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Clause 150—(Succession To Real And Personal Estate On Intestacy)

Volume 155: debated on Wednesday 14 June 1922

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(1) The residuary estate of every person who dies intestate after the commencement of this Act shall be distributed in the manner or be held on the trusts mentioned in this Section, namely:—

( b) If the intestate leaves issue, upon trust, as to one moiety or the property appropriated in respect of the same, for the surviving husband or wife during his or her life, and, subject to such life interest, on the statutory trusts for the issue of the intestate; and as to the other moiety or the property appropriated in respect of the same, on the statutory trusts for the issue of the intestate; but if those trusts fail or determine in the lifetime of a surviving husband or wife of the intestate, then upon trust for the surviving husband or wife during the residue of his or her life.

(vi) Sixthly, for the great grandparents of the intestate, and if more than one survive the intestate, in equal shares; but if no member of this class takes an absolute interest; then

(vii) Subject to the interests of a surviving husband or wife of the intestate, and in default of any other person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall.

(6) If there is only one personal representative (not being a trust corporation) then, during any minority or the subsistence of a life interest, any person interested or the guardian, committee or receiver of any such person may apply to the Court under the Trustee Act, 1893 (as amended by any subsequent enactment) for the appointment of new trustees either in addition to or in place of the personal representative.

I beg to move, in Subsection (1, b), to leave out the word "moiety" ["upon trust as to one moiety"], and to insert instead thereof the word "half."

I may explain that the Member for Bodmin (Mr. Foot) suggested in Committee that the word "half" was known and understood by more people than the word "moiety" and he asked me to substitute "half" for "moiety." I am now proposing to do so.

8.0 P. M.

I hope that the Solicitor-General, inasmuch as he has frequently spoken of the necessity of cheapening and simplifying and improving the law, will recognise that the lawyer members of the Committee on several occasions have brought forward suggestions with that intent. It was, he will remember, on the suggestion of the. Member for Central Portsmouth (Sir T. Brarnsdon) that the provision with regard to attaching the seal was taken out. He will also remember that on one occasion I asked that the Stamp Duty on a reconveyance might be removed, so that the procedure might be cheapened and made easier, and in view of the fact that the word "half" is well known to all, whereas the word "moiety" is known only to a few, it may perhaps be counted for righteousness on the part of the solicitors that we are anxious to have the law thus simplified.

May I say that I am very greatly indebted to the legal members of the Committee upstairs for their assistance then and on the Report stage as well.

Amendment agreed to.

Further Amendment made: In Subsection (1, i, b) leave out the word "moiety" ["and as to the other moiety"], and insert instead thereof the word "half".—[ Mr. Foot.]

I beg to move, in Sub-section (1, vi), to leave out the words

"Sixthly, for the great-grandparents of the intestate, and if more than one survive the intestate, in equal shares; but if no member of this class takes an absolute interest; then—"
and to insert instead thereof the words
"Sixthly, for the surviving husband or wife of the intrastate absolutely."
This Bill lays down an entirely new scheme for the distribution of the estate of an intestate, and makes it applicable —a very important alteration—not only to personal property but to real property. We all know that under the present law, if a man owning real property dies intestate, the whole of the property goes to his eldest son or his heir-at-law. Now the property, whether real or personal, is made, on intestacy, to go in the same way in each case. I do not in the least quarrel with the method of disposition up to a certain point. It is perfectly reasonable, and I do not need to refer to its details, but the object of this Amendment is to prevent the necessity, if there are no children, uncles, aunts first cousins or parents, of looking for second cousins. As the Bill stands, if there is no person of the degree of first cousin or nearer, it says one must go to the great grandfathers, of whom there are eight, and trace down all their descendants to the second cousins, to find out who is entitled. One objection to that is that it would probably exhaust the estate. I have known cases myself where a man has had, say, £1,000 to leave, and has left it to his second cousins. The Court has ordered inquiries as to who they were, and, after a great deal of trouble, it has been found that there were 200 or 300 of them. That did not exhaust the stock, but it exhausted the money, and they could go no further. Inasmuch as, in cases of intestacy, the sum involved is usually small, to look for second cousins would, in nine cases out of 10, exhaust the whole estate, and no one who was intended to benefit would get anything out of it at all.

That, however, is not the only reason. I think that when you have looked into the relatives of the intestate as far as first cousins, that is to say, when you have inquired whether there is father, mother, children, brothers, sisters, or children of uncles or aunts, and when you have found that there are no persons of that degree of relationship alive, I think one might fairly say one will not go any further in distributing the property, but leave it to the surviving husband or wife, as the case may be. Let me say, moreover, that the Treasury is very liberal in cases of intestacy. If there is no one who, according to law, is strictly entitled to receive the property, it falls, strictly speaking, to the Treasury, but if the Treasury find that there is some dependant or person connected with the intestate, they give him the money, although by law he is not strictly entitled to it. For these reasons, I think we need not go beyond first cousins, and if there are no first cousins we might give it to the husband or wife or, if there be neither, to the Treasury.

I venture to think that the House ought to accept this Amendment. May I—more, perhaps, for the gratification of the hon. and learned Member who moved it—read once more from Mr. Underhill's letter? He says:

"I am wholeheartedly in favour of the Amendment. I doubt whether one in a hundred persons cares a rap about any relation who is further removed than first cousin, and if he does he has only to make a will. My experience of 50 years at the Chancery Bar is that the costs of inquiries to ascertain remote next-of-kin is out of all proportion to the estate. Some few years ago, in my own experience, a man died intestate without any next-of-kin nearer than the descendants of his paternal great-grandfather and his maternal great-grandmother. He left £10,000 more or less. Of course, the administrator had to go to the Court for nil inquiry. This lasted for years, and advertisements had to be inserted in newspapers all over the world. Hundreds of claimants turned up, and their claims had to be investigated, and in the result, after payment of the costs, each claimant got under £5."
That is the kind of thing that happens, and when one bears in mind the hon. and learned Member's observation that the Treasury is very liberal and very careful in distributing any unclaimed funds to relatives or other deserving persons who are found, I think the House might well save what is really an unnecessary waste and accept the Amendment.

Amendment agreed to.

Further Amendments made: In Subsection (1, vii), leave out the words, "subject to the interests of a surviving husband or wife of the intestate, and."—[ Sir J. Butcher.]

In Sub-section (1, vii), leave out the word "other" ["other person taking an absolute interest"].—[ Sir L. Scott.]

I beg to move, in Sub-section (6), after the word "corporation" ["not being a trust corporation"], to insert the words

"or an executor originally appointed to be executor to a will by a testator."
I can deal with this Amendment very shortly, and no doubt the Solicitor-General will be glad to be released after a long Sitting. Sub-section (6) of this Clause gives power to apply to the Court for the appointment of an additional trustee if there he only one. The only exception that I would propose to that is that when the one trustee is a sole executor appointed by the testator this power shall not apply. If I make my will and appoint my son executor to hold the property during the lifetime of my wife, and afterwards to divide it amongst himself and his brothers and sisters, why should there be power to add another executor if I am satisfied with the appointment of one? If a testator appoints one, he obviously intends that that one shall have the whole responsibility. He makes the appointment, and he is the best judge of the ability of the executor to manage his affairs. If he wanted to appoint two he would do so. The fact that he has appointed one should surely be the deciding factor, and I do not think it should be open for someone else who has some sort of interest in the property to make an application to the Court, involving expense, when the testator wished for only one sole executor. The proposition seems to me to be a reasonable one. I am glad that the last Amendment was accepted. The Solicitor-General has got practically the whole of his Bill, and, with this small concession at the end, I think we can bring the four or five hours' hard discussion to a very genial close.

I hope the Mover of this Amendment will remember that, as regards his Amendments generally, I have given him "half," and that he will, therefore, forgive me if I refuse to give him this one. The whole scheme of the Bill is that, where individuals are trustees, as distinguished from a corporation, there shall be at least two, and this Amendment is inconsistent with that principle. It is a safeguard that we want to maintain.

Amendment negatived.