1.1 This is the eighth report in the Community Law Reform Program. The Program was established by the then Attorney General, The Hon F J Walker, QC, MP, by letter dated 24 May 1982 addressed to the Chairman of the Commission. The letter included the following statement:

This letter may therefore be taken as an authority to the Commission in its discretion to give preliminary consideration to proposals for law reform made to it by members of the legal profession and the community at large. The purpose of preliminary consideration will be to bring to my attention matters that warrant my making a reference to the Commission under s.10 of the Law Reform Commission Act, 1967.

The background of the Community Law Reform Program is described in greater detail in the Commission’s Annual Report for 1982.

1.2 In response to publicity about the Commission’s Community Law Reform Program, Associate Professor Andrew Lang of Macquarie University wrote to the Commission in August 1982 drawing attention to areas in the law of wills which were ripe for reform that would be of general community benefit. Preliminary research by Ms Ruth Jones, a legal officer of the Commission. revealed that some of these areas had been considered by other law reform agencies and that there were models for reform in some areas to be found in the legislation of other states or countries. On 5 May 1983 the Commission submitted draft terms of reference to the Attorney General.

1.3 On 20 June 1983 the then Attorney General, the late Hon D P Landa LLB, MLC, made the following reference to the Commission:

To inquire into and report on:

(i) The law relating to the execution and revocation of wills and documents of a testamentary nature, including the law relating to:

• signature, attestation and witnessing;
• privileged wills;
• revocation by marriage and by dissolution of marriage.

(ii) Any incidental matter.

1.4 Thereafter the Commission engaged Mr George Winterton and Mr Kevin Booker, then senior lecturer and lecturer respectively in the Faculty of Law at the University of New South Wales, to prepare a working draft report covering some of the areas now dealt with in this Report. This was completed by early 1984. This work was then embodied in a very substantial working draft report prepared later in 1984 by Associate Professor Lang. This draft covered additional areas and expanded the earlier work considerably. Its primary function was to provide the Commission and its consultants with a detailed discussion of various options for reform and the policy factors underlying them. The Commission wishes to place on record its debt to these three consultants, especially Associate Professor Lang whose extensive treatment of the subject relieved the Commission of the task of preliminary research.

1.5 The “Lang draft” contained a series of proposals. It was then submitted to four specialist consultants retained by the Commission for their comments. These were Dr I J Hardingham who was then Reader in Law in the Law School of the University of Melbourne, the late Honourable Mr Justice Hutley who was then Judge of Appeal of the Supreme Court of New South Wales, Ms Marcia Neave who is Professor-elect in the Faculty of Law, University of Adelaide, and was a part-time member of this Commission until the end of 1985 when the Report was substantially completed and Miss Olive Wood who is a Senior Lecturer in the Faculty of Law at the University of Sydney. Each of these specialists in the field of succession law responded with detailed comments and suggestions about the “Lang draft”. While not always unanimous, this body of expert opinion was very influential in shaping the Commission’s recommendations.

1.6 In an article appearing in the Law Society Journal in June 1985 submissions were invited from the profession In response to this and other direct requests, the Commission has received a number of oral and written submissions from the persons listed in Appendix B. Each of these has been considered carefully and the Commission is most grateful for the participation of these persons and organisations in the task of co-operative law reform.

1.7 As indicated in the text of the Report the Commission has drawn substantially upon research done by other law reform agencies. A list of the principal reports of this nature is set out in Appendix C.

1.8 The body of information outlined above was considered by the Commission in 1985. Some of the topics contained in the “Lang draft” were omitted and other topics were added by the Commission The report was then written, substantially in its present form (apart from Appendix A which contains draft legislation). containing the views and reasons of the Division For the purpose of the reference a Division was constituted which, at the critical period, consisted of Mr Paul Byrne, Mr Keith Mason QC, Ms Marcia Neave, Professor Colin Phegan and Mr Russell Scott. The Commission is particularly indebted to Ms Ros Robertson. Legal Officer attached to the Division, who revised the Lang draft and co-ordinated the submissions of the specialist consultants, to Ms Fiona Tito who, in the capacity of Acting Director of Research. edited the final report, and to Mr James Hirshman who, in the course of checking the penultimate draft. made a number of useful suggestions in matters of detail.

1.9 The Commission then submitted its draft Report to various persons and organisations including judges of the Probate and Equity Divisions of the Supreme Court, the Honourable K J Holland QC former Judge in Probate, the Law Society of New South Wales. the Bar Association of New South Wales. the Family Law Council various academic lawyers (including the Commission’s specialist consultants referred to above), the Public Trustee and representatives of the trustee companies operating in this state, and the Military Law Sub Committee of the Department of Defence who had a particular interest in Chapter 11 (privileged testators). The decision was taken to submit the Report at such a late stage of its preparation in order that the persons involved might have the benefit of a fully researched and argued Report to which they were invited to respond. Thereafter submissions were received from a number of these persons and organisations and there were meetings and discussions with them. Several very useful proposals were advanced at this stage of the reference and these were then considered by the Commission and are reflected in this final form of the Report. This process of consultation led the Commission to conclude that one major change it was proposing (the abolition of the rule about revocation by marriage) should not be made, and to vary a number of other recommendations in detail. The upshot of the Commission’s consultation concerning privileged testators is indicated in para 11.35.

1.10 The range of topics covered by this Report maybe seen in the Index. Chapters 2-7 cover the areas of will- making and revocation formalities and problems arising from mistakes affecting the execution or form of documents of a testamentary nature. Chapters 8 (gifts to interested witnesses), 9 (revocation by marriage) and 10 (revocation by divorce) deal with matters of the substantive law of wills, and consider areas where gifts or wills might be avoided or revoked in particular circumstances. Chapters 11 (privileged testators) and 12 (minors) deal with the rights of particular categories of testators. Finally, chapter 13 considers the application of the particular reforms proposed. Appendix A contains draft legislation which would implement our proposals: we are grateful to Mr D R Murphy QC Parliamentary Counsel and Mr C M Orpwood from the office of Parliamentary Counsel for their assistance in this regard.

1.11 Certain other areas in the law of wills were also considered by us and our consultants. but are not covered in this Report.

• We considered the operation of the conflict of laws rules relating to the formal validity of wills and the need for New South Wales to adopt the Convention Making Provision for a Uniform Law on the Form of an International Will (1973). As to the former, they appear to us to be working satisfactorily. As to the latter, we are not persuaded that there is a present need to propose change in this area.
• We considered the operation of the rules of undue influence in relation to wills. Although we have decided to make no recommendations in this area at this stage. we invite further comment. Some comments about this issue appear at paras 8.3 1-8.35.
• Some preliminary investigation took I)lace about the desirability of conferring on the court power to order execution of a will for a mentally disabled person The Court of Protection in England has such a power and the Victorian Chief Justice’s Law Reform Committee made detailed recommendations on the subject in a report Wills for Mentally Disordered Persons published in 1981. Our preliminary view formed after discussions with Mr Justice Powell and Mr B F Porter, the Protective Commissioner, is that there would be real merit in considering such a proposal for New South Wales. However the matter probably falls outside our terms of reference and, in any event. would merit detailed investigation in a separate Report.

1.12 Our various recommendations are summarised at the commencement of the Report.