Intestacy Reforms -
The Way Things Were, 1952

S. M. Cretney*

Proposals to reform succession law can arouse strong feelings: the new code of intestate
succession introduced as part of the 1925 property legislation I was seen by some2
as threatening the traditional landed estates; whilst the proposals in the Law
Commission's recent Report Distribution on Intestacy.3 denounced as "naive and
simplistic" by the authors of the standard practitioners' work4 and criticised in
somewhat more measured terms by other commentators,5 have been rejected by the
Government. 6 In contrast, the Intestates' Estates Act 1952 which effected a major
shift in the policy of the law was enacted with little opposition, notwithstanding the
fact that some of the issues which have now come to seem intractable had already
become the subject of comment. 7 There may therefore be more than mere antiquarian
interest in giving an account, drawing on the official papers which are now available
in the Public Record Office, of how that Act came to be enacted. 8

* Solicitor, Fellow of All Souls College, Oxford. The author is grateful to Mr. D. R. Holloway (see
note 41) who kindly read the typescript.
I. Administration of Estates Act 1925, consolidating provisions first enacted in the Law of Property Act 1922.
2. Walter Hume Long, widely regarded as the leader of the country party amongst the Unionists and
at the time First Lord of the Admiralty, had his expressed concerns about the possible impact of the reforms
on the landed interest allayed by a 12 page letter from the Permanent Secretary in the Lord Chancellor's
Department, Sir Claude Schuster; and Long's specific concern that the ending of primogeniture would
lead to the break up of the old family estates was met by the argument that such estates were usually
held in settlements which would regulate devolution irrespective of the law of intestacy: see letters of
1,9,10 and 12 February 1920 Public Record Office [PRO] files LC02/443.
3. Law Com. No 187 (1989)
4. Sherrin and Bonehill. The Law and Practice of Intestate Succession (2nd ed. 1994) p.124.
5. See notably R. Kerridge, "Distribution on Intestacy, The Law Commission's Report" (1990) 54 Conv. 358.
6. See Official Report (HL) 1 July 1993, vol. 547, col. WA 38. The Commission, possibly surprisingly
in the light of criticism from commentators and bodies such as The Law Society [see Official Report
(HL) 16 June 1922, vol. cols. 170-178], appears to regard the Government's reaction as exemplifying
an unsatisfactory attitude to the implementation of Law Reform proposals: see Twenty-Eighth Annual
Report 1993 (Law Com. No. 223, paras. 1.14 - 1.23, 3.6 - 3.8.); and note the debate on the second
reading of the Law Reform (Succession) Bill, Official Report (HL) 13 February 1995, vol. 561. col. 502.
7. Notably the respective rights of a surviving spouse and the deceased's children.
8. The main files consulted are LC02/444I. 4443, 4445, 4446, 4447. (Committee on the Law of Intestacy.
Evidence, Correspondence with Members); LC02/4448 (Committee on the Law of Intestacy. Minutes
of Meetings); LC02/4449 (Committee on the Law of Intestacy, Publication of report etc); LC02/4450
(Committee on the Law ofIntestacy, - as to carrying out Report); LC02/4451 (The Intestates' Estates
Bill 1951, Correspondence 1951-2); LC02/4452 (The Intestates' Estates Bill, further correspondence);
and LC02/6671 (The Intestates' Estates Bill 1951, Notes on Clauses).

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SUFFICIENT TO KEEP MUM?9

The Administration of Estates Act 1925 had been based on the principle that the
surviving spouse of an intestate should - consistently with the pattern of distribution
actually adopted by those who made wills - inherit the whole of all save the largest
estates: the survivor had the personal chattels and a legacy of £1 ,00010 absolutely,
and a life interest in any residue. II But shortly after the end of World War II
- notwithstanding the fact that inflation had been, by more recent standards,
modestl2 - concern began to be expressed (both officiallyl3 and otherwise'4) about
the plight of widows whose husbands had failed to make wills; and particularly
about the risk that the matrimonial home would have to be sold in such
cases. IS Eventually a Parliamentary Question'6 by lain Macleodl7 led the Lord

9. Changes in attitudes over the past half century are vividly demonstrated by a World War II poster
preserved in the Public Record Office which sought to increase security consciousness by the slogan "Be
like Dad. Keep Mum!"
10. With interest at 5% from the date of death.
11. If the intestate left issue, the surviving spouse had a life interest in half the residue; and if there were
no issue, but certain specified relatives (extending to uncles and aunts of the half blood) survived, the
spouse's life interest was extended to the whole estate: Administration of Estates Act 1925, s. 46. The
personal representatives could (with the consent of the surviving spouse) redeem a surviving spouse's
life interest in consideration of a lump sum reckoned in accordance with tables elected by the personal
representatives [Administration of Estates Act ]925, s. 48(1)]. Experience suggested that this power
was not extensively used "Perhaps because the existence ofthis particular Section of the Act is not widely
known to personal representatives": Repon of the Committee on the Law of Intestate Succession, Cmd.
8130 (1951) para. 32.
12. According to official Indices, it would have been necessary to spend £1 ,700 in ]948 to buy goods
which had cost £1 ,000 (the amount of the statutory legacy to a surviving spouse) in ]925.
13. The Law Society, responding to letters from solicitors inserted a notice seeking views in the Gazette
in November 1948; and the Council concluded that a surviving spouse should receive £5,000 irrespective
of whether there were children of the marriage: H. Boggis-Rolfe [Lord Chancellor's Office] to the Treasury
Solicitor Sir Thomas Barnes, 22 May 1950, PRO file LC02/4440.
14. A correspondent informed the Lord Chancellor's Office [see PRO file LC02/444I ] that he had had
the "Painful duty of having to tum the widow out of the family home on the death of a husband ...
and I have just dealt with a case where the husband had to leave the home arising out of the death of
the wife. I could recite other tragedies, if necessary."
15. The "inflated value of house property" was referred to as a relevant factor in the Repon of the Committee
on the Law of Intestate Succession Cmd. 8130 (1951) para. 10; but Lord Chancellor Simonds appears
to have deleted the reference to this from his officials' draft of the paper recommending legislation to
be submitted to the Home Affairs Committee on 28 November 1951: see the manuscript amendments
to the draft in PRO file LC02/4451.
16. 16 April 1950.
17. He asked the Attorney General to set up a committee on intestacy . 'particularly in relation to the
widow's right to purchase the home where she and her deceased husband have lived". He had earlier
written to the Attorney General, Sir Hartley Shawcross referring to a constituency case in which the deceased's
daughter was insisting that the house be put up for auction "which is, 1 believe, within her rights ...
although the widow's money contributed greatly to the buying of the house".

Macleod, elected in 1950, was a powerful orator who had a meteoric rise to office (becoming Minister
of Health in 1952 at the age of 38 on promotion direct from the back benches) but he was not popular
with influential right wing conservatives (who thought him "too clever by half" and evidently sometimes
found it difficult to accept a man who had earned some part of his living by playing bridge). His sudden
death on 20 July 1970 (shortly after being appointed Chancellor of the Exchequer in the Heath government)
was thought by other Conservatives to be the loss of one of the best Prime Ministers the country never
had: see N. Fisher, lain Macleod (1973) and R. Shepherd, Ian Macleod (1994) - neither of which mentions
the role Macleod played in this area - and the entry by Ian Gi]mour in the Dictionary of National Biography.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

Chancellorl8 to favour the appointment of a Committee under Lord Morton of
Henrytonl9 to investigate the issue. 20.

THE GREAT AND THE GOOD?

It was intended that the Committee should reflect a broad range of interests; and
the files show a high level of political involvement in the process of choosing those
to be appointed. Advice was taken from a number of Ministers. Herbert Morrison21
urged that Members of Parliament should be appointed since such representation gave
satisfaction to Parliament and "shows that the Government are fully alive to the fact
that Members of Parliament are pre-eminently the spokesmen of the public" and
that such appointments add authority and may be of considerable assistance when
the time comes to give effect to the Report.22 Morrison also thought that there must
be "at least one woman23, and it is always an advantage to put on somebody from

18. Viscount (subsequently Earl) Jowitt. Jowitt was thought by some to lack political principle. Elected
as a Liberal in the General Election in April 1929, he immediately accepted the post of Attorney-General
in the Labour Government and joined the Labour Party (as Lord Birkenhead put it, "hurling himself
upon the Socialist omnibus as it was turning at full speed into Downing Street".) He was expelled from
the Labour Party in 1931 in consequence of accepting office in Ramsay MacDonald's National Government:
see for a full account, R.F.V. Heuston, Lives of the Lord Chancel/ors 1940-1970 (1987) Chapter II. In
the circumstances his choice of the motto "tenax et jidelis " when raised to the peerage may be thought
to have been provocative; but there is no doubt that his tenure of the Great Seal between 1945 and 1951
was distinguished by considerable achievements in law reform.
19. Appointed to the Chancery bench in 1938 he was created a Lord of Appeal in Ordinary in 1947.
It has been said (by Sir Denys Buckley in The Dictionary of National Biography 1971-80) that' 'he possessed
a ready and impish sense of humour which won him general friendship and affection .... His advocacy
was consistently careful, constructive, concise and cogent, and in his judicial judgements he never seemed
to find any difficulty in reaching a clear and convincing conclusion lucidly expressed. He was a delightful
judge to whom to present an argument but a testing one."

Morton (who had previous experience of public service as deputy chairman of the contraband committee
at the Ministry of Economic Warfare and as Chairman of the Council of Legal Education) accepted the
invitation; and it was thus unnecessary to approach Denys Buckley (Treasury Junior Counsel 1949-60,
and subsequently a Chancery Division judge and Lord Justice of Appeal) or Raymond Jennings QC
(subsequently Master of the Court of Protection) who had also been regarded as suitable by the Department.
The Permanent Secretary's Deputy, George Coldstream disagreed with a colleague's view that a recently
retired county court judge might be asked: Coldstream did not think the judge would be useful members
of the Committee and "he certainly ought not to be invited to preside. "
20. See the letter from H. Boggis-Rolfe of the Lord Chancellor's Office (subsequently Deputy Permanent
Secretary and at one time Secretary to the Law Commission) to Sir Thomas Barnes, the first solicitor
to be appointed Treasury Solicitor.)
21. Morrison, the Lord President of the Council and as such responsible for the co-ordination of the Labour
Government's policies, was a powerful figure in the Labour Party. He was defeated by Hugh Gaitskell
in the leadership election in 1955 for the successor to C.R. Attlee.
22. Morrison to Jowitt, 12 July 1950, PRO file LC02/4440.
23. When the names of the Committee were announced there was adverse comment on the fact that only
one woman had been appointed. The National Council of Women of Great Britain had previously urged
that a representative be appointed, but were politely rebuffed: 10 August 1950. Ambrose Appellbe, a
prominent solicitor of progressive views, wrote on behalf of the Married Women's Trust and protested
at the gender imbalance (31 October 1950) as did the Women's Group on Public Welfare (14 December 1950).

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Wales": his specific proposaF4 of the Labour MP and former school teacher Mrs.
Dorothy Rees (whom he described as "a sensible and practical woman") was no
doubt welcome.25 She was balanced politically by the Conservative MP for
Northwich, John Foster,26 a lawyer of renowned brilliance: and further legal input
was provided by the barrister Michael Albery27 and by the solicitor and Labour MP,
Eric Fletcher. 28

Considerable difficulty was experienced in finding a suitable Trade Unionist: Arthur
Deakin, the powerful General Secretary of the then 1.3 million strong Transport and
General Workers ' Union refused to allow Morrison's first suggestion to be appointed,
and eventually Lord Kershaw31 (to whom Deakin had "no objection") was
nominated. Harold Wilson32 put forward a number of names of possible employers'
representatives and his first choice (Sir Hugh Chance, chairman of a family glass
manufacturers, "who manages to find time for a good deal of social work") was
appointed.

KEEPING THE COMMITTEE WITHIN BOUNDS

The Committee's Terms of reference were a matter of great importance to the Lord
Chancellor's officials: there was evidently34 still considerable sensitivity about

24. In response to Jowitt's doubts as to whether it was really necessary to have someone from Wales,
but an expression of readiness to appoint a Welshman who was either a lawyer or had experience of social
work: Jowitt to Morrison 28 June 1950.
25. Mrs. Rees was subsequently engaged in much public work and was appointed DBE.
26. Of whom it has rather surprisingly been said that "his public achievement was negligible compared
with his private and personal influence which was considerable in England but especially in North America":
Miriam Rothschild, Dictionary of National Biography 1981-5.
27. Albery was the author of a work evidently admired within the Lord Chancellor's Office, on the Inheritance
(Family Provision) Act 1938.
28. Subsequently ennobled as Lord Fletcher ofIslington. It is said that he was the Prime Minister's choice
as Solicitor-General in the Labour Government in October 1964, but that the appointment of a solicitor
to that office was then regarded as impossible. He became Minister without Portfolio with special responsibility
for law reform in that administration: R.F. V. Heuston, Lives of the Lord Chancellors 1940-1970 (1987).
30. On the ground that the person concerned was indispensable to the Union.
31. Kershaw had served as Chairman of Courts of Referees under the Unemployment Insurance Acts.
32. Then President of the Board of Trade: see Wilson to Jowitt 14 September 1950. PRO file LC02f4440.
33. 1896-1981.
34. The draft terms of reference put by Boggis-Rolfe to the Treasury Solicitor (PRO file LC02f4440,
22 May 1950) were confined to a consideration of the rights of a surviving spouse on intestacy, and stated
that Coldstream and he had "not been able to think of any other subject which could conveniently be
considered simultaneously".

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

reopening discussion on the powers of the court to override a testator's wishes35 and
even more to suggestions that the provisions laid down by law of intestacy might
be overriden by the exercise of a judicial discretion. Yet any increase in the provision
to be made for a surviving spouse on intestacy would inevitably increase the number
of cases in which hardship might be caused to others who had been dependent on
the deceased. In the end, the terms of reference were skilfully crafted to confine the
issues as narrowly as the department thought expedient: the Committee was -

(a) To consider the rights36 of a surviving spouse in the residuary estate of an
intestate:
(b) To consider whether, and if so to what exent and in what manner, the provisions
of the Inheritance (Family Provision) Act 1938 ought to be mde applicable to
intestacies; 37
(c) To report whether any, and if so what, alteration in the law is desirable.38

THE COMMITTEE AT WORK39

The Committee worked with what today seems astonishing speed; and the Chairman
was able to submit the Report to the Lord Chancellor less than eight months after
the Committee had been established.40 The Committee's Secretary was evidently

35. Under the powers conferred by the Inheritance (Family Provision) Act 1938 whch had only been
enacted after prolonged and sometimes almost bitter controversy: see Tyler's Family Provision (2nd. ed.
by R.D. Oughton, 1984) Chapter I for an account making use of the Lord Chancellor's Department's
records. The Labour Lord Chancellor, Sankey, had favoured legislation on the lines of the much more
radical legislation proposed by the National Council of Societies for Equal Citizenship in 1929 [see Sankey
to Parmoor, 14 October 1929, PRO me LC02/ 1185] but there had been disagreement between Conservative
Lord Chancellors: the first Lord Hailsham had been, and remained, an implacable opponent of the legislation;
whereas Lord Maugham (whose view was finally that which prevailed in Cabinet) had been prepared
to allow Parliament a free choice. Parliamentary Counsel also had views: "I never ceased to say at every
opportunity throughout the time whilst I was dealing with it that it appeared to me to be wrong both in
conception and in drafting. Consequently no attacks upon it are likely to offend my amour propre": see
Ellis to Coldstream 6 August 1941, PRO file LC02/1516.
36. Under Administration of Estates Act 1925, s.46; Supra. n.ll.
37. This important extension to the terms originally proposed by the Lord Chancellor's officials was urged
by the Treasury Solicitor.
38. Repon of the Committee on the Law of Intestate Succession Cmd. 8130 (1951) (hereafter referred
to as "Morton Report") para. I.
39. The membership was announced in The Times. 18 October 1950. B.E. Astbury and A.W. Brown
were appointed to the Committee in addition to those mentioned in the text.
40. The Report is dated 5 June 1951 and was submitted on 25 June. In contrast, the Law Commission
evidently began its study of Distribution on Intestacy in 1987, and completed a Working Paper [No.
108] for consultation on 10 June 1988. Its report [Law Com. No. 187] dated 27 October 1989 was
laid before Parliament on 18 December 1989.

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knowledgeable and formidably efficient;41 and the Chairman42 did not encourage
excessively lengthy discussion.43 But the main factor influencing such a rapid
disposal of what might have been thought complex issues is simply that the Committee
seems to have had no doubt that it could itself interpret what it described as the spirit
of the age.44 Moreover, the Committee accepted45 the philosophy adopted in framing
the 1925 legis1ation46 that the provisions made by testators provided a sound basis
upon which intestate distribution could be based;47 and it did have available to it a
survey of wills proved over a five week period.48 The Committee received advice
on the law of intestacy in foreign countries49, and written memoranda from seven

41. D.R. Holloway. An official in the Probate Registry he subsequently served from 1966 to 1983 as
a Registrar of the Principal Registry of the Family Division, and is the author of many books. He produced
briefing memoranda which may still be regarded as models of their kind; and also marshalled the statistical
evidence (collected in PRO fIle LC02/4445) on which the Committee placed some reliance, see infra. n.48.

42. Evidently his chairmanship gave satisfaction in government circles, since he was almost immediately
appointed to chair the Royal Commission on Marriage and Divorce. D.R. Holloway was appointed as
Assistant Secretary to the Royal Commission. The Royal Commission's report (Cmd. 9678 published
in 1956) was far from unanimous, and has been the subject of strong and even intemperate criticism,
notably by O.R. McGregor, Divorce in England (1957).

43. The Committee met on only six occasions. The minutes on the fifth meeting give some flavour of
the chairman's style: a "long discussion" took place on whether the provisions ofthe Inheritance (Family
Provision) Act 1938 should be extended to total intestacies. The Minutes record an extensive discussion
of the issues: and' 'the Chairman put the following question to the Committee: Do you think: that some
provision should be made by statute for mitigating cases of hardship which might arise" if the proposal
significantly to increase the surviving spouse's rights were adopted? "All the members with the exception
of Mr. Eric Fletcher thought that some provision should be made. Mr. Fletcher then said that in view
of the general opinion of the other members he was prepared to support the recommendation put forward

by the Chairman in the outline of the report. (Mr. Fletcher left the meeting at this stage).": PRO file
LC02/4448.

44. MoTton Report para. 10.

45. As had The Law Society: see Boggis-Rolfe to Barnes, 22 May 1950, PRO file LC02/4440.

46. The Notes for Ministers prepared by officials on the Bill which became the Intestates' Estates Act
1952 state that the draftsman of the 1925 Act, Sir Benjamin Cherry, "incorporated what he believed
to be general intention of persons dying intestate. In doing so he acted mainly on his personal knowledge,
no comprehensive statistics of disposals by will being available at the time". But it appears that in fact
statistics were obtained from the Estate Duty Office in 1921 and that they confirmed the view taken by
Cherry: see Memorandum No.1 to the Morton Committee [PRO file LC02/4447] p.2.

47. Contrast the cogent criticism of this approach by the Law Commission, Distribution on Intestacy
(Law Com. No. 187, para. 4.)

48. Morton Report, para. 18.

49. Prepared by Sir David Hughes Parry, Director of the Institute of Advanced Legal Studies, London
University, and author of a still widely used student's text: Parry and Clark, The Law of Succession (9th.
ed. 1988 by J.B. Clark).

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

organisations, 50and it received a large number of written suggestions51 (including
a petition signed by 3,202 persons urging improvement in the widow's position52):
but the Committee did not seek to dramatise the problems.53, and did not even
consider carrying out an attitude or other public opinion survey.

THE COMMITTEE REPORTS

The Committee found no difficulty in reaching agreement on its general policy: it
accepted the argument that there had been a considerable depreciation in the value
of sterling since the 1925 reforms; and that the matrimonial home was often valued
at a sum" greatly in excess" of the statutory legacy, with the result that the surviving
spouse might be forced to leave the home which would be sold to satisfy the claims
of the deceased's children.54 In the result, there was no longer any similarity between
the provision made for the surviving spouse by the average testator and that made
for the spouse by the law of intestate succession;55 and, in the Committee's view,
it followed that the surviving spouse's share should be increased. 56.

MORE - BUT HOW MUCH MORE?

It would hardly have required the appointment of a Committee to reach this conclusion:
but deciding on the nature and scale of the increase was much less easy. The Committee
drew a distinction between cases where the intestate left surviving issue and other
cases. Where there were surviving issue, the Committee decided that a fivefold increase

50. The General Council ofthe Bar and the Council of the Law Society (who both also gave oral evidence):
the Solicitors' Managing Clerks' Association, the Committee of London Clearing Bankers, the Married
Women's Association and the National Council of Women of Great Britain. The Marriage Law Reform
Society did not disguise the fact that its primary objective was to reform the divorce law so as to permit
divorce afterthe spouses had lived apart for two years rather than to reform the law of intestate succession,
but it did prophetically favour giving a person who had lived with the deceased as a spouse for three
years the right to make a claim underthe 1938 Act (cfLaw Com. No. 187. para. 63 - two year cohabitants
to be eligible - a proposal to which effect is to be given by the Law Reform (Succession) Act 1995).
51. Although the Morton Report states that most of the private individuals' comments were about particular
cases of hardship [para. 2] it should be recorded that Professor Glanville Williams presciently identified
the demographic changes reflected in an increasing number of step-parent relationships as a matter which
should be taken into account in any reform; and that a particularly powerfully argued letter from a Halifax
solicitor, E. Maurice Drake, Solicitor, foreshadowed the recommendation ultimately made by the Law
Commission in 1989 that the whole estate should go to the widow leaving other dependants to an application
for the exercise of the court's discretion under the inheritance legislation.
52. Morton Report para. 2.
53. The Secretary found it necessary to write on 30 November 1950 to the editor of the Daily Graphic
stating that whilst he welcomed "to a limited extent" the publicity which the newspaper had given to
the Committee's work, it was "not correct to say that I hear daily of tragedies caused by persons dying
intestate. I have no recollection of making a statement of this nature to your reporter and in any event
it is not true. "
54. Considerable difficulty was caused to the Committee and to officials by the existence of a concession
which often led to the home being valued for estate duty purposes at its pre-World War II value: see
eg Morton Report para. 25. But unless the contrary is indicated references in this text are to the market
values current at the time.
55. Morton Report, para. 16.
56. Supra. n.54 and text.

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(to £5,00057) in the amount of the statutory legacy payable to a surviving spouse58
would be appropriate59. The Committee also made two ancillary proposals in further
support of the objective of improving the surviving spouse's position. First, the survivor
should be given an option to purchase the matrimonial home at its open market value
as at the date of the deceased's death;60 and, secondly, the spouse should be entitled61
to redeem the life interest in half the remaining estate to which (it was proposed)
the survivor should continue to be entitled. 62

In cases where the deceased left no issue, the Committee recommended a compromise
between those63 who favoured giving the whole estate to the survivor;64 and those
who thought that the deceased's kin should also benefit. Where the deceased died
without issue but left a spouse and a parent or sibling of the whole blood, the spouse
should take a legacy of £20,000 and half the residue absolutely. The balance of the
estate should go to the surviving parent or parents, or (if neither parent survived)
to the brothers and sisters of the whole blood.65 The Committee did not think the

57. Free of death duty and costs; and the survivor would retain the entitlement to the deceased's personal
chattels. The recommended increase in the amount of the statutory legacy was substantially more than
would have resulted from adjusting the £1 ,000 provided by the 1925 Act to take account of general inflation,
and was at the upper end of the range of suggestions made by witnesses. Indexation - which would have
justified an increase to £2,000 - was evidently a comparatively linle understood concept; and the Committee
does not seem to have been influenced by it. The Bar Council (virtually alone) had recommended that
the legacy remain unchanged, the spouse's position being improved by conferring a life interest in the
whole of the deceased's residuary estate: Morton Report, para. 17.
58. The rate of interest payable on this statutory legacy was to be reduced from 5 % to 4 %: Morton Report,
paras. 16-22.
59. The statement by Lord Gardiner in moving the second reading of the Family Provision Bill 1966
[see Official Report 16 June 1966, col. 202] that the Morton Committee had "pointed out that the object
of the statutory legacy was to enable the widow to buy the house", that the Committee said that "£1,000
for this purpose was no use in 1952" and that the proper equivalent, judged in terms of the increase
in the price of houses" was £5,000 does not accurately reflect the Committee's expressed views [see
Morton Report, para. 10-21] which took account of inflation in house prices as merely one relevant factor.
The Committee (following the precedent of those responsible for the 1925 legislation) was much more
influenced by the pattern of testators' wills.
60. Morton Report, paras. 23-27.
61. Under the Administration of Estates Act 1925 s .48(1) the intestate's personal representatives were
empowered to redeem the life interest in accordance with tables they selected; but this procedure was
not much used: Morton Report, para. 32. The Committee's proposal (intended to reduce the number
of life interests and further to improve the position of the survivor) gave the right to the survivor in accordance
with a "simple table ... proportionate to the expectation of life of the surviving spouse" incorporated
in the legislation: Morton Report, para. 32.
62. Morton Report, paras. 28-32.
63: Notably, the Council of the Law Society: Morton Report, para.34.
64. "This seems rather a striking proposal. It means that the spouse would take the whole estate even
if the intestate left a very large estate .... We feel that under such circumstances a childless person,
dying intestate, would wish that close relatives ... should take some benefit from the estate, subject
always to adequate provision being made for the spouse. It often happens that a large portion of the intestate's
estate has been derived from his family and it seems just, therefore, that the family should have an opportunity
of sharing in it after the intestate's death. "[Morton Report, para. 34].
65. On the statutory trusts defined by Administration of Estate Act 1925, s.47, which also provided for
substitution of issue of deceased siblings.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

"average individual would want relatives more remote than this to benefit from the
estate at the expense of the surviving spouse66 and accordingly recommended that
brothers and sisters of the half blood and their issue, should lose the right67 to share
in the estate of an intestate who died leaving a surviving spouse.68

The general tenor of the Committee's proposals was thus vividly to exemplify what
has been described69 as the amputation of the blood stock and of the movement of
marriage (as compared with genetic kinship) into the foreground. 70 But the
Committee was itself conscious71 that the increased provision which it proposed for
a surviving spouse might well work injustice in many cases where there were step-
children by another marriage; and for that reason recommended that the Inheritance
(Family Provision) Act 1938 should be made to apply to cases of intestacy.72

OFFICIALS DECIDE

British constitutional practice allows Ministers to seek advice (whether from bodies
such as Departmental Committees or from their own Departmental officials or from
others73); Ministers74 decide whether to take such advice and whether and when to
promote legisla,tion;75 and Parliament decides whether to enact the measures placed
before it.

66. Morton Report, para. 36. The surviving spouse was to take the whole estate absolutely if no relatives
within the defined class survived.
67. Administration of Estates Act 1925, s.46.
68. Morton report, para. 36. Such relatives were to retain the right to succeed if there were no surviving spouse.
69. By Sundberg, cited by D. Bradley, "Marriage, Family property and inheritance in Swedish law"
(1990) 39 l.C.L.O. 370.
70. This thesis is persuasively developed by M.A. Glendon, The New Family and the New Property (Toronto,
1981).
71. Although this was one of the few matters on which the Committee found difficulty in reaching agreement
72. The Committee's terms of reference were (as has been pointed out: supra. ns. 34 & 35) deliberately
restricted to limit the scope of discussion of the 1938 Act; and the Committee at its first meeting on 9 November
1950 had discussed whether it should seek to have them extended. Only John Foster KC dissented from
the general consensus not to do so: see Minutes, PRO file LC02/4448. In the event the Committee clearly
found the restriction on the scope of its enquiry embarrassing; and it suggested, "at the risk of travelling
outside our terms of reference" that if the Act were to be extended to cover cases of intestacy' 'opportunity
might advantageously be found to remove some of the defects which have come to light in the course
of' experience of its working (in particular the restrictions imposed by s.I(3) and (4»: Morton Report,
para. 49. Moreover, the class of dependants who could apply under the Act was restricted - for example,
an adult son of the deceased's could only do so if disabled; and it is not surprising that the Committee
thought it would "obviously be necessary" to review the whole of the Act closely if it were extended
to intestacies, and that it might be thought desirable to enlarge the class of "dependants": Morton Report,
para. 51. In the event, no comprehensive review took place until the Law Commission undertook the
Review (Second Report on Family Property: Family Provision on Death, Law Com. No. 61, 1974) which
formed the basis of the Inheritance (Provision for Family and Dependants) Act 1975.
73. In recent years, the practice of taking advice from personal advisers has increased.
74. Assuming collective responsibility for Cabinet decisions. In practice, crucial decisions will usually
be taken by Cabinet Committees - in the present instance the Home Affairs Committee.
75. Or whether to block, preserve neutrality (benevolent or otherwise), or actively to support the small
number of bills introduced by private members.

THE DENNING LAW JOURNAL

The relationship between the different actors in this scenario can be subtle: the
power of officials to influence matters has been a source of much comment but seems
inevitable given their long term involvement in the executive machine. On the other
hand, Ministers will have declared policies on some matters (albeit rarely on lawyers'
law reform) and certainly cannot routinely force through legislation which their own
officials support without regard to opinions expressed in either House of Parliament.
The passage of the Intestates' Estates Act 1952 illustrates the working of these
relationships in the context of what appeared to be a Bill devoid of almost any political
content. 76 •

GOVERNMENT CONSULTATION:
NOT QUITE SO SIMPLE AFTER ALL ..

The first stage in the decision taking process was for the Lord Chancellor's officials
to consult with other officials on the Morton Report's proposals; and, immediately,
problems were raised. On one view, the most difficult77 was whether the Committee
had fully considered the implications of the rule78 that the younger of two persons
who died in circumstances rendering it uncertain which had survived the younger
should be deemed to have survived. Hence, a much increased inheritance might, for
example, pass to the family of a young bride killed with her husband in an air crash
rather than staying in the husband's family. 79 Lord Morton candidly told80
Coldstream that his Committee had never considered the point and that he did not
want to do SO.81The Lord Chancellor82 came to agree that legislation should provide
that the statutory presumption be nullified for the purposes of intestate succession;83
and the Lord Chancellor's Memorandum to the Home Affairs Committee was settled
accordingly.

76. The Morton Committee had been appointed by, and reported to the Labour Government's Lord Chancellor
(Jowitt: Supra., n.18). But that Government was defeated at the General Election on 25 October 1951
and decisions as to implementation fell to Lord Simonds, a man of no political experience who was evidently
mystified by his appointment by Winston Churchill (in his last administration). He was a great Chancery
lawyer, who sadly is now best remembered for his vigorous criticisms of Lord Denning in the Midland
Silicones case [1962] AC 446,459 ("heterodoxy, or, as some might say, heresy, is not the more attractive
because it is dignified by the name of reform"). .
77. Raised by the Treasury Solicitor.
78. Law of Property Act 1925, s.I84.
79. "We had some very hard cases under the present law during the war ... "
80. According to a note endorsed on a letter from Coldstream to Morton dated 19 November 1951 marked
"Not to be sent".
81. Although the point had in fact been put to the Committee by the Quain Professor of Jurisprudence
at London University. Professor Glanville Williams.
82. Simonds' manuscript note on a minute from Dennis Dobson dated 26 November 1951: PRO file
LC02/4457.
83. See now Administration of Estates Act 1925, s.46(3) as added by Intestates' Estates Act 1952, s.I(4).
The Law Commission [Distribution on Intestacy, Law Corn. No. 187, 1989, para. 57] consider that
a surviving spouse should only inherit if he or she survives the deceased for a period of fourteen days,
and the Law Reform (Succession) Act 1995 incorporates a provision requiring survival.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

Another difficulty - for the Lord Chancellor's officials the greatest difficulty84
- was in connection with the recommendations relating to the Inheritance (Family
Provision) Act 1938: the Committee had pointed out that there were difficulties caused
by restrictive provisions incorporated in that legislation85 but (Dennis Dobson86
plaintively minuted87) the committee had unfortunately not given any indication of
the way in which it thought the Act should be amended. 88

When the Cabinet's Home Affairs Committee expressed some disquiet89 at t~e
implications of the proposals to enhance the spouse's position as they would affect
a husband with issue by one marriage who remarried late in life, the Lord Chancellor
explained that' 'it was because of this kind of difficulty" that he proposed amendment
of the 1938 Act" to enable the courts to intervene in such cases".90

In the light of this discussion it was agreed that a Bill be drafted.91 It was thought
better that it should be handed to a private member who had a good place in the ballot
for private members' bills and lacked any bill of his own rather than being introduced
as part of the Government's legislative programme.

84. Dobson's Minute to Simonds 26 November 1951, PRO file LC02/4457.
85. Supra., n.72.
86. He subsequently became successively Assistant Permanent Secretary (1954-1968) and Permanent
Secretary (1968-1977).
87. And it may be thought - in view of the determination of the Lord Chancellor's officials to confine
discussion of the 1938 Act to the barest minimum: see Supra., n.34 - somewhat unjustly.
88. Simonds minuted that it would be better to have a separate Bill dealing with the Family Provision
legislation, "But this might, I understand, make it more difficult to get any Bill through": PRO file
LC02/4457. Simonds' manuscript note dated 25 November 1951. In the result, the Lord Chancellor and
Home Affairs Committee accepted the officials' recommendation to retain the rule [Inheritance (Family
Provision) Act 1938, s.I(I) proviso] that applications be not permitted where the deceased had bequeathed
not less than two thirds of his net estate to the surviving spouse and the only other dependant or dependants
were a child or children of the suvivor, whilst removing restrictions on the court's powers in ordering
provision in the cases with which it had jurisdiction to deal. (The Family Provision Act 1966 finally removed
the restriction imposed by the 1938 Act so as to avoid the anomaly whereby a spiteful testator might
leave a widow two-thirds of the income of his estate in order to prevent her having any right to apply
to the court: see Official Report (HL) 16 June 1966 vol. 275, cols. 203-4. Lord Gardiner's statement
that he did not know whether the retention of the relevant proviso in 1952 "was simply a slip" suggests
that his attention had not been drawn to his predecessor's advice to the Home Affairs Committee: see
PRO file LC02/4451, 28 November 1951, para.8.
89. The Morton Committee had itself recognised this problem: para.47; and the President of the Probate
Divorce and Admiralty Division subsequently told Coldstream that "very considerable hardship might
be caused by the over-riding preference given to the widow" and that "too much may have been sacrificed
for the sake of simplicity": Merriman to Coldstream 5 March 1952, PRO file LC02/4457.
90. Minutes of Home Affairs Committee, 7 December 1951. As pointed out above [Supra. , n. 72 ] , however,
the court would only be able to intervene on an application by a "dependant" of the deceased, and accordingly
no married daughter or adult son could apply unless disabled.
91. The Bill as drafted departed from one recommendation of the Morton Committee (which had taken
the view that there should be no special rules for partial intestacies). It was decided that, in the light
of the increased size of the statutory legacy, the spouse should be required to bring any benefit taken
under the will (or in exercise of any general power of appointment) into account against that provision.

THE DENNING LAW JOURNAL

DRAFTING THE BILL: THE DIFFICULTIES INCREASE ...

Although it is true that there may be difficulties in securing agreement to broad issues
of policy it is often found that these pale into insignificance when those broad issues
have to be translated into the precision required by the English tradition of statutory
drafting. The Intestates' Estates Act 1952 provides a remarkable example of this
phenomenon.

What, for example, could be simpler than to draft legislation giving effect to the
Morton Committee's recommendation that a surviving spouse should have an option
to purchase the deceased's interest in the matrimonial home? And yet ... how was
matrimonial home to be defined? How were the interests of purchasers and creditors
to be protected? What was to happen if the survivor were under 21 or of unsound mind?

The draftsman did his best but was not satisfied with the result: it is not, of course,
the draftsman's job to take views on policy but the draftsman wrote that the difficulties
were so great that "the whole of this option" might best be omitted from the Bill.92
After all (he wrote) "the Committee were luke warm about it particularly, as I read
between the lines, the legal members"; and there would be no problem in keeping
the house for the widow's occupation where the family was harmonious, and so "one
is probably legislating for the cases where either side are ready to take any obstructive
point, and this subject fairly bristles with debatable points which the drafting must
leave open." It seems clear that issues of policy could not easily be segregated from
technicalities; the grant of an option to purchase would 93 "simply encourage old
ladies to insist on going on living in houses which were far to large for them and
against their real interests' '94.

In the result, the officials came to agree that it was impossible to draft legislation
to give effect to the proposal, and the Bill as first presented to Parliament did not
seek to deal with the matter. But in the end the practical experience of the solicitors'
profession came to the rescue:95 the surviving spouse was to be given the right to
require the personal representatives to exercise the "well-tried" powers of

92. A.N. Stainton, who subsequently became First Parliamentary Counsel and (accordingly to the obituary
published in The Times on 12 November 1988) was responsible for drafting much tax legislation. The
obituarist refers to his analytical mind and prodigious intellect, and to that fact that, although he did not
suffer fools gladly, "he would at least allow the fool to leave the room before expressing exasperation".
For some deeply felt remarks about difficulties encountered in collaboration between some Law Commission
staff and Parliamentary Counsel, see R. T. Oerton, A Lament for the Law Commission (1987) Chapter
6, particularly pp.54-6. For comments on the drafting of the 1952 Act in the light of experience, see
infra. n.100.
93. Coldstream to the Solicitor-General Sir Reginald Manningham Butler 7 March 1952. The draftsman's
attempt to produce clauses conferring an option to purchase had been referred to the Senior Chancery
Judge, Vaisey J. and he had made "the most devastating criticism of the proposal" and advised the Lord
Chancellor to drop it because legislation would do more harm than good.
94. See to the same effect H. Hylton-Foster's speech on the second Reading of the bill: Official Report
(HC) 28 March 1952, Vol. 498, col. 1078.
95. See the correspondence between Coldstream and Horsfall-Turner from 13 March 1952.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

appropriation96 in respect of the matrimonial home97; and the resultant provisions
seem to have given rise to few problems98 in practice.99

The fertile mind of the draftsman found 100 many other difficulties; 101 but a Bill
was eventually drafted and circulated within Whitehall and elsewhere for comment.
Officials, viewing the Bill from their own departmental perspectives, were not slow
to accept the invitation.102 Some of these comments led to significant

96. Administration of Estates Act 1925, s.141. It was held in Lall v. Lall [1965] I W.L.R. 1249 that
the survivor has, prior to appropriation, no equitable interest in property such as to give standing in a
possession actipn brought by registered proprietor; and note the draftsman's concern about the difficulties
of deciding how far the Morton Report's "option" would bind third parties.
97. But if the widow were to be given a right to keep the matrimonial home, should she not also be given
a right to keep the family business? An amendment to this effect was successfully moved by Barnett Janner
MP (later Baron lanner - a solicitor and President of the Board of Deputies of British Jews and himself
the son of a small shopkeeper) Official Report (HC), 24 June vol. cols. 22-4; but a firm stand was taken
against what Lord Mancroft described as a "Perfectly horrible clause" [Official Report (HC), 29 July
1952, vol. 178, col. 390.] As the draft prepared by officials explaining to Janner why the clause was
to be removed put it, leaving the technicalities on one side, "widows are often not the best judges of
their own business capacity": PRO file LC02/4452.
98. But see Re PheLps dec'd [1980] 1. W.L.R. 1501 to the effect that the right could not be exercised
where the house was worth more than the amount of the statutory legacy. And note the view of the Law
Commission [Law Com. No. 187, para.34] that the interpretation put on this provision in Robinson
v. ColLins [1975] I W.L.R. 309 (value of house to be calculated at date of appropriation rather than
at death) had caused problems. The Morton Report envisaged that the survivor's right should be to purchase
at the death valuation: para. 25.
99. See the discussion in Sherrin and Bonehill, The Law and Practice of Intestate Succession (2nd. ed.
1994. It is to be noted that officials were worried that the exercise of the power might be "catastrophic"
in some cases (e.g. where the matrimonial home had been a farmhouse) and that accordingly in certain
defined cases the right to require appropriation is not exercisable unless the court is satisfied that doing
so would not be likely to diminish the value of other assets or make them more difficult to dispose of:
see Intestates' Estates Act 1952, Sched.2, para. 2. But it was decided (contrary to tradition) that "the
attempt to legislate for every case should be abandoned"; see Notes on Clauses, PRO me LC02/667 I , p.124.
100. Unfortunately, he did not identify some problems which arose in practice. The drafting of the 1952
Act was criticised by academic writers: see Sherrin and Bonehill, The Law and Practice of Intestate Succession
(2nd. ed. 1994); and in the debate on the amending Family Provision Act 1966 the Conservative spokesman
took the possibly unprecedented step of apologising for the "considerable errors" which were made:
see Official Report (HL) 16 June 1966, vol. 275, col. 210.
101. See in particular his six page letter dated 4 January 1952. Amongst the difficulties raised were (i)
The application of the rule in Allhusen v. Whittell (1867) L.R. 4 Eq. 295 to the surviving spouse's legacy
(ii) the position if the court made an order under the 1938 Act on the basis of provision which turn out
not to be those made in the will (e.g. where a new will is discovered); (iii) were purchasers to be affected
by notice that chattels should have gone to the spouse?; (iv) difficulties which were perceived as likely
to arise in relation to the requirement that one spouse be proved to have survived the other. The draftsman's
comments caused some irritation to the Lord Chancellor's officials; in particular, Stainton's suggestion
that the Committee be asked whether they had taken account of the implications of the rule in Allhusen
v. WhitteLl prompted a great deal of departmental research; but ultimately Dobson told the private member
to whom the Bill had been allotted (Sir Hugh Lucas-Tooth: see infra. n.I06) that he was not sure that
the problem was quite as difficult as Stainton had made it appear "because ... I think one would find
that little notice was taken of the rule in Allhusen v. Whittell": Dobson to Lucas-Tooth 7 January 1952.
102. For example, the Postmaster General was concerned that any extension of the Inheritance (Family
Provision) Act 1938 would have implications on the right given to depositors to nominate National Savings
accounts and other investments; and his officials were concerned that he should be protected. Coldstream
robustly suggested to Stainton that' 'the best thing to do is to leave this question alone ... " 20 May 1952.
The difficulty that a person could wholly defeat the operation of the 1938 Act by skilful choice of assets
which would fall outside the definition of "net estate" in s.5(1) was later taken by the Law Society;
but no action was taken until the Law Commission's review [Second Report on Family Property: Family
Provision on Death, Law Com. No. 61, 1974] which led to the enactment of Inheritance (Provision for
Family and Dependants) Act 1975, s.8.

THE DENNING LAW JOURNAL

change; 103but the consultation also revealed doubts about the merits of some of the
proposals. In particular, a powerful letter from the President of the Probate Divorce
and Admiralty Division, 104suggested that too much had been sacrificed for the sake
of simplicity and that very considerable hardship might be wrought by the overriding
preference given to the widow; and eventually the Legislation Committee asked the
Lord Chancellor to consider whether an amendment was needed to reduce the degree
of preference given by the Bill to the second spouse in cases of remarriage after
divorce. 105

DIFFICULTIES DO NOT TROUBLE PARLIAMENT

It was nevertheless decided not to amend the Bill further; and its passage through
both Houses of Parliament was skilfully handled by the private members entrusted
with its carriage, 106There were in fact a number of serious issues of principle which
might have been discussed, but (as the Commons spokesman, Hylton-FosterI07)
wrotelO8 "speed and joviality looked like the easiest way", and in the result the few
members who attended the debateslO9 were regaled with accounts of "elderly

103. Notably in the method of calculating the amount to be paid by way of redemption of the surviving
spouse's life interest: see the Notes on Clauses, pp.15-19, PRO file LC02/6671. Following advice from
the Government Actuary a simple scheme for valuation by reference to the cost of a Post Office Annuity
was incorporated into the legislation: Intestates' Estates Act 1952, s.2(2). Subsequently, the withdrawal
of Post Office annuities required the scheme to be amended; and it is now provided that the capital value
is to be reckoned in such manner as the Lord Chancellor may direct: see Administration of Justice Act
1977, s.28(3) and the tables laid down in the Intestate Succession (Interest and Capitalisation) Order 1983
(S.1. 1374).
104. Merriman to Coldstream 5 March 1952, PRO file LC02/445I , Lord Merriman had had a difficult
relationship with the Department, no doubt in part because of his bitter opposition to the proposals for
reform of divorce law and procedure put forward in the Reports of the [Denning ICommittee on Procedure
in Matrimonial Causes (1946-7): see P. Polden, Guide to the Records of the Lord Chancellor's Depanment
(HMSO 1988) pp.106-109. The situation which arose in relation to the intestacy proposals is the more
surprising in the light of Coldstream's acceptance in 1946 that "no such enquiry ought to be allowed
to be started unless we are quite sure that it is one which is likely to have the approval of the head of
the division concerned": PRO file LC02/3951.
105. Minutes of meeting 11 March 1952.
106. It had originally been intended that the Bill would be taken through the Commons by the barrister
Conservative MP for Hendon South Sir Hugh Lucas-Tooth; but he was appointed Parliamentary Under-
Secretary at the Home Office and a substitute had to be found. There was some criticism in the Commons
that the Government was using private members' time for what was in substance a Government bill.
107, Harry Hylton- Foster had been elected Conservative MP for York in 1950, and subsequently became
Solicitor-General (1954-9) and Speaker of the House of Commons (1964-5).
108, To Coldstream 29 October 1952.
109. Officials voiced concern about the unrepresentative nature of the debates: the House of Commons
Second reading Debate was "a very thin house" with few speakers. (In fact the House was in fact counted
out on 28 March, but the second reading was carried "on the nod" in the following week. The Committee
debate was "very meagre"; and officials regretted that the Bill had had so little consideration because
there were "many questions of principle" on which any Government would want a free vote (e.g. the
size of the statutory legacy). The only point of principle urged with any conviction was by Charles Fletcher-
Cooke the barrister Conservative MP for Darwen who successfully objected to the further discrimination
proposed by the Morton Committee against relatives of the half blood: the Bill was amended to allow
b~others and sisters (and uncles and aunts) of the half-blood to retain their right to succeed in default
of any spouse, issue, or parent of the deceased, ranking after relatives of the whole blood in the same degree.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

gentlemen who marry little blonde creatures much younger than themselves in the
autumn of their days" 110 and other witticisms. 111

THE SIGNIFICANCE OF THE 1952 LEGISLATION

The Intestates' Estates Act 1952 may, at first sight seem to have been of little long
term significance; but in reality by emphasising the primacy to be accorded to the
claims of a surviving spouse it constitutes a decisive landmark in the evolution of
the law. The Act is also significant in a number of other respects: for example, for
the first time in English statute law it recognised the family home as an asset which
deserved special protection. Perhaps of even greater significance was the acceptance
of the principle that, since no general code for intestate distribution could achieve
satisfactory results in every case, the court should be given power to vary the statutory
provisions if they failed to make reasonable provision for the deceased's dependants.

This paper has, however, been primarily concerned with the process whereby the
legislation came to be enacted rather than with the merits of change in the substantive
law: and in this respect the following points may be made.

(i) Preparing public opinion.
The Morton Committee is a classic example of the technique of preparing the way

for legislation by establishing a comparatively broadly based group of people from
outside Government to make recommendations. The use of the Committee technique
is all the more striking since it seems that there was little dispute that the provision
made by the 1925 legislation for the surviving spouse of an intestate had become
inadequate.

The Morton Committee was the last occasion on which this technique was used
in this context: in 1966, Government felt sufficiently confident to decide on reforms
without formal outside consultation; 112 whilst the most recent proposals have been

110. H. Hylton-Foster, Official Report (He) 28 March 1952, vol. 498: col. 1083.
Ill. The Conservative peer, Lord Mancroft, (at the time a Member of the Bar Council), was entrusted
with the carriage of the Bill in the House of Lords. His light-hearted speech on the Second Reading Debate
in the House of Lords was evidently skilfully attuned to the mood of the House. The Administration of
Estates Act had, he said, been drafted by the late Sir Benjamin Cherry, and contained a table of' 'a complexity
and confusion equal only to that in the Table of Affinity in the Prayer Book, concluding with certain
nefarious characters which could have stepped only from the pages of Saki or P. G. Wodehouse - namely,
aunts of the half-blood. I never met a case of a man being disinherited by a half-blooded aunt, but presumably
Sir Bejamin Cherry did not want to take any risks!" [Official Report (He) 29 July 1952 vol. 178, col.
390]. A humorous reference to the possibility that Lord Chancellor Jowiu [see supra. n.18] might solve
his housing problems by moving into the vicarage at Bray offended JowiU to the point that he subsequently
always left the Lords' Chamber whenever Mancroft spoke [Heuston, supra. n.18 p.80]; but Mancroft's
parliamentary skills were subsequently put to good effect in securing the enactment of the Marriage (Enabling)
Act 1960 which rationalised the rules governing the prohibited degrees of marriage.
112. The newly established Law Commission was however informally consulted by the Lord Chancellor:
Official Report (HL) 16 June 1966, vol. 275, col. 203.

THE DENNING LAW JOURNAL

made by the Law Commission, a body composed exclusively of professional
lawyers.lI3

One advantage of the Committee technique is to give notice that issues on which
people may have strong views are being discussed; and thereby to some extent to
familiarise the community with the proposals which are being considered. It may
be that some recent experience - notably with the Child Support Act 1991 - supports
the view that comparatively open discussion carried out over a period of time has
some value in accustoming the community to what is proposed.

(ii) Parliament and Law Reform.

The passage of the Intestates' Estates Act 1952 through Parliament demonstrates
the weakness of the parliamentary process as a means of ventilating serious issues
in which there is no particular party interest. It was difficult to engage the interest
of MPs; and the concern of those with carriage of the Bill was inevitably to minimise
the possibility of matters being pursued in a way which could jeopardise the prospects
of the Bill becoming law. 114 Study of the parliamentary process on this and other
occasions may be thought to give further weight to the arguments in favour of a special
procedure for dealing with technical measures of law reform 115 and engender
scepticism about the wisdom of the decision of a majority of the House of Lords
in Pepper v. Hartl16 to allow reference to the Official Report of proceedings in
Parliament in certain circumstances.

(iii) The technicality of law reform.
Above all, study of the background to the 1952 Act reveals the high level of

technicality involved even in legislation which might be thought, at first impression,
to be comparatively simple and the major part in that process which is played by
the Parliamentary Counsel. Who, for example, could have predicted that the Morton
Committee's proposal that a surviving spouse should be given the option to purchase
the matrimonial home would raise so many technical problems that it was decided
it should be abandoned?ll?

113. Family Law, Distribution on Intestacy (Law Com. No. 187, 1989). The Law Commission did, in
accordance with its usual practice, engage in a fairly wide consultation exercise: and on this occasion
(unusually) it did rely on the results of a survey of public opinion.
114. For a further remarkable example see S.M. Cretney, "The Forfeiture Act 1982: The Private Member's
Bill as an Instrument of Law Reform" (1990) 10 Ox J.L.S. 289.
115. See the discussion of this issue in the Law Commission's Twenty-Eighth Annual Report 1993 (Law
Com. No. 223, paras. 1.11-1.21.).
116. [19931 A.C. 593.
117. The fact that an alternative was adopted demonstrates that the executive is not all-powerful; and
that if a particular aim has sufficient informed support a Government will find difficulty in resisting suggestions
that some technique be found to achieve it.

INTESTACY REFORMS - THE WAY THINGS WERE, 1952

(iv) Not for all time, but for a decade or two?
Finally, the history of the 1952 Act demonstrates that legislation of this kind has

only a limited life expectancy. Leaving aside the rapid inflation of the sixties and
seventies - which led to what would at one time have been thought to be the
constitutionally higWy objectionable decision to leave the fixing of intestate succession
to the virtually uncontrolled discretion of the Government - some of the problems
which could be swept under the carpet in 1952 (notably the conflict of interest which
may arise when a surviving spouse is not the parent ofthe intestate's children) have,
half a century later, come to assume a degree of importance which can no longer
be ignored. The fact that the Law Commission's recent report on Distribution on
Intestacy fails adequately to grapple with this issue has led inevitably to the
Commission's proposals being rejected,I18

118. Law Com. No. 187 (1989). Some of the reforms recommended by the Law Commission in that
Report are to be given effect by the Law Reform (Succession) Act 1995. For a discussion of the main
issue of principle see S. M. Cretney, "Reform of Intestacy: The Best We Can Do?" (1995) III LQR
77; and note the second reading debate on the Law Reform (Succession) Bill: Official Report (HL) 13
February 1995, vo1.561, co1.502.