Third Standing Committee on Delegated Legislation


Thursday 14 November 1996



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The Committee consisted of the following Members:


Barnes, Mr. Harry (North-East Derbyshire)

Canavan, Mr. Dennis (Falkirk, West)

Corbyn, Mr. Jeremy (Islington, North)

Cran, Mr. James (Beverley)

Galloway, Mr. George (Glasgow, Hillhead)

Hendry, Mr. Charles (High Peak)

Hood, Mr. Jimmy (Clydesdale)

Hunter, Mr. Andrew (Basingstoke)

Hurd, Mr. Douglas (Witney)

Livingstone, Mr. Ken (Brent, East)

Maitland, Lady Olga (Sutton and Cheam)

Robathan, Mr. Andrew (Blaby)

Smyth, Rev. Martin (Belfast, South)

Wheeler, Sir John (Minister of State, Northern Ireland Office)

Wilshire, Mr. David (Spelthorne)

Winnick, Mr. David (Walsall, North)

Wolfson, Mr. Mark (Sevenoaks)

Wood, Mr. Timothy (Comptroller of Her Majesty's Household)

Worthington, Mr. Tony (Clydebank and Milngavie)

Mr. P. A. Evans, Committee Clerk

3 Third Standing Committee on Delegated Legislation Thursday 14 November 1996


Draft Succession (Northern Ireland) Order 1996

10.30 am

The Minister of State, Northern Ireland Office (Sir John Wheeler): I beg to move, That the Committee has considered the draft Succession (Northern Ireland) Order 1996. The order, which was laid before the House on 24 October, implements a number of minor recommendations made by the Law Commission in its report entitled "Family Law: Distribution on Intestacy". The recommendations have already been implemented for England and Wales in the Law Reform (Succession) Act, which received Royal Assent in November 1995. Therefore, the order will bring the Northern Ireland law in this area into line with that in England and Wales. The relevant law on succession in Northern Ireland is contained in two statutes. Part II of the Administration of Estates Act (Northern Ireland) 1955 sets out an order of priority for sharing in the estate of some who dies intestate while the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 enables members of a deceased's family circle to apply for financial provision from the estate if the will or rules of intestacy in Part II of the 1955 Act leave them without reasonable financial provision. The order makes three changes to that law. First, it provides that a surviving spouse shall inherit under the rules of intestacy only if he or she survives the deceased by a period of 28 days. In both England and Wales and Northern Ireland, it has long been good practice for a provision of similar effect to be included in wills. The purpose of the provision is to cater for the situation where a married couple die within a short time of each other—a common example is after a road accident. Under the present rules, the family of just one spouse will inherit the property of both spouses which, as the Committee will appreciate, can lead to a somewhat arbitrary result. The second change to the law brought about by the order is the repeal of the complex and unclear hotch-pot rule contained in section 17 of the 1955 Act, which affects both total and partial intestacies. Under that rule, benefits received by children but not other relatives, of the intestate during the intestate's lifetime must be brought into account against the share of the estate to which the recipients would otherwise be entitled. This rule has not only proved extremely difficult to operate, but it is something of an anachronism, and consultation has revealed that its abolition will be met by wholehearted approval. 4 Thirdly, the order creates a new category of applicant who may apply for reasonable financial provision under the 1979 order. Currently, cohabitees have to show dependence on the deceased to bring a claim which can leave a long-term cohabitee who has contributed fully to the running of the household without recourse to this legislation, which was designed as a safety net. Under the order, however, a cohabitee who has lived with the deceased for the period of two years immediately preceding the death, will not have to show dependence. Instead, the court will take into account the applicant's age, the length of the period of cohabitation and the contribution made by the applicant to the deceased's family. The definition of what constitutes "reasonable financial provision" is the same as for other applicants who are not spouses, thus preserving some distinction between married and unmarried claimants. The provisions constitute a useful modernisation of the law on succession in Northern Ireland. The people who responded to the consultation on the proposed draft order expressed their support for these rational and reasonable changes to the law. I commend the order to the Committee.

10.34 am

Mr. Tony Worthington (Clydebank and Milngavie): The measure is long overdue. I note that the working paper that led to the proposal was issued in 1988, which gives some idea of the gestation period of the order. We believe that the measure represents a sensible step forward. It deals with a complicated area, but the Law Commission tested its findings through a public opinion survey to discover what was thought to be fair in the case of people who died without a will. The order provides for some sensible protections and we especially welcome the measure that allows surviving spouses to benefit to a greater extent than they previously did. We also welcome the safeguards that the order introduces for vulnerable old men who might, on their deathbeds, marry someone who is after their wealth. It is tempting to test the Minister to the limit on his understanding of the hotch-pot rule, but I shall desist from that today and extend a welcome to the measure.

10.36 am

Rev. Martin Smyth (Belfast, South): I generally welcome the order, as it tidies up the law. I understand the difficulties arising when people die—in accidents, for example—leaving problems. I am not completely convinced, however, by definition of cohabitation. I appreciate that cohabitees are different from spouses, but I have a problem with the fact that the Government say that they want to strengthen the family but go down a road that moves away from what we look on as the traditional family. We live in an age when young people leave home to set up and share a home with others; two or three of them share in purchasing, furnishing or running that home. Has any thought been given to their position? if we are arguing for cohabitees on the grounds that they 5 have made a contribution over a significant period—two years—is there not room likewise to consider the role of and rules for young people sharing, who may suddenly find themselves left without any real provision? With that comment and given my understanding that the proposal has been generally welcomed by those concerned with the issue, I, too, welcome the order.

10.38 am

Sir John Wheeler: I am grateful to the hon. Member for Clydebank and Milngavie (Mr. Worthington) for his remarks. He is right to endorse the modest contribution that the order makes to the protection of vulnerable elderly gentlemen who might, at a late stage of life, succumb to the wiles of a lady and put at risk the wealth and fortune that they have built up over many years. 6 I also thank the hon. Member for Belfast, South (Rev. Martin Smyth) for his remarks. I understand the nature of his caution. As to his question, I shall have to engage the resources of many fine legal brains in Northern Ireland to test what he says and I shall write to him with the answer; I appreciate his concern and shall ensure that it is properly considered. I have no doubt that, during the consultation stage, the legal luminaries of Northern Ireland also pondered that question.

Question put and agreed to.

Resolved. That the Committee has considered the draft Succession (Northern Ireland) Order 1996.

Committee rose at twenty-one minutes to Eleven o'clock.



Molyneaux, Sir James (Chairman)

Barnes, Mr.

Hendry, Mr.

Hunter, Mr.

Maitland, Lady Olga

Robathan, Mr.

Smyth, Rev. Martin

Wheeler, Sir John

Wood, Mr.

Worthington, Mr.