4.1 The New South Wales Law Reform Commission proposes that a scheme similar to that operating in the United Kingdom be introduced into New South Wales. We would make four alterations to allow for a smoother and wider operation of the scheme. These alterations are largely taken from the review of the UK legislation made by the Victorian Chief Justice's Law Reform Committee in 1985 (hereafter referred to as the 'Victorian Report').
Whom Will The Scheme Cover?
4.2 As noted in Section 11 of this paper, we would envisage that the scheme would extend to anyone who may require it and not be limited to patients coming within the ambit of mental health and protective legislation. It is clear that persons in these categories will be the subject of most applications. Circumstances may arise however, where a person not committed under the Mental Health Act or subject to an order under the Protected Estates Act, needs to have a will made on his or her behalf. There may, for example, be a need to have the will formalised in a very short time, without resorting to procedures under those two pieces of legislation; or it maybe that the question of a will is the only matter requiring a solution. In such an instance the use of the proposed procedure should not be denied. We have also attempted to draw the categories of persons to be covered by the legislation as widely as possible.
Who may Apply?
4.3 The UK legislation limits the right to make an application tothree specific categories of persons.11 These categories clearly cover everyone with a likely interest in the testator's estate, but do not cover everyone who may wish to make an application. The Commission envisages that very often the people in the best position to make application will be disinterested parties such as health care workers and solicitors. The United Kingdom categories allow no scope for these individuals. It is therefore the tentative recommendation of the Commission that it be open for anyone to make application. We believe that the safeguards inherent in the rest of the legislation will prevent any abuses of this right.
4.4 An alternative to this approach can be found in the recommendations of the Victorian Report. This report accepted the categories set out in the UK,12 adding that applications could be allowed from other individuals, but only by leave:
Any application made (by any other person)... would need the leave of a Master before it proceeded beyond the stage of the issue of a summons returnable before the Master. In this way it would not be possible for any proceedings, commenced in abuse of process for the purpose of causing embarrassment to the person alleged to lack capacity, to proceed beyond the stage of what would in effect be an application for leave to proceed.13
Who should be Informed?
4.5 The Commission would also introduce a requirement that wherever practicable, the person for whom the will is made is informed of the will and its contents. In the United Kingdom, the 'patient' is only informed of the will if the judge sees fit. We do not believe that this is consistent with the recognition of the rights of the person whose wishes the scheme is created to protect. Recognition of these rights is one of the basic themes of this reference, and would seem to require, at the very least, that a person lacking testamentary capacity be made aware of the contents of the disposition made on his or her behalf.
4.6 The only limitation the Commission would apply would be in relation to the practicability of passing on such information. In instances of extremely severe disability, disease or disorder, this will not be possible. We believe however, that unless such circumstances arise, the Court should be placed under an obligation to ensure that the person for whom the will is made is informed of the contents of the will.
4.7 As a parallel to this requirement, we believe that the law should also allow a discretion for all close relatives to be informed when an application is made. The Court should be able to dispense with any necessity to inform relatives if the circumstances dictate.
Declaration of Testamentary Capacity
4.8 There has also been a suggestion made to the Commission that an additional procedure be added for the protection of persons whose capacity may be in doubt. The United Kingdom system does not seek to test the actual testamentary capacity of the person for whom the will is made. A person may find a will is made on his or her behalf simply on the basis that the Court has'reason to believe' he or she is incapable.
4.9 A suggested method of addressing this inconsistency, is to create an analogous procedure to that followed when orders are made through the Protective Office. In this manner, orders could be made as to the testamentary capacity of a person. The suggestion allows for evidence to be taken by affidavit, including a psychiatric report based on the legal tests of capacity. If the individual were found to be lacking capacity, then the statutory will-making procedure would commence.
4.10 Clearly, there are several problems involved in this last suggestion and it does not form part of the Commission's proposed recommendations. The cost of satisfactorily implementing such a scheme, and the possibility of its duplication in later proceedings, are just two of these. The suggestion is included here only to elicit comment.
Scheme to apply to Minors
4.11 Legislation has recently been passed 14 altering the capacity of minors (that is, persons under 18 years of age) to make a will. The new s6A to be introduced into the Wills Probate and Administration Act 1898 will allow the Supreme Court to grant leave for a minor to make a will. The terms of the will must be disclosed before approval is granted. The alteration was recommended by this Commission in a report on the execution and revocation of wills,15 which characterised the amendment as creating a judicial power to grant and control testamentary capacity.16
4.12 The Commission now suggests that the statutory wills scheme proposed in this paper should also be extended, beyond the bounds of the UK legislation, to minors suffering from a disability which would preclude them from making a will whatever their age. Any such extension would complement the new provisions on minors outlined above. It would seem illogical to grant (under s6A) a 'controlled' capacity to make wills to some minors, while continuing to exclude others until they are 18, merely because of a disability. By creating a scheme to cover all individuals regardless of age, this difficulty would be avoided. The Commission would welcome comments on this matter.
Registration of Wills
4.13 Section 150 of the Wills Probate and Administration Act 1898 allows for wills to be deposited in the Supreme Court Registry. The facility is rarely used. The Commission is also interested in comments on the question of whetherthe law should require all wills executed under the proposed scheme to be deposited in this fashion.
Contacting the Commission
If you have any comments or suggestions regarding this matter, please write or telephone your comments to the Commission.
The Commission's postal address is:
ALL SUBMISSIONS AND COMMENTS ON THIS PAPER SHOULD REACH THE COMMISSION BY 30 OCTOBER 1989.
FOOTNOTES
11. See para 3.4.
12. The Report by the Chief Justice's Law Reform Committee of Victoria suggested adding the Public Trustee to the list of categories; Chief Justice's Law Reform Committee (Vic) Report on Wills for Mentally Disordered Persons (1985) at 23.
13. id at 24.
14. Wills Probate and Administration (Amendment) Act 1989. The Bill has received assent but is not expected to commence until late this year.
15. New South Wales Law Reform Commission, Wills: Execution and Revocation (LRC 47,1986).
16. id at para 12.10.
