Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
(Limited Text - Ministerial Extracts only)
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The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
I, too, congratulate my right hon. Friend the Member for East Yorkshire (Mr Knight) on his success in last year’s ballot on private Members’ Bills and, indeed, on his good judgment in deciding to introduce the Bill before us. I am happy that he went for, as he put it, the worthy and uncontroversial option. Let us hope that that remains the case. It is uncontroversial but certainly not uncomplicated.
In presenting the Bill, my right hon. Friend was supported by the Chairman of the Justice Committee, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), who it is good to see here today, the hon. Members for Cardiff West (Kevin Brennan), and for Birmingham, Yardley (John Hemming), my hon. Friends the Members for Stone (Mr Cash), for South West Devon (Mr Streeter) and for Bridgwater and West Somerset (Mr Liddell-Grainger), the hon. Member for Rhondda (Chris Bryant), my hon. Friend the Member for Christchurch (Mr Chope), the hon. Member for Mansfield (Mr Meale), and my hon. Friends the Members for Croydon South (Richard Ottaway) and for Shipley (Philip Davies)—a good cross-section of the House.
Today, we have thoroughly debated an unusual but important aspect of succession law, and we had strong contributions—from my right hon. Friend the Member for Berwick-upon-Tweed, my hon. Friends the Members for Christchurch and for North East Somerset (Jacob Rees-Mogg), and the lawyer’s eye of my hon. Friend the Member for Bury North (Mr Nuttall)—that brought out many of the complexities of the succession law, even though the principle seems relatively straightforward.
My right hon. Friend’s Bill, as has been mentioned, will implement the main recommendations of the Law Commission in its 2005 report, “The Forfeiture Rule and the Law of Succession”, making the law of succession simpler and fairer. The purpose of the law of succession in this context is to decide who should get what from the estate of a deceased person. The Law Commission reached its conclusions after a public consultation in 2003, and its recommendations were accepted by the then Government in November 2006, subject to minor modifications. Those proposals were then included in the draft Civil Law Reform Bill, which was published for public consultation and pre-legislative scrutiny in December 2009. The pre-legislative scrutiny was conducted by the Justice Committee, which published its conclusions in its sixth report of the 2009-2010 Session of the previous Parliament, under the title “Draft Civil Law Reform Bill: Pre-legislative Scrutiny”.
Before the previous Government could reply to the Justice Committee, the general election was called. We all know the events that followed, but for the purposes of our debate today what matters is that my right hon. Friend was returned as the Member for his newly formed constituency of East Yorkshire. When the ballot for private Members’ Bills was subsequently held, he was fortunate enough to draw 20th place.
Mr Nuttall
I think that, in fact, my right hon. Friend was a little more successful: he was drawn fifth.
Mr Djanogly
I am very grateful for being put right on that point, so fifth place it was. My right hon. Friend could no doubt have chosen any one of numerous topics from his own extensive experience without consulting anyone, and I am sure that it would have been a topic well worth debating and, perhaps, legislating on. Instead, however, he decided to consult the Law Commission and ask whether any of its recommendations, as he said earlier, were suitable for a private Member’s Bill and unimplemented. Those discussions led him to the commission’s draft law reform (succession) Bill, which was published in the Commission’s 2005 report, “The Forfeiture Rule and the Law of Succession”.
The provisions of that draft Bill had, by the time my right hon. Friend was considering what to do with his place in the ballot, been published with minor modifications as part 3 of the draft Civil Law Reform Bill. Those provisions, which my right hon. Friend adjusted in the light of the response to the distribution of estates provision in the draft Civil Law Reform Bill, form the basis of the Bill that we are debating today.
As the Minister responsible for the general law of succession in England and Wales, and as a Minister in the Department that sponsors the Law Commission, I am doubly pleased to be able to announce the Government’s support for this Bill on the law of succession; and I was pleased to hear from the hon. Member for Stoke-on-Trent South (Robert Flello) that the Opposition support the Government’s position in that context.
My hon. Friend the Member for Christchurch asked why the commencement date is not three months after Royal Assent, and the simple answer is that that is to allow the professionals and others to prepare for commencement: there will be wills to be re-looked at and so forth. Before considering the substance of the Bill, I should like to record the Government’s thanks to the Law Commission for its work on the forfeiture rule and the law of succession.
Law Commission Bills are by their nature likely, legally speaking, to be very technical, and this Bill is no exception. There is more to a law reform Bill than technical accomplishment, however; we have to be sure that it delivers the desired policy outcome effectively and efficiently. In that respect, the Bill has the additional advantage of having already in effect been carefully scrutinised by the Justice Committee. I know that my right hon. Friend the Member for East Yorkshire has paid careful attention to the Committee’s conclusions, and I thank my right hon. Friend the Member for Berwick-upon-Tweed, who as Chairman of the Justice Committee considered the draft Civil Law Reform Bill and, I am delighted to say, has returned to that role in the current Session. I am also grateful to the other hon. Members who served on that Committee with him when they scrutinised the draft Civil Law Reform Bill.
My right hon. Friend the Member for Berwick-upon-Tweed, the hon. Member for Stoke-on-Trent South and my hon. Friend the Member for Bury North asked in different ways about the Law Commission’s wider Bill and the Government’s attitude to the commission. The Government are committed to ensuring that the law is modern, simple and accessible, and we hold the commission’s work in high regard. I am confident that the measures flowing from the Law Commission Act 2009, both the protocol and the duty to report annually to Parliament, along with the new House of Lords procedure for Law Commission Bills, will help to improve the implementation rate of commission proposals. A higher rate of implementation will help to ensure more effective and accessible law, delivering better value for money as valuable Law Commission work is put to good use.
Five reports have been implemented or received Royal Assent over the past year: those on the rules against perpetuities and excessive accumulations, third parties’ rights against insurers, trustee exemption clauses, on reforming bribery and parts of its murder, manslaughter and infanticide reports.
My hon. Friend the Member for Bury North also asked what we are doing about the wider Civil Law Reform Bill issues. Decisions not to take forward the Law Commission’s excellent work are always difficult, and they are not taken lightly. It is a difficult time at the moment, and the Government have to be realistic about what they can achieve when there are other pressing priorities and a reduction in resources.
A great deal of the Law Commission’s work requires primary legislation to implement it, and it is very difficult at present to secure parliamentary time for legislation that is not a high priority or that does not deliver significant financial savings. Deciding not to take forward the proposal in the Law Commission’s reports on damages, personal injury, medical, nursing and other expenses, claims for wrongful death and pre-judgment interest on debts and damages, was not easy. However, in the current financial climate we need to focus our resources on delivering key priorities.
Having said that, I think that the new protocol on best practice between the Government and the Law Commission, agreed in March last year, should help. The protocol aims to ensure that the Law Commission takes forward only projects to which Departments are fully committed; that there is a close working relationship during the project; that the Law Commission produces impact assessments looking at the costs and benefits of proposals; and that Departments respond quickly once the Law Commission reports.
The Law Commission will soon be putting forward proposals for its 11th programme of work. That will be the first programme agreed in the light of the new protocol, and I am confident that it will assist in reducing delays both in responding to the Law Commission when proposals are accepted and in implementing them.
However, neither the Law Commission nor the Justice Committee could function as effectively as they do without the support of those who respond to consultations and calls for evidence. The experts who give freely of their time and experience are perhaps the unsung heroes of law reform work. It is invidious to single out organisations or individuals, but I note that the Law Society and the Bar Council replied not only to the Law Commission’s 2003 consultation and the Ministry of Justice’s 2009 consultation, but gave evidence to the Justice Committee in 2010.
I would like to thank all those who have replied to the Law Commission, the Committee and my own Department over the years. Unsurprisingly, the Bill does not reflect all their views, but I can assure them that their comments were all carefully considered and taken into account. I am confident that this Bill would command the support of the overwhelming majority of them.
I will now explain why the Government are supporting this Bill. Obviously, we are pleased that the Bill represents a return on the investment of public money in the Law Commission. The Government are committed to ensuring that the law is modern, simple and accessible. Usually, and properly, it is the Government who introduce Law Commission Bills; there is, however, no reason at all why the introduction of Law Commission Bills should be the preserve of the Government alone. Indeed, I would encourage hon. Members who in future years find themselves well placed in the ballot for private Members’ Bills to consider whether they might imitate the example of my right hon. Friend and discuss with the Law Commission whether any of its Bills might be suitable for debate. My right hon. Friend has set a very good example, and I thank him for that.
However, more fundamentally, the Government support this Bill because it will make the law fairer. To understand what is wrong with the law, it is necessary to go back to 1994 when a certain individual was convicted of the murder of both his parents; various hon. Members have referred to the incident. He was described in the press as an “evil conman” and
“a grasping son who repaid his parents’ lifelong devotion by bludgeoning them to death”.
He duly received two life sentences, but it is not the monstrosity of his crimes that underlie the Bill before us today—rather, it is what happened to his parents’ property, which was apparently worth more than £1 million and highlighted the problem with the law.
Apparently, the killer’s parents had made it clear to their son that they would not provide for him on their deaths; they would provide only for his young son, their grandchild. To go back to the point made by my hon. Friend the Member for North East Somerset, if only they had made clear wills in favour of the grandchild, their apparent wish to support him would have been accomplished. However, no wills were found and their property was distributed according to the statutory intestacy rules.
Mr Denis MacShane (Rotherham) (Lab)
On a point of order, Mr Deputy Speaker. We are being informed by television that Mr Andy Coulson, one of the most important figures in Her Majesty’s Government and one of the Prime Minister’s closest aides, is now resigning. As the House is sitting, I believe that it would be appropriate for the Prime Minister to come to the Commons, explain why that is happening and give the public the full details here in the House of Commons, rather than burying the news on a day when, frankly, an awful lot of other news is taking place. This is the Commons, where the Prime Minister should—
Mr Deputy Speaker
Order. Before we get carried away, I should say that that has absolutely nothing to do with the House. Neither of the points made is a point of order.
Mr Djanogly
I am delighted to pull the House back to the important issue of succession.
I was just saying that the property of the killer’s parents was distributed according to the statutory intestacy rules. The intestacy rules are a default regime; they apply where a person has not exercised his or her right to make a will or to the extent that his or her will is not valid. Their aim is to safeguard the deceased person’s family by providing for them from the deceased person’s estate in a manner that is thought to mirror the wishes of the average person had he or she made a will.
Generally speaking, an intestate estate will pass to the surviving spouse or civil partner and the deceased’s children first, but if the deceased is not survived by either of them, then other blood relatives of the deceased will inherit the estate in a strict order of priority set out in section 46 of the Administration of Estates Act 1925, as amended. I am not going to read out the rules, but if any hon. Members wishes to know more about them, I shall provide the information.
When there are no known eligible blood relatives to inherit, the estate is dealt with by the Treasury solicitor. On receiving the estate, the Treasury solicitor will make full inquiries into the estate and will advertise for eligible kin in the hope of distributing the estate. If there appear to be no eligible kin, or none can be traced, the estate becomes “bona vacantia” which means “ownerless goods” and it will pass to the Crown, the Duchy of Cornwall or the Duchy of Lancaster, depending on where in England or Wales the deceased lived.
When a minor inherits on intestacy, the property to which they will be entitled is held on trust. The terms of that trust are specified in the intestacy rules. Basically, the trustees will hold the property for the benefit of the child until he or she reaches the age of 18 or marries or enters a civil partnership under that age.
All that may seem relatively straightforward, and hon. Members could be forgiven for thinking that the grandchild in the DWS case would have inherited their property on reaching the age of 18, or marrying or forming a civil partnership before then, but there is a devil in the detail and, sadly, there was a family dispute that led to litigation. That culminated in the decision of the Court of Appeal in 2000 in the case Re DWS (Deceased). By that time, it was agreed that the son himself could not inherit because, as he had murdered his parents, the forfeiture rule prevented it. The forfeiture rule is a common law rule, applying the general rule of public policy that a person is not able to benefit from their wrongdoing. It is illustrated by the 1892 case of Cleaver v. Mutual Reserve Fund Life Association, when it was held that a person is not entitled to benefit from the estate of a person he or she has unlawfully killed.
A person who is convicted of the unlawful killing of another, or of aiding, abetting or counselling another to do so, is automatically disqualified from inheriting from his or her victim under the forfeiture rule. However, persons convicted of manslaughter or other offences less serious than murder may still be permitted relief to inherit the victim’s property by the court under the Forfeiture Act 1982.
The question for the court in Re DWS (deceased) was who would receive the grandfather’s property. Had the son died before his father, the property would have gone to the son’s only child, who was aged only two at the time of the murder and was also the grandfather’s only grandchild. However, the son—that is, the killer—was not dead, but merely disqualified from inheriting because of the operation of the forfeiture rule.
The relevant provision of the intestacy rules setting out the statutory trusts contained in the Administration of Estates Act 1925 provides that the grandchild will inherit only if his or her parent has already died. The court accordingly decided that the law did not allow the grandson to take the property. Instead, it was decided that the property would have to go to the estate of the dead grandfather’s sister, who had also died by the time of the court case. Thus, in this situation, not only is the killer disqualified from inheriting, but so also are all the killer’s direct descendants. The Court of Appeal expressed concern that this may have been an unforeseen and unintended consequence of the present intestacy rules.
In July 2003, the then Department for Constitutional Affairs, whose responsibilities in this regard have been assumed by the Ministry of Justice, asked the Law Commission to review the relationship between the forfeiture rule and the law of succession. The terms of reference were as follows: first, that in conjunction with its work on illegal transactions, the Law Commission should review the relationship between the forfeiture and intestacy rules; secondly, that the review should be carried out with reference to the difficulties highlighted in the case of Re DWS (deceased) and should explore ways the law might be reformed to prevent apparently unfair outcomes of this sort; and, thirdly, that the review should also consider any ancillary areas of succession law that might produce analogous outcomes—for example, disclaimer and attesting beneficiaries.
In October 2003, the Law Commission published a consultation paper, “The Forfeiture Rule and the Law of Succession”, which considered the problem raised in Re DWS, and discussed whether a similar problem arose in other contexts. The consultation paper provisionally proposed that in cases such as Re DWS there should be a “deemed predecease” solution—that is, where a person forfeits a benefit on intestacy through having killed the deceased, the estate should be distributed as if the killer had died immediately before the deceased. The Law Commission also proposed that the deemed predecease rule should apply where a gift under a will fails because of the forfeiture rule.
Sir Alan Beith
It is perhaps worth placing on the record—the Committee specifically sought to inquire into this—that the deemed predeceased rule has no other legal effect. In other words, determining that someone is deceased for the purposes of inheritance does not affect any other legal provision or right relating to them.
Mr Djanogly
I thank my right hon. Friend for setting out that important point. If that were not the case, it could have serious knock-on effects for other cases.
The Law Commission received responses to the consultation paper from 31 individuals and organisations. Those included leading academics in the field of succession law; the Society of Legal Scholars, Property and Trusts Section; a number of individual judges, including Lord Justice Sedley, one of the members of the Court of Appeal who had heard the Re DWS case, whose response wholeheartedly endorsed the Law Commission’s proposed solution; the Association of District Judges; specialist solicitors from leading firms; the Inland Revenue; the Bar Council; the Law Society; and the Chancery Bar Association. Most of the respondents agreed that the current law was unsatisfactory, that in Re DWS (deceased) the grandchild ought to have inherited, and that a “deemed predecease” rule would be the best way of achieving this.
The Chancery Bar Association must, however, be singled out for particular mention. It spotted that there was an analogous, albeit rare, circumstance, elsewhere in the law of intestacy, that should be addressed. This arises from the fact that where a child inherits from a parent or other relative on intestacy, that child’s interest is held “contingently” on the statutory trusts under the intestacy rules.
In July 2005, the Law Commission’s final report, “The Forfeiture Rule and the Law of Succession” was presented to Parliament. The report recommended that a “deemed predecease” solution should apply in three situations. First, where a person disclaims or forfeits the right to inherit from a person who has died intestate, the intestacy rules should then be applied as if the killer had died immediately before the intestate. Secondly, where a person disclaims or forfeits a benefit under a will, the will should be applied as if the killer had died immediately before the testator, unless the will contains a provision to the contrary. Thirdly, where a person loses a benefit under an intestacy by dying unmarried and a minor, but leaves children, the property should devolve as if that person had died immediately before the intestate. The Civil Law Reform Bill incorporated provisions to this effect, subject to minor modifications relating to the role of the public trustee, which for reasons I shall explain, need not concern us now.
I hope this explanation of the genesis of this Bill makes clear the problems that it is trying to address. The overall point is that in the three circumstances identified— forfeiture, disclaimer and the rights of the children of a minor heir on intestacy—the detail of the law does not produce the desired result. The general policy on intestacy is that once the interest of any spouse or civil partner has been satisfied, the property of the deceased should pass to closer blood relatives before more distant ones: the children of the deceased, for example, should be preferred to siblings of the deceased.
Where there is a valid will, the general policy of the law is that the wishes of the testator—the person who made the will—should determine who is to inherit what from the estate of the deceased. That gives effect to the principle of freedom of testamentary disposition, which lies at the heart of our succession law in England and Wales, and which was referred to by my right hon. Friend the Member for East Yorkshire and others.
The effect of the Bill will therefore be to change the law in the three areas mentioned, so that it is consistent with the general policy of the law. First, as was highlighted in the 2001 Court of Appeal decision in Re DWS (deceased), where a person forfeits an inheritance on intestacy because he or she has killed the person from whom he or she would have inherited, his or her children will also be disinherited. The forfeiture rule thereby disinherits not only the criminal but also the innocent grandchildren of the victim.
This problem is not confined to intestacy. For example, where there is a will that contains a gift specifying who is to inherit, if the first named recipient dies before the testator and that recipient forfeits his or her inheritance, the default gift cannot take effect because the recipient is still alive. Similarly, if there is a will giving a gift to a child of the testator without any further provision, the law implies a term that the gift will pass to his or her children if he or she predeceases the testator. If the testator’s child forfeits his inheritance, his or her children—the testator’s grandchildren—will not be able to inherit.
The same problem arises in both testate and intestate successions where the person who would be first entitled disclaims the inheritance. Anyone claiming through him or her will not be able to inherit. Let me explain the term “disclaimer” as that was raised by my right hon. Friend the Member for East Yorkshire, and discussed further by my hon. Friends the Members for Christchurch and for North East Somerset in the context of disclaiming gifts under a will. There was a further question as to why this needed to be done.
A beneficiary is free to accept or disclaim—that is, refuse—a gift that has been left to him or her in a will. The unwanted gift will form part of the testator’s residuary estate—the part of the estate remaining when all the specific gifts have been satisfied— unless, as is less usual, he or she has made a default gift in the event of a disclaimer. If the will does not make provision for the disposal of the estate, it will be distributed according to the intestacy rules.
My hon. Friend the Member for Christchurch went on to ask why that should be the case. Figures are not kept on the number of people who disclaim gifts in wills. However, in its consultation paper, “The Forfeiture Rule and the Law of Succession”—CP No. 172—the Law Commission commented that the usual reasons for disclaimer in will cases will either be to secure beneficial tax consequences or to enable the beneficiary to avoid inheriting onerous property such as a lease with repairing covenants. My hon. Friend then asked whether the disclaimer provision opens the way to evade inheritance tax. The answer is no, because in the example we have before us, the son could achieve the same results as a disclaimer under the Bill by varying the will or the intestacy rules. Deeds of variation can be used to vary the distribution of the estate for inheritance tax or capital gains tax purposes. That is only possible where all the original beneficiaries agree and the tax legislation permits it. These variations will often include disclaimers by some or all of the original beneficiaries, and the Bill simply enables the intended recipient to disclaim without thereby disinheriting anyone entitled to claim through him or her.
My hon. Friend the Member for North East Somerset then asked whether a disclaimer of inheritance can instead take the money and give it away. The answer is yes; the money would then be his or hers to do with as he or she wished, but he or she could not disclaim part of an inheritance, or having disclaimed, specify where the inheritance should go. That is for the deceased to say in a will or the intestacy rules, which act as a deemed will, if I can put it in those terms. So a beneficiary of an intestate estate is free to accept or disclaim the inheritance. When the disclaimer is a child of the deceased, the disclaimed interests passes to the child’s siblings. Clauses 1 and 2 of the Bill address those issues.
There is the rather unusual situation, which was spotted by the Chancery Bar Association—I take my hat off to the assiduous lawyer who noticed this one—in which if a person under the age of 18 who is prospectively entitled to inherit property under the intestacy rules, perhaps from his or her parent, dies before reaching the age of majority, leaving children but without having married or entered a civil partnership, those children cannot inherit in place of their parent. Right hon. and hon. Members used several interesting possibilities to explain how that could be put into practice, but that happens because the parent did not reach the age of majority or marry or form a civil partnership under that age. In more legal language, the parent did not attain a vested interest. That anomalous outcome, rare as it might be, discriminates against those children.
Clause 3 addresses that issue. In all three cases, the Bill would solve the problems by deeming the person who loses the inheritance to have died before the person whose estate is being distributed. That means that on intestacy, the children of the person losing out will be able to inherit under the statutory intestacy rules and, if there is a will, that the actual or deemed wishes of the testator will prevail. In short, the aim of the Bill is to try to ensure that the “right” people inherit. The Government support that aim.
I shall comment on the differences between the Law Commission’s draft Bill, published in 2005, and the equivalent provisions in the draft Civil Law Reform Bill, published in 2009. These issues were raised by my right hon. Friend the Member for Berwick-upon-Tweed, and my hon. Friend the Member for Christchurch touched on them, too. They largely derive from the comments of the Justice Committee and the people who gave evidence to it. Some of the changes are drafting changes, but others were more significant. The question arises of why they should have been left out of the Bill.
Although the Justice Committee welcomed the proposal to ensure that minors who inherit under the provision have their inheritance protected, several criticisms were made of the special trust advice chosen by the Law Commission to achieve that aim. On consideration of the responses to the consultation and the evidence to the Justice Committee, it has become clear that the special trust was unnecessary and would be problematic and expensive to operate. The existing law, which already imposes a trust and gives the court power to appoint alternative trustees and supervise those trusts, gives the property of minors adequate protection. We therefore believe that the Bill meets the concerns of the Justice Committee in that regard.
The Justice Committee welcomed the reforms and reached two conclusions. First, it stated:
“We welcome this clause as ending the current rule which penalises the children or other heirs of a killer who are themselves not only entirely innocent but are the people whom the deceased would probably have wanted to benefit from the estate in any event. We also welcome the proposal to ensure that minors who inherit under this provision have their inheritance protected.”
Secondly, it pointed out:
“We recommend the Government to re-examine the drafting of clauses 15 to 17 in the light of the comments made by the Bar Council and the Law Society. We expect all minors to receive suitable protection under the bill. Equally, we share the Law Society’s concern that nothing be done to impair the validity of existing wills.”
The main difference, however, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out, is that the earlier draft Bills contained specific provisions intended to ensure that in forfeiture cases the criminal was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. Those special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee and people who replied to the Ministry of Justice’s consultation on the draft Civil Law Reform Bill.
Two respondents—the Law Society and the Bar—considered that the safeguard provisions were not necessary because legislation already exists that would protect an infant beneficiary’s inheritance in forfeiture cases if such protection were to be needed. Both referred to section 116 of the Senior Courts Act 1981, which provides the court with discretion to pass over any prior claims to a grant and appoint someone else if by reason of any special circumstances it appears necessary or expedient to do so.
The Bar also mentioned section 114(2) of the 1981 Act, which provides that wherever a minority interest arises under a will or on intestacy, a grant should be made to a trust corporation or to two individuals, unless it appears to the court to be expedient that there should be a sole personal representative.
The same two respondents also expressed concern about the limited application of the safeguard provisions, which is restricted to the infant children or more remote issue of the offender, and only then if, as the Bar noted, the infant inherits by virtue of the reform rather than under, for example, a default gift in a will. It considered that there may be cases where court intervention is needed to prevent potential abuse of the inheritance, where those inheriting are infants but are not directly related to the offender.
The Bar also objected to the width of the power of the court to allocate any property in which the infant had an interest to the trust, and it raised a fundamental concern about the workability of the provisions, where both the infant and the disqualified person would inevitably benefit from the trust property—for example, where the former matrimonial home was held under the trust, and the infant and the disqualified person were both living there.
The Bar concluded:
“On balance, we consider the provision”
to safeguard an infant after forfeiture
“to be unhelpful, and likely to lead to increased expense in the administration of estates in circumstances which are bound to be tragic but are otherwise unpredictable.”
The Government have given particularly careful consideration to those comments, which we have discussed with the Law Commission and with Master Winegarten of the chancery division of the High Court, who was very critical of the special trust provisions. We agree with the Justice Committee that minors who inherit should have their inheritance protected and that all minors should have suitable protection under the Bill. However, it is clear from our more detailed consideration of how the special trust provisions would work that they are unnecessary, problematic and expensive to operate.
As my right hon. Friend the Member for Berwick-upon-Tweed pointed out, the Civil Law Reform Bill contained special trust provisions for children. He asked whether this Bill provides protection now that the special trust provisions have been taken out, an issue which I have dealt with. In our view, the existing law, which already imposes a trust to the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection.
Sir Alan Beith
My hon. Friend is giving a detailed analysis and providing fairly compelling reasons why the specific provisions involve many problems. However, it is not only the protection of the minor’s inheritance that is at stake, but the maintenance of the principle that the person who has carried out the murder should not benefit from that murder, which might happen indirectly.
Mr Djanogly
I take my right hon. Friend’s point. As we have discussed, I agree that there is the technical possibility of the murderer taking advantage, but it is far fetched. Indeed, my right hon. Friend has mentioned that that assumes that the murderer had a solid knowledge of the laws of succession, which would include the certain knowledge that they would spend many years in prison. As my right hon. Friend the Member for East Yorkshire pointed out, the Bill does not affect the forfeiture rule. In the light of the responses to the consultations by the Law Commission and the Ministry of Justice and the pre-legislative scrutiny by the Justice Committee of all those proposals, we do not believe that allowing a killer’s children to inherit from the victim will encourage people to kill.
Sir Alan Beith
My hon. Friend has misunderstood my point, which does not concern the absurd issue of deterrence. Someone who has committed a murder—they may even be in prison—may be able to evade financial responsibilities as a result of the provisions. It is not far fetched that those who have committed murder would seek to gain some benefit from the money that would rightly pass to their children under such provisions.
Mr Djanogly
I thank my right hon. Friend for making that clear.
The Law Society also made an important point about the wording of the provisions in new section 33A(2) of the Wills Act 1837, which would be inserted by clause 2(1) of the Bill. Earlier draft Bills provided that where a person disclaims, or is disqualified by the operation of the forfeiture rule from inheriting under the deceased person’s will, the will is to be construed as if that person had died immediately before the deceased, save in so far as there is any provision in the will about how the devise or bequest is to take effect. The Law Society thought that this “any provision” test was more demanding than the “unless a contrary intention appears by the will” test in other related statutory provisions, and the Bill now follows those other provisions. We hope that will provide consistency and simplicity.
We welcome my right hon. Friend the Member for East Yorkshire’s decision to make the Bill consistent with the Wills Act and I should add, for completeness, that the Law Commission is content with the Bill in its present form. We are very grateful to the Justice Committee and its witnesses, particularly the Bar and the Law Society, for drawing attention to these matters. The approach in the Bill is the right one. This is a small but worthwhile piece of technical law reform produced by the Law Commission. I applaud my right hon. Friend for taking up this serious topic and I wish the Bill a fair passage through this House and the other place.