I. INTRODUCTION

4.1 Chapter 3 outlined our broad approach to the examination of wills formalities. In Chapter 6 we recommend the enactment of a general dispensing power to enable the court to validate particular acts of will-making or revocation which do not comply with the prescribed formalities but which nevertheless are found to express the genuine intentions of testators. But such a proposal does not exclude the possibility of specific changes to the existing formalities, whether by way of addition, modification or repeal Indeed, where changes are clearly called for, it is better to modify the formalities than to leave parties to the cost and risks involved in an application to invoke the dispensing power. In this chapter we consider the desirability of certain specific reforms to the formalities of due execution: in the next chapter we shall examine some specific proposals relating to revocation formalities.

4.2 Three broad areas are discussed in this chapter:

proposals for certain additional formalities, namely
• execution before an authorised person
• deposit of wills
• registration of wills

proposals to allow certain types of presently informal wills, namely

• oral wills
• videotape wills
• holograph wills



proposals for the relaxation of specific execution formalities, namely those relating to
• the position of the testator’s signature the joint presence of two witnesses when the testator signs or acknowledges
• the requirement that witnesses sign after the testator has signed or acknowledged his or her signature
• the joint presence of two witnesses when the witnesses sign.

II. SHOULD THE EXECUTION FORMALITIES BE STRICTER?

4.3 Bearing in mind that prescribed formalities may play various useful functions (see Chapter 2). it is necessary to consider whether any additional formalities relating to will-making should be imposed. Naturally, this will require examination of the efficacy of such additional formalities in achieving what are seen to be beneficial goals. It should also be borne in mind that the impact of any such additional requirements may be tempered by the provision of a dispensing power which would endeavour to ensure that non- compliance with formalities only defeated wills in appropriate cases.

A. Execution before an authorised person

4.4 From time to time suggestions have been made that the law should require that wills be recorded or witnessed by an authorised person such as a notary public.¹ This is the procedure in most countries with a legal system derived from civil law although in many such instances it is permissible, by way of exception, for a person to make a holograph will.² In 1971 in a report on Home- Made Wills, Justice, the British Section of the International Commission of Jurists, argued in favour of increasing the formal requirements for a valid will by requiring wills to be witnessed by the English equivalent of a notary³. The report argued that the need to have a will formally executed in the presence of a Commissioner for Oaths or probate official would indirectly lead more testators to take proper legal advice before executing their wills, would eliminate problems of formal invalidity, and would form a more effective barrier against blatant forms of undue influence.⁴

4.5 We do not support such a proposal for a number of reasons.⁵ It represents a radical departure from the present regime, about which there is fairly widespread public knowledge. Any stich proposal would add to the cost of will- making and would serve to deter some people from making a will at all, because of the cost, nuisance or intrusion upon privacy involved in dealing with a notary or other official Because of the long history in our legal system of the “home-made” will stich a change would be likely to lead to confusion without demonstrable resultant benefit. Problems would arise in relation to “death bed” wills. The suggestion that stich a procedure would provide some check against certain forms of undue influence may be accepted, but we are not convinced that the price is worth paying in an area of the law which is already “notorious for its harsh and relentless formalism”⁶.

4.6 We therefore recommend that there should continue to be no requirement that wills be executed before a notary or other authorised person.

B. Deposit of Wills

4.7 Section 32 of the Wills, Probate and Administration Act 1898 enables any resident of New South Wales to deposit his or her will in the Probate Registry together with information designed to assist in the ready identification and location of the executors The will is sealed up and is not available to be inspected by the public, although the fact that a will has been lodged can be ascertained by searching the relevant index at the Probate Registry. There are similar provisions in some of the other Australian jurisdictions and in the United Kingdom.⁷ None of them make lodgement mandatory. This seldom-used facility⁸ is designed to overcome the problem of wills being lost and the resultant confusion and uncertainty that this causes.⁹ It would be desirable if testators were advised of the existence of the facility.

4.8 We recommend that there should be no requirement that wills be deposited in order to be valid. The objections to compulsion are similar to those against a compulsory notarial system (discussed at para 4.5). Even if it were possible to overcome all privacy issues by keeping confidential the very fact that a will had been deposited until after the testator’s death, there remains the fact that such a requirement would invalidate many home-made wills as well as add to the expense of will-making.

C. Registration of Wills

4.9 As an alternative to the compulsory deposit of wills, suggestions have been made from time to time that it be mandatory that certain facts about each will be recorded in a registry within a certain time after its execution Such suggestions envisage that wills would be invalid unless registered within a prescribed time limit.¹⁰

4.10 We do not favour any such proposals, for reasons similar to those already stated. We consider it to be an unwarranted and costly invasion upon testators privacy without any net tangible benefits. It would certainly lead to a number of wills that were otherwise made in perfectly proper circumstances being struck down for non-compliance with an additional formality, unless saved by some judicial power of dispensation It has fewer benefits than deposit because it may provide evidence of “missing” wills but no details of their contents. The actual will could still be lost We therefore recommend that there should be no requirement that particulars relating to wills should be registered.

III. SHOULD ORAL, VIDEOTAPE OR HOLOGRAPH WILLS BE INTRODUCED?

4.11 All wills must be written and executed in accordance with the statutory formalities unless the testator is “privileged” (ie a soldier or seaman placed in particular circumstances: see (Chapter 11). In this section we consider whether the law should generally permit certain types of presently informal wills, namely;

• oral wills
• videotape wills
• holograph wills

A. Oral Wills

4.12 In England, nuncupative or oral wills were effective with respect to all types of property up to 1540, and, in respect of personal property, up to 1837. However their use declined after 1677 (see paras 2.2-2.8) and, except for privileged wills, they were abolished in 1837. The same situation has prevailed in New South Wales since 1840. Oral wills are permitted in some overseas jurisdictions, often subject to a requirement that they be reduced to writing.¹¹ They are said to afford a dying person who has no opportunity to make a formal will the privilege of making a last minute oral disposition.

4.13 The Lord Chancellor’s Law Reform Committee considered whether such wills should be introduced in England (with, perhaps, a limitation upon their availability based on the size of the estate disposed of) and concluded:

The overwhelming response of our witnesses was against the introduction of nuncupative wills on the basis that they would create uncertainty and give rise to litigation because of the difficulties of proving and interpreting oral statements. It would be difficult to fix an upper financial limit and any limit would continually have to be adjusted to take account of inflation As there is no clear demand for nuncupative wills, we conclude that there is no case for any change.¹²

4.14 We recommend that oral or nuncupative wills should not be introduced, either generally or subject to qualifications. We agree with the reasons expressed by the Lord Chancellor’s Law Reform Committee and would add that the present intestacy rules coupled with the availability of relief pursuant to the Family Provision Act, 1982 reduce the evils of intestacy.

B. Videotape Wills

4.15 In para 2.12 we noted that the requirement that a will be in writing precludes the use of videotape as the means of recording a valid will. From time to time suggestions have been made that testators should have the freedom to make a “videowill” whereby they can speak “live” to those whom they choose to inherit and disinherit. It has been argued that this would enable the court to examine clearly “the testator himself his disposition, his voice and its inflections, his intent,¹³ and that such wills would thereby perform an “evidentiary” function of assisting in the resolution of disputes about testamentary capacity.

4.16 However, although a videotape would generally avoid any difficulty of proving the words used, it has one of the substantial disadvantages of oral wills in that there is likely robe less attention to accuracy of expression and detail. Further, the time taken to play through tapes compared to the time involved in reading documents makes tapes unattractive to process in large numbers, ie tapes perform the “channelling function” (cf para 2.49) very poorly. Testators who desire to speak “live” to their beneficiaries are free to make their own video in addition to a will and persons intent upon preserving “living” evidence of the testator s pbysical and mental condition may film the testator whilst he or she is in the act of will- making in the traditional manner. These commments apply a fortiori to wills recorded just on sound tape. For these reasons we recommend that videotape wills should not be introduced.

C. Holograph Wills

4.17 A holograph will is written in the handwriting of the testator and is signed by the testator without there being any requirement for attestation. Holograph wills were recognised as effective in France under the Napoleonic Code and have been adopted in many civil law jurisdictions, in more than twenty States of the United States of America and in the majority of the Canadian provinces and territories.¹⁴ It has been claimed that the majority of wills in Germany and in France are holograph wills.¹⁵ It has been pointed out that the holograph will:

is the simplest and most commonly used [in France.] The only requirements are that it should be written entirely by the hand of the testator and dated and signed in his handwriting This form has the obvious advantages of cheapness, simplicity and secrecy. On the other hand, there are the very real risks of forgery, undue influence and difficulty of construction of its terms.¹⁶

4.18 Although there has been relatively little litigation in the United States and in Canada relating to holograph wills, some serious difficulties have been indicated in the judicial decisions. These relate to what will suffice as an effective signature to a holograph will,¹⁷ the requirement for the entire will to be written in the testator’s handwriting,¹⁸ and whether particular informal instruments were made with testamentary intention and constituted wills.¹⁹ As Nelson and Starck point out:

Holographic wills, though required to be in writing, are often cast in very conversational tones which have the reader wondering whether the expression was nothing more than a segment of the writer’s “stream of consciousness” instead of a finalized act.²⁰

4.19 The Lord Chancellor’s Law Reform Committee in the United Kingdom recommended against the introduction of holograph wills on the following grounds:

Despite the fact that there is no evidence that holograph wills do not operate successfully elsewhere, the majority of our witnesses thought that they would be likely to be confused with draft wills, would give rise to difficulties of interpretation and would provide no safeguard against forgery, insanity or undue influence. Further, the evidence suggested that it was well known that the present law required a will to be witnessed and that there was no demand for holograph wills. In the light of this evidence we do not see any case for change.²¹

English commentators have accepted this conclusion, on the basis that the difficulties with holograph wills outweigh the advantages,²² or because the better way to deal with unattested wills is by relying on a judicial dispensing power rather than by recognising holograph wills.²³

4.20 In Canada, the Ontario Law Reform Commission recommended the recognition of holograph wills.²⁴ The Commission listed the following arguments against holograph wills:

1. The presence of two witnesses lessens the possibility of forgery. Or makes it easier to prove that the will is the will of the testator.

2. A provision for holograph wills would induce more people to prepare their own wills and this, in turn, would lead to:

(a) additional litigation involving interpretation of home-made wills: and

(b) unintelligent disposition of estates.

3. The provision for holograph wills would raise problems and litigation as to what is and what is not a will.

4. A holograph will lends itself more readily to fraud or undue influence than does a will executed with the safeguard of witnesses.²⁵

The Commission answered these arguments as follows:

1. If anything, it would seem that a will completely in the handwriting of the testator can more easily be proved to be his will than a printed or typewritten document which he merely signs, the presence of witnesses notwithstanding.

2. It is open to question whether a provision for the making of holograph wills would appreciably increase the number of home-made wills. It is more likely that it would merely make valid some of the attempts at home- made wills which are being made under the present system.

3. Jurisdictions which have had experience with a provision permitting holograph wills have found that such wills do in fact create some additional problems. The Commission believes this is not a valid reason for denying such wills validity.

4. It would be very difficult to induce a testator by fraud or trickery to make a holograph will through ignorance of its contents...The presence of witnesses is no guarantee against fraud. The real value of witnesses in guarding against undue influence is open to considerable doubt.

4.21 In 1981 the Law Reform Commission of British Columbia considered whether holograph wills should be accepted in that Canadian province.²⁶ The arguments in favour of permitting holograph wills were summarised as follows:

(i) Such a provision will assist those in circumstances where it is difficult to comply with the formal attestation requirements, viz:

(a) those living in remote areas without access to solicitors;

(b) those in extremis who have no opportunity to arrange for the preparation formal execution of a will;

(c) those who, because of poverty, ignorance or prejudice. cannot or will not consult a solicitor.

(ii) The majority of Canadian provinces provide for holograph wills, and such an enactment promotes uniformity of legislation in Canada.

(iii) The stated policy of the law is to validate wills where possible.

The Commission referred to the difficulty of attributing testamentary intention to some instruments, such as letters, which might otherwise be holograph wills and considered that

The objection that the introduction of holograph wills will result in new problems is well taken Although the problems so generated are far from insoluble, their existence detracts somewhat from the desirability of holograph wills.²⁷

The Commission concluded that a holograph will is merely a type of informal will and that policies which support the introduction of holograph wills equally support broader proposals such as the granting of a dispensing power to the courts which should apply to all wills It did not favour the introduction of holograph wills as such, but was prepared to encompass holograph wills by conferring a judicial dispensing power from some formalities.

4.22 In deciding whether we should recommend the introduction of holograph wills, it is worthwhile examining the policy criteria outlined in paras 2.40-2.49. The major justification for holograph wills is that they satisfy the evidentiary function of will formalities An instrument which is entirely written by the testator, as well as signed, is said to furnish cogent evidence that it is genuine, notwithstanding that there is no requirement for witnesses The handwriting and signature partially fulfil a protective function, but holograph wills do not fulfil the protective function of preventing fraud or undue influence. “A holographic will is obtainable by compulsion as easily as a ransom note”.²⁸ Furthermore, holograph wills do not adequately fulfil what have been labelled as the cautionary or ritual function (cf para 2.47) and the channelling function (cf para 2.49) of will formalities.²⁹

4.23 We recommend that holograph wills should not be accorded validity as a special class of informal wills. This conclusion is reached for the reasons expressed by law reform Commissions in the United Kingdom and in British Columbia. There is no tradition in Australia for the use of holograph wills If the requirement to use witnesses were relaxed in the case of holograph wills, testators could be misled into thinking any will prepared by themselves, in whatever form, would be valid without the need to involve witnesses. For example, a statutory requirement that a holograph will should be wholly in the testator’s handwriting,³⁰ would probably not be satisfied where the testator adopted a printed form of will purchased at a newsagent. There are no other Australian jurisdictions where holograph wills are valid, so that the uniformity argument, which favours their introduction in North America, works against their introduction in New South Wales.

IV. SHOULD THE EXECUTION FORMALITIES BE RELAXED IN SPECIFIC WAYS?

4.24 As we said in para 4.1, although we favour the introduction of a general dispensing power (see Chapter 6), we think that there are particular areas where the existing law should be changed. It prescribes formalities that operate to strike down otherwise valid instruments without serving sufficiently well any of the appropriate functions discussed in Chapter 2. We consider it appropriate that these particular formalities be relaxed generally, and that it is undesirable that the law should require persons wishing to rely upon wills affected by non-compliance with them to go to court seeking dispensation. Whilst a dispensing power should be available as a “long stop”,³¹ there is a risk that cost factors or the unavailability of vital evidence may discourage or preclude resort to it in an otherwise appropriate case.

4.25 We shall also consider one area where there are arguments supporting change which, on balance, we reject (paras 4.32-4.34).

A. Position of Testator’ s Signature

4.26 The state of the existing law is summarised in paras 2.15-2.22. It is complex, confusing and far from consistent, While legislation requiring the testator’s signature to be in a particular place on the will is designed to prevent unauthorised interpolation, we agree with the comment of the Victorian Chief Justice’s Law Reform Committee that:

The judicial ingenuity exercised in deeming an oddly placed signature to be at the foot or end of a propounded document for the purposes of sections 7 and 8 suggests that, once a court is satisfied that it is “apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will”, very little more will be required for it to conclude that the signature is not misplaced.³²

However, there have been cases where apparently genuine dispositions were defeated despite expressions of judicial regret about being driven to such conclusions. We consider that modern judges, assisted by scientific aids to detection of forgery and rules of evidence that provide greater scope for “getting at the real facts”, are reasonably capable of detecting unauthorised interpolations. In these circumstances, it is better to cast the evidentiary onus upon those seeking to argue that such interpolations occurred than to strike down wills simply because signatures are not placed in a particular position on the document.

4.27 In Western Australia and the United Kingdom there is no longer any requirement that the signature be in a particular spatial relationship to the provisions of the will There is however a significant difference between the two statutory provisions.

• In Western Australia³³ the testator is required to sign “in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will”.
• In the United Kingdom³⁴ it is provided that:

“9. No will shall be valid unless -

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction, and

(b) it appears that the testator intended by his signature to give effect to the will...”³⁵

4.28 Although the Report of the Lord Chancellor’s Law Reform Committee which preceded the enactment of the United Kingdom provision recommended that “a will should be admitted to probate if it is apparent on the face of the will that the testator intended his signature to validate it”,³⁶ the United Kingdom section does not have such a restriction.³⁷ In contrast, the Western Australian Act, which requires the testator’s intention to be “apparent on the face of the will” seems to exclude extrinsic evidence of the testator’ s intention in cases of doubt.

4.29 We see no compelling reason wby a will should be invalid simply because the signature is at the top of the document or even on an envelope which contains a will referred to as being inside.³⁸ In most cases it will be obvious on the face of the will that the signature was placed by the testator with the intention of validating the will, but we would not wish to exclude other evidence that this was done. Therefore we suggest that legislation be drafted along the lines of the United Kingdom provision. This allows extrinsic evidence of the testator’s intention in signing a document (including an envelope containing a will: cf Re Beadle³⁹) to be admitted in appropriate cases.

4.30 There is one additional matter of detail not dealt with in the United Kingdom section which should be covered.⁴⁰ As we pointed out in para 2.14 a testator unable to write may use an agent to sign provided that the latter does so in the testator’s presence and at the testator’s direction Section 9(b) of the United Kingdom provision (see para 4.27) does not expressly extend to an agents signature. The possibility of this mode of execution should be clearly included in any similar provision in New South Wales.

4.31 We therefore recommend that in lieu of the provisions in sections 7 and 8 of the Wills, Probate and Administration Act, 1898 about the position of the testator’s signature, the Act should require that it appear (on the face of the will or otherwise) that the testator intended to give effect to the will by making his or her signature or directing some other person to sign on his or her behalf.

B. Joint Presence of Two Witnesses When Testator Signs or Acknowledges

4.32 As we pointed out in paras 2.25-2.26, the existing law requires the testator to perform the relevant act of signing or acknowledging his or her signature in the joint presence of two witnesses. Why isn’t one witness sufficient? What is wrong with allowing the testator to sign in the sole presence of one witness and then to acknowledge his or her signature in the sole presence of another?

4.33 One good reason for requiring the joint presence of two witnesses is to ensure that there are two people to observe and, hopefully, later give evidence about the testator’s apparent capacity and understanding. Since each is the observer of the testator at the same time, it is possible to test the evidence of one witness by comparing it with that of the other, and thereby reach a greater level of satisfaction as to any contested issue of capacity or understanding.

4.34 The existing requirement also serves to make it considerably harder for forgery or fraud to occur. As the English Real Property Commissioners commented in their Fourth Report (1833) which was the basis for the law now found in the New South Wales Act of 1898:

we think it expedient and sufficient to require two witnesses ... The protection against forgery is greatly increased by requiring a second witness, on account of the difficulty of engaging an accomplice, the necessity of rewarding him, and the danger to be apprehended from his giving information, or not being able to elude a discovery of the fraud by a searching cross- examination We think it expedient not to require more than two witnesses but of course the number should not be restricted.⁴¹

For these reasons we recommend that there should continue to be a requirement of the joint presence of two witnesses to the testator’ s act of signing or acknowledgement of signature.

4.35 As we pointed out in para 2.14 the testator may use an agent to sign provided that such person signs in the presence and by the direction of the testator, and it has been held that the agent may also be one of the two attesting witnesses.⁴² We are aware of no reported instances in the last century of an attesting witness assuming this dual role, let alone abusing the right, and for that reason alone make no recommendation for change.

C. Witnesses Signing After the Testator Makes or Acknowledges Signature

4.36 Section 7 of the Wills, Probate and Administration Act, 1898 (set out in full in para 2.11) provides that the testator’s signature “shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time... and such witnesses.. shall subscribe the will in the presence of the testator”. Two separate rules have been derived by the courts from this provision.

4.37 First, attesting witnesses, unlike testators, must actually sign (“ subscribe”) the will in the presence⁴³ of the testator if one or both of them simply acknowledges a signature made outside the testator’s presence the will is invalid.⁴⁴

4.38 Secondly, the testator’s signature must be either written or acknowledged by the testator in the presence of both witnesses together, before either of them attests and signs the will. The witnesses “cannot be distributed between a signature and an acknowledgement.... they must either both sign after seeing or having the opportunity to see an acknowledged signature, or both sign after an actual signature in their presence.⁴⁵

4.39 These rules have led to wills being invalidated in circumstances where there was a purely unintentional slip and no suggestion of fraud or undue influence. Examples of the inequitable operation of these rules include:

• A testator who was a patient in a hospital asked another patient and a nurse to witness his signature, but while he was signing, and before he had completed his signature the nurse was called away to attend another patient. The testator nevertheless continued signing and the other witness then signed. When the nurse returned, the testator and the other witness both acknowledged their signatures and the nurse added her signature. The first subscribing witness had already signed before the testator acknowledged his completed signature in the joint presence of the nurse and that witness and, not surprisingly, it was not perceived that the first witness need sign again Nevertheless the will was invalid: Re Colling.⁴⁶
• A testator produced his will to one witness, pointed to his signature already on it and asked the witness to sign it, which he did. A second witness was then called in After the testator pointed to the two signatures already on the will, the second witness signed, all three being present. The will was invalid: Wyatt v Berry.⁴⁷
• A testatrix signed her will in the presence of one witness who then signed it. Whilst the witness was writing her name on the document a second witness entered the room. After the testatrix signified to him that the document was her will which she wished him to attest and had acknowledged her signature on it to him he also signed as a witness. The will was invalid: Re Davies, Re Bladen.⁴⁸

In each case the will was invalid because the first witness signed the will before the testator acknowledged his or her signature in the joint presence of the witness There are numerous reported instances of wills failing through such slips,⁴⁹ and in many of them eminent judges have deplored the fact that the intentions of testators have been defeated on technical grounds.⁵⁰

4.40 The injustice of these rules and their capacity to defeat testamentary intentions without serving any worthwhile function has been adverted to by various law reform agencies.⁵¹ Debate has centred around whether the appropriate remedy is a specific statutory reversal of the rule or whether a general dispensing power should be created which can be invoked in appropriate cases. In our view the rule serves no useful function and has often destroyed otherwise valid wills. We do not see wby estates should be put to the expense and uncertainty of making application for its displacement and we recommend the legislative abrogation of the rule itself.

4.41 This still leaves the question as to the most appropriate way to legislate in order to effect stich a reform. On the recommendation of the Lord Chancellor’s Law Reform Committee,⁵² the English Wills Act was amended by prescribing that each witness either

(i) attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator.⁵³

4.42 This repeals the effect of Re Coiling but probably not the judicially-developed prohibition against the distribution of witnesses between the testator s act of signing and acknowledging his or her signature. In the Re Coiling situation discussed in para 4.39 an amendment which allowed a witness to acknowledge his or her signature in the presence of the testator would have saved the will because the witness who remained throughout acknowledged his signature in the presence of the testator. However in the other cases discussed (Wyatt v Berry, Re Davies and Re Bladen), the first witness did not acknowledge his signature, which had been placed on the document in the presence of the deceased and before the second witness entered the deceased’s presence. We consider that there is no reason in principle wby both categories of technicality should not be removed. We therefore recommend that section 7 be amended so as to require the two witnesses to attest and sign the will in the presence of the testator either by each signing after the testator makes or acknowledges his or her signature or that of his or her agent, or by one signing after the testator or his or her agent makes his or her signature and before the testator acknowledges that signature and the other signing after the testator has acknowledged that signature. Where one of the witnesses signs before the testator acknowledges, the joint presence of witnesses at the time of acknowledgement (para 4.34) remains essential.

D. Joint Presence of Two Witnesses when Witnesses Sign

4.43 If our recommendations are adopted s7 will have to be recast. In that event we recommend that it be made clear that the witnesses need not sign in the presence of each other. Whilst the weight of authority supports wills where the witnesses do not sign in each others presence⁵⁴ and the practice is for witnesses in fact to sign in each others presence, some doubts have been expressed in view of an obiter dictum in the Privy Council in Casement v Fulton.⁵⁵ We suggest that the matter be put beyond doubt when s7 is recast.⁵⁶ We recommend that the Act be amended to make clear that witnesses need not sign in each other’s presence. Any requirement that they should do so would not in our view provide any protection against imposition upon a testator but would merely add an additional formal step in an already complicated procedure.

1. A notary public is a specially authorised person who attests the execution of documents or makes certified copies of them in order to render the same authentic.

2. A holograph will is one written in the handwriting of the testator and signed by the testator but not witnessed otherwise complying with any formalities.

3. Home-made Wills, A Report of Justice (1971) para 5. The report recommended the introduction of an optional national system on a trial basis for ten years as a preduce to making a decision whether to make it compulsory (para 19).

4. Id para 6.

5. We have drawn largely upon criticisms of the Justice proposal by Miller, The Machinery of Succession pp 151-152: the Lord Chancellor’s Law Reform Committee Report on The Making and Revocation of Wills (1980) Cmnd 7902 para 2.23: Davey, the Making and Revocation of Wills (1980) The Conveyancer 64 at p74; and the Law Reform Commission of Tasmania Working Paper on Reform in the Lame of Wills (1981) at p27.

6. Langbein, Substantial Compliance with the Wills Act, (1975) 88 Harvard Law Review p489.

7. Wills Ordinanec 1968. ss52-54 (ACT): Public Trustee Act, 1978, s65(2) (Qld): Wills Act, 1958, ss58-41 (NT): Public Trustee Act 1941, s54 (WA): Administration of Justice Act 1982, ss25-26 (UK).

8. Less than five wills are deposited each year. compared with about 20,000 estates processed each year by the Probate Division: information supplied to the Commission by Mr Leslie James, Registrar in Probate, on 31 July 1985.

9. If the court is satisfied that a missing will was not destroyed by the testator with the intention of revoking it, probate may he granted of all or part of the lost will provided that its contents can be established.

10. Eg. The Law Commission, Should English Wills be Registrable? (1966) Working Paper No 4.

11. Eg. in Scotland for small bequests, in some States of the United States and in Spain, as discussed in Report on The Making and Revocation of Wills of the Law Reform Commission of British Columbia. pp25-26.

12. Twenty-second Report on the Making and Revocation of Wills, at pp8-9.

15. Eg. Nash, A Video will: Safe and Sure (1984) 70 A 11 A Journal 87.

14. Law Reform Commission of British Columbia Report on the Making and Revocation of Wills, p34: Yates. Wills - Validity of Signature for Holographic Wills (1975) 28 Arkansas Law Journal 521: Best, Holographic Wills in Montana - Problems in Probate (1963) 24 Montana Law Review 148.

15. Cohn, Manual of German Law (1968) Vol 1, pp273-274: Amos and Walton. Introduction to French Law, 3rd ed, p318.

16. Amos and Walton. note 15 above. p318.

17. Yates, note 14 above.

18. Best. note 14 above p149. Statutes directing that the will be “entirely in the testator’s handwriting have produced a large and ugly case law voiding wills which contained some innocuous printed matter”: Laugbein, Substantial Compliance with the Wills Act, (1975) 88 Harvard Law Review 489 at p519.

19. Best. note 14 above, pp155-159.

20. Nelson and Starck, Formalities and Formalism: A Critical look at the Execution of Wills (1979) 6 Pepperdine Law Review 551. at p349.

21. Report on the Making and Revocation of Wills (198f)(Cmnd 7902, pp9-10).

22. Davey, The Making and Revocation of Wills (1980) The Conveyancer 64, at p75.

23. SM, (1981) 125 Solicitors’ Journal p265.

24. The Proposed Adoption in Ontario of the Uniform Wills Act (1968).

25. Id, pp10-11.

26. Report on the Making and Revocation of Wills, pp34-39. In 1980, the Manitoba Law Reform Commission discussed some difficulties with holograph wills in its report on “The Wills Act” and the Doctrine of Substantial Compliance. However, that discussion occurred in the context of reform proposals relating to granting courts a dispensing power with reference to formalities, and holograph wills are currently recognised in Manitoba. The Commission did not consider whether the provisions permitting holograph wills should be repealed.

27. Id, p36.

28. Gulliver and Tilson. Classification of Gratuitous Transfers (1941) 51 Yale LJ 1 at p14.

29. Fuller, Consideration and Form (1941) 41 Col L R 799. at p804.

30. And stich is the requirement in most Canadian jurisdictions and most American jurisdictions allowing such wills: see Manitoba Law Reform Commission Report on The Wills Act and the Doctrine of Substantial Compliance (1980) at p9 and Langbein. note 18 above, p519.

31. SM. (1981) 125 Solicitors Journal p264.

32. Report on Execution of Wills (1984) para 7.3.

33. Wills Act. s8(b).

34. Administration of Justice Act 1982, s17.

35. The Victorian Chief Justice’s Law Reform Committee has recently recommended adoption of the English provision in its Report on Execution of Wills (1984) para 7. For the suggested recasting of section 7, see ibid para 12.1

36. Report on The Making and Revocation of Wills (1980) Cmnd 7902 para 2.8.

37. In contradistinction to other sections in the same Act: see Mackay, Statutory Reform in the Law of Wills (1985) NLJ 861. If. as we suggest extrinsic evidence should be available this should be clearly indicated in the relevant section.

38. The authorities are divided on whether a signed envelope containing a list of intended testamentary dispositions is valid: In Goods of Mann [1942] P146: In Will of Curry (1945) 46 SR (NSW) 158: cf In Estate of Bean [1944] 185: Re Beadle [19741] WLR 417.

39. [1974] 1 All ER 495. See para 2.21 of this Report.

40. The addition was suggested by the Acting Secretary to the Principal Registry mf the Family Division of the English High Court in a letter dated 25 February 1985 prepared in response to a request for information from this Commission.

41. Forth Report at p17. See also The law Commission, Should English Wills be Registrable? (1966) Working Paper No 4. para 46.

42. In Goods of Bailey (1858) 1 Curt 914 (I65 FR 516).

43. As to “presence” see paras 2.25, 2.51.

44. See para 2.27- 2.28

45. Re Unsworth (1974) 8 SASR 512 at 522 per Bray CJ.

46. Re Colling [1972] 3 All ER 729; [1972] WLR 1440.

47. Wyatt v Berry [1893] P 5.

48. Re Davies [1951] 1 All ER 920: Re Bladen [1952] VLR 82 at 85.

49. See chapter 2 n38.

50. See eg authorities cited above in notes 46, 47 and 48.

51. Eg Lord Chancellors law Reform Committee, Report on the Making and Revocation of Wills (1980) Cmnd 7902 para 2.11: Law Reform Commission of British Columbia, note 14 above pp32-33: Queensland Law Reform Commission, Report on The Law Relating to Succession (1978) pp6-7: Victorian Chief Justice Law Reform Committee, note 55 above, paras 8-12: Law Reform Commission of Western Australia, Discussion Paper on Wills: Substantial Compliance (1984) paras 2.12-2.14.

52. Note 51. above. A similar recommendation has been made by the Victorian Chief Justice’s Law Reform Committee, note 55 above paras 8-12.

53. Section 9(d) of the Wills Act (inserted by Administration of Justice Act 1982).

54. See In the Will of Wilhelmsen (1959) 56 WN (NSW) 39 and other authorities cited in Hardingham, Neave and Ford, Wills and Intestacy in Australia and New Zealand, (1983) p39 n42 and Theobald on Wills 14th ed (1982) p46 n53.

55. (1845) 5 Moo PC 130 at 140-2(13 ER 439 at 443-4). See Smith, Execution of Wills in Presence of Attesting Witnesses (1935) 8 ALJ 363.

56. This was done in the new s9 of the English Wills Act.