I. THE PRESENT LAW AND ITS HISTORICAL BACKGROUND

8.1 A witness who is a creditor of the testator or the spouse of such a creditor is today competent to witness and pursue payment of his or her debt.¹ But, except in the case of privileged testators,² gifts³ to an attesting witness or the spouse of an attesting witness are void. This is the result of section 13(1) of the Wills, Probate and Administration Act, 1898 which provides:

Where any beneficial gift is given or made by will to a person who attests the execution of the will or to his spouse the gift shall be void so far only as concerns him or his spouse or any person claiming under either of them, but the person so attesting shall be admitted as a witness to prove the execution of the will or to prove the validity or invalidity of the will, notwithstanding the gift.

In this chapter the expression “interested witness” is used to mean an attesting witness who receives a gift under the will.

8.2 Section 13(1) is an adoption of section 15 of the English Wills Act 1837. It might be thought that such provision was enacted as a safeguard to impede those who seek to obtain testamentary benefits for themselves or their spouses by improper means. But the section’s original rationale is to be found in the old law of evidence regarding the competency of witnesses.⁴ Section 5 of the Statute of Frauds 1677 provided that gifts by will of land should be void “unless attested and subscribed in the presence of the... devisor by three or four credible witnesses; or else they shall be utterly void and of none effect”. The rules of evidence determined “credibility” and, until the mid-nineteenth century, evidence affected by interest was automatically rejected by the courts. If a witness was” interested” in the sense of being a creditor or beneficiary, he or she was not” credible” and if as a result a will was insufficiently witnessed, the will was invalid. Credibility was to be determined at the time of probate and not at the time of will-making. It therefore became established practice that if a gift to a witness or debt in favour of a witness was renounced or released before probate this would remove the disqualification of interest. The witness thereby became competent to swear to the will and was, for the purpose of the statute, credible. One drawback of this practice was that the witness was open to bribery from either the intestate heir or those interested in maintaining the will.

8.3 However this subterfuge whereby an attesting witness could become “credible” by renouncing his or her legacy or debt before application for probate was condemned in 1746⁵ and it was declared that” the true time for.., credibility is the time of attestation”.⁶ The solution to the ensuing crisis which “threatened to shake most of the titles in the kingdom that depended on devises by will”⁷ was the enactment of Lord Hardwicke’s Act in 1752.⁸ The Act contains the rules now be found in sections 13 and 14 of the New South Wales Wills, Probate and Administration Act, namely that a witness is “credible” because any disposition in his or her favour is invalidated, and that a creditor-witness whose debt is charged on the estate may give evidence and recover payment At that stage however gifts to the spouse of a subscribing witness were not brought within the scope of the Act.

8.4 The Wills Act 1837 re-enacted the provisions of the 1752 Act and extended the invalidating effect of witnessing to any disposition in favour of the spouse of an attesting witness. It also enlarged the exception in favour of creditors to include those of all classes.⁹

8.5 The Real Property Commissioners whose report led to the enactment of the Wills Act 1837 seemed to think that the automatic avoidance of gifts in favour of attesting witnesses was a blunt and rather arbitrary instrument,¹⁰ but they declined to recommend any change on the grounds that they were not at liberty to suggest alternatives to what they saw as “the general rules of evidence”. But although the rule that a witness was incompetent to give evidence by reason of interest was abolished in the mid-nineteenth century, the statutory avoidance of gifts in favour of attesting witnesses survived its evidentiary origins.

II. FUNCTION AND EFFICACY OF THE RULE RELATING TO ARRESTING WITNESSES

8.6 The gradual and now complete removal of the historical rationale of the rule has not had the effect of leading to its abolition Many consider that the rule serves a useful “protective” function.¹¹ Amongst the reasons advanced¹² is the claim that the rule protects testators from duress, influence or fraudulent conduct:

• by obliging testators to involve totally disinterested persons in the will-making process; and
• by ensuring that witnesses have no incentive to misrepresent the circumstances of execution or the testamentary capacity of the testator.

8.7 But many have questioned the efficacy of the rule in providing any real protection They point to the cases where the rule has worked inequitably in defeating a testator’s intention to provide for particular beneficiaries. As long ago as 1833 the English Real Property Commissioners stated:

It may be thought that the laws on this subject require alteration It may be urged. that the persons by whom a testator is most usually surrounded when he executes his will, are friends and servants whom he naturally wishes to be witnesses, because he can rely upon their knowledge of his capacity, and their inclination to support his will, and at the same time they are among the persons to whom he is desirous of leaving some token of his remembrance; that the law which excludes the testimony of such persons can have no effect in preventing fraud, for the bribe can be given to a dishonest witness as effectually by a sum of money or a security (which a jury may not be able to discover) or by a codicil, as by a bequest in the will that where there is a gift to an honest witness, the amount of his interest will appear, and might be taken into consideration by the jury that the present law has very little of the effect intended by it, that the difference between the interest of a witness who has received his bribe, and of one who expects it, is very slight, and that the provision of the statute which makes void the legacy, is unjust to him, and never is, and it never will be taken advantage of by respectable parties; that persons who undertake the establishment of false wills are usually aware of the law, and it is therefore no protection against them, and it may in some cases operate with great injustice upon honest witnesses.¹³

The view that the rule “is likely to operate more frequently against innocent parties who have accidentally fallen foul of its provisions, than set back wrongdoers”¹⁴ has been asserted by several modern commentators.¹⁵ Indeed, the cases where testators, even acting with the benefit of legal advice, have executed wills using the spouse of a beneficiary as a witness¹⁶ suggest that people are not generally aware of the rule. This lack of awareness means it is unlikely to act as a deterrent to fraud.

8.8 The rule has been interpreted narrowly by the courts,¹⁷ suggesting judicial doubt as to its general efficacy. Nevertheless there continue to be cases where the irrebuttable presumption of invalidity embodied in the rule defeats gifts which were clearly untainted by impropriety.

8.9 In our view the rule in its present form should be repealed. Its unyielding and unnecessary harshness is too blunt an instrument for serving the proper functions of wills formalities. We agree with the following comment about its English counterpart, section 15 of the Wills Act 1837:

That section 15 does provide some such protection is an article of faith rather than knowledge. It is not to be denied that it can operate towards the desired result of keeping the testator’s will free from contamination, but this is not enough if in fact it does more harm than good.¹⁸

We also agree with the following comments by a sub-committee of the Victorian Chief Justice’s Law Reform Committee:

The legal difficulties therefore, which the legislation invalidating gifts to attesting witnesses was originally intended to overcome ceased, more than a century ago, to require the continuance of it in force. Moreover this legislation, since it strikes down in into every gift to every attesting witness, is obviously calculated to inflict much haphazard injustice. It takes no account of whether the witness ought, in justice, to have been provided for in the will. And it draws no distinction between a witness who has used improper means to obtain testamentary benefits, and one whose only fault has been ignorance, either of the existence of the legislation, or else of the inclusion, in the will, of the gift in his favour. Furthermore, as a fraudulent witness-beneficiary may ordinarily be expected to be informed on each of these two matters, the legislation, in those cases in which it operates to bring down a gift, will usually be found to be doing an injustice to an honest witness by defeating a proper exercise of testamentary power in his favour.¹⁹

8.10 In the next two sections we shall turn to the question whether any modified version of the rule should be enacted.

III. OPTIONS FOR REFORM

A. Simple Repeal of the Rule

8.11 Bearing in mind the criticisms of the rule and its doubtful efficacy, it is not surprising that some have seen the appropriate solution to be the simple repeal of the rule. This would permit the witness to receive his or her bequest unless the will is challenged on the usual grounds of lack of capacity, absence of knowledge and approval or undue influence. This option has been enacted in South Australia²⁰ and by the framers of the United States Uniform Probate Code.²¹

8.12 We do not favour this option for various reasons.²²

• We consider that there should remain an impediment to fraudulent or improper practices by the retention of some provision which acts as an inducement to use two disinterested witnesses.
• It is almost impossible to prove a case of undue influence because (unlike the situation with inter vivos transactions) there are no presumptions of influence in relation to will-making and it is only influence amounting to fraud or coercion that is regarded as “undue” in probate.²³

B. Substitute the Intestate Benefit

8.13 Another option is to permit an interested witness or an interested spouse of a witness, who would be entitled to take upon intestacy, to take the share of the estate which that person would have taken upon intestacy or the provision made in the will (whichever is the lesser). This proposal has been adopted in Victoria²⁴ and proposed in Tasmania.²⁵

8.14 We do not favour this option²⁶

• It is arbitrary because it takes no account of the circumstances of the particular case.
• It does nothing for the witness who is not an intestate successor.
• To the extent that the general rule (or some adaptation of it) should be retained, the Victorian solution detracts from the ability to detect fraud. A fraudulent relative may take advantage of such a provision to take a portion of the estate without dispelling the suspicion arising out of his or her attestation of the will. He or she may “lie in the weeds” and assert rights under the will if it appears that the fraud will remain undiscovered. There is little merit in awarding a consolation prize to a person whose fraud is unsuccessful or whose actions are such that he or she cannot prove lack of influence.
• The Family Provision Act, 1982 will provide relief in some deserving cases of dispossessed beneficiaries.

C. Modification of the Rule

8.15 Alternative solutions could encompass the exclusion of the rule with reference to spouses,²⁷ superfluous witnesses²⁸, small gifts²⁹ and proper remuneration payable to professionals acting as executors or trustees.³⁰ It has also been suggested that the rule should be extended to the de facto partners of attesting witnesses³¹ and professional advisers of the testator.³² We shall refer to these options in the course of our general recommendations in section IV of this chapter.

D. Special Requirements for Attesting Witnesses Who are Beneficiaries

8.16 A solution which has found favour in Canada has been to retain the rule but to create an exception that would allow the gift to take effect if a judge is satisfied to an appropriate degree about the gift’s propriety.³³ The Victorian legislation adopts a similar approach in that it provides that an interested witness may apply to take the gift in the will, in lieu of his or her intestate benefit: see para 8.13.³⁴ These solutions clearly put the onus of establishing the propriety of conduct on the witness claiming a benefit under the will However they express the test of propriety in ways which may be significantly different in their application

• In Ontario the Court has to be satisfied that the witness or spouse “did not exercise any improper or undue influence upon the testator”;³⁵
• In British Columbia the Law Reform Commission has recommended that the court be satisfied by the person seeking to uphold the gift that “the testator knew and approved of it”;³⁶
• In Victoria the Court has to be satisfied “that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of the exercise of any undue influence by any person”.³⁷

We shall discuss these proposals in the next section.

IV. RECOMMENDATIONS

8.17 For the reasons set out in para 8.9 we recommend the repeal of the rule in its existing form.

8.18 However we consider that the law of wills should retain a provision which will tend to protect testators by requiring interested witnesses to establish the propriety of their gift unless relieved by the written consents of the persons entitled to benefit from the avoidance of the gift. This will replace the existing rule of automatic avoidance with a more finely-tuned remedy. The approach we favour is the fourth one discussed above (para 8.16), but we would modify the structure of the remedy so that the interested witness should be able to initiate proceedings to prove the propriety of the gift if he or she is unable or unwilling to get the consent of those who would benefit from the gift’s avoidance. We do not consider that estates should automatically be involved in the expense and trouble of litigation where a beneficiary is an interested witness, because in many cases the genuineness of the gift will be sufficiently obvious. Honest and deserving parties should not be forced unnecessarily to litigation in order to disprove improper conduct. Obviously minors or other legally incapable (“disable”) persons will be unable to waive their rights and the interested witness will have no alternative but to initiate proceedings where they are involved.

8.19 If such proceedings are brought it is, in our view, appropriate that the executor should be the defendant, and that the attesting witness should have the onus of establishing the propriety of the gift. The executor has a concern to know the persons to whom the estate should be distributed, and his or her joinder as defendant in the application will obviate the necessity of searching out and serving all those who may be entitled to benefit from the avoidance of the gift in favour of the interested witness. Whilst the executor may choose to enquire as to the attitude of those persons about the application, he or she need not do so. Unless and until the question of the propriety of the interested witness’s gift is established by appropriate consents or a court order, the executor should be at liberty to administer the estate on the basis that the interested witness’s gift is invalid,³⁸ subject to the proviso that no part of the estate which was the subject of a gift in favour of an interested witness should be distributed prior to one month after the executor has notified that witness of his or her intention to do so. This proviso would allow the interested witness to take steps to obtain the appropriate consents or commence the necessary proceedings (including, where necessary, proceedings for an interlocutory injunction to prevent distribution) in order to preserve his or her position. We advert later (para 8.26) to a costs sanction which might be particularly appropriate in such cases where the estate might have been spared the cost of the application had the beneficiary chosen not to attest the will.

8.20 Since there will be cases where it is desirable that issues of the general validity of the will be determined concurrently with issues relating to the validity of specific gifts to interested witnesses, the Rules should, we suggest, make it plain that applications to establish the propriety of gifts may be determined concurrently with the application for probate. Indeed we would anticipate that the judicial discretion as to payment of costs would be exercised in an appropriate case against persons who cause the estate to suffer two sets of litigation where one would suffice.

8.21 What should be the appropriate test of propriety? In our view the three models discussed in para 8.16 are all deficient We agree that the beneficiary whose gift is prima facie avoided on the ground that the beneficiary is an interested witness should have to establish that the testator knew and approved of the gift, but that is a matter which has to be proved before any part of a will is admitted to probate and it is something that is almost invariably established by reference to the strong presumption flowing from proof that the will has been read by or to the testator.³⁹ Nor have we any difficulty with a provision that would require the interested beneficiary to establish the absence of undue influence.⁴⁰ Our concern lies in the fact that, with the possible exception of the Ontario Act which refers to “improper or undue influence”,⁴¹ a propriety test which confined itself to undue influence as that concept is understood in probate matters would give virtually no protection at all. For the reasons stated in para 8.12 undue influence is virtually a dead letter in the probate field. We therefore suggest that, in this context, the interested beneficiary who has not the requisite consents should have to establish that that testator knew and approved of the gift, and that it was the free and voluntary disposition of the testator.⁴²

8.22 Should the new provisions apply to interested witnesses with respect to all categories of beneficial gift? We think so. It would be very difficult to define a “small” gift and in any event consent to such gifts will probably normally be given So far as gifts in the form of a charging- clause in favour of a professional adviser are concerned, we see no compelling reason why general standards of conduct should be relaxed in favour of professional advisers.⁴³ Furthermore the Queensland model of exempting directions for the payment of “proper” remuneration gives rise to problems of definition.

8.23 Should the new provisions apply to superfluous witnesses, ie when there are at least two disinterested witnesses.? The presence of a third, interested witness, may arouse the suspicion of the court if knowledge and approval are put in issue but it should not trigger off the rights proposed to be created in this chapter. If a will is sufficiently attested by two disinterested witnesses there is, in our view, no sound reasons why additional witnesses who happen to be interested should be put in any different position than beneficiaries generally. The adoption of this proposal will also obviate the need to determine whether a superfluous signature was that of an attesting witness.⁴⁴

8.24 Should the new provisions extend to the spouses, de facto spouses, or relatives of attesting witnesses, or to other categories of persons who might have some position of special advantage or whose existence as beneficiaries might detract from the disinterestedness of an attesting witness.? One problem with the existing rule is that it can be infringed without the witness being aware of doing so, since a witness need not be shown or told about the operative terms of the will.⁴⁵ But, unlike the existing law, what we propose is not a rule of automatic avoidance of gifts but simply one which requires the propriety of certain gifts to be established. We consider that the operation of the new interested witness provision which we propose should be extended to spouses.⁴⁶ Such persons are likely to have an identity of financial interest, if not also a legitimate expectation of succession. So far as de facto spouses are concerned, we acknowledge that there will be cases where such a relationship clearly existed and where the rationale underlying the extension of our proposed rule to legally married spouses would apply there also. However we perceive real difficulties of proof arising if the courts are to determine whether, at the time a will was made (which could be many years before death, a person was in a de facto relationship with an attesting witness. Furthermore, it would create a considerable burden on executors to have to enquire whether there existed a de facto relationship between an attesting witness and any beneficiary, yet such enquiry might need to be made if the executor were to avoid distributing an invalid gift (cf para 8.19). Because of these problems we do not recommend extension of our proposal to persons in de facto relationships (cf 10.23 below). Whilst it is hard to know where to draw the line - particularly since the new provision which we propose has sufficient flexibility to disregard the fact that some testators might remain ignorant of the extension to new categories other than legally married spouses - we suggest that other categories of beneficiaries should not be embraced.

8.25 We believe that nothing in this chapter would act as an encouragement to a person who knows he or she is a beneficiary to become an attesting witness. The uncertainty of that person s ultimate rights and the procedural steps he or she might have to follow would be sufficient to deter anyone aware of the legislative scheme from becoming an attesting witness.

8.26 Any legislative reform will have to be accompanied by rules of court which would stipulate how the attesting witness or spouse is to institute proceedings and provide how those proceedings are to be conducted. In addition we propose that rules of court indicate that, prima facie, the costs of any application be borne by the attesting witness. Obviously there will be cases where this is not appropriate, eg if the size of the gift and the relationship of the testator and beneficiary made it plain that the gift was a proper one. The court should retain power in such cases to throw the burden of costs upon the estate. However, in that event, there may be circumstances where it is appropriate that the burden of such costs order should be borne by one or more persons to the exclusion of others, eg where some of a class of beneficiaries are willing to assent to the gift in favour of the attesting witness and others unreasonably refuse. To cater for that eventuality the rules should confer discretion to order that the burden of any costs ordered against the estate may be borne by one or more persons to the exclusion of others.⁴⁷

8.27 A written consent which would operate to save a gift in favour of an attesting witness or the spouse of an attesting witness (para 8.18-8.19) would in all probability constitute a “conveyance” dutiable under the Stamp Duties Act, 1910.⁴⁸ This result would be quite incongruous since the consent would merely operate to vest the gift in favour of the attesting witness or spouse of attesting witness whom the testator intended to benefit under the will It would also tend to operate as a disincentive to the relevant parties agreeing, in a proper case, to allow the gift to stand. For that reason we propose that the amendment should expressly exempt any such document from stamp duty.

8.28 We therefore recommend that

(a) section 13 of the Wills, Probate and Administration Act, 1898 should be repealed.

(b) in lieu, the Act should provide that a gift under a will in favour of a person who is either an attesting witness to the will or the spouse of such witness shall be void unless all the persons entitled to benefit from the avoidance of the gift, being sui juris, consent in writing to the distribution of the gift according to the will or unless the court is satisfied that the testator knew and approved of the gift and that it was the free and voluntary disposition of the testator.

(c) no part of an estate which is the subject of a gift avoided pursuant to (b) shall be distributed prior to one month after the executor has notified the first mentioned person in (b) of his or her intention to distribute.

(d) where there are at least two attesting witnesses who are not beneficiaries or the spouse of a beneficiary, a gift under a will shall not be avoided by the provision recommended in (b).

(e) in this recommendation, “gift” is defined as in the existing s13 of the Act, and “executor” includes administrator to whom letters of administration are granted with the will annexed.

(f) A written consent given pursuant to (b) should not be liable to duty under the Stamp Duties Act, 1920.

(g) rules of court should be formulated:


(i) to make plain that an application to the court pursuant to (b) may be determined concurrently with the probate proceedings relating to the will:

(ii) to provide that any proceedings pursuant to (b) shall be brought against the executor and to provide how such proceedings may be instituted and conducted;

(iii) to provide that, unless the court otherwise orders, the burden of the costs of proceedings pursuant to (b) shall be borne by the applicant; and

(iv) to provide that the court may, subject to the giving of such notice as it thinks fit, order that the burden of any costs ordered to be paid by the estate may be borne by one or more persons to the exclusion of others.

Competence of Witnesses

8.29 Section 12 of the Wills, Probate and Administration Act, 1898 provides:

If any person who attests the execution of a will is at the time of the execution thereof or at any time afterwards incompetent to be admitted a witness to prove the execution thereof such will shall not on that account be invalid.

The Law Reform Commission of Queensland reported that:

It is probable that there is no need whatever to make any provision in a Succession Act regarding the competency of witnesses, as the general law of evidence would appear to be sufficient; but the dropping of the existing provision without replacement might be misunderstood and accordingly a short general provision has been included which leaves the matter of the competency of a witness to the general law of evidence, applicable in civil proceedings. We feel it proper, however, to repeat the recognised rule that a blind person may not be a witness to the execution of a will.⁴⁹

For similar reasons the Commission also recommended the repeal of the Queensland counterpart of s14, which enables creditor-witnesses and executor-witnesses to prove execution of wills under which they might benefit These provisions were replaced, in the Queensland Succession Act 1981, by s14 which provides:

Any person competent to be a witness in civil proceedings in court, other than a blind person, may act as a witness to a will.

8.30 We agree, for the same reasons, and recommend that sections 12 and 14 of the Wills Probate and Administration Act, 1898 be replaced by a provision which enacts that any person competent to be a witness in civil proceedings in court, other than a blind person, may act as a witness to a will.

V. POSTSCRIPT: UNDUE INFLUENCE AND THE LAW OF WILLS

8.31 Gifts other than by will which are made in favour of persons who are in a relationship of influence over the donor will be set aside in equity unless the donee satisfies the court that no “undug’ influence has been used. For the purpose of this equitable doctrine, certain classes of relationship are presumed to be ones of influence (eg doctor and patient, solicitor and client, parent and child). In other cases the relationship must be established by evidence. But once the relationship is shown to be present the donee must satisfy the court that the gift was the independent and well-understood act of a person in a position to exercise a free judgment. The jurisdiction is broad and flexible and the court will look at all relevant factors, including the size of the gift, the presence or absence of independent advice, and the strength of the dominance in considering whether to allow the gift to stand.

8.32 But for gifts by will there are no presumptions of influence: persons wishing to challenge the validity of gifts by will on this ground must prove that the particular relationship between the testator and the beneficiary was one in which the latter exercised dominance. Furthermore, “undue” influence in the probate area means coercion. No amount of persuasion or pressure that falls short of inducing a testator to do that which he or she does not wish to do will suffice to invalidate the will.⁵⁰ The result is that undue influence in probate matters is virtually a dead letter.

8.33 Section 13(1) (para 8.1) and the proposals which we make in this chapter are, in one sense, blunt and limited attempts to give to the law of wills some of the controls which the equitable doctrine of undue influence provides over gifts by living persons. So too are the rules which the courts have developed to test whether a will prepared by a beneficiary has truly been known and approved by testator.⁵¹ But these controls fall far short of the equitable doctrine.

8.34 The strict law of probate thus permits if not encourages pressure, particularly on the old and feeble. This has lead one of our consultants⁵² to suggest that the equitable principles, including presumptions of influence, should be introduced into the law of wills. Of course beneficiaries are frequently and naturally the very persons who do have degrees of influence over testators, if only because they are persons who care for them in their declining years. Testators would remain free to favour them, but the equitable rules would encourage the use of independent advisers to a greater degree than at present. Against this, the extension of the equitable rules into the probate area would undoubtedly lead to much litigation which would supplement the disputes under the Family Provision Act, 1982 which is the main vehicle through which allegations of “undue” influence are attempted to be ventilated at present. The Queensland Law Reform Commission has, in a different context, expressed the view that “it is... undesirable to offer too much scope for litigation in an area where family passions regrettably all too often override reasonable expectations”.⁵³ Such comments may well apply to the suggestion discussed in this paragraph

8.35 With some hesitation the Commission has decided to make no recommendations in this area at this stage. They would probably go beyond the scope of the reference The Commission would however welcome further comments on this vexed issue.

1. Wills, Probate and Administration Act, 1898 ss13(3) and 14(1).

2. Id s13(2). See chapter 11.

3. “Gift” is defined in s13(3) to include a devise, legacy, estate. interest or appointment of or affecting any real or personal estate, but does not include a charge or direction for the payment of any debt The disability extends only to a beneficial gift Re Bernard (1909) 9 SR(NSW) 417: Re Kock [1931] VLR 263.

4. The evidentiary origin of the statutory rules is discussed by Yale, Witnessing Wills and Losing Legacies (1984) 100 LQR 453.

5. Holdfast, dem Anstey v Dowsing (1746) 2 Strange 1253 (93 ER 1164). This decision led to great consternation: see generally, Yale, note 4 above.

6. 2 Strange 1253 at 1255 (93 ER 1164 at 1165).

7. Blackstone. Commentaries 4th ed (1876) vol II p332.

8. 25 Geo 2, c6.

9. Wills Act 1837, ss 14, 15, 16. These sections were adopted by New South Wales in 1840 by 3 Vict No 5.

10. See Fourth Report pp19-20.

11. As to the “protective” function in wills formalities, see para 2.48.

s12. See eg Re Royce’s Will Trusts [1959] Ch626 at637; Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 at 16; In the Estate of Bravda [1968] 1 WLR479 at 492: Lord Chancellor’s Law Reform Committee Report on The Making and Revocation of Wills (1980) Cmnd 7902 para 2.15.

13. Fourth Report at pp19-20.

14. Davey, The Making and Revocation of Wills (1980) Conveyancer 64 at p76.

15. Gulliver & Tilson, Classification of Gratuitous Transfers (1941) 51 Yale Law Journal 1 esp at pp11-12: Mullady. The Prohibition Against Interested Witnesses Taking under the Will: An Outdated Doctrine (1972) 9 Houston Law Review 1078; Yale, note 4 above. esp at pp462-467.

16. See eg Ross v Caunters [1980] Ch 297.

17. See eg Gurney v Gurney (1855) 3 Drew 208 (61 ER 882): In re Trotter [1899] 1 Ch764. And In the Estate of Bravda [1968] 1 WLR 479 and In the Will of Evans [1964-5] NSWR 286.

18. Yale. Note 4 above at p465.

19. See Victorian Statute Law Revision Committee, Report upon the proposals in the Wills (Interested Witnesses) Bill 1971 (1972) at p12.

20. Wills Act 1936, s17(1). This was enacted in 1972 following recommendations of the Law Reform Committee of South Australia in its Sixth Report on Section 17 of the Wills Act 1936-1966. The Committee also recommended various procedural reforms designed to assist any party wishing to have such a will proved in solemn form.

21. Uniform Probate Code, 1969. s2-505. The official comment suggests that any substantial gift in favour of a witness would be a suspicious circumstance allowing the gift to be challenged on the grounds of undue influence. For the reasons discussed in para 8.12 of our Report, such a provision would give little protection in view of the Australian concept of undue influence in wills.

22. We have drawn substantially upon the discussion by the Victorian Chief Justice’ s Law Reform Committee in a document which is an appendix to the Victorian Statute Law Revision Committee’s Report upon the proposals contained in the Wills (Interested Witness) Bill 1971 at p12, and the Law Reform Commission of British Columbia in its Report on The Making and Revocation of Wills (1981) at p78.

23. Hall v Hall (1868) LR 1 P& D 418 at 482; Parfitt v Lawless(1872) LR2 P& D 462: Perry v Jones (Holland J 19.10.1983. unreported at pp38-40). The court will however look with considerable suspicion at cases where the person who prepared the testator’s will receives a benefit under it. The evidence relating to knowledge and approval will be carefully scrutinised in such cases: see Hardingham, Neave & Ford. Wills and Intestacy in Australia and New Zealand (1983) para 304.

24. Wills Act 1958. s13.

25. Law Reform Commission of Tasmania Report on Reform in the Law of Wills (1983) Report No.35 pp 11-12. It is also a fairly common solution adopted by several of the American states: see Mullady. note 15 above.

26. Most of the reasons given are drawn from the Law Reform Commission of British Columbia Report on The Making and Revocation of Wills (1981) pp78-9.

27. This solution was discussed. but not recommended by the Lord Chancellor’s Law Reform Committee in its Report on the Making and Revocation of Wills (1980) Cmnd 7902 para 2.16. It has been recommended by the Law Reform Commission of Tasmania in its Report on the Reform of the Law of Wills (1983) pp11-12.

28. See Queensland Succession Act 1981, s15(2); Victorian Wills Act 1958, s13(3)(c)(~ Western Australian Wills Act, s13(2): New Zealand Wills Amendment Act 1977, s3; United Kingdom Wills Act 1968, si. The need for such reform (if not encompassed by a wider reform is demonstrated by In the Estate of Bravda [1968] 1 WLR 479 where there were four attesting witnesses two of whom were beneficiaries. Those beneficiaries had their gifts avoided by the section One judge in that case described the conclusion he had reached as “monstrously unfair” (Russell U at 492) and all indicated that the application of the section clearly offended their sense of justice. Reform along the lines of the English Act was advocated by Helsham J (as he then was) in In Estate of Stanley Wright (unreported. 9 May 1974). It has been pointed out that the statutory reforms do not meet all of the problems arising out of Bravda’s Case: Tiley. Attesting Witnesses - Some Remaining Problems (1968) 112 Solicitors’ Journal 994.

29. This suggestion was discussed but rejected by the Lord Chancellor’s Law Reform Committee in its Report on The Making and Revocation of Wills (1980) Cmnd 7902 para 2.16. The Victorian Statute Law Revision Committee suggested such a provision in relation to gifts of less than S500 (Report upon the proposals contained in the Wills (Interested Witnesses) Bill 1971 (1972) para 11) but this suggestion was not adopted in the ensuing Victorian legislation.

30. See Queensland Succession Act 1981. S15(1).

31. The question was discussed without any recommendation in this Commission’s Report on De Facto Relationships (1983) NSW LRC 36 pars 12.48.

32. This question was discussed without any recommendation by the Law Reform Commission of Tasmania in its Working Paper on Reform in the Law of Wills: The Making and Revocation of Wills (1981) by C M Bates at p16a.

33. Ontario Succession Law Reform Act, 1977. s12(3) (adopting the proposal of the Ontario Law Reform Commission in its Report on The Proposed Adoption in Ontario of the Uniform Wills Act (1968) pp31-32). A similar proposal has been made by the Law Reform Commission of Manitoba in its Report on “The Wills Act” and the Doctrine of Substantial Compliance (1980) p29 and the Law Reform Commission of British Columbia in its Report on The Making and Revocation of Wills (1981) pp79-80. A similar type of proposal was also made by Justice (the British Section of the International Commission of Jurists) in its report on Home Made Wills (1971) p7-8.

34. Administration and Probate Act 1958. Ss100-101.

35. Succession Law Reform Act, 1977, s12(3). The Law Reform Commission of Manitoba (note 33 above) has recommended the introduction of a similar provision

36. Note 33 above.

37. Administration and Probate Act 1958. s101(1). In an application the applicant shall not he entitled to rely on any evidentiary presumption to prove or assist in proving that the testator knew and approved of the contents of the will : s101(3). For a successful application under the section, see Re Emanuel deceased [1981] VR 113.

38. As in the present law, the void gift might be saved by the republication of the will by a codicil attested by other witnesses: Anderson v Anderson (1872) 13 Eq 381; Re Silverston [1949] Ch 270.

39. See Hardingham, Neave and Ford. Note 23 above para 303. The Victorian solution of depriving the interested witness of any evidentiary presumption to prove or assist in proving that the testator knew and approved of the contents of the will (see note 37 above) is in our view too harsh in that it is difficult to see how the witness could ever prove the matter without the benefit of the presumption, the witness may have no personal knowledge of the facts concerning the preparation of the will, and it maybe difficult to lead evidence on such matters after a lapse of time.

40. At present, the onus of proof lies upon a party alleging undue influence(Hardingham, Neave & Ford. Note 23 above pars 307).

41. Note 35 above.

42. We are indebted to the late Mr Justice Hutley for the formulation of the last mentioned requirement We recognise that the second limb of the test almost certainly encompasses the first, but feel it is appropriate that the two stages of the road to propriety should be clearly signposted.

43. Cf Re Shannon [1977] 1 NSWLR 210.

44. As to the complexity of such enquiry, see Hardingham, Neave & Ford. note 23 above para 217.

45. The witness need not even know that the document is a wilt In Estate of Benjamin [1934] 150 LT 417.

46. One submission which we received (from M J Hurrell) suggested that the existing rule about intended witnesses should be relaxed where one witness is the spouse of the testator and the will leaves the matrimonial home to that spouse. We would anticipate that such a gift would rarely be put in issue and that in all but extreme cases it would pass the propriety tests which we recommend. In our view it would unduly complicate the legislation to except such a gift automatically and we could conceive of circumstances where automatic exception would be undesirable.

47. Cf Supreme Court Act, 1970 s124(j): Supreme Court Rules Part 52 rule 57. Since the gift tainted by having been made in favour of an attesting witness is a residuary gift, any such new rule should extend to persons who are not themselves beneficiaries under the will.

48. Stamp Duties Act, 1920 s65.

49. Report on the Law Relating to Succession (1978) QLRC 22 at p9.

50. See authorities cited in note 23 above and Meagher, Gummow& Lehane. Equity Doctrines & Remedies 2nd ed (1984) chapter 15. .esp para 1507.

51. See Hardingham, Neave & Ford. note 23 above. para 304.

52. The late Mr Justice Hutley. See also the report on Home Made Wills, note 33 above. para 14.

53. Report on the law relating to succession (1978) p19.