Proposals for Specific Reforms of Execution Formalities

1. There should continue to be no requirement that wills be executed before a notary or other authorised person (4.6)

2. There should be no requirement that wills be deposited in order to be valid.(4.8)

3. There should be no requirement that particulars relating to wills should be registered. (4.10)

4. Oral or “nuncupative” wills should not be introduced. (4.14)

5. Videotape wills should not be introduced. (4.16)

6. Holograph wills should not be accorded validity as a special class of informal wills.(4.23)

7. 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. (4.31)

8. There should continue to be a requirement of the joint presence of two witnesses to the testator’s act of signing or acknowledgment of signature. (4.34)

9. Section 7 should be amended so as to ensure that the requirement that the witnesses attest and sign the will in the presence of the testator is satisfied where one signs after the testator or his or her agent makes his or her signature and before the testator acknowledges that signature and the other signs after the testator has acknowledged that signature. (4.42)

10. The Act should be amended to make clear that witnesses need not sign in each other’s presence. (4.43)

Proposal for Specific Reform of Revocation Formalities

11. A will or any part of a will may be revoked by any writing on the will or any dealing with it, which is done by the testator, or a person by his or her direction and in his or her presence, if the court is satisfied from the state of the document that the writing or dealing was done with the intent of the testator to revoke.(5.12)

General Dispensing Power

12. 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. (6.25)

Rectification of Wills

13. Rectification of a will should be available wherever the Court is satisfied that the will is so expressed that it fails to carry out the testator’s intentions. (7.25)

14. There should be ancillary provisions imposing a time limit on making applications for rectification and giving protection to executors.(7.27)

15. The Supreme Court Rules should provide that a claim relating to the validity of a will and other claims (including claims for the rectification or interpretation of a will) may be joined in the one proceeding unless it would cause undue inconvenience or cost. (7.30)

Gifts to Interested Witnesses

16. (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. (8.28)

17. Sections 12 and 14 of the Wills Probate and Administration Act. 1898 should 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. (8.30)

Revocation by Marriage

18. The general rule providing for revocation of a will by marriage contained in s15(1) of the Wills, Probate and Administration Act, 1898 should be retained. (9.20)

19. (a) Section 15 of the Wills, Probate and Administration Act, 1898 should be amended so as to provide that a will made in contemplation of a marriage, whether or not that contemplation is expressed in the will, shall not be revoked by the solemnisation of the marriage contemplated.

(b) Section 15 should also provide that a will expressed to be made in general contemplation of marriage shall not be revoked by the solemnisation of a marriage. (9.21)

20. In lieu of the existing rule that termination of marriage does not in itself affect provisions in a will made in favour of a spouse:

(a) on the termination of marriage any beneficial gift by will in favour of a former spouse (which expression includes putative spouse) and any power of appointment conferred on a former spouse shall be revoked, and the testamentary appointment of a former spouse as executor, trustee or guardian shall be treated as omitted from the will.

(b) in addition to the result specified in (a), on the termination of marriage any property prevented from passing beneficially to the former spouse or putative spouse shall pass as if that person predeceased the testator, but no class of beneficiaries under the will is to close earlier than it would have done if the gift had not been revoked.

(c) “termination of marriage” means:-


(i) the dissolution of the testator’s marriage (upon the decree becoming absolute);

(ii) the annulment of the testator’s marriage effected in accordance with the law of an overseas jurisdiction where such annulment would be recognised in Australia pursuant to section 104 of the Family Law Act 1975; or

(iii) the making of a decree of nullity in relation to a void marriage in which the testator was a putative spouse.


(d) the result specified in (a) and (b) should not occur -

(i) where the court is satisfied by any evidence, including evidence of statements made by the testator, that the testator did not at the time of the termination of marriage intend that such result should occur, or

(ii) where the gift or testamentary appointment is contained in a will which is republished after the termination of marriage by a will or codicil which evinces no intention to affect the gift or testamentary appointment.


(e) the result specified in (a) and (b) should not affect:

(i) any right of the former spouse to apply for an order for provision under the Family Provision Act, 1982; or

(ii) beneficial gifts made in accordance with contracts binding on the testator.


(f) in these recommendations “gift” has the meaning contained in the existing s13 of the Act. (10.38)

21. No class of persons should have the status of being privileged testators. (11.36)

Minors

22. The minimum age for testamentary capacity should not be reduced below 18. (12.7)

23. The Supreme Court should be invested with jurisdiction to grant capacity to a minor of any age to make a specific will subject to such conditions as the Court thinks fit. (12.12)

24. Section 6 of the Wills, Probate and Administration Act, 1898 should be amended to allow a valid will to be made by a person who is or has been married. (12.13)

25. A will made by a minor who has the capacity to marry but otherwise lacks testamentary capacity should be valid where the will is made in contemplation of a particular marriage and that marriage takes place. (12.14)

26. Section 6(2)(b)(c) and (d) of the Wills Probate and Administration Act, 1898 should be repealed. (12.15)

27. Section 18 of the Wills Probate and Administration Act, 1898 should be amended by making it clear that it extends to alterations by minors made whilst they have capacity to make a will. (12.16)

Application of Reforms Proposed

28. The amendments to the Wills. Probate and Administration Act, 1898 suggested in this Report should apply in the case of deaths occurring after the commencement of the amending Act. (13.1)

29. The power of rectification of wills proposed in Chapter 7 should be available in relation to wills whenever made which have not been admitted to probate when the amendment takes effect.(13.2)