I beg to move, "That this House doth agree with the Lords in the said Amendment."

I must point out that all the Amendments before us raise the question of Privilege, because they impose an increased charge upon the rates by adding to the number of persons to whom allowances may be granted. Of course, the House may decide to waive its Privilege in that respect.

Before the House parts with these Amendments I think it ought to be made acquainted with what it is that is being done. Under cover of a private Bill very considerable charges are being imposed upon local authorities without their having even been consulted. This is a matter which ought to have been undertaken by the Government. The Lords Amendments will add very considerably to those charges. I have been informed by one local authority that under the Bill as it was originally presented an additional burden of £35,000 a year would fall upon them, and this Amendment more than doubles that burden. It is a charge which will fall very heavily upon small local authorities.

On a point of Order. I wish to ask whether the House has agreed to waive its Privilege in this matter?

We have not yet got to that point.

For obvious reasons it is difficult to oppose a Bill of this kind, because of the misrepresentations which can be made, but I think some protest should be made against the fact that the Government have given connivance and support to a Bill in order to get credit for passing beneficent legislation although they are not bearing any part of the cost, but are imposing a heavy burden upon the local authorities. In another place Lord Gage, in speaking of the Bill, said:

" The Government do not feel that there arises on this Bill any new question of principle that affects them, nor is it proposed in the Bill to affect in any way new Government money."

Further he said:

" The Government propose to maintain the same neutral attitude as it did in another place and to leave this Bill to the free judgment of the House."

I think this House ought to be acquainted with what they are doing when they are passing this Bill, because it will mean that already heavily overburdened local authorities will have an extra liability imposed upon them.

Question, "That this House doth agree with the Lords in the said Amendment," put, and agreed to.

I understand that the House has agreed to waive its Privilege in this matter, and an entry will be made accordingly.

Lords Amendment: In page 1, line 11 leave out "under their control."

I beg to move, "That this House doth agree with the Lords in the said Amendment."

I should like to ask the Parliamentary Secretary to the Ministry of Health whether he can give any information as to what will be the monetary obligation which will fall upon the various local authorities? I quite admit that it will all depend upon the number of institutions under the control of individual authorities.

I think that for that very reason it would be quite impossible for me to give an exact figure, but I will make inquiries to see whether any figure can be arrived at.

I beg to move, "That the Clause be read a Second time."

This is a proposed new Clause which stands in the name of several hon. Friends and myself, and I am sure the House will feel sorry for the reason which keeps the hon. and gallant Member for Epsom (Sir A. Southby) away from the House to-day. I will not take up much time with this matter, but as this is a Bill which involves the bringing into court of family disputes it is almost inevitable that in the investigation of such disputes a certain amount of dirty linen will be washed in public, and it would be a very good thing if the courts were able to direct that such cases should be taken in chambers. It is quite possible that when the reasons which led a man to disinherit a child or his wife are being considered allegations will be made from one side which will not redound to the credit of the other side, and it would be a great pity if pain were caused by reflections upon the behaviour of the deceased, and still worse if things were said unjustifiably which would be to the discredit of the survivors. I do not think it was ever intended that the Bill should add to the punishment of someone who has been disinherited, whether rightly or not, by reflections on the character of the man who is dead, who has acted, though perhaps wrongly, on what seemed to him good grounds, whatever decision the court may come to on the point. Therefore, I submit that it would be a good thing if at times these applications could be heard in chambers, and it is suggested that the courts themselves shall make the rules under which it will be decided whether the case shall be considered in chambers or not.

I beg to second the Motion.

I should like, first, to associate myself with what the hon. and gallant Member for Christchurch (Major Mills) has said with regard to the absence of the hon. and gallant Member for Epsom (Sir A. Southby). I also appreciate the desire of those who have brought forward this new Clause that dirty linen should not be washed in public, but in a matter of this sort one has to allow the Chancery Judges, to make their own procedure. I am informed that it is quite likely that what my hon. Friends are endeavouring to obtain by this new Clause will in practice take place. Rules will be made so that these cases can, as far as possible, be heard in chambers. One knows perfectly well that the judges are only too desirous of keeping out of court as many things as possible, not from the point of view of keeping matters private, but in order that the courts may be efficient and may get through their work in a reasonable way without becoming choked.

There is another point which I desire to submit to the House, and that is that it has been the settled policy of all Governments since the Judicature Act, 1925, was passed, to keep matters of procedure out of Statutes. Experience showed that procedure constantly became obsolete, and that when alterations were needed to bring it into line with the times great embarrassment was caused because an Act of Parliament was required. The Judicature Act repealed all matters of procedure in existing Statutes and gave the Rules Committee the widest possible power to make the rules of procedure. Having regard to the fact that what my hon. Friends want will actually be put into practice in this way, I hope that they will not press their proposed new Clause.

There is the technical objection to which my hon. Friend the Member for Harwich (Mr. Holmes) has referred, that matters of procedure are now dealt with by the Rules Committee and not by Statute. No doubt the substance of this matter will be considered as well as all the arguments in favour of publicity or otherwise, and I can certainly give a pledge that the matter will, in due course, be considered by the Rules Committee. Although I cannot, of course, say what decision they will come to, we can trust them to come to a wise decision as to whether it is desirable that this power should or should not be given.

May I, as a layman, ask a question as to the procedure which will actually be adopted? Will the procedure decided upon by the Rules Committee be adopted in every case, or will some judge or court of referees, or whatever it may be, say that on a particular issue it is as well to have the case heard in chambers? The less that things are considered in secret the better, but it is true, on the other hand, that what is called dirty linen should not be washed in public. I should like to know how it will be possible to draw up the rules so as to hold the balance evenly between the different kinds of case.

I am sure that my hon. and gallant Friend would not have raised that question had he known the enormous number of matters which have to be considered in private; in the Chancery Courts, for instance, in cases of the guardianship of infants. There is a general rule that such cases start in chambers. Nobody need be nervous at all that any action involving dirty linen will be launched in public.

We are glad to have had the assurances in regard to cases of which the news hawks and the cheap Press love to get hold. There is nothing they like better, and I am sure that the Rules Committee will not permit these little family squabbles to receive undue publicity. As a family solicitor, I know that the bitterness of those who are disinherited, and very properly disinherited, when a will has come to be read is often terrific, and that there is nothing they would not do, in their venom, to throw mud. I hope that such people will not get a chance of doing it, and that the Rules Committee will realise that such affairs are private and should be held in chambers, so that there will be no washing of dirty linen in public.

Assuming that such cases are heard in chambers, will those who feel that they have a grievance be entitled to give evidence?

indicated assent.

In view of the remarks of the hon. Member for Harwich (Mr. Holmes) and the pledge which has been given by the Attorney-General, I beg to ask leave to withdraw the Clause.

I beg to move, in page 2, line 42, to leave out from "Sub-section," to the end of line 6, on page 3.

This Amendment must be read in conjunction with a further Amendment which I hope to move later, to insert a new Sub-section. The provision contained in paragraph (b) of Sub-section (4) directing the court not to make a realisation of the capital assets involved, having regard to the interests of the testator's dependants and of the beneficiaries under the will, applies only to cases where the Bill allows maintenance by way of payment out of capital; that is to say, in cases where the value of the testator's estate does not exceed £2,000. An Amendment was moved by my hon. and learned Friend the Member for Ashford (Mr. Spens) in Committee, and subsequently withdrawn, the effect of which was to prevent a court from making an order in any case involving a sale of land or business. It was felt that such an Amendment went too far because such a realisation might sometimes be prudent and desirable. On the other hand, it seemed to be unanimously felt that to compel the realisation of land or business for the sake of an immediate income might be improvident and undesirable, and those who are responsible for the Bill promised my hon. and learned Friend that we would consider the substance of the Amendment before the Report stage. The result is that I am asking the House to allow me to withdraw this portion of the Bill and to insert a new Subsection (6).

I would give an illustration to the House of why it may be undesirable to compel the realisation of an estate. Many businesses bring in a profit of about £1,000 a year, and if they were sold they might realise £2,000 or £3,000. If the proceeds were invested in securities the income might be only £150 a year, whereas the business, if carried on, would bring in £1,000 a year. Let us say that a man has left a business of that sort to his nephew and has thus provided for him. The wife applies to the court for reasonable maintenance. If the court had to order that business to be sold and the result were an income of £150 a year, half that sum for the widow would be £75 a year; whereas if the court were enabled to allow the nephew to carry on the business and provide reasonable maintenance to the widow, she would be able to get £200 or £250 a year. The business would be continued, and everybody would be satisfied. That is the reason why we desire to follow the view of the hon. and learned Member for Ashford, to whom I should like to extend my thanks for having raised this matter in Committee, so that it will not be necessary for the court to order a business in every case to be realised.

I beg to second the Amendment

I should like to express my thanks to the hon. Member for Harwich (Mr. Holmes) for the consideration he has given to this matter. One of the points that worried some of us very much in Committee was that, while, in the case of any relatives coming within the classes mentioned in Clause 1, a judge who might feel that a prima facie case was made out ought to he able to make some special provision for the applicant, we felt that there are cases where the provision of an allowance for the applicant could only be found by selling a farm or a business or something of that sort, which would inflict on other persons concerned a hardship greater than the relief afforded to the applicant. Therefore, we suggested that it should be laid down in the Bill as a guiding rule to the judges that, when they are providing these allowances for dependent applicants, they should avoid making orders which would involve improvident sales of the only assets of the estate. This, of course, would be an exceptional case, but none the less it is a case which we felt ought to be safeguarded, and by a curious anomaly, owing to the course which the Bill took in Committee, while provision was made that in the exceptional case of an estate of the value of less than £2,000 a capital allowance could be made, there was no similar provision for the much more numerous cases where the allowance was going to be made out of a business. I am grateful to the hon. Member for moving his Amendment, which will probably improve the Bill, and I hope the House will accept it.

I desire to associate myself with what my hon. and learned Friend has just said. It may be remembered that in Committee I raised the case of farms and smallholdings. As the Bill was originally drafted, it might have inflicted hardship on the family of a smallholder or farmer if it had to be interpreted in its original form. From the point of view of agriculture, the proposed Amendment will certainly be an improvement on the original wording.

I beg to move, in page 3, line 7, to leave out "under this section."

The prohibition contained in this Subsection only applies, as the Bill stands at present, in the case of applications made under Clause 1. We feel that the principle contained in the Sub-section should be equally applicable to an application made under Clause 4 of the Bill for a variation of an order made under Clause z or for an order making provision for the maintenance of another dependant of the testator.

I beg to second the Amendment.

I beg to move, in page 3, line 12, at the end, to insert:

" (6) In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order, the court shall have regard to the nature of the property representing the testator's net estate and shall not order any such provision to be made as would necessitate a realisation that would be improvident having regard to the interests of the testator's dependants and of the person who, apart from the order, would be entitled to that property."

As I have already explained to the House, this is a new Sub-section to take the place of the one which was left out just now.

I beg to move, as an Amendment to the proposed Amendment, in line 3, after "not," to insert "be required by anything in this Act to."

This is a very modest Amendment, and I hope that the promoters of the Bill will be able to see their way to accept it. It seems to me that the new Sub-section which it is now proposed to insert goes rather far in laying down the principle that in all cases the interest of an estate, or of the legatee to whom the estate has been bequeathed by the testator, overrides the interest of the dependent applicant. My Amendment to the proposed Amendment is designed merely to give the court discretion to order realisation of the estate, even if it would be improvident in the interests of the estate or of the original legatee, if the court sees fit to do so. In other words, the object is to give to the court a larger discretion than is given by the original Amendment.

Let me take two cases. Suppose that the case is one where there is a small business, the realisation of which would probably bring in a reduced income, and would not, from a business point of view, be advantageous; but suppose also that the business has been left to a legatee who is relatively well off—a man who, perhaps, has a big business of his own, compared with which this business is quite a small affair—and that the dependant applicant is an elderly widow with only a few more years to live, or a child who will in a few years be able to become self-supporting. In that case, if the business were realised, it would bring in enough money to support the widow or the child for a few years, and that might be the only way of securing a sufficient provision. My Amendment would give the court power to order realisation of the business in such a case. If, on the other hand, however, the court felt that it would be improvident to realise the estate, that the widow or the child was not absolutely dependent upon it and could do without the money, and that it would inflict a serious injustice on the legatee to interfere with the business, the court could use its discretion and refrain from ordering realisation.

The feeling of the House throughout has been that as much discretion as possible should be allowed to the court, and I think that the promoter, in his desire to meet the views expressed in Committee, has gone rather far in this matter by tying the hands of the court and saying that in no case should the estate be realised, however necessary it might be for the benefit of the dependant applicant, in case some hardship should be done to the legatee. My Amendment to the proposed Amendment would leave the court discretion to decide whether it will or will not order realisation, after taking all the circumstances into account.

I beg to second the Amendment to the proposed Amendment.

I know that the hon. Lady has always been very suspicious of the wording of the proposed Amendment, but I think she really exaggerates its effect. In the first place, it has absolutely nothing to do with income. If there is anything coming in from a business, farm, or anything else, the court has an absolute discretion as to how it will deal with it, and can make any order affecting income that it thinks fit in the circumstances. All that the Amendment relates to is the realisation of the one and only capital asset of the estate. What we want is that there shall be a direction to the Court that when a realisation would be improvident—and only when it would be improvident—the court is not to make such an order. Surely that is not a very serious matter. None the less, we feel that it is a wise thing to have a direction of that sort, because, as I said, it might be that a judge would feel that if the income could provide only £50 a year and the applicant ought to have £100, this Measure implies that he should try to get £100 a year for the applicant. He may say, therefore, "I can get £100 for him if I order a sale of the estate." The court may feel bound to come down on the side of the applicant, rather than on the side of the other parties. This Bill makes a very serious change in the law. Where this can be done without great injustice to other people, by all means do it; but where the only way it can be done is by making a really improvident sale of the estate, we should not go as far as that. The hon. Lady sees more vice in the proposed Sub-section than is there. I hope the Amendment to it will not be accepted.

Does the hon. and learned Gentleman not realise that, under my Amendment, the court will still be able to do all he wants it to do? It merely leaves it open to the court, in a case where the defendant applicant needs the money very badly and the residuary legatee does not, to say that human right must come before business considerations.

There is a difference in principle between my view and that of the hon. Lady. I want something in the Bill to prevent the court making an improvident sale in any circumstances, and to prevent the only asset, the estate, being realised because something comes along that is not provided by the Bill.

On consideration, I really think the Clause gives sufficient latitude to the court. I think it is only reasonable that the court should not be compelled to allow the estate to be realised if it is improvident to do so. It is very difficult when the hon. Lady has got her mind set on a thing to persuade her.

The whole point of my Amendment is that the court shall not be compelled to do one thing or the other, but shall be left free to decide whether to realise or not, whereas the object of the hon. and learned Gentleman is that the court shall take a strict business view. I think my Amendment would have the effect that the hon. and learned Gentleman says he desires.

May I finish what I want to say? I am just as keen as the hon. Lady to see that no hardship is caused, and, looking at it from the purely legal point of view, I am satisfied that this will be all right.

The point of the hon. Lady's Amendment is, in fact, to give the court power to make an improvident realisation.

From the point of view of the estate.

As my hon. and learned Friend the Member for Ashford (Mr. Spens) said, he desired—and I think there is a great deal to be said for it—to have a clear direction in the Bill. I think that the effect of this Amendment is very much smaller than the hon. Lady perhaps realises. We are dealing with an asset which it would be improvident to realise. It can only be improvident to realise an asset in cases where, if you do not, it will bring in more money year by year than if you do realise it and invest the proceeds. Therefore, in such a case the estate will produce income, and probably more than you could get by realising and investing. The court has full power to make an order with regard to the money that the estate will produce. It seems to me, on the whole, right that the court should be told quite clearly that in taking steps to provide for those not provided for they are not, except in certain exceptional circumstances, to realise the estate where that will be improvident. I think all sections of opinion did their best upstairs to meet each other's difficulties and to provide alternative words which seemed to be sensible compromises. I think the scope of the Amendment is very small, and in the circumstances I urge the hon. Lady not to press it.

I have never viewed this Bill with misapprehension. In fact, it is amazing to me that the law has been allowed to stand as it has in England for centuries, because we in Scotland have had for some centuries a law that a man's estate should be divided into three parts, with one of which he could do what he liked, while another went to the widow and another to the children. The widow would get one-third of the rents of the estate as her share. The idea of forcing the estate, after the testator's death, to cash out is ridiculous, and the hon. Lady has admitted that it is unbusinesslike. Are we going to press forward an unbusinesslike arrangement? If the estate is yielding a satisfactory income it would be very wrong, and it would be unfair, in ratio to the dislike of the legatee, to say that surely, there is an income there, and a substantial proportion of that income, to the applicant, would be undoubtedly greater than contemplated, and the realisation of the capital assets would be to the advantage of all parties concerned.

I confess that when the hon. Lady the Member for the English Universities (Miss Rathbone) first put forward her Amendment to the Amendment I was somewhat in favour of it, but I waited to hear what the Attorney-General had to say, and, provided that there is not some misunderstanding, I am inclined to think that he has met and dealt with her case. I should like to ask what precise interpretation the court will place upon the word "improvident." You may have a testator leaving a piece of property invested in a sort of speculative undertaking, and there may be a provision in the Bill which enables the executor and trustee to retain that somewhat speculative property and not force him to turn it into a trustee security. An executor who was merely concerned with the interest of the widow would be very unwise to leave a piece of property in a speculative undertaking, and would probably find it desirable to change it into a trustee security. For the purposes of the widow, that would be the right thing to do. It is much more important that the widow should receive a certain income, say, £150 a year than a speculative income of £300 a year. If the legatee to whom the testator left his money be a person of great wealth, it may suit him very much better to have a legacy which works out at, say, £300 with a great measure of probability than to have a fixed income of a much smaller amount.

What would be the position of the court in a case of that kind? If the Attorney-General can say that the court would not call a realisation of an investment in trustee security in the case I have given an improvident realisation, then I think that I and my hon. Friends would be prepared to support his view. If such a realisation would be regarded by the court as an improvident realisation and would leave the widow with the chance of getting £150 a year, or whatever amount it may be, out of speculative property, there would be a great deal to be said for the proposal of the hon. Lady. Perhaps the Attorney-General will favour me by giving some indication of what the court will regard as an improvident realisation?

I can speak again only by leave of the House. The House will appreciate the difficulty of giving any very concise definition of what the court would regard as improvident realisation when the circumstances in which these kind of cases may come before the court may be of infinite variety. I think that the case which the right hon. Gentleman has in mind can only arise when there is in the estate not specifically bequeathed, possibly in residue, certain shares or securities of the kind which he has in mind. The court being faced with the duty of providing maintenance for some five or six dependants, obviously, has to consider the available resources. I believe that there will be no doubt at all that this Clause will not in any way prevent it ordering the realisation of a somewhat speculative security in order to invest the proceeds in something to bring in a more considerable income. Investments in ordinary Stock Exchange securities are fairly frequent, and the price of a speculative security represents the market price, and nobody can say that it is improvident to realise a speculative security. The word "improvident" in my view—and I think that it is the right one—is directing the mind of the court to quite a different thing from that of the realisation of securities; to something like a farm, or a small shop, where there is a certain amount of stock-in-trade and the shop will, as far as one can see, continue to function. It that is a realisation which is not improvident, I do not think that there is anything in the words which will preclude the court from saying that the property should be realised in order that the proceeds might be invested into something more secure.

I beg to move, in page 3, line 36, at the end, to insert:

" (9) An application under Sub-section (1) of this Section may be made by a local authority in any case where the authority has become responsible under any enactment for the maintenance of or the provision of relief, assistance, or treatment for the person on whose behalf the application is proposed to be made."

I owe an apology for not having had a word with the hon. Members who put their names to the preceding Amendment on the Order Paper which has not been moved, because my Amendment is intended to cover precisely the same point, except that the Amendment which they put down was not sufficiently wide in its scope. That Amendment would have had regard to what are strictly Poor Law authorities, but since Parliament has imposed a number of other duties upon local authorities such as are included under the Lunacy and Mental Treatment Act in connection with hospitals, and the Blind Persons Act, my Amendment seeks to provide that, where it has been decided that a person is to come into property, the local authorities shall be entitled to make application for any amount that might be considered reasonable to meet the cost to which they had been put for the maintenance of any such person.

I was in a certain difficulty both with regard to this Amendment and the previous Amendment which had been put upon the Paper as to the exact scope it was intended to cover. As the Bill is drafted, application can be made, by or on behalf of poor persons, that will cover, of course, guardians, and, I think, a lunatics committee, and there are other cases which can be designated. It would not, I think, cover clearly a local authority who happened under the Poor Law provisions to have charge of, or be supporting, dependants who, they believed, had a right of application under the Bill. I was not quite sure whether these Amendments were intended simply to mean that the local authority could make an application by putting the matter on record and making themselves responsible for costs, and so on, the order of the court directing the money to be paid to the applicants, or whether it was intended that, in any cases to which the Section applies, the court was to order the money to be paid to the local authority.

The Amendment is concerned with the case of a poor person who is being supported by a local authority. Under this Measure a person in poor circumstances whether being supported by the Poor Law authority or not could make an application as a poor person. That right would apply generally, and not only to those who have to be looked after by the Poor Law authorities. When one considers the case in which a poor person is actually receiving Poor Law assistance or is in an institution of some kind the local authority would consider whether that person had a good claim under the Act and, if so, the Poor Law authority could make representations on behalf of that poor person to the Poor Persons' Committee, suggesting that it was a proper case for them to consider, and that if they thought the applicant had a good case they should take it up. Obviously, representations received from a local authority by a Poor Persons' Committee in circumstances of that kind would receive every possible attention. A poor person receiving Poor Law assistance would be really in the same position as a person not receiving Poor Law assistance; indeed such a person might be in a better position to this extent that the local authority, 'apart from the humanitarian motives which would no doubt move them would have a financial motive in seeing that an application is made and that it succeeds, because if the poor person obtained an order under the Act it would be to the advantage of the Poor Law authority in question, inasmuch as they would no longer have to bear the cost of the support.

I appreciate the purpose of the Amendment, and I hope that what I have said may have gone some way to cause the mover of it to realise that there are, and there will be, means of enabling these cases to be met and applications to be made by or on behalf or poor persons. I should have thought that it would be better to leave the matter as it stands, but if we find as a result of experience that there is a sufficient number of cases, and that our existing procedure does not satisfactorily deal with them, then it may be that the matter ought to be considered in the light of the effect on local government as to whether steps should he taken to amend the law in order to give the necessary powers for dealing with the situation. So far as this Bill is concerned there will, no doubt, be poor persons affected by it, but there is no doubt that such persons will have their cases properly considered by the Poor Persons' Committee, and if they have a claim it will be attended to. Perhaps in these circumstances the hon. Member will see his way not to press the Amendment.

The Attorney-General will realise that this Amendment has been put down on the suggestion of the legal advisers of the London County Council. I am assured that it would be an advantage to make this provision in the Bill. If an authority took initial steps with re- spect to a poor person in these circumstances, it would not be making a claim for the money but would simply afterwards seek in the ordinary way to get whatever allowance could be paid towards the maintenance of the poor person in question. The Amendment could not injure the Bill but might strengthen it, and before the Attorney-General turns it down I hope that he will give an assurance that between now and proceedings in another place he will consider the matter with a view to seeing whether some steps might be taken on these lines.

I am somewhat in doubt as to what the Attorney-General really means. Does he mean that if a poor person has received over a number of years, say, £150, because the husband may have been out of sight, that the local authority are to have power to make application to get back all that money, because, say, £6,000 or £7,000 is going to come to that person? In such a case the local authority should have the right to get back everything that they have expended in the case. I thought that that was what the London County Council meant by the Amendment. I looked across the House in the expectation that the hon. Member for South Croydon (Mr. H. G. Williams) would have been supporting this Amendment up to the hilt, because he is always crying out about local rates, but he is not present. If the Amendment means that the local authority should have the right to get back the money that they have paid, then I think it ought to be inserted in the Bill. If a local authority has found money in the past or will be finding money in the future for the wife or any dependants —there are cases where the amount found has been not merely £150, but £500 or £600—the local authority ought to be able to recoup themselves for what they have expended, when it turns out that the husband has gone away, but there is some money at the end of it.

I will certainly give the assurance asked for by the hon. Member for North Camberwell (Mr. Ammon) and will look into the matter. I still think that, on the whole, what I said is right, but that will not prejudice me and others concerned from considering the matter in the light of the ex- planations that we have had, as to whether or not it is a good idea to put the Amendment into the Bill. If the hon. Member will accept that assurance, perhaps he will not press the Amendment.

On that assurance I beg to ask leave to withdraw the Amendment.

I beg to move, in page 4, line 8, after "Act," to insert:

" then, for all purposes, including the purposes of the enactments relating to death duties."

This Amendment is moved on the suggestion of the Government to make it quite clear that legacy duty will be payable, as it ought to be, in respect of what is specified in the order for giving effect to the provision for maintenance.

I beg to second the Amendment.

I beg to move, in page 4, line 14, to leave out Sub-section (2).

I will explain what happened in regard to this Sub-section. This was an Amendment moved by the hon. and learned Member for Ashford (Mr. Spens) and at the time when it was considered in Committee we had not the advantage of the presence of the Attorney-General or the Solicitor-General. I accepted the Amendment but pointed out that as we had not the benefit of their advice it must be reconsidered later on. I want to point out that Sub-sections (1) and (2) of this Clause are wholly inconsistent with each other. Sub-section (1) leaves it to the court to mould the will as required to give effect to the provision for maintenance made by the order, and makes the provision take effect as a legacy, while Sub-section (2) makes the proposal take effect as a debt. The reasons given by the hon. and learned Member were partly formal and partly substantial. The formal reason was that if the Bill fixes the beneficiary who is to suffer by an order, it will become unnecessary to make any other beneficiary a party to the proceedings. It is submitted that this is a misconception in so far as it is wrong to suppose that all beneficiaries will have to be made parties if the principle of Subsection (1) stands. In fact, rules of court will be made providing for a preliminary hearing and for directing which beneficiaries are to be served.

The substantial point is that the hon. and learned Member thought the burden of the provision for maintenance ought always to fall on the residue. That is admittedly a matter of policy, but the promoters take the view that the proposal is wrong. One might cite the example of a testatrix who leaves a large legacy to a charlatan who has acquired undue influence over her and a small residue to a hospital. In such a case why should the hospital bear the whole burden? The proposal also involves impossible complications where some of the dependants are legatees, and is also objectionable from the Death Duty point of view.

I beg to second the Amendment.

I am still rather in some doubt as to this Sub-section. I think it would be much better if it were laid down in the Bill what portion of an estate should bear this burden following an application made under the Bill. I still feel that if it is left at large, as it is in the Bill, there will be in very many cases serious fights at the preliminary hearing between the various beneficiaries under an estate as to whether or not they or some other legatee or residue should bear the burden of an allowance made under the Bill. My own view is that if it is left at large it will lead to a great deal of unnecessary and expensive litigation, but I am not going to be so pigheaded in favour of my own view as to try and persuade the House to stick to the Sub-section. I admit that the moment I heard it was the intention of the authorities to have Rules of Court providing for a preliminary hearing in chambers I felt that in a great number of cases this would get rid of most of the practical difficulties I had in mind. I still feel that where you have an estate distributed between a number of legatees with possibly a small residue, that if it is left at large to the court to decide which of the legatees is to be the unfortunate person to be deprived of his or her legacy, there will be grounds for long and expensive fights behind the scenes in the division I have the honour to represent. But if it is thought that the machinery will work better if the Sub-section is left out, I am quite ready that it should go.

I beg to move, in page 5, line 6, at the beginning, to insert "an order."

This is purely a drafting Amendment.

I beg to second the Amendment.

I beg to move, to leave out the Clause.

This Clause as drafted gives the court mandatory directions as to the payment of costs of applications under the Bill. It has been pointed out that this matter is already adequately provided for under Section 5 of the Supreme Court of Judicature Act, 1925, and by Order 65 of the Rules of the Supreme Court. The power of the court includes full power to award costs out of the estate in favour or against any of the parties, otherwise than as against the executors personally, on any application made under the Bill. As the law is sufficiently adequate it is not necessary to keep this Clause in the Bill.

I beg to second the Amendment.

I do so because I think the Clause is wrong. It says:

" The court may order that the costs of any party to an application shall be paid in whole or in part out of the estate of the testator, or any part thereof or interest therein, and no beneficiary under the testator's will other than an applicant shall be ordered to pay the costs of any other person of an application for an order under this Act."

Take what may happen if these words are left in. A beneficiary might take a wrong action, a spiteful action, and try to do something which is improper. Surely the court ought to have power to make an order against that person for the costs of the additional expenses wrongfully incurred. I agree that the point is covered by the Rules of Court, but the Clause as it stands is wrong.

I beg to move, "That the Bill be now read the Third time."

I should like to trace in a few words the history of the Bill during the present Session. The House gave it a Second Reading on 5th November last, and on that occasion the Attorney-General said that the attitude of the Government towards the Bill would be one of strict nonintervention. Nevertheless, the House gave it a Second Reading. When we met for the first time in Standing Committee B the Solicitor-General asked leave to make a statement, and I want to read a short passage from that statement:

" This is a private Member's Bill. It is that at present, and as such it will remain. But the Government have not been able to lose sight of the fact that on three occasions the House of Commons has shown a disposition to prevent the injustice which arises in some cases from the exclusion of a widow or child from the bounty of a testator. The difficulties of dealing equitably with that situation were pointed out quite recently by my hon. and learned Friend the Attorney-General, and I need not repeat them. The House took cognisance of this, and nevertheless once again affirmed the principle which I have enunciated. But the Government have had to look at this Bill from the point of view whether, as it is at present or as it is proposed to be amended by this Amendment, any workable measure will emerge, and I desire to suggest to the Committee the limits which in the Government's view would make this a workable Measure at the present time."—[OFFICIAL REPORT (Standing Committee B), 23rd November, 1937; col. 6.]

The Solicitor-General named four principle points that the Government would desire to have inserted in the Bill. One was that anything granted by an application under the Bill should be for maintenance only and not refer to a portion of the capital. The second was that the persons entitled to apply under the Bill should be restricted to husband or wife, spinster daughter, infant son or incapacitated son. Thirdly, that there should be an upward limit, that not more than two-thirds of the income of the estate should be granted by the court if there were wife and children, and not more than half if there were wife only or children only. The fourth point which the former Lord Chancellor, the Solicitor-General mentioned, was very insistent upon, was that small cases should not be referred to the county court.

When those of us who were interested in the Bill heard this statement from the Solicitor-General we felt that it was desirable that we should accept the pro- posal; as we could not get all that we wanted we wanted all that we could get; and from that time onwards I had the great advantage of the help of the Attorney-General and the Solicitor-General, to whom I want to express my great gratitude. I also want to acknowledge, if I appropriately may, the assistance which the Parliamentary Counsel rendered to me in helping to draft Amendments and in explaining many difficult legal points. But there are some others whose assistance I want to acknowledge. This Bill went to a Standing Committee at the same time as Standing Committees were considering such important Government Bills as the Films Bill, the White Fish Bill and a Scottish Bill, and the question was whether in the Committee for this Private Bill we should be able to get a quorum. There was a number of hon. Members opposite and others on this side of the House who were good enough to come on five separate days, and only once had we to wait from is11 a.m. to 11.10 a.m. to get a quorum. I want to acknowledge very sincerely what those regularly attending and silent members did.

The position now is that the Bill, if I may briefly describe what it does, provides that where a person dies and leaves a will which does not make reasonable provision for the maintenance of wife or husband, spinster daughter, infant son or incapacitated son, the court may order that such reasonable provision as it thinks fit shall be made, provided that the amount of such annual income should not exceed two-thirds of the total income of the estate if the testator leaves both wife or husband and one or more dependants, or one-half of the total income of the estate if the testator leaves a wife or husband only, or dependants only.

I beg to second the Motion.

Having been connected with all the various attempts at legislation on this subject in past years, I think it only right to say a few words of appreciation and congratulation of my hon. Friend the Member for Harwich (Mr. Holmes). First, I congratulate him very much on bringing this matter to a conclusion; and, secondly, I must congratulate the hon. Lady the Member for the Combined English Universities (Miss Rathbone), whose unfailing zeal throughout kept every one up to the mark and enabled things to be done. I am bound to say that we owe to her a deep debt of gratitude, which I personally feel very strongly.

I have been associated with those who are against this kind of Bill almost as long as any Member of the House, and I would like to say that my experience of Parliamentary procedure in connection with this subject has led me to realise that it is very necessary to take a great interest on Fridays in the Bills that are brought forward This Bill is now very different from the Bill which I, almost single-handed, opposed in previous years, and I am very grateful to the present promoter of the Bill, who has certainly modified it in a way which, from my point of view, makes it much less objectionable. I will go as far as that. I would pay a tribute to the hon. and gallant Member for Penrith and Cocker-mouth (Major Dower) who, seeing that I was single-handed, joined me. Last year together we succeeded in opposing this Bill. I remember how we were told that everything would be all right if everything was left to the courts. Thanks to the Government's legal department and to an association of which I forget the name but which deals with legal matters in the courts, the danger of leaving things entirely to the courts has been recognised, and I think we may take a certain amount of credit to ourselves for bringing the dangers of the Bill as it was to the notice of the House and the country.

As has been said, this Bill is very different from what it was when drafted. It deals only with interest, and it says to the courts what the proportions are to be. Those are two great improvements in the Bill. But I ask the House whether on the whole the Bill is not destined to he a failure. The Public Trustee says that the number of cases with which the Bill is designed to deal is practically negligible. I have consulted important legal firms which draw up wills relating to landed and real estate, and they say that they never find cases of hardship of the kind with which the Bill is intended to deal. We know, however, from the Seconder of the Motion for the Third Reading, that there are such cases. There are perhaps 100,000 wills made in this country each year. There may be 200,000 wills drawn up, but how many cases of hardship are there in a year? Are there 20, or 30 or 100? I doubt very much whether there are more than 100 which this Bill is designed to deal with—100,000 wills and 100 cases to be dealt with. In order to deal with those 200 cases you are interfering with all those 100,000 wills. That is not the way to legislate.

I hope that this Bill will not be taken as an example of the way in which we should deal with legislation, for it deals with everybody for the sake of a few persons who make unjust wills. To my mind that is one of the faults of the Bill. My hon. and gallant Friend the Member for Penrith and Cockermouth and I have opposed this Bill, and I think we have succeeded in bringing about some improvement in it. Although I have been opposed to the promoter of the Bill, I would like to pay a tribute to the way in which he has met us on many occasions. One of the reasons similar Bills did not get through in previous years was that we could not get any concessions, but on this occasion the hon. Member has been very disarming and has shown himself capable of piloting through a difficult Measure. To conclude, I hope that the Bill will not have any deleterious effects, as similar legislation has had in France, but rather that it will have a good effect.

I wish to congratulate the hon. Member for Harwich (Mr. Holmes) on his success in securing the passage of this Bill, which in many respects is quite as good as similar Bills which have been before the House previously. The hon. and gallant Member for Louth (Lieut.-Colonel Heneage) has been a persistent opponent of the Bill, and year after year has put down shoals of Amendments, and sometimes run away from them, as he did last year. This Bill is a necessary one, although I admit that there are hundreds of thousands of people who have no property to leave to anybody when they die. As the hon. and gallant Member for Louth said, there may be 100 very bad cases—we do not know how many there are—which ought to be dealt with, and to-day we are passing a Bill which will deal with them.

I suppose that there is not any hon. Member who has not heard of shameful cases. I have heard of a very glaring case of a man who, for a very long time, lived with a woman who was everything to him, who cared for him and nursed him, a man who was a prominent county councillor and public man, who left his wife with nothing. In such cases, a means must be found for preventing such unfortunate things from happening, when men are so selfish. Fortunately, in our country, everybody is not like that. There are hundreds of thousands of homes that are comfortable and happy, and when a man has lived for 30, 40, or 50 years with a woman, he thinks that there is no lady in the land whom he would swop for his dear old Dutch, and when he passes away he will think of her. Nevertheless, there are bad cases which must be dealt with. I am very pleased that this Bill is receiving its Third Reading, and I hope that it will soon become law.

It is really astonishing to me that this Bill was not law a long time ago. Even supposing there are only a few cases to be dealt with, what is the hon. and gallant Member for Louth (Lieut.-Colonel Heneage) worrying about? The Bill will not affect the vast majority. One might as well say that we should not have capital punishment because there are only a few people who commit murder. The only thing I regret is that we have not solidly taken over the law of Scotland. If we had taken over that law, with all the precedents laid down through the centuries, there would have been no difficulty in administering the law, and it would have been done justly. One of the things I always regret about the Act of Union between Scotland and England—when the Whigs sold Scotland in 1707, and, as the poet says, they were just a parcel of rogues in a nation—is that it was not provided that the English law should be abolished and the Scots law taken over. If that had been done, you would have had this Act of Parliament for 231 years, and all the poor widows, 100 a year over 231 years, would have been provided for. It is a lesson to hon. Members that when they want to get sound legal principles, besides many other things, they have to go North of the Border for them.

I suppose that I may say that my relationship to this Bill is that of great grandmother. This is the fourth attempt at legislation on this subject, and it is a good example of the way in which Private Members' legislation works out. It requires from those concerned that they should attempt something like the labours of Sisyphus, and year by year roll a Bill up the Constitution hill and see it roll down to the bottom again, but at last get it to the top. So- it has been with this Bill. If the Bill is not a good example of Parliamentary draftsmanship, it ought to be, because it has been gone through again and again in Committee, and on two occasions it has been through the Report stage, and not only on this occasion, but on other occasions, it has received assistance, which has been so amply acknowledged by other hon. Members, and which I am sure we all acknowledge, from the legal advisers of the Crown. This Bill is, so to speak, the result of the fourth boiling down, and I think it ought to be a satisfactory one.

We have to remember that even now, as a result of the very necessary spirit of compromise which has been shown by the promoters, it is a very modest Bill, and of course, it goes very much less far than the hon. and learned Member for Argyllshire (Mr. Macquisten) would have desired. If it had been on the Scottish model, it would have been very much more satisfactory to many of us, but some seven years ago Parliament, in its wisdom, rejected a Bill which I brought forward based on the Scottish model, and the joint Select Committee, to which the matter was referred, preferred what we have been accustomed to call the Dominions model, on which this Bill is based. It merely gives the right to the courts to deal with applications from aggrieved spouses and dependants. But while the Bill is on the Dominion model, it is well to point out that it does not even go as far as most of the Dominions legislation. Limitation after limitation has been introduced.

The Bill does not, as does Dominions legislation, give any opportunity to an adult son other than a permanent invalid to make application. I am sorry for that, because it distinguishes in these matters between sons and daughters by permitting an adult spinster daughter to apply, but not an adult son. That, I admit, is a comparatively small point, but we must all acknowledge that the Bill does tie up very strictly the rights of disinherited spouses and children. To my mind it suffers from the old tendency of British law to put the interests of property above and beyond the interests of flesh and b100d. However, it is our way in this country to proceed by way of homoeopathic doses of reform. There is much to be said for that method and I hope, in view of the extreme modesty of the proposals outlined in the Bill, that it will have as calm a passage in another place as it has had in this House. Modest as the Bill is, there are many widows and orphans who will have occasion to call its promoter blessed, and we have all admired the spirit of compromise which the hon. Member for Harwich (Mr. Holmes) has displayed.

The opponents of the Bill have all along been in the difficulty of trying to reconcile two inconsistent positions. On the one hand, they have pointed out that there are no unjust wills, and yet, on the other hand, they have suggested that the Bill will lead to a mass of litigation. I think the truth will be found somewhere between those two views, and I would remind those who think that there are few unjust wills, that there is little opportunity at present of finding out how many there are. The woman or child who is put in the humiliating position of being totally disinherited, will not go to the courts and will not even go to the expense of consulting a lawyer, and exposing their grievances, when they know there is no legal remedy. Those of us who have been working for years for a Measure of this kind know that once such a proposal is mentioned in the newspapers it brings a little spate of letters from people who have suffered bitterly through the lack of a remedy against unjust disinheritance, but who have never exposed their wrongs to the public, because there was no redress. One bitter reflection about this Bill is that there are so many for whom it comes too late. It is pathetic to have to answer letters from people who think that a will executed five or six years ago can be remedied by this Measure. Many of them will feel that it is something if their hard cases have helped those who have been working to remedy this injustice, and I hope people in the unfortunate position which I have described, will be able to take some consolation from that fact.

I have never pretended to be able to look into the future, but I gather that this Bill is going to receive the Third Reading and I should like to thank my hon. Friend the Member for Harwich (Mr. Holmes) for what he said about myself, and still more for what he said with much greater justification about the Parliamentary Counsel. This is one of those occasions on which we are, on the whole, conscious of each other's virtues as, on other occasins perhaps, we are conscious of each other's weaknesses. While preserving my attitude of non-intervention I wish to pay my tribute to those who, starting in the Committee with very divergent views on certain matters raised by this very important Bill, succeeded in approaching those questions in a spirit of compromise, and while not giving away any points of principle, concentrated on putting into a workable form, principles which most people, in the end, recognised as sound. I think it is true to say that the Bill in its present form is a great improvement on the Bill as introduced, and a great improvement on previous Measures of this kind which have been brought before the House. It is a matter of congratulation to those who, approaching this question from different angles, have succeeded in pooling their ideas and producing a workable Measure.

I join in congratulating the hon. Member for Harwich (Mr. Holmes) on having successfully piloted this Bill through its various stages and the hon. Lady the Member for the English Universities (Miss Rathbone) on her persistent advocacy of this reform. Thanks are no less due to the hon. and learned Gentleman who has just sat down and to the Solicitor-General for the assistance which they have given in making this a workable Measure. Even if the cases which the Bill is designed to meet are few, I do not think we have ever taken the view in this country that because cases of hardship are few they are not entitled to a remedy. Where an injustice is perpetrated often of a very serious character it ought to be dealt with and I am very glad that we are dealing with this one. I think there are few countries where these anomalies exist to such an extent as in this country, and though it may be true—and here I am in some agreement with the hon. and gallant Member for Louth (Lieut.-Colonel Heneage) —that in some countries, the boot is on the other leg and the remedy is too drastic, yet I think it would be wrong to leave the position unadjusted in this country. With regard to the form of the Bill, I think it is much better to have a Bill that will work, even if it does not go as far as some of us might desire. The compromise that has been effected is a thoroughly British compromise, and is probably the best way of securing agreement between those who take different views on this question.

After the Bill had received its Second Reading I was discussing it with a number of friends in my country home, and we considered what Amendments could be embodied in it to satisfy reasonable opposition and divergent views. When the Bill came into the blaze of publicity during the Committee stage, I was interested to find that the practical solutions of the difficulties which we had had in mind, were those which commended themselves to the promoters and to the legal advisers of the Government. There was one difference which I, personally, regret. It may be that it is necessary and possibly a further remedy may be found hereafter, but, personally, I regret the provision which amounts to a restraint on marriage. That is in reference to the remarriage of a widow or the marriage of a daughter. I do not see why a daughter who has been left penniless by her father and who has been provided by the court with a small maintenance allowance of £50 a year, should lose that allowance on her marriage possibly to a comparatively poor man. I should have preferred if the court had had, at any rate, the option of reconsidering the matter at the time of marriage, both in the case of the daughter and in the case of the widow or widower. However, these are comparatively small matters, and, recognising the value of the compromise which has been reached, I would not wish to upset it on those grounds.

There is one matter which has not been mentioned in this Third Reading Debate which, I think, is probably the most important of all. What most of us hope from this legislation is that it will never come before the courts at all, but that it will achieve its purposes without coming before the courts. So long as this legislation has been non-existent, spiteful testators have been enabled to cut out of their wills relatives who were entitled to look to them for maintenance after the testators were dead, and they have done it with impunity. The knowledge that this law exists will in future prevent testators from taking that course, and if it results in no cases of this land ever being brought before the courts in the future, that will undoubtedly be the greatest possible tribute to the passage of this Bill. It is for that reason that I heartily commend the Third Reading and congratulate those who have been instrumental in bringing it about.

It would not be fitting that the only Member who made a really violent speech against this Bill on Second Reading should allow the Third Reading to go by without saying a word or two. May I say, first, how much I have appreciated the attitude of the promoter and, if I may say so with respect, of the Law Officers of the Crown, and the courteousness with which they have listened the whole way through to the suggestions which some of us have made? This Bill, as it comes back to the House from Committee, is a very different Bill indeed from that which I opposed when it first came before the House on Second Reading. There was then no limit of age or sex or otherwise to the applicants who could make objection to lack of provision or of adequate provision made for them by a will, and there were no directions given to the court as to how the court was to deal with the matter. As the Bill comes back to the House, it has limited the persons who can be applicants, it has limited the amount for which they can claim, and it has given directions to the court as to how to deal with the matter. As a result, I believe the court will have much less difficulty in dealing with the matter.

I wish I could take the view that this Bill was really going to meet the cases that the promoters have in mind, the really vindictive cases. The testator who deliberately in the past has left out of his will his widow or child will still be in a position under our law, if he thinks fit, to see that nothing worth having passes under his will and that his property on his death finds its way to the destination to which he wants it to go. This Bill will deal with the occasional case where a man has left a will which is regarded by the court as unfair, but the really vindicative testator will not, in my opinion, be caught by this Bill at all. In these circumstances, I still cannot view the Bill—I say it with great respect to everybody—with real pleasure, because, whatever anybody else may say, it does mean in the case of every person who makes a will in favour of a widow, an infant child, a daughter, or a son who is suffering from some infirmity, whatever provision he has made or may make for them in the future, that he will always have to remember that after his death that provision may not be regarded by them or by those who act for them as adequate. It is useless to say, therefore, in my view, that there will not be litigation to some extent as a result of the passing of this Bill in cases where I do not think there should be litigation at all.

Still, I have always accepted the view of this House. The House gave the Bill a Second Reading by a very large majority, as it has given similar Bills a Second Reading in the past. The House believes that this Bill will do some good, and I have no doubt at all that in some cases, in a few cases, it will do some good, but I believe that in other cases the results of the Bill will be unnecessary, unpleasant, and expensive and will mean litigation which would never have come into existence had this Bill not been passed by this House. Let me end on the note on which I began, and say that I want to express my thanks for the courtesy with which criticisms which have been put forward by myself and my hon. Friends have been received, and for the very substantial Amendments for the better which the Bill has received in its passage through Committee.