§ 7.35 p.m.
§ The LORD CHANCELLOR
My Lords, I have it in command from Her Majesty the Queen and the Prince of Wales that they, having been informed of the purport of the Inheritance (Provision for Family and Dependants) Bill, have consented to place their prerogative and interests, so far as they are concerned on behalf of the Crown, the Duchy of Lancaster and the Duchy of Cornwall, at the disposal of Parliament for the purpose of the Bill. I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(The Lord Chancellor.)
§ On Question, Bill read 3a.
The LORD CHANCELLOR moved Amendment No. 1:
After Clause 23 insert the following new clause:
(" Section 46(1) (vi) of the Administration of Estates Act 1925, in so far as it provides for the devolution of property on the Crown, the Duchy of Lancaster or the Duke of Cornwall as bona vacantia, shall have effect subject to the provisions of this Act.")
§ The noble and learned Lord said: This Amendment has as its purpose to make clear beyond doubt that the courts' discretionary powers to award maintenance out of the estate of a deceased person shall apply where the deceased dies intestate, leaving no spouse or next of 1378 kin, so that the property passes to the Crown, the Duchy of Lancaster or the Duke of Cornwall as bona vacantia. In the absence of this provision the position would be doubtful since the Bill is not expressed to bind the Crown, and it could be argued that it would not affect an estate which has devolved upon the Crown or the Duchy Estates. Third Reading of the Bill was deferred on 15th May so that this question could be looked into and any necessary consents could be obtained.
Section 46(1)(vi) of the Administration of Estates Act 1925 provides that where a person dies intestate leaving no spouse or relative who takes an absolute interest under the previous provisions of the section, the estate belongs to the Crown, the Duchy of Lancaster or the Duke of Cornwall as bona vacantia; and the subsection goes on to say that the Crown, or the Duchy or the Duke
may provide in accordance with the existing practice for dependants, whether kindred or not, of tile intestate and other persons for whom the intestate might reasonably have been expected to make provision.
In practice generous provision is made under Section 46(1)(vi) for any dependant or any person who can be retarded as having a moral claim on an estate which passes to the Crown or one of the Duchies as bona vacantia. Occasion may never arise for the exercise of the courts' power to award maintenance out of the estate in such a case. Nevertheless the purpose of the Bill is to provide a unified code applicable in all cases, whether the deceased died testate or intestate. In the interests of clarity and uniformity, it is advisable to make it clear that the courts' powers are available, if required, in all cases of intestacy, regardless of the ultimate destination of the property under Section 46 of the 1925 Act.
§ This Amendment accordingly provides that the devolution of property of the Crown, the Duchy of Lancaster or the Duke of Cornwall under Section 46(1)(vi) of the 1925 Act shall take effect, subject to the provisions of the Bill. This will mean that although the ultimate destination of the estate will continue to be governed by Section 46(1)(vi), it will be open to any of the persons mentioned in Clause 1 of the Bill to apply for maintenance out of the estate. In practice, 1379 however, since the subsection applies only where there is no surviving spouse or next of kin, it would only be a former divorced spouse, a child of the family who was not related to the deceased or a person unrelated to the deceased who was being maintained by him at the time of his death who would have occasion to take advantage of this provision.
§ This Amendment is put forward with the consent of the Queen and of the Prince of Wales. Before the Motion for the Third Reading is put it is right that the House should be informed that Her Majesty had agreed to place her interests in right of the Crown and of the Duchy at the disposal of Parliament and for the purposes of the Bill as amended in this way, and the Prince of Wales has in turn signified his agreement so far as his interests as Duke of Cornwall are affected. My Lords, I beg to move.
§ Lord SANDYS
My Lords, the House will indeed be grateful to the noble and learned Lord the Lord Chancellor for explaining in great and meticulous detail the provisions of this Amendment, despite there being a thinly represented House on this occasion. We are most grateful.
§ Clause 25 [Repeals and transitional provisions.]:
§ The LORD CHANCELLOR moved Amendment No. 2:
Page 23, line 26, at beginning insert—
( ) Section 36 of the Matrimonial Causes Act 1973 (which provides for the alteration of maintenance agreements by the High Court or a county court after the death of one of the parties) shall have effect subject to the following amendments (being amendments consequential on this Act), that is to say—
§ The noble and learned Lord said: My Lords, Amendment No. 2 is an Amendment which adapts certain provisions in Section 36 of the Matrimonial Causes Act 1973 to take account of the repeal of Section 7 of the Family Provisions Act 1966 by the Schedule to this Bill. Section 36 of the 1973 Act gives the courts power to vary a maintenance agreement after the death of one party and it provides for this jurisdiction to be exercised by the county court where the value of the deceased person's estate is such that a county court would have jurisdiction to hear an application for family provision by virtue of Section 7 of the Family Provisions Act 1966.
§ After the enactment of this Bill the county court's jurisdiction in family provision matters will be governed by Clause 22 of this Bill and not by Section 7 of the Family Provisions Act 1966, which will be repealed. This Amendment accordingly substitutes references to Clause 22 of this Bill for the existing references to Section 7 of the 1966 Act.
§ I am happy to say that so far as these Amendments are concerned the noble and learned Lord, Lord Hailsham of Saint Marylebone, intimated to me that he agreed with them. I was comforted by the fact that the noble and learned Lord, Lord Simon of Glaisdale, also agreed; so there is formidable support. My Lords, I beg to move.
§ Lord SANDYS
My Lords, once again on behalf of my noble and learned friend Lord Hailsham of Saint Marylebone, I should like to confirm what the noble and learned Lord on the Woolsack has said; namely, that my noble and learned friend wishes to associate himself with the Amendments referred to.
§ On Question, Bill passed, and sent to the Commons.