Hansard debates
Search Hansard|
Search help
|
|
|
|||||||
|
WILLS BILL
|
|||||||
|
|
|||||||
|
9 October 1997
Second Reading
WADE
|
|||||||
|
|
|||||||
WILLS BILL
Second reading
Mrs WADE (Attorney-General) -- I move:
That this bill be now read a second time.
The purpose of the bill is to repeal and replace the Wills Act 1958 and to make
amendments to part IV of the Administration and Probate Act 1958 to widen the
category of persons who may apply for testator's family maintenance.
For a number of years, there has been an acknowledged need for a new Wills Act
to simplify and modernise the language of the Wills Act 1958, most of which is
identical to the Wills Act 1837 (UK), and to implement useful reforms to the law
of wills. In 1984 a wills working party composed of academics, representatives
from the Law Institute of Victoria and the Bar Council was established to review
the Wills Act. The working party's review culminated in 1991 in a draft Wills
Bill, which was the subject of a reference to the parliamentary Law Reform
Committee.
In May 1994 the committee tabled its report entitled Reforming the Law of Wills,
which built on the work of the wills working party. The report contained
approximately 70 recommendations for reforming Victoria's law of wills. This
bill adopts a majority of the committee's recommendations.
The development of the bill has also been influenced by the views of the
Standing Committee of Attorneys-General-initiated national committee for uniform
succession laws which is composed of experts in succession law from most of the
states and territories.
Wills by minors
It is a general rule that a minor lacks the capacity to make a will. This rule
is reflected in the current Wills Act. One of the reasons for this rule is that
a minor, while being aware of the functions of a will and what sort of will he
or she wishes to make, may nevertheless lack the discretion to make a
responsible will.
However, there may be legitimate occasions when it is highly desirable to allow
a minor to make a will, particularly if the minor has assets or if circumstances
exist where it would be unfair to allow the intestacy rules to take their course
or a testator's family maintenance application is not available. There may also
be occasions where one or both parents of the minor has abandoned the minor and
the minor wishes to leave his or her property to only one or to neither and make
provision for a carer.
The bill addresses this issue by providing two exceptions to the general rule
preventing will making by a minor. The first exception is to allow wills by
married minors while the second exception enables the Supreme Court to authorise
the making of a will by a minor.
Wills by married minors
The bill enables a married minor to make, alter or revoke a will or for a minor
to make a will in contemplation of marriage and alter or revoke such a will. A
minor who has been married will be able to
revoke a will that was made while the minor was married or in contemplation of
marriage but would not have capacity to make a new will, unless the court
authorises the making of a new will for the minor under the second exception.
The exception for married minors or minors contemplating marriage is based on
the premise that when a person marries he or she undertakes wholly new
obligations to the married partner, which obligations should be capable of being
expressed in a testamentary instrument.
Court authorised wills for minors
Page 434
The second exception to the general rule preventing will making by minors is to
allow the court to authorise the making of a will by a minor. The bill empowers
the court, on application by or on behalf of a minor, to make an order
authorising the minor to make a will in terms approved by the court, or to
revoke a will. Prior to authorising a will for a minor, the court would have to
be satisfied that:
the minor understands the nature and effect of the proposed will or
revocation and the extent of the property disposed of by it; and
the proposed will or revocation accurately reflects the intentions of
the minor; and
it is reasonable in all the circumstances that the order authorising the
will or revocation should be made.
The bill requires one of the attesting witnesses to a will for a minor
authorised by the court to be the Registrar of Probates and for such a will to
be deposited with the registrar with withdrawal being either pursuant to a court
order or where the minor attains the age of 18 years or marries.
Wills for persons lacking testamentary capacity
The bill introduces a statutory will-making scheme for people lacking
testamentary capacity. The bill empowers the Supreme Court, on application by
any person made with the leave of the court, to make an order authorising the
making of a will in terms approved by the court, or the revocation of a will, on
behalf of a person, including a minor, lacking testamentary capacity.
While testamentary capacity is considered essential for the making of a valid
will and admission to probate -- that is, a testator is required to have a
'sound mind, memory and understanding' at the time the will is made -- it is
considered that a statutory will-making scheme would benefit persons lacking
testamentary capacity where:
a person makes a valid will and subsequently loses testamentary
capacity; or
a person has testamentary capacity, never makes a valid will and
subsequently loses testamentary capacity; or
a person never has testamentary capacity and never makes a valid will.
In the first situation, if the person's circumstances change as a result, for
example, of a child being born who is not included in the will, then subject to
the provisions of the testator's family maintenance legislation there is
currently no means of altering a will. In the second and third situations, if
the person dies his or her property would be distributed according to the rules
of intestacy.
An application seeking the court's authorisation to make or revoke a will on
behalf of a person lacking testamentary capacity is only to proceed with the
leave of the court. As the requirement for leave is intended to perform a
screening function to allow only adequately founded applications to proceed, the
bill focuses on this stage of the process.
The bill requires the court before granting leave to apply for an order
authorising the making or revocation of a will for a person lacking testamentary
capacity to be satisfied of the following matters:
that the person for whom the statutory will is to be made or revoked does not
have testamentary capacity;
that the proposed will or revocation accurately reflects the likely
intentions of the person for whom the will is sought to be made, if the
person had testamentary capacity; and
that it is reasonable in all the circumstances for the court to
authorise the making or revocation of the will.
The bill specifies the type of information an applicant seeking leave is
required to provide to the court in support of such an application, if so
required by the court. The requisite information includes:
a written statement of the general nature of the application and the
reasons for making it;
a reasonable estimate of the size and character of the estate of the
person for whom the will is sought;
a draft of the proposed will for which the applicant is seeking the
court's approval;
any evidence available to the applicant of the wishes of the person on
whose behalf the will is sought; and
Page 435
any evidence available to the applicant of the likelihood of the person
for whom the will is sought regaining or acquiring testamentary
capacity.
Requiring an applicant to provide detailed information at the application for
leave stage will enable the court to gauge the dimensions of the application at
an earlier stage of the process. Persons such as the person on whose behalf a
will is sought to be made, a legal practitioner representing the person or the
person's guardian will be able to appear and be heard at an application for
leave proceeding.
Once leave has been granted, the next stage is for the court to consider the
actual application for authorisation to make or revoke a will for the person
lacking testamentary capacity.
The bill enables the court in simple cases to allow an application for leave to
proceed immediately as an application for authorisation.
A statutory will would be able to be revoked by following the same process as
for the making of a statutory will. Where however, the person on whose behalf a
will has been made regains testamentary capacity, he or she would be able to
revoke the statutory will in the same manner as an ordinary will, for instance
by a later will or by some writing declaring an intention to revoke the will.
The bill requires a statutory will to be deposited with the Registrar of
Probates and only withdrawn from deposit if the court has made an order revoking
the will or the person on whose behalf a will has been made has regained
testamentary capacity. A statutory will is intended to have the same effect and
operate in the same manner as a will executed by a person with testamentary
capacity.
Dispensing with the requirements for the formal execution of a will
At present, a failure to make a will in conformity with the formal requirements,
however slight, will result in the will being invalidated because of the need
for there to be strict compliance with the execution formalities. For instance,
in the following instances, a will would be considered invalid:
the testator inadvertently forgot to sign the will; witnesses
inadvertently forgot to sign the will;
a husband or wife inadvertently signed the will prepared for the other;
or
the testator was too sick to turn his/her head and watch the witness
sign, although they were in the same room.
This rule creates inequitable results. A document which for all purposes would
be a will reflecting the dispositive intentions of a testator is considered
invalid due to an oversight or inadvertent error by the testator or the
attesting witnesses. In such situations, the deceased's estate would be
distributed as an intestacy and may benefit people who the testator had no
intention of benefiting under the terms of his or her will.
To address this issue and provide a more equitable result the bill enables the
court to admit to probate as the will of a deceased a document which has not
been executed in conformity with the execution formalities, if the court is
satisfied that the deceased intended the document to constitute his or her will.
The bill also implements the following reforms:
abolition of the interested witness rule.
The bill makes clear that a person who witnesses a will or that person's
spouse at that time is not disqualified from taking a benefit under the
will;
introduction of a requirement that a beneficiary survive a testator by
30 days before inheriting;
relaxation of the formal requirements for the execution of a will. For a
will to be valid it would still need to be signed by the testator or by
some other person in the presence of and at the direction of the
testator and in the presence of two or more witnesses. However, while
the testator would be required to sign the will with the intention of
executing the will, there is no longer a
requirement that a will be signed at the foot of the will;
Page 436
repeal of the provisions in the current act dealing with soldiers' and
mariners' wills. The wills of soldiers and mariners are privileged in
that they are exempt from many of the formal requirements for the valid
execution of a will. This rule was founded upon the proposition that
soldiers at war and mariners at sea do not have the benefit of
appropriate legal advice in the making of their wills. This argument is
no longer justified as all branches of the Australian Defence Force now
actively encourage service personnel to make a will and provide free
legal assistance to facilitate this outcome;
providing for the admittance of extrinsic evidence, including evidence
of the testator's intention, where any part of a will is meaningless or
any of the language used in the will is ambiguous or uncertain;
giving the court the power to rectify a will where it is satisfied that
the will does not reflect the testator's intentions because of a
clerical error or an error by the solicitor or other person when
preparing the document; and
amending the Administration and Probate Act 1958 to oblige a person who
has possession or control of a will of a deceased testator to allow
certain persons, such as a beneficiary, the surviving spouse, a parent
or guardian to inspect the will.
Amendments to part IV of the Administration and Probate Act
At present, part IV of the Administration and Probate Act 1958 enables a
testator's family maintenance application to be made to the County Court or
Supreme Court by a deceased's widow, widower or children requesting the court to
make provision out of the estate of the deceased for the proper maintenance and
support of the applicant.
These provisions are quite restrictive, excluding the ability of other persons
who may have a moral claim on the deceased's estate from making a claim. The
need for amendments to the act to enable a wider category of persons to make
testator's family maintenance applications has been recognised for a while. The
Labor government introduced two bills to address this situation but neither bill
proceeded as a result of concerns that the amendments proposed would result in
unfair outcomes for certain parties.
This bill introduces amendments to the act to enable a wider group of people to
apply to the court for testator's family maintenance. The bill empowers the
court to make an order for provision out of the estate of a deceased person for
the maintenance and support of a person for whom the deceased had responsibility
to make provision. The bill does not include a list of eligible applicants for
testator's family maintenance, instead leaving it to the court to determine on a
case-by-case basis whether provision should be made for a particular applicant,
which is a more equitable method of dealing with testator's family maintenance
applications. To ensure that only genuine applications are made, the bill allows
the court to order costs against an applicant if the court is satisfied that the
application was made frivolously, vexatiously or with no reasonable prospect of
success.
The bill requires the court, in determining whether or not provision should be
made for a particular applicant, to have regard to a list of factors, including:
any family or other relationship between the deceased person and the applicant,
including the nature of the relationship and where relevant, the length of the
relationship; any obligations or responsibilities of the deceased person to the
applicant, any other applicant and the beneficiaries of the estate; the size and
nature of the estate of the deceased person; the financial resources (including
earning capacity) and the financial needs of the applicant, of any other
applicant and of any beneficiary of the estate at the time of the hearing and in
the foreseeable future; and any benefits previously given by the deceased to any
applicant or any beneficiary.
This bill implements long overdue reform both to the law of wills in Victoria
and to testator's family maintenance legislation.
It is hoped that with a more accessible and simpler Wills Act, more people will
be encouraged to make their wills.
I commend the bill to the house.
Debate adjourned on motion of Mr HULLS (Niddrie).
Debate adjourned until Thursday, 23 October.