I. FORMALISM IN THE LAW OF WILLS

6.1 In Chapter 2 we discussed the functions of the formalities for making and revoking wills. We stressed that they should not be seen as ends in themselves, but rather as tools for achieving particular goals. One function is to reduce the opportunity for fraud and undue influence and thus ensure that a testator’s true wishes are carried out after his or her death.

6.2 The law frequently operates in this way, setting out formal modes of behaviour to facilitate and protect a particular desirable activity. For example; the statutes of frauds¹ were designed to limit the potential for fraud in transactions between living people. The law has also generally developed safeguards to ensure that these protective, beneficial rules do not themselves cause the very harm they were designed to prevent. However, for reasons which are not entirely cleat there has not been a similar development in relation to wills formalities.² In many ways, they have been treated as ends in themselves, rather than safeguards to ensure the fulfilment of testators’ wishes. This has led to the criticism that “the law of wills is notorious for its harsh and relentless formalism”.³

6.3 The efforts of different judges to achieve a fair result within the limits of the law have led to a complex and inconsistent body of judicial decisions. Some judges have shown a willingness to rethink and challenge long-established propositions.⁴ However many of the technical rules are so firmly established or are so clearly required by the terms of the statute that legislative reform is required if there is to be a change. One matter that is especially entrenched is the very approach to wills formalities mentioned in the preceding paragraph When this approach has been applied it has often been accompanied by strong statements of judicial regret at the defeat of clearly established testamentary intentions.⁵

6.4 Because most of the common law world adopted the English Wills Act 1837 there are reported cases in many jurisdictions attesting to the Act’s capacity to produce inequitable results in particular cases. Examples of wills declared invalid in such circumstances include:

• wills where the testator inadvertently forgot to sign;⁶
• wills where a witness inadvertently forgot to sign;⁷
• wills where a husband and wife inadvertently signed the will prepared for the other;⁸
• wills where the testator was too sick to turn his head and watch the witness sign, although they were in the same room;⁹
• wills where the attesting witnesses were not present at the same time when the testator signed or acknowledged the will.¹⁰

6.5 How extensive is the problem and how can it be measured? The reported cases give some indication, although not of the numerical significance. Between 1 April 1985 and 30 June 1985 about 20 wills which were invalid because of lack of due formality came to the attention of the New South Wales Probate Registry.¹¹ The Lord Chancellor’s Law Reform Committee commissioned a survey of all wills admitted to probate in England and Wales over a three month period in 1978. It showed that during that period 40,664 wills were admitted to probate and 97 (about 0.24%) rejected. Of those rejected, 93 were rejected because they failed to comply in one way or another with the formalities required by section 9 of the English Wills Act 1837.¹² In South Australia between 1976, when a judicial dispensing power was introduced, and the middle of 1985 there have been 32 applications for that power to be exercised. Details of these are analysed below (para 6.9).

6.6 It may however be inappropriate to pay undue attention to the numbers of recorded incidents giving rise to apparent injustices through the law’s technicalities. We suspect that there are cases where wills have been defectively executed and where; because this is apparent on the present state of the law, solicitors handling the estate have seen no point in bringing the error to the attention of the Court registry.¹³

6.7 In the report of the Australian Government Commission of Inquiry into Poverty on Legal Needs of the Poor¹⁴ a survey of 183 respondents who reported making a will revealed 67% who used a lawyer for such purpose, 18% who used a printed form available at stationers, and 15% who “made it up themselves” or gave verbal instructions as to the disposition of their property These figures suggest a significant area within which problems of invalidity could arise.

6.8 Moreover, even if it is assumed that the number of cases where wills fail for purely technical reasons is relatively small, the mischief that is caused in such cases is of itself sufficient justification for reform:

The consequences of an invalid will are not confined to those of a legal nature. A testator’ s family may find it distressing for his wishes to be ignored because of what they perceive is a mere technicality. Moreover, besides financial loss to potential beneficiaries additional legal expense may be incurred, brought about for example; because the invalidity was disputed in legal proceedings or because the administration of the estate involved more work than if the will had been valid. It is probable that cases of formal invalidity would most often occur where it could least be afforded, that is in the home-made wills of small estates.¹⁵

II. TWO MODELS FOR REFORM

A. Judicial Dispensing Power

6.9 In 1975. on the recommendation of the South Australian Law Reform Committee,¹⁶ the South Australian Wills Act was amended by inserting a section which empowered the Court to relieve against non-compliance with formal requirements. The section provides:

12(2) A document purporting to embody the testamentary intentions of a deceased person shall. notwithstanding that it has not been executed with the formalities required by this Act be deemed to be a will of the deceased person if the Supreme Court upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can he no reasonable doubt that the deceased intended the document to constitute his will.

A similar provision has recently been enacted in the Northern Territory.¹⁷

6.10 In the nine years since the South Australian Act came into operation¹⁸ there have been 32 applications brought under s12(2) and these have fallen into the following categories:¹⁹

	No of applicants
(i) testator’s signature unwitnessed	5
(ii) will not signed	3
(iii) alterations and additions	6
(iv) will not signed at “foot or end”	4
(v) will not executed in the presence of two witnesses both being present at the same time	14

6.11 A number of judicial decisions²⁰ have clarified the section’s ambit:

• It applies to part of a document so that alterations made subsequent to execution may be included as part of the document admitted to probate.²¹
• Whilst the section by its terms requires that there be “a document” the Court will look at the document and extrinsic evidence in its search for material establishing the testator’s intention in relation to that document.²²
• It is not necessary that the testator attempt to comply with the formalities prescribed elsewhere in the Act Thus a document signed by the testator and handed to someone to take away and “get it witnessed”²³ and an unsigned document²⁴ have been admitted to probate where the Court was satisfied beyond reasonable doubt that the deceased intended the document to constitute his or her will.
• The Court has applied, as a practical test, the approach that” the greater the departure from the requirements of formal validity.., the harder it will be for the Court to reach the required state of satisfaction.”²⁵

The section has been applied to provide relief where:

• witnesses were not present or jointly present when the deceased made or acknowledged his or her signature;²⁶
• the testator’ s signature was not witnessed at all;²⁷
• a witness acknowledged his signature to another who was not present when the first person witnessed the will;²⁸
• the deceased did not sign at all due to a simple oversight;²⁹
• a husband and wife who instructed a solicitor to prepare mirror wills for both of them read and approved the same but by mistake signed each other’s will;³⁰
• following the revocation of a will by marriage, a testator made certain minor alterations to her will (made prior to marriage) which she initialled. it was held that the document so altered was intended to constitute her will and, through the operation of the section, that the will was validly revived.³¹

6.12 Other jurisdictions, notably Israel and Manitoba, have provisions creating a general judicial dispensing power, in the former case subject to more stringent and in the latter more relaxed preconditions.³² As will become apparent we generally favour the South Australian model. subject to certain modifications

B. Power to admit to probate where substantial compliance

6.13 In 1975 Professor Langbein advocated the adoption of a substantial compliance doctrine to alleviate the problems caused by literal compliance with will formalities. He pointed out that a peculiarity of the law of wills is not the prominence of formalities, but the judicial insistence that defects in compliance automatically and inevitably render wills ineffective. He argued that this lack of flexibility has inflicted “constant and mostly uncontrollable inequity”,³³ and that “the rule of literal compliance with the Wills Act is a snare for the ignorant and ill-advised, a needless hangover from a time when the law of proof was in its infancy”.³⁴ His proposal was to reduce the presumption of invalidity applied to a defectively executed will from a conclusive presumption of invalidity to a rebuttable presumption:

The proponents of a defectively executed will should be allowed to prove what they are now entitled to presume in cases of due execution - that the will in question expresses the decedent’s true testamentary intent. They should be allowed to prove that the defect is harmless to the purpose of the formality.³⁵

He pointed out that a doctrine of substantial compliance is not a rule of no formalities, nor is it a rule of minimum or maximum formalities.³⁶ Rather, it is a “purposive” approach to wills formalities and enables courts to excuse formal defects when the purposes of the legislation have been satisfied in particular situations notwithstanding some deficiencies in complying literally with all the specified formalities. Later commentators have endorsed the attractiveness of such an approach.

There is something inherently fair about an approach which says that formalities are important but they are a tool and not a sword If the result has been achieved without the tool, then the tool becomes unimportant.³⁷

6.14 In 1978 the Queensland Law Reform Commission recommended the adoption of the, doctrine of substantial compliance in the following terms:

We have therefore decided to recommend that some relaxation in the court’s standard should be permitted, and that provided substantial compliance is shown, and the court is satisfied that the instrument presented for probate represents the testamentary intention of the maker of it, the court may admit it to probate. It will be for the court to work out what it understands by substantial compliance, but it is envisaged that the courts will be cautious in their approach to the latitude given, and that only in cases of accident and minor departures will it be possible to give effect to the obvious intention of the testator, as in cases where the court has hitherto wished to admit an instrument to probate but has felt unable to do so because of the shackles of its policy of meticulous compliance. We should add that Professor Langbein has seen and approves of the provision which we have added.³⁸

In 1981 the formulation recommended by the Queensland Law Reform Commission became enacted as a proviso to s9 of Succession Act 1981 (Qld):

(a) the Court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the Court is satisfied that the instrument expresses the testamentary intention of the testator.

The provision has been in operation since 1 January 1982.

6.15 In the few cases which have arisen under the Queensland provision there are clear indications of the judicial approach to “substantial compliance” and of what we regard as the limitations of the Queensland model:

• In Re Johnston³⁹ probate was refused of a will which bore the signature of the testatrix and two attesting witnesses but which was apparently signed, first by one attesting witness (who pointed out that two witnesses were necessary but signed “to appease” the testatrix), then on a later occasion by the testatrix, then on a later occasion by the second witness. The testatrix did not sign in the presence of either attesting witness and the witnesses were never together at the same time. Without having to consider whether the instrument expressed the testamentary intention of the deceased, Thomas J held that there was no “substantial compliance” with the formalities prescribed. He distinguished the South Australian cases on the basis that the South Australian Act does not require substantial compliance with the formalities and consequently the South Australian courts have concentrated attention upon proof of testamentary intention on the part of the testator. Whilst acknowledging the need to take a liberal approach, his Honour concluded that on the facts there were substantial departures from the basic formal requirements. Whilst it is not entirely clear from the reasoning it appears that he would have required that it be shown that there was an attempted compliance with the statutory requirements as to manner of execution or attestation before the proviso could be applied.⁴⁰
• In Re Grosert⁴¹ probate was refused of a will which on its face was in proper form, where there was evidence that one of the witnesses attested the deceased’ s signature and then subscribed her own, but on an occasion when the other witness (who later signed) was not present Although Vasta J had no doubt that the instrument expressed the testamentary intention of the testator, he held that there was no “substantial compliance” because the signature of the testator was not subscribed in the presence of two or more witnesses and because it was unclear as to whether the signature of the testator was placed in the presence of either one of the witnesses.

6.16 It does not seem that such an approach to the application of the proviso to s9 in these two cases accords with the approach advocated by Professor Langbein,⁴² although Thomas J in Johnson’s Case acknowledged his indebtedness to that authority and his writings. Nevertheless the decisions reinforce our view that the “substantial compliance” model should not be adopted for the following reasons:⁴³

• The South Australian alternative appears to be functioning well and there is a growing body of practical and judicial experience which can be drawn upon.
• The substantial compliance model is excessively narrow if it requires attempted compliance with the prescribed formalities because this would automatically exclude ignorant testators unless they happen by chance to have complied with the statutory formalities (as construed by the courts).
• “Substantial” is an ambiguous concept, capable of meaning “large” or “complying with substance as distinct from form”.⁴⁴
• The “substantial compliance” doctrine, at least in the form enacted in Queensland, provides no guidance as to the types of non-compliance which are substantial.

III. ARGUMENTS AGAINST A GENERAL DISPENSING POWER

6.17 Although there are many proponents of some form of judicial dispensing power,⁴⁵ others argue against such an amendment to the law.⁴⁶

A. Lack of Certainty

6.18 It is said that such a power will make it less certain whether or not an informally executed will is capable of being admitted to probate and could lead to litigation, expense and delay often in cases where it could least be afforded, i e. where there is a home-made will.

6.19 We are not convinced that such a “floodgates” argument is justified. The present complexity of the law invites litigation where a will is apparently defeated by what a layperson may see as an unjustified technicality. “The rule of literal compliance can produce results so harsh that sympathetic courts incline to squirm”.⁴⁷ The experience in Queensland and South Australia has not revealed a flood of litigation.⁴⁸ In our view the existence of such a remedial power is justifiable in the interests of fulfilling a testator’s intentions. Whilst issues will arise as to whether certain defectively-executed documents were merely drafts which do not represent the testator’s final intentions we consider that the courts will be able to distinguish between those which are and those which are not.⁴⁹ We do make some specific recom-mendations having the cost aspect in mind.⁵⁰

B. Encouragement to Duress and Undue Influence

6.20 Secondly it has been suggested that any power to relax formalities may facilitate duress and undue influence.

6.21 We doubt that this will happen bearing in mind that the court will have to be satisfied as to the genuineness of the transaction before exercising whatever discretionary power of dispensation is available to it. To the extent that there is a risk we consider that it is worth taking in view of what we consider to be the injustice of refusing probate in the sorts of cases which have arisen in the South Australian experience to date.

C. Reduction in Standards

6.22 Finally it has been suggested that the existence of a general dispensing power might lead to a dropping of standards of compliance with formalities with a consequential erosion of those beneficial functions attendant upon will-making formalities which we have discussed in Chapter 2.

6.23 In our view the incentive for due execution will continue even if there is a dispensing power, because due execution will reduce litigation The majority of wills will continue to be professionally prepared and care will be used to ensure due execution.

IV. RECOMMENDATIONS

A. General

6.24 Two general principles or policies have governed the law relating to inheritance under wills since 1540. First: since the law allows people to dispose of their property by will, a testator’ s intentions regarding the disposition of his or her property should be implemented if at all possible. Secondly certain formalities are required for a valid will in order to ensure, as far as possible, that it represents his or her true testamentary intentions. While the two general principles reinforce one another, since they have a common objective - implementation of a testator’s true intentions - they need to be kept in balance: excessive formality could frustrate many testators’ true intentions, while excessive informality could enhance the potential for fraud and undue influence.

6.25 Our assessment of the proper balance between the two general principles leads to the following conclusions:

(a) The, basic formal requirements in s7 should be retained, subject to the amendments recommended in Chapter 4.

(b) The Wills Probate and Administration Act, 1898 should confer on the Supreme Court power to admit to probate or otherwise treat as valid any will, alteration to a will or document expressing an intention to revoke a will, notwithstanding that it has not been executed with the statutory formalities, provided that the court is satisfied that the deceased intended the will, alteration or revocatory document to take effect as such. Extrinsic evidence, including statements made by the testator should be admissible as to the manner of execution and the testator’ s intention.

Our reasons follow.

6.26 The areas where changes have been proposed in Chapters 4 and 5 are recurring instances where; in our view, the existing formalities serve little useful function or where their beneficial effect is clearly outweighed by their capacity for mischief. The implementation of those suggestions will foster predictability without: in our view, appreciably undermining any of the appropriate functions of execution or revocation formalities.

6.27 The general dispensing power is designed to provide an ad hoc examination in other areas where there has been non- compliance with the requisite formalities so that: subject to appropriate safeguards, only those documents which the court is satisfied represent the testator’s true “will” can be admitted to probate. The pattern of decisions in South Australia indicates that the courts are likely to test evidence critically and apply the dispensing power cautiously and responsibly.

B. Requirement for a Document

6.28 We agree with the requirement in the South Australian Act that there should be a “document” as a threshold requirement It avoids the uncertainty and difficulties of oral wills to which we adverted in Chapter 4. To those who say that this condemns the person dying of thirst in a desert or of cold in the icefields of Antarctica to die intestate or without the opportunity of revoking an earlier will,⁵¹ we answer that such is a reasonable price to pay to avoid the problems inherent in disputes about oral wills The need for a document will substantially assist in the resolution of disputes as to whether particular statements were expressions of merely deliberative as distinct from final testamentary intent Since the statutory test would be that the deceased intended the document to constitute his or her will, letters to solicitors requesting the preparation of a will generally will be excluded. We think that it is reasonable that this should be so because testators sometimes change their mind as the result of legal advice and we would not wish to see merely deliberative documents being admitted to probate.

6.29 We do not suggest the additional threshold requirement of signing, Leaving aside Professor Langbein’s example of the testator who is felled by an interloper’s bullet or coronary seizure as his pen descends towards the dotted line,⁵² a “signature” requirement would preclude relief being available in an appropriate case where the testator simply overlooked signing a document he or she proceeded to have witnessed,⁵³ or where mirror wills were accidentally swapped and signed by the wrong testator.⁵⁴ In our view relief should be available in such cases, subject to the requisite proof.

6.30 No other threshold requirement suggests itself to us.

C. Alterations and Revocation of Wills

6.31 We see no reason why a dispensing power should not be available in relation to alterations to wills⁵⁵ and to a document intended to operate solely as an instrument of revocation.⁵⁶ The legislation should make this clear.

D. Criterion for Invoking Dispensing Power and Standard of Proof

6.32 So far as concerns documents to be admitted to probate we support the test suggested in the latter part of the South Australian provision (para 6.9), namely that the court should be satisfied that the deceased intended the document to constitute his or her will It appears to work well, there is a body of judicial exegesis and there is merit in uniformity.

6.33 Since we propose (para 6.31) that this dispensing power should extend to documents which are intended to operate solely as an instrument of revocation⁵⁷ (ie. documents which are not wills) the statute should make it clear that the test in relation to such documents is satisfaction that the deceased intended the document to declare an intention to revoke a will.

6.34 The Law Reform Commissions of Manitoba and British Columbia both favour the adoption of the civil onus of proof, ie on the balance of probabilities.⁵⁸ This civil onus applies generally in probate proceedings at present, including trials where undue influence; fraud or lack of testamentary capacity is raised. The Queensland provision requires substantial compliance and the courts will have to determine the nature and degree of proof to satisfied the court: although it is clear that the court need only be satisfied according to the civil onus.⁵⁹ The South Australian legislation has adopted the criminal standard, that there should be no reasonable doubt that the deceased intended the document to constitute his or her will. The South Australian judicial decisions do not disclose any difficulty with that issue or with the quantity or quality of evidence required to satisfy the court. Nevertheless, it appears to be anomalous and contrary to the principles applied in civil litigation, including probate litigation, to impose a criminal standard of proof. If the validity of a will is opposed for non-compliance with statutory formalities and also because there is a denial of testamentary capacity or assertion of fraud or undue influence; the dispensation from formalities would be determined under a different standard of proof from that required for the other issues. There is little cause for concern that courts will not scrutinise closely the written and oral evidence before exercising the dispensing power. It is recommended that the civil standard provides sufficient safeguards and should be adopted. We assume that the courts would in fact require a standard of proof approximating that for rectification (cf para 7.26).

E. Evidence

6.35 The principles of evidence dealing with declarations made by testators in relation to their wills are rigid and beset by technicalities.⁶⁰ The use of such declarations as a means of proof is severely limited by the application of the hearsay rule. Thus, the declarations of a testator are probably not admissible to prove the execution of the will, although they may be received:

• to identify a testamentary instrument;
• to determine what instruments constitute the will,⁶¹ and whether it (or some instrument of revocation) has been executed with testamentary intention;⁶² and
• as secondary evidence of the contents of lost wills.⁶³

6.36 The Queensland Law Reform Commission dealt with this topic and recommended the inclusion of a provision permitting the admission of extrinsic evidence in cases where compliance with the formalities was in issue. It was stated that such a provision:

is considered to be declaratory and not reforming but the whole subject of the admissibility of extrinsic evidence, particularly of statements made by the testator, is not free of doubt, and this provision is intended to make the law clear at this point.⁶⁴

The recommended provision has been enacted as proviso (b) to s9 of the Succession Act 1981 (Qld), which states:

The Court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument.

6.37 This Commission agrees with such an approach and recommends that extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument should be admissible.

G. Rules of Court

6.38 If our recommendation for a judicial dispensing power is adopted, appropriate rules of court will need to be formulated to govern the procedure to be followed. We would support a provision along the lines of the South Australian rule,⁶⁵ which would allow an application to be made ex parte to the Registrar, supported by consents in writing given by persons who may be prejudiced by the admission of the document to proof. The Registrar would be able to refer any such application to a judge if he or she thought fit.⁶⁶ Subject to this, we would propose that all applications be made in open court before a judge.

6.39 Is there need for some special provision protecting executors whose position is affected by a document which does not comply with the statutory formalities but which may qualify for the exercise of the judicial dispensing power? We have considered this question and concluded that the existing law probably provides ample guidance for an executor in such circumstances. There is a body of case law⁶⁷ which discusses the duties of executors and rights of beneficiaries where there is a will which is of doubtful validity. Those cases relate to wills possibly affected by lack of testamentary capacity or undue influence. Whilst it could be argued that there is a distinction between a formally valid will of a testator whose capacity is in doubt and an informally executed will dependent upon a judicial dispensing power for validity, we see no reason why this case law ought not to be applied to a will whose validity is ultimately dependent upon a favourable exercise of the judicial dispensing power.⁶⁸

1. A compendious expression referring to various statutes prescribing formalities for particutar transaction. Most derive from the Statute in Frauds, 1677.

2. The Report on the Making and Revocation of Wills (1981) by the law Reform Commission of British Columbia suggests (p40) that the strict approach has been taken because the testator is dead and cannot assist in ascertaining the validity of the will and because, if the will is declared invalid, distribution on the resulting intestacy is provided for. With respect, the second reason overlooks the fact that the invalidation of a will may “revive” an earlier will which the testator intended to revoke.

5. Laugbein, Substantial Compliance with the Wills Act (1975) 88 Harvard Law Review 489.

4. A notable example is Helsham J (as he then was) in Re Spence (I 969) 89 WN(NSW) (Pt 1) 641.

5. Eg Murray CJ in Re Roberts (1928) SASR 175 at 178: Ungoed-Thomas J in Re CoIling [1972] 5 All ER 729 at731: Morris J in Re Davies [1951] 1 All ER 920 at 922; R W Goff J in Re Beadle [1974] 1 WLR 417 at 419.

6. Re Bean [1944] 2 All ER 348.

7. Solicitor, Ex parte Fitzpatrick [1924] 1 DLR 981.

8. Re Meyer [1908] P 353: Re Petchell (1945) 46 WALR 62. In some jurisdictions both wills are admitted to probate with the omission from each of any mistaken reference to the other testator. Guardian Trust & Executors v Inwood [1946] NZLR 614: Re Brander [1952] 4 DLR 688. If there were a general power of rectification (see Chapter 7) this type of mistake could also be overcome by resort to it.

9. Re Wozciechowiecz [1931] 5 WWR 283.

10. In Estate of Kolodnicky (1981) 27 SASR 374. Of the 52 applications made in the first 9 years of operation of the South Australian dispensing power (discussed below), 14 were in this category information supplied by South Australian Registrar of Probates.

11. Letter dated 18 December 1985 from Mr Noel J Foley, Deputy Registrar, Probate Division in the Commission.

12. Law Reform Committee Report on The Making and Revocation of Wills, (1980) Cmnd 7902 para 2.3 and Annex 2.

13. Where a solicitor fears the possibility of being sued by a disappointed beneficiary alleging that the deficient execution was the responsibility of the solicitor there may be a positive disincentive upon the solicitor to declare such fact to the world.

14. (1975) pp60-61.

15. Law Reform Commission of Western Australia. Discussion Paper on Wills: Substantial Compliance (1984) para 1.10.

16. Twenty-eighth report of the Law Reform Committee of South Australia Relating to the Reform on the Law on Intestacy and Wills (1974) pp10-11.

17. See the new s12(2) of the Northern Territory Wills Act, which was inserted by the Wills Amendment Act 1984.

18. It commenced to operate on 29 January 1976 and applies to the wills of persons dying on or after that date regardless of when the will was executed or altered: In the Estate of Standley (1982) 29 SASR 490: In the Estate of Kolodnicky (1981) 27 SASR 374.

19. The information set out in this paragraph was supplied by Mr A Faunce-de Latine, Registrar of Probate in the South Australia Supreme Court.

20. Most have been in the last four years, suggesting that the availability of the provision was not generally known in its early years of operation and/ut that practitioners were cautious about invoking it.

21. In the Estate of Standley (1982) 29 SASR 490: In the Estate of Possingham (1985) 52 SASR 227.

22. In the Estate of Williams (1984) 56 SASR 423 at 433.

23. In the Estate of Graham (1978) 20 SASR 198.

24. In the Estate of Williams (1984) 56 SASR 425: In the Estate of Roberts (1985) 38 SASR 524.

25. In the Estate of Graham (1978) 2f) SASR 198 at 205: In the Estate of Williams (1984)56 SASR 423 at 453-4.

26. In the Estate of Kolodnicky (1981) 27 SASR 574: lint the Estate of Dale (1985) 52 SASR 215: In the Estate of Kelly (1983)32 SASR 413.

27. In the Estate of Kelly (1983) 32 SASR 413, 34 SASR 370: In the Estate of Smith (1985)38 SASR 30.

28. In the Estate of Standley (1982) 29 SASR 490.

29. In the Estate of Williams (1984) 56 SASR 423.

30. In the Estate of Standley (1982) 29 SASR 490.

31. In the Estate of Lynch (Matheson J of the Supreme Court of South Australia. unreported, 15 October 1985).

32. The Israeli law and practice is discussed in the report referred to in note 2 at pp.44-46. The Manitoban provision was inserted following the report of the Manitoba Law Reform Commission on “The Wills Act” and the Doctrine of Substantial Compliance (1980).

55. Substantial Compliance with the Wills Act (1975) 88 Harvard Law Review 489 at pp500-l.

34. Id at p531.

35. Crumbling of the Wills Act: Australians Point the Way (1979) 65 American Bar Association Journal 1192 at p1194.

36. Note 33 above at p513.

37. Nelson and Statck, Formalities and Formalism: A Critical Look at the Execution of Wills (1979) 6 Pepperdine Law Review 331 at p332. As to the presumption of due execution. see Re Bladen [1952] VLR 82 at 85 and Hardingham, Neave & Ford, Wills and Intestacy in Australia and New Zealand (1983) at p42.

38. Report on the Law Relating to Wills (QLRC 22) at p7.

39. [1985] 1 Qd R516.

40. This comment is based on the fact that Thomas J singled out In the Estate of Graham (see note 23 above and accompanying text) as a South Australian authority exemplifying the differences in the two Acts.

41. [1985] 1 Qd R 513.

42. Graham’s Case (cf note 41) was hailed by Professor Laugbein as a “great milestone in the progress of probate law” when “for the first time a common law court excused a testator’s failure to comply strictly with the wills act formalities”: Crumbling of the Wills Ace Australians Point the Way (1979) 65 American Bar Association Journal 1192 at p1192. Professor Langbein used the word “substantial” in the sense of complying in substance as in opposed to form (Substantial Compliance with the Wills Act (1975) 88 Harvard Law Review 489 at p490) whereas in the two cases discussed it seems tr, have been interpreted as meaning a substantial or large amount.

43. We have drawn, in part. from the discussion in the Western Australia Law Reform Commission’s Discussion Paper Wills: Substantial Compliance (1984) paras 4.5-4.7 and in the Manitoba Law Reform Commission Report on “The Wills Act” and the Doctrine of Substantial Compliance (1980) pp21-24.

44. See note 42.

45. Such a power exists in Queensland, South Australia Northern Territory, and Manitoba (see Part II of this chapter and its introduction has been recommended by the Law Reform Commission of Tasmania (Report on Reference in the Law of Wills (1985) pill): and the Law Reform Commission of British Columbia (The Making and Revocation of Wills (1981) p54). Its introduction has been canvassed by the Law Reform Commission of Western Australia (see note 45 above).

46. See the Lord Chancellor’s Law Reform Committee Report on the Making and Revocation of Wills (1980) Cmnd 7902 pp3-4. The Victorian Chief Justice’s Law Reform Committee has recently stated its concurrence with such views: Execution of Wills (1984) para 13. Sec also W F Ormiston. Formalities and Wills: A Plea for Caution (1980) 54 ALJ 451.

47. Laugbein, note 35 above at p525.

48. Many of the South Australian cases have involved judicial determination of the ambit of the dispensing power. According to the South Australian Registrar of Probate the introduction of s12(2) in the Wills Act has not imposed an onerous burden on the officers of the Probate Registry: letter to Commission 22 January 1985. Most of the cases to date have been dealt with ex parte. In Israel, where a limited dispensing power has been available since 1965, the experience has been that probate litigation has lessened because advocates are aware of the Court’s dispensing power and thus attach less importance to defects of form: see material cited in the Law Reform Commission of British Columbia Report on the Making and Revocation of Wills (1981) pp44-46.

49. See Beaumanis v Praulin (1980) 25 SASR 423: In the Estate of Smith (1985) 58 SASR 50.

50. See para 6.58.

51. The South Australia Law Reform Committee was concerned about such would-be testators (note 16 above at pill but proceeded on the basis that any record they might leave, through unattested, would qualify for the application of the dispensing power.

52. Substantial Compliance with the Wills Act (1975) 88 Harvard Law Review 489 at 1518.

53. As occurred in In the Estate of Williams (1984) 55 SASR 423. See also In the Estate of Roberts (note 24 above).

54. Cf n8.

55. The South Australian section has been construed as applying to alterations : see n21.

56. Cf Wills, Probate and Administration Act, 1898. section 17(5)(a). Doubts have been expressed as to whether the South Australian provision may not apply to such documents: cf Hardingham, Neave and Ford. note 57 above pp25-56. A document which does no more than validly evidence an intention to revoke a will is not admitted to probate (id at p129 n54).

57. Cf s17(5)(a) of the Wills, Probate and Administration Act. 1898 which is set out at para 2.36. Such documents are not admitted to probate (note 56 above).

58. Manitoba Report, (see note 51) at pp27-28: British Columbia Report. see note 2, at pp5 5-54.

59. Re Johnston [1985] 1 Qd R 516 at 519.

60. The principles are discussed in detail in Phipson on Evidence 15th ed (1982) at para 24-75ff: Cross on Evidence 2nd Australian ed (1978) at para 18.62ff and cf W F Ormiston. note 46 above at pp454-456.

61. Gould v Lakes (1880) 6 PD 1.

62. Phipson, note 60 above at para 24-79.

63. Id, at para 24-882, 24-82.

64. Report on the Law Relating to Succession (1978) QLRC 22 at p7.

65. Rule 61 of in the Rules of the Supreme Court (Administration and Probate Act), 1984. That rule confines the Registrar’s jurisdiction to estates ins here the gross value of the estate does not exceed $10,000. We consider that any monetary limit is arbitrary and would need regular review to keep up with inflation, and that the requirement of consents tp the application is a sufficient protection to justify vesting in the Registrar a jurisdiction in with no monetary limitation.

66. Supreme Court Rules, Part 61 mile 2A.

67. See In Will of Pearce (1945) 46 SR (NSW) 71: In Will of Steward [1964] VR 179: Re Muirhead [1971] p265 and Re Grey Smith [1978] VR 596. There is some difficulty in reconciling the cases and they are discussed in Mason & Handler: Wills, Probate and Administration Service (New South Wales) (1985) para 6077. Reference may also be made in ss40D, 90(2) and 92 of the Wills, Probate & Administration Act, 1898 as to the protection of executors who distribute in on the basis of the validity of a particular grant of Probate and in ignorance of claims that would arise under another document.

68. This paragraph in the penultimate draft of this Report was specifically drawn to the attention of those to whom that draft was submitted (see para 1.9). No one indicated any difficulty with it.