3.1 It has been seen (Chapter 2) that, although formalities serve various purposes which are generally beneficial to the community, they can cause inconvenience or even, in particular cases, lead to the invalidity of a particular “will” or save a will from its intended revocation Much of this Report will be concerned with investigating whether the present law of wills formalities preserves a proper balance between serving these generally useful purposes and giving effect to the real intentions of individual testators.

3.2 The law of wills is designed to facilitate the transfer of property after death. But, trite though the observation is, this law must operate at a time after the principal actor has left the stage. The fact of death removes the best witness, leaving the court with only secondary materials with which to judge what that witness really intended. The law must also contemplate that other observers who could assist in the determination of what the testator wanted may themselves die before the testator or forget what really happened. Once one adds the possibility of witnesses being affected by rancour, self- interest or downright dishonesty it is easier to see why, in the past, the law has tended to shy away from evidence that may be contentious or dependent upon information other than that bearing the unmistakable stamp of the testator’s approval. A will made in writing and executed in accordance with certain prescribed formalities has traditionally been seen as the surest method of ascertaining the testator s true intentions.

3.3 But experience has shown many examples of testators’ apparently clear intentions being defeated by non-compliance with these formalities. From time to time judges and legal commentators have expressed regret at the particular result achieved in specific cases. However the problem for the law reformer considering whether or not to recommend change in the law, is the possibility that the particular formality that caused one testator’s “will” to founder may have ensured that several testators were protected from having their intentions defeated by mistake, carelessness, fraud, undue influence or the simple absence or forgetfulness of witnesses.

3.4 For a variety of reasons, would- be beneficiaries are often disappointed in their hopes of inheritance. Disappointed expectations can lead to disputes. particularly amongst members of a family. One of the law’s functions is to promote the settlement of disputes and it is vital that its rules (in this case wills formalities) lead to solutions which are likely to have broad acceptance and accord with what is generally regarded as fair.

3.5 As will become apparent, we think that the operation of some of the formalities relating to the making and execution of wills are generally regarded as unfair and are unnecessary to achieve the proper purposes to which we have already referred. In some respects we believe that the present law tends to frustrate the wishes of testators in more cases than are validly served by such formalities. This is partly due to the fact that it provides an all-or-nothing solution in which the slightest slip can invalidate a will, with no right to excuse non-compliance in cases where, despite the slip, it is clear that the testator intended to make a will. Some indication of the present injustice of some of the rules is given by the clear willingness of judges to cut them down or, in lawyers’ terms, “distinguish” them, and the growing body of exceptions to some of the rules. Other indications are the criticisms voiced by judges and writers and the steps taken in other jurisdictions to change some of these rules - steps which in many cases appear to be working satisfactorily.

3.6 The Commission’s general approach has been to simplify the statutory formalities relating to the making and revocation of wills where this can be done without undue risk. The general objects of our proposed reforms are twofold:

• to retain the liberty of the testator to dispose of his or her property; and
• to ensure as far as possible that wills which are recognised as legally valid (admitted to probate) represent the final wishes of a free and capable testator.

Neither object can be fulfilled in its entirety and the law must find the best possible balance between them. we have struck the balance between these two broad objectives in a manner which seems to us to be most reasonable and fair for New South Wales in the latter part of the twentieth century.

3.7 To the extent that we have been prepared to recommend modification of existing rules of wills formalities. this has been largely because we consider that the modern laws of evidence and court procedure are effective to separate truth from error, without the need of those rigid rules. We have also been prepared to recommend the repeal or modification of formalities where it is our view that they serve no apparent function other than the frustration of the genuine and ascertainable intentions of testators.

1. The Family Provision Act, 1982 is designed to allow the Court to vary or set aside the terms of wills where testators have failed to give effect to proper obligations owed to members of their family or other “eligible persons”.