13.1 Subject to two matters which we shall look at in a little more detail in the following paragraphs we propose that the amendments to the Wills, Probate and Administration Act, 1898 suggested in this Report should apply in the case of deaths occurring after the commencement of the amending Act. This would catch all wills coming into effect after that date. It would also mean that our proposals concerning revocation on divorce would apply even if the divorce took place prior to the amendment, provided the testator died after it.¹ We would adopt the reasoning of the Ontario Law Reform Commission in its Report on the impact of Divorce on Existing Wills (subject to the same humility that doubtless affected that Commission):

We consider that the reforms we have proposed in this Report are so desirable that we would recommend that they apply to all wills of persons dying after any legislation implementing the reforms comes into force. We take the position that the amending provisions should have retrospective effect for a number of reasons. Firstly, this is consistent with the fundamental principle that wills, by their very nature, are ambulatory, and that the law in effect at the date of death of the testator should govern Secondly, if we have made out a case for reforming the law and if our basic premise, that testators should be deemed to prefer the invalidation rather than the retention of testamentary benefits conferred upon a former spouse, is sound, then there is no convincing policy reason for not making the statute retrospective in its operation. Since it may well be presumed, in the absence of clear evidence to the contrary, that legislation is intended for prospective operation only, the amending statute should contain an express provision clarifying the legislative intention on this point To make the legislation prospective only would be, in effect, to postpone reform for a generation or more, and there are no justifiable grounds for so doing.²

13.2 However, we recommend that the power of rectification of wills proposed in Chapter 7 should be available in relation to wills whenever made which have not been admitted to probate when the amendment takes effect. As the eminent consultant who suggested this provision³ put it, “people do not rely upon the absence of a power of rectification in making their wills.” Unfortunately, it is not feasible to apply this proviso to the relaxation of will-making and revocation formalities, or the general dispensing power which we recommend. It would clearly disturb long - administered estates if wills submitted to probate many years ago, but rejected on the basis of the way the law then stood, were now to be admitted to probate.

13.3 Our recommendation in Chapter 11 that the status of privileged testator should be abolished would, coupled with that in para 13.1, have no impact upon any existing privileged wills which are subsequently submitted for probate in relation to the estates of testators who die before the amending Act⁴ We considered whether the reasons which led to the recommendation in Chapter 11 should lead to a further proposal that all privileged wills that have not been admitted to probate should be invalidated regardless of the date of death of the testator. However our enquiries reveal that no privileged will has been lodged for probate in New South Wales for many years and, accordingly, we think it unnecessary to make any special provision in this regard. We are also of the view that wills which have been revoked in an informal but valid manner by privileged testators in the past should remain revoked. To do otherwise would create real difficulties in the likely event that the will thus revoked has been destroyed, and would be likely to thwart the testator’s intentions through invalidating what had been a valid revocation to no useful purpose. For similar reasons wills revoked by marriage prior to the commencement of the proposed reforms should not be revived.

1. Cf Re Jones [1985] 2 Qd R 100; Rookstool v Neaf (1964) 377 SW 2d 402 at 409. See also chapter 10 note 29 of this Report.

2. Report at p10.

3. Ibis suggestion was made by the late Mr Justice Hutley in a letter to the Commission dated 11 July 1984.

4. Interpretation Act. 1897 s8.