Inheritance and Trustees’ Powers Bill [HL]

Baroness Hamwee Excerpts

Tuesday 22nd October 2013 Grand Committee

[Baroness Hamwee (LD)]

My Lords, I had friends—not Quakers—whose favourite activity of a long winter’s night, when we were all students and young lawyers in practice, was to make and remake their wills. I do not know whether they filled in the odd half an hour with the odd codicil as well. Many of us, like them, at some point in middle age, go from, “I am immortal” to, “I cannot face thinking about it”. It is no surprise that the Nuffield study used by the Law Commission reported that family circumstances and the wish to avoid family arguments, as well as having assets, is the prompt to make a will. I say “assets” rather than “wealth” because there is also awareness, particularly of the cost of housing and the positions of one’s children and grandchildren.

I was fascinated by some of the information at the back of the Law Commission report. I have to say that when I picked it up last night I thought, be careful what you wish for. The jump in the number of intestacies in the three years in the middle of the 2000s—or, as the Law Commission explains, probably deaths five years previously, when the grant was in those years—is very puzzling. The report is impressively thorough; one would expect no less.

Many people think that the law must automatically reflect what they perceive to be sensible and right, but, as other noble Lords have already said this afternoon, what you think is right may not coincide with what I think is right. I was taken by the emphasis the Law Commission put, and which the Minister has analysed and repeated, on rules, without affecting freedom of personal decision. The aim of bringing the law into line with needs and expectations reflects exactly what the law should do, but there are, as has been explored, new forms of family and some very complex permutations, given sequential marriages, step-relationships and so on. I could tell from the Minister’s speech that that is well recognised. I knew that with my noble friend Lord Marks taking part in the debate there would be no need for me to linger on the issue of cohabitation, but I agree with him on the complexity and importance of international aspects too.

I was particularly interested in the provisions for adopted children who are part of a new family. I was lucky enough to take part in the recent work of the Select Committee looking at adoption legislation. It highlighted for us the importance to many adopted young people of their sibling relationships and of the maintenance of contact with their birth siblings. The issue of different rights in the case of children of deceased birth parents, where some interests are vested and some are contingent, had not occurred to me, but I realise that it must be very difficult, both for adopters and for adoption agencies, to handle this issue. I suspect it may also be pretty difficult if adopters who have a child whose interests are contingent have children who have significantly less wealth than their adoptive sibling but, as the Minister said, this is typically a very open arrangement.

The provisions about maintenance and advancement seem eminently sensible. Given what applies to which trusts created when, I did wonder whether this might be some sort of job creation scheme for lawyers, who will all be advising their clients to make new wills. However, in defence of the profession, I did not recognise the scenario painted by the noble Lord, Lord Wills, although I accept there are bad apples in every profession. I did have a parallel thought in that I object to the market that the banks have created in wills and probate. The noble Lord, Lord Beecham, is nodding. It is a good thing that they are not as creative in their timing as the noble Lord, Lord Wills, has suggested is possible. I would be intrigued to see his solution to this. It is in the interest of solicitors—I am a solicitor, despite not having practised for some time—as well as of clients that there is simplicity. Dealing with a client at war with his family after a death in that family is stressful for everyone, including the solicitor. Some arguments can never be solved.

There will be points to probe in Committee. Along with the noble Lord, Lord Henley, I wondered about assets which are classed as investments if they are only narrowly investments. I was thinking about works of art—what a pity if they cannot be enjoyed as well as being investments. I know people who collect works of art who justify it to themselves as being an investment, but a lot of people enjoy seeing the works on their walls. I have not thought this through but I wonder whether there is any interaction here with the inheritance tax provisions, which are different for personal assets and for the assets of a trade or business. That comes from having been a partner in a firm that acted for a lot of people in the arts world.

There will be points such as that to probe but there is one that I should like to raise now. I should be glad to know before we reach Committee whether it is intended that different provisions of the Bill will come into force at different times. I appreciate that the commencement sections of a Bill really are for the geeks but it is important here to understand this, because a lot of the provisions work as part of a complete package. No doubt, along with other Members of this Committee, I soon will be off to add remaking a will to my to-do list.