3.1 SHOULD THE COURT BE EMPOWERED TO DISPENSE WITH THE FORMAL REQUIREMENTS FOR THE EXECUTION, ALTERATION AND REVOCATION OF WILLS?
STATE | SECTION |
ACT | s11A |
NSW | s18A |
NT | s12(2) |
QLD | s9(a) & (b) |
SA | s12 |
TAS | s26 |
VIC | no provision |
VIC (1994) | s9 |
WA | ss34-37 |
For some time there has been opinion that there should be some mechanism to enable the Court to admit to probate a will which has not been executed in compliance with the requirements as to form of the Wills legislation.
In the context of a drive towards uniform or consistent succession laws for Australia the Australian case history and precedents must be scrutinised and evaluated and any experience gained from them carefully considered.
3.2 CASE HISTORY
There has been a recent, authoritative survey of the cases in which the dispensing power has been exercised, in South Australia, the jurisdiction with the longest history of the jurisdiction, and in New South Wales, the jurisdiction with the shortest experience of it.1 The article setting out the survey results lists, in an Appendix, 41 South Australian and New South Wales cases in which the dispensing power has been invoked. The article and the Appendix of cases give a clear picture of the sorts of cases in which the dispensing power can be expected to be exercised in favour of probate and those in which the power is unlikely to be exercised. Of 43 cases (namely 41 included in the Appendix and two other cases, Re Kolodnicky2 and Re Ryan3 ), 21 were admitted to probate under the jurisdiction. These include those numbered 1, 4, 9, 12, 16, 18, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 36, 38 and 39 in the Appendix, Kolodnicky and Ryan. Twelve cases were refused admission to probate, all of which were concerned with draft wills, notes and instructions for wills, wills engrossed but not executed and lists of legacies or amendments. They are numbered 1, 5, 6, 15, 19, 20, 22, 26, 34, 37, 40 and 41 in the Appendix. “Mirror” wills have been admitted (numbers 3 and 11). Unsigned wills are not usually admitted but can be if the failure to sign is accidental, that is, the intention is present (numbers 36, 38 and 39).
Many of the refusals mentioned in Justice Powell’s article occurred in the early stages of the exercise of the jurisdiction, when the boundaries of the jurisdiction were being tested. They indicate a policy which distinguishes between instruments which the testator intends to be a will and drafts, letters of instruction, even engrossments of wills which were not intended to be the will at the time they were under consideration by the testator. The advantage for any jurisdiction which adopts wording similar to that found in South Australia and New South Wales is that it will have a substantial body of persuasive precedent to enable the Courts to establish the jurisdiction, and the legal profession will have guidance in predicting likely outcomes in individual fact situations.
Further literature on the subject has been generated in the United States partly as a result of the South Australian initiative. In particular, there is Professor Langbein’s article “Excusing Harmless Errors in the Execution of Wills: a Report on Australia’s Tranquil Revolution in Probate Law”.4
3.3 THE EXISTING LEGISLATION IN AUSTRALIA
In 1972 South Australia legislated to give the Court a dispensing power, allowing it to admit to probate a will not duly executed. The legislation has been amended by the Wills (Miscellaneous) Amendment Act 1994 (SA).
In 1975 the distinguished American Professor John Langbein5 argued that if there was substantial compliance with the requirements for execution of wills the Court should be able to admit the document to probate.
In 1981 the Succession Act (Qld) by section 9 took up Professor Langbein’s “substantial compliance” doctrine. A description of that legislation follows.
In 1983 the Tasmanian Law Reform Commission recommended6 the adoption of the Queensland “substantial compliance” approach but Tasmania’s Wills Act 1992 has followed the “dispensing power” model.
In 1987 Western Australia legislated, inserting “Part X - Informal Wills” into its Wills Act 1970 (WA). This legislation adopts the South Australian, “dispensing power” approach rather than the Queensland “substantial compliance” approach.
In 1989 New South Wales legislated, inserting section 18A into its Wills, Probate and Administration Act 1898 (NSW) also adopting the South Australian “dispensing power” approach in preference to the Queensland “substantial compliance” approach.
In 1990 the American Uniform Probate Code took the matter further with a comprehensive provision, described in paragraph 16 below.
3.4 AUSTRALIAN CAPITAL TERRITORY
Section 11A of the Wills Act 1968 (ACT), inserted in 1991, is in terms not dissimilar to that of the New South Wales provision (see paragraph 3.5 below). It sets the civil standard of proof, namely that the Court must be satisfied of the testator’s intention.
3.5 NEW SOUTH WALES
Section 18A of the Wills, Probate and Administration Act 1898 (NSW) reads as follows:
18A(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.
Comment
The jurisdiction in New South Wales is in its early days. Its effectiveness has been indicated by the article of Justice Powell mentioned in paragraph 3.2 above.
3.6 NORTHERN TERRITORY
Section 12(2) of the Wills Act 1990 (NT) is in the same terms as the former South Australian legislation. It requires proof that there can be “no reasonable doubt” (see paragraph 3.12 below).
3.7 QUEENSLAND
Section 9(a) and (b) of the Succession Act 1981 (Qld) reads as follows:
Comment
Although the standard of proof required is that the Court be satisfied of the testator’s intention, the requirement that there be “substantial compliance” has proved so great a stumbling block that the jurisdiction has had poor success, and cases which would almost certainly have been found to come within the dispensing power in South Australia or New South Wales have failed in Queensland. In the following cases substantial compliance was not found.
| Re Grosert
[1985] 1 Qd R 513 | There were signatures of two witnesses on the will, but one self-interested witness swore that only she had been present when the will was executed and the other witness could not be traced. |
| Re Johnston
[1985] 1 Qd R 516 | One witness subscribed a folded document, the testator’s signature not being visible. A second witness attested at a different time, the testator’s signature then being visible. |
| Re Henderson (Unrep)
QSC, Case No 231, 1985 | Only one witness attested, a Justice of the Peace, who informed the testator that his attestation would suffice. |
| Will of Eagles [1990] 2
Qd R 501 | A codicil was witnessed by two witnesses, but there was evidence that they were not present at the same time and there was no evidence as to who attested first or of the interval between the first and second attestations. |
On the other hand substantial compliance has been found on a few occasions.
| Re McIlroy
(Unrep) QSC Case No E375, 1984 | One witness testified that the other witness was not present when the will was executed. The other witness testified that both witnesses were present. |
| Re Matthews
[1989] 1 Qd R 300 | The first witness attested and signed in the presence of the testator; then, at the testator’s request, took the will to another person to witness, which was done in the absence of the testator. |
| Re Gaffney
(Unrep) QSC,
Case No 1653, 1987 | The will was executed but not at the foot or end. |
| Re Cashin
[1992] 2 Qd R 63 | The will was executed in the presence of one witness; the next day the second witness signed in the presence of the testator. |
[Link to text only version of table]
The difficulty with McIlroy and Gaffney is that they both could have been decided in favour of probate under existing law, without the need to plead the “substantial compliance” doctrine. In McIlroy the judge could have found for the will by believing the witness who maintained that both witnesses were present at the same time. In Gaffney there are precedents which show that the Courts can admit to probate wills which have been signed by the testator in an unconventional place. Re Cashin probably indicates the limited use to which the provision can be put.
The profession in Queensland has found the jurisdiction difficult to predict and it is rarely used. As the cases above indicate, far more is required than is required either in New South Wales or South Australia. In a search for uniformity it would be difficult to persuade any State or Territory to replace existing legislation, which appears to be working as intended, with the Queensland precedent, or the similar provision recommended by the Law Reform Commission of Tasmania, which is not working well.
3.8 SOUTH AUSTRALIA
When first introduced in 1972 section 12(2) of the South Australian Wills Act 1936 read:
A document purporting to embody the testamentary intentions of a deceased person will, notwithstanding that it has not been executed with the formalities required by this Act, be taken to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his or her will.
This provision has been amended by the Wills (Miscellaneous) Amendment Act 1994 (SA) to read as follows:
(2) Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person.
(3) If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
(4) This section applies to a document whether it came into existence within or outside the State.
(5) Rules of Court may authorise the Registrar to exercise the powers of the Court under this section.
Comment
What is significant about the amended law is that it lowers the standard of proof required in cases of this kind. Under the original legislation the Court had to be satisfied that there could be “no reasonable doubt” as to the intention of the testator. Now, the Court has only to be “satisfied” of the testator’s intention. It is apprehended that this means that the more flexible test of satisfaction clarified by the High Court in Briginshaw v Briginshaw7 is applicable. The express reference to the power to authorise the Registrar to exercise the powers of the Court is of significance. It is understood that because of the former proof requirement it was felt that the jurisdiction should be exercised only by the judiciary; and the Registrar was not permitted to exercise the jurisdiction even in uncontested cases.
3.9 TASMANIA
Section 26 of the Wills Act 1992 (Tas) is as follows:
26(1) A document purporting to embody the testamentary intentions of a deceased person is taken, notwithstanding that it has not been executed in accordance with Division 3, to be a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court, on application for a grant of probate of the last will of the deceased person, is satisfied that there can be no reasonable doubt that that person intended the document to constitute the will of that person, an amendment of such a will or the revocation of such a will.
(2) In considering a document for the purposes of subsection (1), the Court may have regard, in addition to the document, to any other evidence relating to the manner of execution or the testamentary intentions of the deceased person, including evidence, whether admissible before the commencement of this Act or otherwise, of statements made by the deceased person.
Comment
This provision departs from the recommendation of the Law Reform Commission of Tasmania’s Report on the Law of Wills8 in that it has not adopted the Queensland “substantial compliance” model, but the South Australian “dispensing power” model. Nevertheless it does require a high standard of proof by the inclusion of the words “that there can be no reasonable doubt”.
3.10 VICTORIA
A proposed section 9 for the Wills Act 1994 (Vic), recommended by the Victorian Law Reform Committee reads as follows:
Draft 9 When may the Court dispense with requirements for execution of wills?
(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, the exercise of a power of appointment, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, the exercise of a power of appointment, an amendment to his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.
(3) This section applies to a document whether it came into existence within or outside the State.
(4) Rules of Court may authorise the Registrar to exercise the powers of the Court -
3.11 WESTERN AUSTRALIA
In 1987 the following provisions were introduced into the Wills Act 1990 (WA):
Informal wills
34. A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court in a probate action is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.
Informal alteration of will
35. Any alteration made to a will of a deceased person after the will was executed or made has effect, notwithstanding that the alteration has not been made in accordance with section 10, if the Supreme Court in a probate action is satisfied that there can be no reasonable doubt that the deceased intended the will as so altered to constitute his will.
Informal revocation of will
36. A writing declaring an intention of a deceased person to revoke a will or part of a will has effect, notwithstanding that it has not been executed in accordance with section 15(1)(c), if the Supreme Court in a probate action is satisfied that there can be no reasonable doubt that the deceased intended by the writing to revoke the will or part of the will, as the case may be.
Informal revival of will
37. A writing declaring an intention of a deceased person to revive a will or part of a will that has been revoked has effect, notwithstanding that it has not been revived in accordance with section 16(1), if the Supreme Court in a probate action is satisfied that there can be no reasonable doubt that the deceased intended by the writing to revive the will or part of the will.
Comment
The advantage of this form of dispensing legislation is that it makes separate provision for the making of a will, and the alteration, revocation and revival of a will. It may be considered to be a plain English draft.
3.12 AMERICAN UNIFORM PROBATE CODE
Section 2-503 of the American Uniform Probate Code reads as follows:
Writings intended as wills, etc
Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) partial or complete revocation of the will, (iii) an addition or alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked portion of the will.
The commentary to this provision refers to the existence of similar legislation in Manitoba and Israel. The Uniform Laws Conference of Canada approved a comparable measure for the Canadian Uniform Wills Act in 1987. The Commentary also pays considerable attention to the South Australian legislation and the experience derived under it.
It will be vital for any uniform succession law to ensure that the Court’s power to admit to probate defectively executed wills, alterations and revocations is, at least as far as policy is concerned, the same in all States. The standard of proof should be the same. It would be contrary to uniformity if a defectively executed will could be admitted to probate under a dispensing power in some States but not in others.
Issues for consideration
(1) Should the Court be able to admit to probate a will which has not been executed in compliance with legislative requirements as to form?
(2) If yes to (1) what policy considerations should be included in the Court’s power?
FOOTNOTES
1. The Hon Mr Justice Powell Recent Developments in New South Wales in the Law Relating to Wills (1993) 67 ALJ 25.
2. (1981) 27 SASR 374.
3. (1986) 40 SASR 305.
4. (1987) 87 Colum LR 87.
5. Substantial Compliance with the Willis Act (1975) 88 Harvard Law Review 489.
6. Report 35 Reform of the Law of Wills 1983.
7. (1938) 60 CLR 336.
8. Report No 35 1983.
