three children were left completely unprotected. In that case the surviving spouse received the estate and, upon her dying intestate, the remainder of the estate went to her nephew. Is it not fair and just that something should be done to provide for the family of the deceased husband—who created the estate in the first place?
The hon. Member has postulated one of the hard cases which we recognise exist.
§ Mr. Dempsey
I am assured that this is not exceptional but that cases of this type are quite general, certainly in the west of Scotland.
The overriding question of principle is that the law should endeavour to put itself into the mind of the testator and make the will which he would have been likely to make. In these circumstances one cannot legislate for every size of estate. The sum of £2,500 is not, by and large—yielding, say, 3 per cent., an income of about £70, £80 or £90 a year—a large sum for a testator to have contemplated leaving to his second wife, especially if, as one may well envisage, the first family has become married and has a much better earning capacity than the second spouse who is left. On balance, looking to the varied circumstances and the need to legislate broadly in a matter of this sort, I cannot recommend the House to accept the Amendment.
§ Mr. Millan
My hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey) has put his finger on a difficult and important point. In principle it is right that the rights given under the Clause should apply even where the wife is not the first wife. We are, by the Clause, trying to protect the spouse of the deceased, who may be a husband whose wife has died, although normally in these matters we are thinking of cases where the wife has survived the husband.
1281 It is difficult to say that just because the surviving wife is the second wife she should not be entitled to the rights under the Clause. There may be all sorts of circumstances in which it would be grossly unfair if that attitude were taken. Thus, in the majority of cases, Clause 9 appears better as it stands than it would if my hon. Friend's Amendment were made.
However, there is a serious point here and I hope that the Government will consider this matter again before the Bill reaches its final stages. As my hon. Friend the Member for Coatbridge and Airdrie Pointed out, there may be cases in which the children of the intestate will get nothing at all because the Clause will completely swallow up the estate. This applies only in the case of a small estate because if more than £2,500 is involved and there are surviving children they have a certain right to share in the balance.
Where the estate is less than £2,500 the children may get nothing. The case may be even worse, because if the surviving wife in turn dies intestate the money does not go to the husband's family at all. That takes us back to the first Amendment we discussed this afternoon—that in page 2, line 21. The hon. Lady the Member for Renfrew, East (Miss Harvie Anderson) nods her head vigorously in agreement; I hope that it means that she voted for that first Amendment, though I rather think that she did not. In the circumstances mentioned, that Amendment would have given some right to the husband's children—the step-children of the wife who subsequently died intestate. I hope that the hon. Member for Renfrew, East appreciates that had that earlier Amendment been accepted some kind of right would have been given to step-children.
I confess that it is an argument that had not occurred to me until my hon. Friend the Member for Coatbridge and Airdrie moved his Amendment, but it demonstrates another of the unfairnesses that may arise from excluding stepchildren, because the step-parent may very well be leaving money which he or she received from the predeceasing spouse who is the father or the mother of the step-children. The money may have gone from the father to the wife; 1282 the wife, in turn, leaves the money, but the father's children get nothing of it because they, are the step-children of that deceased wife.
It is a very unfair situation. In many instances, the money might well go to the wife's parents, brothers, sisters, nephews, grandparents, or brothers of grandparents—an absurd position. It must be particularly galling to the stepchildren to think that the money which in the first instance originated in their natural parent will not come to them.
It would probably cause rather more injustice to accept this Amendment than to leave the Clause as it is, but, frankly, had this mutter been raised in Committee, and had it been put there with the same persuasiveness with which my hon. Friend has spoken this evening, I am sure that we would have sought to have put down an Amendment at this stage to cover the kind of circumstances he has outlined, in a way that would be reasonably just to all the interests involved. We have not been able to do that. My feeling is that it would be wrong to incorporate this Amendment, but I hope that we may have an assurance that the Government will look into this matter most carefully before the Bill takes its final shape because there is the certainty—my hon. Friend has said that he has had an actual case brought to his notice—that, as tie Bill is drafted, there can be considerable injustice to step-children.
§ Mr. Willis
Neither the noble Lady nor the Solicitor-General for Scotland has bothered to reply to the simple question whether or not they will look at this matter again agree that, as my hon. Friend the Member for Glasgow, Craig-ton (Mr. Millan) has said, to accept this Amendment as it is might weaken the protection we are seeking to give to the surviving spouse, but no one who has had experience of public life in centres of population can be unaware of this problem.
The Solicitor-General for Scotland gave us a good legal exposition of the present position, and told us what the duty of the law is. He said that we have to try to get into the mind of the intestate, and that is rather difficult to do. But the hon. and learned Gentleman did not say whether the matter had been looked at with a view to trying 1283 to meet my hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey). It is a perfectly legitimate point, and one that causes a great deal of criticism and concern.
Even if the Government are unable to accept the Amendment, they might at least apply their minds to finding some way round the difficulty. That is the job of the lawyers—we are grateful to them for expounding the law, but we also expect them to apply their minds in this way. We should be told that the Government, the lawyers and the Parliamentary draftsmen will consider the matter to see whether my hon. Friend's point can be met.
§ 7.45 p.m.
§ The Solicitor-General for Scotland
While I am sympathetic to the suggestion that further consideration should be given to this subject I may, perhaps, be forgiven for taking the somewhat unusual course in the circumstances of revealing that this point came before the notice of the Government from other sources in advance of this Amendment being put down, and that we have considered the matter closely over a period of some two and a half weeks. We would not be likely to arrive at any different conclusion in view of the time and consideration already given to the matter.
The view is that it would be impossible so to frame this provision as to legislate for the hard cases and the other types of case that could arise. We should be in the same region as though, in earlier parts of the Bill, we had tried to legislate for the son who might be a wastrel but was being preferred to the sister who had looked after the deceased with loving care over many years. In every aspect of the legislation on intestacy, examples of hard cases can inevitably be obtained. As I say, we have looked at this question with care and sympathy over the last two and a half weeks, and I cannot give an undertaking to look further at it.
§ Mr. Willis
May I ask whether the hon. and learned Gentleman has considered the point that this would have been an additional argument for the acceptance of the first Amendment and that, had the first Amendment been 1284 accepted, there might have been some way to meet the hardship in question?
§ The Solicitor-General for Scotland
I do not accept the analogy between the two cases, I am afraid.
§ Miss Harvie Anderson
In the first Amendment I was at least trying to keep to the principle of there being a blood relationship.
§ Mr. Ross
We shall come to that, too. We are now dealing with people who could, at least in part, have been dealt with under the first Amendment, though I am the first to suggest that we would not have dealt with it entirely satisfactorily. But if we are concerned about their position we should have been concerned right from Clause I and should not have waited until we reached this Clause.
I shall not go over the whole ground again, but surely the position is that this is something to which we should have given a great deal more attention in Committee. It is something which we are denied by the very facts of the progress of the Bill from returning to in the House, but it is terribly wrong for the Solicitor-General for Scotland, whom we appreciate is not experienced in the House and its ways, to say, "We have given this matter two-and-a-half weeks' consideration and I cannot say that we shall give it any more". The hon. and learned Gentleman will appreciate that the Bill will go to another place. I hope that if this matter is 1285 raised there it will have the consideration which it merits and that there will be reconsideration of everything done and requested there as well as here.
The hon. and learned Gentleman is wrong to close his mind to the possibility of even a change of heart by the Government. After we have heard in the debate speeches from both sides of the House calling attention to a problem, which admittedly the Government heard about two-and-a-half weeks ago, it is a dreadful thing for the Government to say, "Sorry, nothing can be done". I hope that the Government will consider the problem in a more open-minded spirit than that. My right hon. Friend the Member for South Shields (Mr. Ede) said to me earlier that it is an impossible business to try and make up somebody else's will. Here we are trying to make up the wills of perhaps millions of people, and all in the same words, but when an obvious gap has been drawn to the attention of the Government, I hope that they will give more than two-and-a-half weeks' consideration to it.
§ Mr. Dempsey
In view of the statement made by the Solicitor-General for Scotland. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Lady Tweedsmuir
I beg to move, in page 7, line 25, to leave out from the beginning to the first "he" in line 26 and to insert:any property which the surviving spouse would have been entitled to receive under the last foregoing section if the property had been included in the intestate estate and if subsection (4) of that section had not passed)".The Amendment is intended to put right a difficulty in the drafting of the proviso to Clause 9(1). The fact is that the words which appear in brackets in the second and third lines of the proviso are self-contradictory. They are:(other than a legacy of anything to which paragraph (a) or (b) of subsection (I) of the last foregoing section applies)But these paragraphs apply to a house or furniture and plenishings which have fallen into intestacy. The contradiction is that if a property is the subject of a legacy it has not fallen into intestacy. The Amendment removes the difficulty by referring to property which the surviving spouse would have received under Clause 1286 8 if it had formed part of a deceased's intestate estate.
I am glad that the Government are making the change. I think that they had their attention drawn to this matter by a member of the Faculty of Law at Glasgow University who also wrote to me about it. He seems to have been absolutely right on this. I admired the logic with which he demolished the present wording in the letter which he wrote to me, to which I think he also drew the attention of the Solicitor-General for Scotland, I am glad to see that in one way or another we are managing to correct the faults of the Parliamentary draftsmen. I hope that there are not many more which we ought to discover before we come to the end of our proceedings.
§ Amendment agreed to.