Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Marks of Henley-on-Thames Excerpts

Friday 13th May 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, while I declare an interest as a practising barrister, I should add that I have never conducted a case in this precise area of the law, so while I am grateful to my noble friend for looking at me when suggesting that experts in this area of the law were due to speak, I doubt his accuracy. However, I congratulate my noble friend on bringing this Bill forward for a Second Reading and on what I must say was a masterful exposition of its terms.

As noble Lords will have appreciated, this Bill involves three distinct reforms, each of which, I would suggest, is beneficial and necessary to correct anomalies in the present law. The first reform set out in Clause 1 is that where a parent disclaims an interest in an estate, whether on intestacy, which is the alteration to the Administration of Estates Act 1925, or under a will, which is the alteration set out in Clause 2 of the Wills Act, that disclaimer does not bind his or her children. As my noble friend has explained, it achieves this by treating the disclaiming parent as having died immediately before the intestate or the testator who is, as he rightly pointed out, usually a grandparent, so that the children can inherit directly. This is a sensible and sympathetic reform. It is right that a parent can disclaim, for whatever reason, for himself or herself. However, it is wrong that that disclaimer should bind his or her children. That may cause not only loss to the children, but if they know of the disclaimer, it may also cause stress to the grandparents, who then know that their grandchildren will not inherit.

The second reform uses the same device on intestacy and under wills to ensure that the forfeiture rule does not disinherit the children of a person who forfeits his or her inheritance. There are of course clearly understandable reasons for the forfeiture rule, which is now defined by the Forfeiture Act 1982. The rule provides that someone who has killed another—often, but not always, a parent—cannot inherit from the victim’s estate either on intestacy or under the victim’s will. That applies to anyone party to the killing as well. The rule is obviously primarily intended to ensure that killers who kill to gain an inheritance are deprived of the fruits of their crime. However, the present operation of the rule also prevents the children of the killer from inheriting the victim’s estate. Since again the most predictable circumstances in which this can operate are where a son or daughter kills a parent, the effect is to cut the victim’s grandchildren out of the inheritance. That is anomalous and unfair, as the Law Commission recognised.

In DWS, the case where a son had murdered both his parents and therefore could not inherit under the forfeiture rule, which has already been cited and which was the case that led to the reference to the Law Commission, the result was that his child could not do so as well. The judgment of Lord Justice Sedley has already been read out in part, but I hope that I will be forgiven for trespassing on the time of noble Lords for a moment or two more to mention another passage of that judgment where, using very plain English, Lord Justice Sedley said:

“Most people in the situation of the two deceased parents in the present case, if told that in such an unimaginable event their son would be disqualified from inheriting and asked what they would then like to happen, would say that they would like their estate to go their grandchild”.

That is the result at which this part of the Bill is aimed.

In western society, we reject the principle that the sins of the father shall be visited upon the children from generation to generation. We are right to do so, and the Bill recognises that.

The third reform is designed to protect the interests of the children of a single parent under 18 who dies before reaching majority. At present, if someone under 18 and single has a child and inherits from a parent under an intestacy while still under 18, the child cannot inherit and the parent’s interest in the estate passes to other relatives. Again, that is plainly wrong. The Bill uses the same device to treat the parent as having predeceased the intestate, again usually a grandparent, so that the interest in the grandparent’s estate will pass from the intestate grandparent to the single parent’s child.

These are small reforms. They are, I suspect, entirely uncontroversial. They may sound complex, but they are relatively simple in their application.

The DWS case was in 2001; the Law Commission’s consultation was in 2003; and that led to the Law Commission’s report in 2005, a thoroughly commendable report. This Bill comes before this House in 2011. We must do better. We do not know how many possible heirs have been deprived in a grandparent’s estate between 2005 and 2011, but surely it cannot be right to tolerate a delay of that length in the implementation of such an uncontroversial proposal.

The Law Commission brings great expertise to these questions. It consults widely, as it did in this case. It reports in detail and generally with very well reasoned and intellectually sound recommendations. We have it in our power to pass uncontroversial Bills introduced into the House of Lords with some speed. Yet the Law Commission’s implementation log, admittedly most recently updated only in November 2010, says that the last report to be implemented was that from 2006, which led to the Coroners and Justice Act 2009. Even that delay is substantially too long. There are a number of reports since 2006 awaiting implementation. We now have an annual reporting requirement on the Law Commission. We have a protocol between the Law Commission and the Government under which procedures are governed. I simply invite the Minister to give some attention to how we may ensure that in simple and straightforward cases uncontroversial reports of the Law Commission are brought to Parliament more quickly than hitherto.

That said, commencement under the Bill is a matter for the Secretary of State. It is to be not less than three months after Royal Assent. I simply urge the Minister, once that short period, which is no doubt designed to enable lawyers to catch up with the provisions, has elapsed, to bring them into force as quickly as possible.