2.1 WHAT PROPERTY MAY BE DISPOSED OF BY WILL?
STATE | SECTION |
ACT | s7 |
NSW | s5 |
NT | s5 |
QLD | s7 |
SA | s4 |
TAS | s5 |
VIC | s5 |
VIC (1994) | s4 |
WA | s6 |
The object of this provision, which appears at the beginning of all wills’ legislation, is to explain what property may be disposed of by will. The wording found in existing legislation derives from the Wills Act 1837 (UK) and its language is in all cases archaic.
It is arguable that the provision on its face does not go far enough. It should be made clear that a will may dispose of property to which the testator was not entitled either at the time of the making of the will or at the date of death. There may, for instance, be litigation pending at the time of the testator’s death which is not resolved for a considerable time after the death but which results in the payment of a sum of money, or the transfer of property, to the testator’s personal representatives; or there may be a possible claim upon which the testator has not embarked but upon which the personal representatives do embark, which results in the payment of money or the transfer of property to the representatives; or money may become payable or property transferable to the personal representatives as a result of a gift or will of another person which in the terms of the gift or will is payable to the representatives. All late accruals of money or property to the estate are subject to the terms of any will of the testator. The will differs from any gift inter vivos because it can include property which did not belong to the testator when the will was made, or even at the time of the death.
A uniform provision should reject the arcane language of the Wills Act 1837 (UK) and clearly bring out these principles.
2.2 LEGAL CAPACITY TO MAKE A WILL
STATE | SECTION |
ACT | s8 |
NSW | s6 |
NT | s6 |
QLD | s8 |
SA | s5 |
TAS | ss6-8 |
VIC | s6 |
VIC (1994) | s6 |
WA | s7 |
A person under the age of eighteen cannot make a will unless he or she is married. The statutes differ as to the capacity to make a will of a person who has been married but is no longer married. Some provisions allow a person under the age of 18 who has been married to make a will (for example, ACT and in SA by section 5 inserted by the Wills (Miscellaneous) Amendment Act 1994 (SA)); Queensland allows a person who has been married to revoke a will, but not to make a new will. A uniform policy must be achieved.
The latter is permitted in New South Wales (section 6A) and in South Australia (section 6 inserted by the Wills (Miscellaneous) Amendment Act 1994 (SA)) and has been recommended by the Victorian Law Reform Committee in its Report on Reforming the Law of Wills (1994). In Tasmania, the Public Trustee may approve of a minor making a will, subject to certain conditions (section 7) and the Supreme Court may subject to very similar conditions (section 8). See also Victoria (1994), section 6, a lengthy provision, concerned with adults as well as minors.
One circumstance in which a minor might wish to seek the approval of the Court to make a will is if one or both of the minor’s parents has abandoned the minor; and the minor wishes to make a will in favour of the parent, or some other person, who has cared gratuitously or beyond the call of duty for the minor.
This question raises wide issues. It presupposes that neither the existing will, if any, nor the relevant intestacy rules, nor the relevant family provision legislation, can do justice in certain circumstances. Once again an example may be where the person who lacks testamentary capacity has been abandoned by his or her family and it is right that a will should be made in favour of a person who has no rights upon intestacy or under family provision legislation, most probably a person who has cared gratuitously or beyond the call of duty for the incapacitated person, whether a member of the family or not.
To allow Courts to make a will for a person who lacks testamentary capacity may be seen as inconsistent with the policy underlying family provision legislation, which is concerned not with the will which a competent testator might make, but with making adequate provision for the proper maintenance and support of the persons entitled to make application under the legislation. In Victoria, for instance, the parents of a deceased person are not permitted to apply for family provision. In that State to allow a parent of an incapacitated person to apply to the Court to have a will made in his or her favour might be seen as compromising the policy of family provision legislation. It may be justifiable to do this in the case where the person concerned cannot make a will at all because of incapacity. Nevertheless this question does abut upon the possibility of reconsidering the underlying policy of family provision legislation.
The proposed Victorian provision (Vic (1994), section 6) provides a generalised precedent.
2.3 EXECUTION REQUIREMENTS
STATE | SECTION |
ACT | ss9,10 |
NSW | s7 |
NT | ss8,9 |
QLD | ss9,10 |
SA | s8 |
TAS | ss10,11 |
VIC | ss7,8 |
VIC (1994) | s6 |
WA | s8 |
Although there is some divergence between States and Territories concerning execution requirements, all States still require the testator to sign, or acknowledge a previously made signature, in the presence of at least two witnesses, and require the witnesses to sign, as an act of attestation of their having seen the signing or acknowledgment, in the presence of the testator. This basic requirement has survived since the Wills Act 1837 (UK). The advantages of a standardised rule for the execution of wills are obvious from the point of view of probate administration, as well as in relation to the protection which the testator is afforded.
One possible modification of the two witness rule might be to allow a testator to sign in the presence of one witness and later to sign again or acknowledge in the presence of another. This would solve the problem that can arise where only one witness at a time seems to be available.
2.4 THE POSITION OF THE TESTATOR’S SIGNATURE
One perennial difficulty of the rules for the execution of wills has been the requirement of the Wills Act 1837 (UK) that the testator’s signature be made “at the foot or end” of the will. This requirement necessitated the inclusion of an additional provision attempting to explain the requirement. Nevertheless, the requirement has generated a volume of litigation out of proportion to its importance. Recent reforms to wills legislation have addressed this question and as a result the requirement has been omitted from the legislation in New South Wales, Western Australia, South Australia and the Australian Capital Territory, and the Victorian Law Reform Committee has recommended that it be omitted (see Vic (1994), section 6(1)). Tasmania and Queensland have retained the requirement. This does not affect the principle that the signature of the testator must be made with the intention of executing the will (see Vic (1994), section 6(2)).
2.5 THE EXECUTION OF POWERS OF APPOINTMENT BY WILL
STATE | SECTION |
ACT | s11 |
NSW | s9 |
NT | s10 |
QLD | s11 |
SA | s10 |
TAS | s17 |
VIC | s9 |
VIC (1994) | s6(3),(4) |
WA | s9 |
A power of appointment is a power given to a person, called a donee of a power, enabling that person to decide who is to take certain property described in the power. For instance, a testator may leave property to a spouse or child for life and allow the spouse or child to decide who should take the property upon his or her death. Often such a power is exercisable by the will of the donee of the power of appointment. Usually the donor of the power does not include any requirement, in the instrument creating the power, concerning the way in which the donee of the power should exercise it; but the donor can insist that the power should be exercised with formalities differing from and perhaps exceeding those required for the execution of a will. A result of that could be that a power of appointment exercised in a properly executed will could be ineffective.
To ensure that the exercise of a power is not invalidated by such a formal requirement, since at least 1837 a provision has been included in wills legislation to the effect that where a testator exercises a power of appointment by will, the power must be exercised in accordance with the requirements for the execution of wills; and that if any additional requirement as to form is prescribed by the instrument creating the power, the person exercising the power need not comply with it.
The drafting of this provision differs to a certain extent between States and Territories but the principle has never been questioned.
Nevertheless, other issues concerning the exercise by will of a power of appointment may exist. For instance, if a power of appointment happened to allow the donee to appoint amongst the “issue” of a particular person and the testator exercised the power in favour of “the issue of” that person, there are statutory rules for the construction of wills which determine who such issue are and in what proportions they should take (see paragraph 6.11 below). It is not necessarily the case that the law of construction of powers of appointment would give the same result.
2.6 THE EXECUTION OF ALTERATIONS
STATE | SECTION |
ACT | s12 |
NSW | s18 |
NT | s24 |
QLD | s12 |
SA | s24 |
TAS | s16 |
VIC | s19 |
VIC (1994) | s15 |
WA | s10 |
All States’ and Territories’ legislation make provision with respect to the execution of alterations to wills. The provisions derive from the Wills Act 1837 (UK). In some States there has been a very slight relaxation in the requirement respecting the position of the signature or initials of the testator and the witnesses relating to an alteration. Perhaps more surprising is the fact that the provision is found close to the section regarding execution of wills in some legislation, but many sections away from it in others. There is no reason why a common draft of this provision should not be achievable as the policy of the provisions is the same. Even if exact identity of wording cannot be achieved in the short term it should be possible to achieve uniformity in the positioning of this section. In this paper it is placed in the earlier position.
2.7 PUBLICATION OF WILL UNNECESSARY
STATE | SECTION |
ACT | s13 |
NSW | s11 |
NT | s12 |
QLD | s13 |
SA | no provision |
TAS | s12 |
VIC | s11 |
VIC (1994) | s8 |
WA | no provision |
There was a pre-1837 rule that in some cases a testator should “publish” his or her will by declaring to the witnesses to the execution that the document was a will. That is no longer required and this section says so in some States (for example, New South Wales) in the original language of the Wills Act 1837 (UK) and in others (for example, Queensland) more directly. A form of words recommended by the Victorian Law Reform Committee’s draft Wills Bill 1994, section 8, is in the following terms:
In South Australia and Western Australia the provision has simply been omitted from the legislation, to make way for new material. A likely objective of the process of rendering this provision uniform will therefore be to remove it or to clarify it perhaps in the manner of the Victorian recommended draft.
2.8 COMPETENCE OF WITNESSES
STATE | SECTION |
ACT | ss14,18,19 |
NSW | s12 |
NT | ss16,17(2), 18,19 |
QLD | s14 |
SA | ss16,18,19 |
TAS | ss13,14,15 |
VIC | ss12,14,15 |
VIC (1994) | s10 |
WA | ss11,12 |
Before 1837 certain categories of persons were considered to be incompetent to act as witnesses in civil proceedings, in particular persons whose testimony might be self serving. The difficulty about this, in probate proceedings, was that if such witnesses had witnessed the execution of a will the will could not be proved. Piecemeal changes in the law of wills, some of which are described in the next paragraph (Gifts to attesting witnesses to be void), became redundant as a result of changes to the law of evidence in England made in the mid nineteenth century. Nevertheless in some States (for example, South Australia, Tasmania) antiquated provisions remain; but in others (for example, Queensland) there is a more recent provision.
There is one particular respect in which a person cannot act as witness to a will and that is where the witness cannot see the signature of the testator because the witness is blind. Hence the provision in the Queensland Succession Act 1981 (section 14) that any person competent to be a witness in civil proceedings in Court, other than a blind person, may act as a witness to a will.
It is possible that none of these provisions is really necessary in succession legislation and that who may be a witness, in probate proceedings, should be left entirely to the law of evidence.
2.9 GIFTS TO ATTESTING WITNESSES TO BE VOID
STATE | SECTION |
ACT | no provision |
NSW | s13 |
NT | s17 |
QLD | s17 |
SA | no provision |
TAS | ss44,45,46 |
VIC | s13 |
VIC (1994) | s11 |
WA | s13 |
The rule that neither a witness to a will nor the spouse of a witness to a will can take any benefit under it has been increasingly questioned in recent times. The rule has been abolished by the American Uniform Probate Code, section 2-505, in South Australia in 1972 and in the Australian Capital Territory in 1991. The Victorian Law Reform Committee’s Draft Wills Bill 1994, section 11, abolishes the rule in direct language.
The original rule of evidence law was that a person, and that person’s spouse, were disqualified from giving evidence in a cause in which either of them was interested. A consequence of this was that if a beneficiary, or the spouse of a beneficiary, witnessed a will that witness could not testify as to the execution of the will in probate proceedings. A result of that was that sometimes a will could not be admitted to probate at all and the testator’s obvious intention was thwarted. By the Wills Act 1750 (UK) the rule was changed, enabling the witness to give evidence in probate proceedings but disqualifying the witness and the witness’s spouse from taking a benefit under the will. The former rules of evidence were reformed in the nineteenth century in particular by the Evidence Act 1851 (UK) and the Evidence Amendment Act 1853 (UK); but the disqualification of beneficiary-witnesses remained embedded in the Wills Act 1837 (UK) and a revised justification for it was posited namely that if a witness or a witness’s spouse were allowed to take a benefit under a will an opportunity for undue influence would arise.
The difficulty with the rule is that it does not distinguish between the innocent and the guilty witness. The editors of the American Uniform Probate Code, commenting on abolishing the rule disqualifying witnesses from taking a benefit observe (section 2-505):
Of course the purpose of this change is not to foster the use of interested witnesses, and attorneys will continue to use disinterested witnesses. But the rare and innocent use of a member of the testator’s family in a home-drawn will is not penalised.
This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the devise might be challenged on the grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as witness, but to procure disinterested witnesses.
It is understood that in the twenty years since the rule was abolished in South Australia there have been no problems.
Misgivings about the harshness of the rule have resulted in various attempts, on the part of legislatures and the judiciary, to soften its impact. Thus in some States the rule does not apply if there is a sufficiency of disinterested witnesses. In Victoria there is a provision which allows an interested witness to take an intestacy share or the benefit left by the will, whichever is the less (section 13(3)(c)); and a provision that a witness can approach the Court for relief (Part V of the Wills Act 1958 (Vic)). In some States solicitors who have witnessed the execution of a will have been relieved of the disqualification in respect of a provision in the will allowing them their reasonable costs for acting in the administration of the deceased estate.
In Tasmania there is a provision in sections 45 and 46 which allows a disqualified person to apply to the Court for an order that that person be entitled under the will. There are requirements as to time limits and notice. The Court must be satisfied of the propriety of the person’s conduct.
The accretion of exceptions to the disqualification rule has made the provision prolix, even counterproductive. Thus the Victorian exception allowing the witness to take an intestacy benefit can have the effect of giving that benefit without any possibility of questioning the propriety of the witness’s conduct. The Courts have tended to creativity in diminishing the force of the rule by the doctrine of dependent relative revocation;1 and have been easily satisfied, where they are permitted to consider it, of the propriety of the witness’s conduct.2
The abolition of the disqualification will not prevent the Court from requiring a witness-beneficiary to answer an allegation that there is a suspicious circumstance concerning the execution of the will;3 or that there has been undue influence.
It is unlikely that, in the absence of adverse experience of the effect of the abolition of the rule, States which have abolished it could be persuaded to re-instate it; and consequently the probable direction of a search for uniformity would be to abolish the rule throughout Australia. The divergence of the present law, however, requires that comparisons be made and that, if it is desired to retain the rule, some inexpensive procedure should be allowed to ensure that the innocent witness is not disqualified.
Issues for consideration
(1) Should the rule that neither a witness to a will nor his or her spouse can take any benefit under the will be abolished?
(2) If not, what procedure should be available to ensure that an innocent witness is not disqualified?
2.10 WILLS OF MEMBERS OF THE ARMED FORCES
STATE | SECTION |
ACT | s16 |
NSW | no provision |
NT | ss7,7A |
QLD | s16 |
SA | s9 |
TAS | s11 |
VIC | s10 |
VIC (1994) | no provision |
WA | s17 |
Historically the law has exempted from both the requirements of form and the disqualification of minority “any soldier being in actual military service or any mariner or sailor being at sea”. The legislatures of the Australian States have tended to enlarge the classes of persons given this “privilege”.
The value of this privilege has been greatly doubted. Thus Jeremy Bentham is quoted as follows:4
As if it were a favour done to a man to enable an imposter to dispose of his property in his name! - as if the exception could be beneficial, unless the rule were mischievous.
The “privilege” enabling soldiers and sailors to make wills without any formality and at any age may have been justifiable in the eighteenth century when such persons had no recourse to legal advice. But it is arguable that, in the light of the policy of the Commonwealth Department of Defence to encourage all members of the armed forces to make wills, and to provide free legal advice to enable them to do so, it is no longer appropriate. To continue the “privilege” would be to allow the persons to whom it is granted to revoke without formality wills made with the assistance of proper legal advice. It would be to undermine the policy and practice of the Defence Department.
The privilege has been abolished in New South Wales and its abolition has been recommended by the Victorian Law Reform Committee.
In any case, to render the privilege uniform might in itself give rise to difficulties because a comparison of the legislation granting the privilege reveals wide differences of approach. To reconcile them all would almost certainly entail broadening this doubtful privilege. It is therefore arguable that the best form of uniformity would be to abolish it altogether.
FOOTNOTES
1. Eg Estate of Brian [1974] 2 NSWLR 231; Re Finnemore [1991] 1 WLR 793.
2. Re Emanuel [1981] VR 113.
3. See, eg, Wintle v Nye [1959] 1 WLR 284.
4. By Hardingham, Neave & Ford in Wills and Intestacy in Australia and New Zealand (Law Book Co 2nd ed 1991) at para 401.
