Lords Amendment: In page 5, line 3, leave out Clause 8 and insert new Clause "A":
(1) Where a person dies intestate leaving a spouse, and the intestate estate includes a relevant interest in a dwelling house to which this section applies, the surviving spouse shall be entitled to receive out of the intestate estate—
Provided that, if the intestate estate comprises a relevant interest in two or more dwelling houses to which this section applies, this subsection shall have effect only in relation to such one of them as the surviving spouse may elect for the purposes of this subsection within six months of the date of death of the intestate.
(2) This subsection shall apply for the purposes of paragraph (a) of the foregoing subsection if—
(3) Where a person dies intestate leaving a spouse, and the intestate estate includes the furniture and plenishings of a dwelling house to which this section applies (whether or not the dwelling house is comprised in the intestate estate), the surviving spouse shall be entitled to receive out of the intestate estate—
Provided that, if the intestate estate comprises the furniture and plenishings of two or more such dwelling houses, this subsection shall have effect only in relation to the furniture and plenishings of such one of them as the surviving spouse may elect for the purposes of this subsection within six months of the date of death of the intestate.
(4) This section applies, in the case of any intestate, to any dwelling house in which the surviving spouse of the intestate was ordinarily resident at the date of death of the intestate.
(5) Where any question arises as to the value of any furniture or plenishings, or of any interest in a dwelling house, for the purposes of any provision of this section the question shall be determined by arbitration by a single arbiter appointed, in default of agreement, by the sheriff of the county in which the intestate was domiciled at the date of his death or, if that county is uncertain or the intestate was domiciled furth of Scotland, the sheriff of the Lothians and Peebles at Edinburgh.
(6) In this section—
§ Lady Tweedsmuir
I beg to move, That this House doth agree with the Lords in the said Amendment.
I suggest that it would be convenient to discuss with this Amendment the Amendment in page 7, line 25, which is consequential.
§ Lady Tweedsmuir
The Amendment rewrites Clause 8, which has been regarded, with justice, as one of the most important Clauses in the Bill. I therefore hope that, even at this hour, the House will bear with me if I take a little time to explain this provision.
Hon. Members will probably recall that in Committee there was criticism of subsection (4,c), which empowered the Court of Session or the sheriff to order that the surviving spouse of an intestate should have the value of the dwelling-house instead of the house itself in cases where the Court was satisfied that there were special circumstances of an historical nature connected with the house.
I recognised the force of this criticism and when the Bill was before the House on Report there stood in my right hon. Friend's name an Amendment which would have omitted this provision and would have introduced a money limit of £10,000, the idea being that if the house was worth more than £10,000 the surviving spouse should receive that sum instead of the house itself. The principle of the Amendment was acceptable, but 131 hon. Members opposite were not satisfield with the sum of £10,000. They did not think that it was high enough. Their arguments convinced me and I withdrew the Amendment and said that I should like to think about it again.
Nothing further could be done while the Bill was in this House, but in another place the Clause was amended in the sense that I had proposed but with the substitution of £15,000 for £10,000. Therefore, the effect of the Amendment now is that if the value of the house does not exceed £15,000 the surviving spouse may take the house, or if it is a farmhouse or part of business premises he or she may take its value, but if the value of the house exceeds £15,000 the surviving spouse is entitled only to a sum of money limited to £15,000 and not to the house itself.
The second point of difference in the new Clause is that in another place fears were expressed that Clauses 8 and 9, together with jus relicti would operate to give a surviving spouse too large a share of an intestate estate. My noble Friend who was in charge of the Bill in another place felt able to meet the criticism only to the extent of amending the Clause to provide that the house would not pass to the surviving spouse free of Estate Duty. The effect is that in estates up to £5,000 the Amendment makes no difference, since no duty is chargeable at that level. In an estate of £6,000, where the house is worth £3,000, the difference to the widow might be £20. In an estate of £10,000 where the house if worth £4,000 the difference might be about £100.
The third point is the exclusion of heirlooms from furniture and plenishings which go to the surviving spouse. It is very difficult to define an heirloom, especially as it may be an article of very little intrinsic value but may be something which has close association with a family or a family name. It is reasonable that such an article should not necessarily go to the surviving spouse as of right but that it should be left to the family to arrange among themselves who among them is the most rightful recipient of it.
Finally, there has been some rearrangement of the material of the Clause but the three points which I have mentioned 132 are the only points of substance in which the new Clause differs from the old. The Lords Amendment in Clause 9, page 7, line 25 is a drafting Amendment which is consequential on the rearrangement of Clause 8.
§ Mr. Lawson
The Amendment is virtually a complete redrafting of Clause 8 as it stood in the Bill when it was sent to another place. It can be said again that the redrafting is largely as a result of advice from my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) who certainly found much in that Clause which was less clear than it might have been. In the sense that the noble Lady has accepted my hon. Friend's advice, I should like to thank her once again on his behalf.
The acceptance of the £15,000 limit in place of the £10,000 is acceptance of the advice of my hon. Friend the Member for Kilmarnock (Mr. Ross) who felt that the £10,000 had been brought in without much obvious sign of previous consultation, and showed failure to take account of existing values and of the possible quick rise in values due to the great increase in the value of private houses. My hon. Friend's advice was that the figure was too low. The noble Lady agreed to reconsider the matter and has now met the point by accepting a figure of £15,000.
The concern shown in another place that the widow or surviving spouse should not be left too much out of the estate shows a meanness which is a wee bit distressing to me. We had accepted previously that part of the estate which went to the surviving spouse would not be subject to Estate Duty. We understood that the duty would be taken off in the first place and that it would be out of the balance that the share going to the widow would be determined. The step which has now been taken puzzled us. We saw that subsection (6) of the original Clause had disappeared without any indication of the reason. The noble Lady has now given us the explanation, and I dislike it.
The question of heirlooms puzzles me and has certainly puzzled my hon. Friends. I have looked into the question of what an heirloom means in Scottish law. I do not pretend to be a lawyer or to be expert in these matters, but I 133 cannot find an heirloom denned in Scottish law.
The Encyclopaedia of the Laws of Scotland refers to an heirloom as in English law and says thatHeirlooms, in the law of England, are such personal chattels as pass on their owner's death, by force of a special custom, to his heir, along with his inheritance, and not to his executor or administrator. Such are the best bed, table, pot, pan, cart, etc.The Encyclopaedia enlarges on this. It makes the point that there is something very personal in heirlooms in the old-established sense but says thatIn popular language, the term heirloom is generally applied to plate, pictures, furniture, or other articles of property which, in England, have been assigned by deed of settlement, or bequeathed by will to trustees, in trust to permit the same to be used and enjoyed by the persons for the time being in possession, under the settlement or will, of the mansion-house in which the articles may be placed.This is the popular use of the term "heirloom", but Section 1370 of the Encyclopaedia says thatAn endeavour made to introduce into Scots law heirlooms in the popular sense has been unsuccessful.It goes on to make various references.
My studies have not been extensive or long, but as far as they have gone I cannot find anything beyond what I have quoted on the subject of heirlooms in Scotland. I wonder whether the noble Lady is injecting into Scots law, in a slight and ill-considered way, a term which does not exist in Scots law and is inserting it neither in the old-established sense in which it appears in English law nor in the popular sense. If it is inserted in the popular sense I notice that in subsection (3,b) of the new Clause pictures are included in the furniture which may be passed over to the spouse.
§ Mr. John Brewis (Galloway)
I wonder whether the hon. Gentleman can enlighten me? I think that I am right in saying that the Inland Revenue has to certify what is an heirloom. If the Inland Revenue certifies a table, for instance, as an heirloom, it is free of death duty. It would, therefore, appear that there is a judge of what constitutes an heirloom. I wonder whether the hon. Member has any information on this point?
§ Mr. Lawson
I began by saying that my studies have not been extensive. I 134 had expected that either my hon. Friend the Member for Kilmarnock (Mr. Ross) or my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) would be handling this business this afternoon, but they are both very much engaged elsewhere, so it has been left to me. Therefore, my studies were hurried.
However, I turned to what would seem to be an authority on this matter. We are here making Scottish law and are inserting the word "heirloom" without definition, which would seem to me to be likely to provoke a tremendous amount of trouble in future. Let me read paragraph (c):'heirloom', in relation to an intestate estate, means any article which has associations with the intestate's family of such nature and extent that it ought to pass to some member of that family other than the surviving spouse of the intestate".The words are "such nature and extent …". Take, for example, an old pot or the best bed. Such an article is described here as "such nature and extent". What does "extent" mean in this connection? It might be an old relic, a possession that has been handed down from father to son over a number of generations. That is the usual description—something handed down from father to son, something that is treasured because of its personal associations, something virtually of no value other than a sentimental value—and I am using the word "sentimental" in no derogatory sense. How does this term "extent" come in? The word "extent" indicates to me that it might be of considerable value.
Then there is the statementthat it ought it to pass to some member of that family …What is meant by "ought to pass"? I can understand what constitutes an heirloom in the old sense in which the English law has it, but we do not seem to have this term in our law. Therefore, we have here something which, it seems to me, has been introduced in a very slipshod way. We are introducing a change in Scottish law, which, apparently, has been rejected in the past by our courts. It seems to me that this was introduced for sentimental reasons.
Perhaps someone in another place—I have not had time to read all that has been said in another place—had 135 ancient memories of some article. I do not think that this is good enough. I expect the noble Lady to give us a much better description than she has done so far.
From Clause 9 it is proposed to delete the words: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 passedand to insert:dwelling house to which the last foregoing section applies or of any furniture and plenishings of any such dwelling house".As I understand the position in Clause 8, it is the surviving spouse who obtained the house up to the value of £15,000, or else £15,000 if the house was of such a nature that it was deemed that it should remain in the family. But, as well as this, she could obtain the furniture and plenishings up to a value of £5,000, always on the understanding that the furniture and plenishings were taken out of one house if they were in more than one house. The surviving spouse would have a choice as to which house she would take.
As I understood it, even if there was a dwelling which did not come under the estate, but was a dwelling provided with furniture and plenishings, the surviving spouse would not inherit the dwelling but out of the dwelling she could obtain furniture and plenishings up to a value of £5,000. I want to know whether Clause 9 excludes the right of the surviving spouse to obtain the furniture and plenishings out of a dwelling which is not part of the estate.
It is proposed to substitute the words:dwelling house to which the last foregoing section applies or of any furniture and plenishings of any such dwelling house".That seems to me to suggest that we are talking of a dwelling house to which the surviving spouse is heir. What we have dealt with earlier also provides that there could be furniture and plenishings in a house which was not part of the estate. Is it the case that this additional part of the prior claim of the surviving spouse is to be taken away?
§ Mr. Willis
I wish to say a few words about the term "heirloom". I asked 136 where it was to be found, because I had not noticed that it was in the main body of the Clause. It only becomes necessary to define it because it arises in the definition provision. We define "furniture and plenishings" in paragraph (b) and then we have to define the words in the definition. I mention this because this is rather unusual.
When I tried to find the meaning of the word "heirloom", like my hon. Friend the Member for Motherwell (Mr. Lawson) I was bewildered by the definition. I thought that it was very wide and I tried to conjure up some of the things that the words in the definition could mean. The words are:means any article which has associations with the intestate's family of such nature and extent that it ought to pass to some member of that family other than the surviving spouse of the intestate".In the first place, I do not see why it should not refer to a spouse. She might pass the article on to her children. However, that is by the way. What is meant by the words "such nature and extent"? What kind of nature is intended? What is the extent? How long has it got to be in the family? My hon. Friend the Member for Motherwell suggested that in certain cases "heirloom" had been taken to mean plate. But a number of things are included in the definition of furniture and plenishings which I would have thought might have been heirlooms.
I give the examples of plate, plated articles, china, glass, books, pictures and prints. When do they cease to be furniture and plenishings and when do they become heirlooms? If I bought a book and I died next week, it would not be an heirloom, but if a book had been in my family for 400 or 500 years, probably it would be an heirloom. The same comment applies to plate. When does a picture become an heirloom? Possibly a picture of my father is not an heirloom, but a picture of my great, great grandfather is an heirloom. What is the test?
The words used in the definition of an heirloom are such that they seem likely to lead to a fair amount of disputation. Not, I suppose, that the lawyers will object—and that is why they will approve of these words. Anything which confuses the person who is leaving something will meet with their 137 approval. No doubt the lawyers will be delighted with this definition, because it will lead to some legal disputation. It is possible that if the wife were likely to sell the books or the pictures or the prints, it might lead to disputation between her and the family as to what these words mean.
The hon. Lady did not explain this very carefully. If these words had been taken to the Scottish Grand Committee the subsection would have been good for a three-morning debate and a large volume of Amendments. My hon. Friends the Members for Motherwell, for Glasgow, Craigton (Mr. Millan) and for Kilmarnock (Mr. Ross) would have had a field day, and no doubt they would have cast a lot of light on the subject and we should have had the benefit of their knowledge in deciding what these words mean.
§ Mr. Willis
I am a legal student, always seeking to extend my knowledge in these matters. That is why I listen to my hon. Friends and why I ask the Minister what the words mean. The Minister did not answer my previous question, and I do not suppose that I shall get a much better answer on this occasion. But will she define when these things which are not furniture and plenishings become heirlooms?
§ Lady Tweedsmuir
Two main questions have been raised, one by the hon. Member for Motherwell (Mr. Lawson) and one by the hon. Member for Edinburgh, East (Mr. Willis). I do not know why they are so modest about their achievements in the realm of the law, because I suspect that while their hon. Friends are very busy they are doing very well in their absence.
The hon. Member for Motherwell asked me whether it was possible for the surviving spouse to take furnishings and plenishings when there was not a house available. If he looks at subsection (3) he will find the words:Where a person dies intestate leaving a spouse, and the intestate estate includes the furniture and plenishings of a dwelling house to which this Section applies"—and the next words, in brackets, are very important— 138(whether or not the dwelling house is comprised in the intestate estate), the surviving spouse shall be entitled to receive …There is the example of someone in a local authority house, with no house to leave. She would be entitled to make a claim for the furniture and plenishings. Under subsection (4) the spouse may take the furniture of the house, whether or not it is part of the accepted estate, provided that she was ordinarily resident in it.
Both the hon. Member for Motherwell and the hon. Member for Edinburgh, East asked about the definition of heirloom. I agree that it is a very difficult question. It is not intended to attract any English definition of heirloom, and the term "heirloom", as the hon. Member for Motherwell rightly said, has no place in Scots law. But as he also rightly said, we are here to make law, and the term "heirloom" is therefore defined in subsection (6,c). It is deliberately defined in very general terms which will leave very wide discretion to the executor and members of the family to decide which should go to the spouse. If hon. Members look at subsection (5) they will see that it says:Where any question arises as to the value of any furniture or plenishings, or of any interest in a dwelling house, for the purposes of any provision of this section the question shall be determined by arbitration by a single arbiterappointed in default of agreement. That covers the question under subsection (6,b) to which the hon. Member for Edinburgh, East referred. "Furniture and plenishings" are particularly defined in it, including "garden effects, domestic animals, etc.". The hon. Member rightly asked when a piece of plate or a picture becomes an heirloom. This is why in subsection (6,b) we have listed rather carefully the furniture and plenishings which the surviving spouse could normally claim. Where there is a dispute there could be a reference to a single arbiter.
Subsection (5) does not apply to subsection (6,c) in connection with an heirloom. An heirloom is not necessarily of intrinsic: value. For instance, the hon. Member mentioned a book which may have been in the possession of the family for some time; it is not necessarily valuable but it is one to which he and the family attach particular interest. Or 139 there might be a picture of his great great grandfather which presumably the latter would prefer to go to his great great grandson rather than to the surviving spouse, who perhaps came from another family. We have drafted this in very wide terms believing that the majority of Scots families on these rare occasions come to some agreement among themselves. Where there is no agreement then, as at present, there is always recourse to the courts.
§ Lady Tweedsmuir
The hon. Member will have observed that this comes under Clause 8, and therefore it is a prior right.
§ Question put and agreed to.
§ Subsequent Lords Amendment agreed to.