Background

The Standing Committee of Attorneys-General of Australia decided in 1991 that steps should be taken towards rendering uniform the succession laws of the Australian States and Territories. The Attorney-General for Queensland remitted a reference to the Queensland Law Reform Commission to co-ordinate the project in January 1992.

This paper was first published by the Queensland Law Reform Commission (QLRC) in July 1994 and reprinted in June 1995. In May 1995 the New South Wales Law Reform Commission was given a reference to participate in a joint project with other States and Territories to develop uniform succession laws. The project is being coordinated by the QLRC.

Following the agreement of other States and Territories to participate in the project it was agreed that each agency involved in the project would republish or recirculate the QLRC Issues Paper on the Law of Wills (WP46) and Family Provision (WP 47) for the purposes of consultation in each State and Territory.

The New South Wales Law Reform Commission is therefore republishing the two papers as part of its own Issues Paper series. The text of the Papers has not been changed other than to take account of any developments since the first date of publication. There is some variation to the format, the paragraph numbers are the same in the QLRC and NSWLRC publications, but the page numbers vary.

The need for uniformity

English succession law and jurisdiction were imported into Australia upon the colonisation of the States and existing English succession legislation was duly copied into the State statute books. The succession laws were therefore uniform during the nineteenth century. During the twentieth century the succession laws diverged when States began to enact their own legislation. Those divergences have become more marked as States have embarked on more purposive law reform, in some cases as the result of recommendations of law reform agencies.

Differences between the States

The consequence of these divergent activities is that there are no two States or Territories in Australia where the succession laws are the same. In many respects the divergences are matters of detail; but often enough they are of great significance.

For example, a will made by a testator may be recognised for admission to probate in some States but not others. The main reason for this is that some States are more exacting than others with respect to compliance with formalities of execution.

The intestacy rules, that is the rules that govern the distribution of a deceased estate to the extent that a will fails to, differ substantially between the States.

Where neither the will makes nor the intestacy rules make adequate provision for the proper maintenance and support of members of the deceased’s family, all States and Territories confer a power upon the Court to make provision for them. But the laws differ markedly as to who may apply for such provision.

Less significant differences between the succession laws of the States and Territories are numerous, particularly in those relatively neglected areas of law reform such as probate and administration. If one extends the scope of the inquiry to the Rules of Court, the conclusion is justified that to practise successfully in succession law requires State by State expertise. Since most succession practice is or should be concerned with minimising the costs of administering deceased estates, the majority of which are of no great financial value, it is ordinary people who suffer most from the inevitable increase in costs which must occur if a deceased estate has connection with more than one jurisdiction.

Implications of differing legislation

To offer a general example, if a person dies domiciled in one State or Territory but leaves land in another State or Territory, two (or more) systems of succession law will apply - the law of the place in which the land is situate (the lex situs), as far as that land is concerned, and the law of the place of the deceased’s domicile (the lex domicilii), as far as property other than that land is concerned. Thus, a person might die domiciled in South Australia but leaving land in Victoria and Queensland. A will of the deceased’s might be admissible to probate in South Australia but not in Victoria or Queensland because of a deficiency in execution, tolerated in South Australia but not in Victoria or Queensland. The deceased would therefore die intestate so far as the land in Victoria and Queensland are concerned, but testate in South Australia.

Again, if the parents of the deceased person wished to make a family provision application with respect to the estate, they would not be able to do so with respect to the land situate in Victoria, because parents may not apply for family provision in that State; but they would be able to do so in Queensland, where parents may apply; and although the Queensland Court would not be able to make an order affecting the land in Victoria, it would be able to take its value into account in considering whether and what order it should make affecting any land in Queensland.¹

Recent legislative and law reform activity in Australia

There has been considerable activity, both by legislatures and by law reform agencies in most Australian States within the last decade or so.

Australian Capital Territory

Amendments to the Wills Act 1968 made in 1991.

New South Wales

Amendments to the Wills, Probate and Administration Act 1898 made in 1989.

Queensland

The Succession Act 1981 has brought all the succession law together into one enactment of a mere 72 sections, incorporating some reforms of a ground breaking nature. In July 1993 the Queensland Law Reform Commission issued its Report No 42 entitled Intestacy Rules.

South Australia

The Wills (Miscellaneous) Amendment Act 1994.

Tasmania

The Wills Act 1992 embodies some of the reforms recommended by Report No 35 of the Law Reform Commission of Tasmania entitled Report on Reform in the Law of Wills (1983). But the 1992 Act goes further in including some additional provisions.

Victoria

The Administration and Probate (Amendment) Act 1994 has introduced changes to the intestacy rules, and makes provision with respect to the effect of divorce on wills. In addition the Victorian Law Reform Committee has published its comprehensive Report Reforming the Law of Wills (1994), with a proposed Wills Act 1994. References in this Paper to the Victorian Law Reform Committee’s recommendations are references to that Report. This proposed Act is of considerable significance for law reform and uniformity initiatives.

The Victorian Report was published when this Issues Paper was in its final stages of preparation. There are close similarities between the Report and the Issues Paper including identity of language in some places. This is not because the Issues Paper has drawn on the Report, but because a member of the Queensland Law Reform Commission assisted the Victorian Law Reform Committee as a consultant in its work in preparing the Report.

Western Australia

The Wills Amendment Act 1987 introduced provisions for the admission to probate of wills informally executed, following the Law Reform Commission of Western Australia’s Report on Wills: Substantial Compliance (Project No 76 Part I, November 1985). Other Reports of that Commission, including the Report on Recognition of Interstate and Foreign Grants of Probate and Administration (Project No 34 Part IV, November 1984), the Report on the Effect of Marriage or Divorce on Wills (Project No 76 Part II, December 1991) and the Report on the Administration Act 1903 (Project No 88, August 1990), have been published but have not resulted in enacted legislation.

This list of activity is not exhaustive.

To date, in Australia, State succession laws have been reformed in a piecemeal manner. There has never been an attempt to reconsider all the succession laws in their entirety in any State or Territory. Piecemeal reforms have tended to be concentrated on relatively urgent or popular issues. The most neglected part of succession law is the part that relates to procedure.

Law reform and the concept of uniformity

To a certain extent law reform and the search for uniformity of laws amongst the States and Territories of Australia do not go hand in hand. A law reform agency may find it difficult to recommend, in the interests of uniformity, provisions existing in other States with which it cannot agree; and a State which has recently enacted legislation, which it believes represents the best in up-to-date law, cannot be expected very soon afterwards to introduce further amendments merely in the interests of uniformity. It may be asked, therefore, what the objects of initiatives to render Australia’s succession laws uniform really are.

Word for word uniformity

Ideally, uniform laws should be identical, word for word, in every State and Territory. Where the subject matter of the legislation is of vital commercial significance, word for word uniformity becomes a matter of political priority and can be accomplished, as in the uniform corporations legislation. In the relatively less urgent context of the law relating to private family wealth, however, political commitment sufficient to overcome relatively minor differences in the wording of legislation may be difficult to secure. It is therefore fair to ask whether “uniformity” can be achieved with something less than complete verbal identity of all State and Territory statutes.

Consistency

If word for word uniformity cannot be realised, it may nevertheless be possible to achieve consistency of the succession laws in major respects. If the substance of the legislation, section by section, is the same, then a great deal will have been achieved. For instance, if it were made quite clear in all the legislation that a will admissible to probate in any Australian jurisdiction is admissible in all jurisdictions, anxiety would be alleviated in those cases, which can exist under the present law where a will is admissible to probate in some jurisdictions but not others.

If rules about the effect of marriage and divorce on a will are consistent as far as policy is concerned, that is, the rule is the same and any standard of proof (for example, respecting contrary intention) is the same, the fact that there may be differences of drafting of the various provisions will not matter. The point is that it may be particularly difficult, in a search for word for word uniformity, to secure agreement by parliamentary counsel in State or Territory A to accept that the drafting habits of parliamentary counsel in State or Territory B are either preferable or acceptable, practices of counsel being varied and guarded with some pride of expertise. It may be preferable to aim for consistency of policy.

What are the goals of the project?

Whether uniform or consistent, all the succession laws must be up-to-date. The law of wills, intestacy, family provision, administration and probate, and administration of assets must be brought together in one piece of legislation and must share, as far as possible, a common underlying principle. Unnecessary provisions and old language must be recognised and removed. Such a project inevitably entails law reform.

Nevertheless, it may be said that the statutes which have been examined, between them, probably achieve all that could be desired to ensure that proper provision can be guaranteed for persons having legitimate claims on the estates of deceased persons. If the best bits are taken from all the statutes, with some reconsideration of the presentation and drafting of the material, it is predictable that a statute could be produced, without the travail of major reconsideration of issues of principle or of substantive reform, which could arguably, as far as it goes, be the best in the world.

Identifying issues

In an attempt to identify matters which could be the subject of a common approach to succession law throughout Australia a series of papers discussing relevant issues will be published. To a paper on Family Provision (QLRC WP47, June 1995; NSWLRC IP11, February 1996) and this paper on The Law of Wills (QLRC WP46; NSWLRC IP10, February 1996).

The Issues Papers have as their object initiating action towards rendering uniform the relevant legislation of the Australian States and Territories. It is not their object to analyse the differences which exist with a view to coming to a decision as to whether a given provision in one State or Territory is preferable to a similar provision elsewhere; or to analyse the way in which the provisions work, their success from the point of view of practitioners, the incidence of applications actually made, or the case-law record. Those tasks lie ahead.

Future work

All Australian jurisdictions are co-participants in the project. In September 1995 a meeting was held in Brisbane of representatives from all jurisdictions to discuss the scope of the project and its future direction.

Other topics which may need to be dealt with as part of the project include:

(a) intestacy;

(b) administration of estates including:

(i) abolition of distinction between probate and administration;

(ii) abolition of the administrator’s bond;

(iii) vesting of deceased estates;

(iv) chain of executors;

(v) entitlement to letters of administration;

(vi) order of payment of debts;

(vii) common forms of application for grants;

(viii) interstate recognition of grants without resealing;

(ix) statutory wills for people lacking testamentary capacity.

FOOTNOTES

1. In Re Butchart (Deceased) [1932] NZLR 125.