Inheritance and Trustees’ Powers Bill [HL]

Lord Henley Excerpts

Tuesday 22nd October 2013 Grand Committee

[Lord Henley (Con)]

My Lords, I thank my noble friend Lord McNally for introducing the Bill in such a comprehensive manner. In my innocence, I thought that this was a relatively simple Bill that was not going to cause us too many problems. However, I was naive in that approach, and I suspect that when we get into proper Committee, Report and the other stages of the Bill under the Law Commission Bill procedure, we might have to spend slightly more time on it than I originally thought.

I also thank my noble friend for arranging our meeting last week with Professor Cooke and the Law Commission, which was very useful. It helped us to get some understanding of the Bill and explained to us some of the problems. However, having listened to my noble friend’s opening speech, I wonder if we did not spend quite as much time on it as perhaps we should have.

The important point, as my noble friend made clear, is that the Bill deals largely with intestacy. He said, “In an ideal world, such arrangements would be set out in a will”. I would remind the Committee of what I am told is a convention among Quakers. Once a year they say to each other not just, “Have you got a will?”, but, “Have you got an up-to-date will?”. There is no point in having a will if that will no longer reflects your views. Similarly, it is a fairly bad thing if you do not have a will at all. So we all want to see people taking the trouble to make sure that they have a will so that large parts of the Bill need not come into effect, other than those parts that refer to looking after dependants who quite rightly should be allowed to get something if the will has excluded them.

I am very grateful, as well as for that remark from the Quakers, for a quotation sent to me by the Law Commission. It is from Cato the Elder, as quoted by Plutarch. I am going to give it in English, not in Latin—the noble Lord, Lord Beecham, can probably translate it back. He said:

“And as for repentance, he said he had indulged in it but thrice in his whole life: once when he entrusted a secret to his wife; once when he paid a ship’s fare to a place instead of walking thither; and once when he remained intestate a whole day”.

I think that it is important that everyone remembers the importance of making a will and making sure that that will is kept up to date, and for that I am grateful to my noble friend.

As one who believes in property and the freedom of testation, I am also grateful to my noble friend for covering another matter at the meeting that we had last week, and that is the fact that, other than that it makes provision for dependants, the Bill does not impinge at all on that freedom of testation. Obviously there has to be some protection for individuals, for partners, spouses and others, but I still believe that it is right that everyone should have the right, subject to what they own and whether there are trusts and others, to leave their property as and how they wish; whether it be to the cats’ home, to a political party or to their own children or whatever. I make that point because I think that it is important that we all remember that freedom of testation is a very important part of everything that we believe in in this country.

Sadly, some people will die intestate and therefore there is a necessity for rules in this area. It is a long time since I did my Bar exams and I cannot remember what the precise rules were, but having looked through the Bill, it seems to make a pretty good fist of allocating those resources on the occasions when there is a spouse or a spouse and dependants. However, there is something that I cannot quite see. The first question I want to put to my noble friend—again, I am grateful for the diagram that he provided at last week’s meeting which set out the rules before and after reform—is whether I am right in thinking that for those estates where there is no surviving spouse or children, the rules continue as they were. I cannot remember the precise details of these, but those who are more learned in law will no doubt be able to advise us. So my first question concerns intestate estates where there is a surviving spouse, civil partner or children.

My second question relates to the fixed net sum, as set out in Clause 1. There seems to be an indication that this is going to be set at around £450,000, that the Lord Chancellor will have the power to amend it and that he will have to look at it at least every five years. However, I think that we would all be very grateful if my noble friend could say a bit more about the thinking behind that sum—how they selected it and what they think is likely to happen in the future. Having said that, I would be grateful for some statistics on how many intestate estates have more than £450,000 in the bag. I suspect that it is a pretty small number, because I think that most people who have assets of that sort will have taken the trouble to take some advice. I might be wrong in that, but I would grateful to know from my noble friend just what the statistics say.

The third question I want to put to my noble friend relates to the changing definition of chattels. I listened very carefully to what he said about jewellery and whether it was something that had been, say, worn by the spouse and was therefore part of her property rather than some other asset. I have some small personal experience of this and have to say that I see trouble ahead. It is an issue that might be worth exploring in greater detail on a later occasion.

The last point—I want to be relatively brief in this—is about procedure. I understand that this is the fifth or sixth Law Commission Bill that we have had since the procedure was agreed, and I think that most noble Lords will agree that it has worked pretty well. I remember being involved in the first one that we ever had; it was of such a technical nature that I do not think I understood a word of it from beginning to end, but there were wiser people than me in the Room on that occasion. All I want is an assurance from the Government that they will ensure that this procedure is used only for uncontroversial Bills of the sort that are appropriate, as set out by the Procedure Committee. This is an area where we do not want to see any drift or growth in how these matters work.

I hope that I have been appropriately brief. There are a number of questions for my noble friend and I look forward to later stages of the Bill in due course.