1. PROPERTY THAT MAY BE DISPOSED OF BY WILL

(a) Basis for the model provision

2.1 The basis for the model provision was clause 4 of the draft Wills Act 1994 (Vic). Clause 4 provides:

(1) A person may dispose by will of property to which he or she is entitled at the time of his or her death.

(2) A person may dispose by will of property to which the personal representative of that person becomes entitled by virtue of the office of personal representative after the death of that person.

(3) It does not matter if the entitlement of the person or of the personal representative did not exist at the date of the making of the will or at the date of death.

(4) “Property” in this section includes -


(a) any contingent, executory or future interest in property; and

(b) any right of entry or recovery of property or right to call for the transfer of title of property.


(5) A person may not dispose by will of property of which the person was trustee at the time of death.

(b) The National Committee’s decision

2.2 The National Committee accepted clause 4, but was of the view that the definition of “property” in subclause (4) should be relocated to the definitions provision of the draft model wills legislation.²⁴

RECOMMENDATION

The National Committee recommends that a provision to the effect of clause 4 of the draft Wills Act 1994 (Vic) be included in the draft model wills legislation, save that the definition of “property” in subclause (4) should be relocated to the definitions provision of the draft model wills legislation.

MODEL PROVISION: CLAUSE 6

6 Property that may be disposed of by will

(1) A person may dispose by will of property to which the person is entitled at the time of his or her death.

(2) A person may dispose by will of property to which the personal representative of that person becomes entitled by virtue of the office of personal representative after the death of that person. It does not matter if the entitlement of the person or of the personal representative did not exist at the date of the making of the will or at the time of the person’s death.

(3) A person may not dispose by will of property of which the person was trustee at the time of the death of the person.

(a) Basis for the model provision

2.3 Subclauses 5(1) and (2) of the draft Wills Act 1994 (Vic) were the basis for the model provision. Those subclauses provide:

(1) A will made by a minor is not valid.

(2) Despite sub-section (1) -


(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place;

(b) a minor who is married may make, alter or revoke a will;

(c) a minor who has been married may revoke the whole or a part of a will made whilst the minor was married or in contemplation of that marriage.

(b) The National Committee’s decision

2.4 The National Committee generally accepted subclauses 5(1) and (2). It agreed that there should be no general lowering of the age of capacity (that is, the age of capacity to make a will should remain at eighteen), but that a married minor should be able to make a will.

2.5 The National Committee gave consideration to a number of specific issues in relation to this provision.

(c) Specific issues

(i) Minor who is no longer married

2.6 Clause 5(2)(c) of the draft Wills Act 1994 (Vic) would enable a minor who had been, but was no longer, married to revoke a will already made, or part of it. However, that clause would not enable a minor who had been, but was no longer, married to make a new will.²⁵

2.7 In South Australia, a minor who is, or has been, married may make, alter or revoke a will as if he or she were an adult.²⁶

2.8 The National Committee considered whether a minor who had been, but was no longer, married should still have capacity to make a will. In the view of the National Committee, the capacity of a married minor to make a valid will should properly be seen as an incident of marriage. For that reason, the National Committee does not favour the South Australian approach, whereby a minor who has been, but is no longer, married still retains the will-making capacity acquired upon marriage.

2.9 The National Committee has recommended that, in certain circumstances, the court should be able to authorise the making of a will for a minor.²⁷ The National Committee regards that recommendation as sufficient to cater for those circumstances.

(ii) Wills by minors in contemplation of marriage

2.10 Both clause 5(2) of the draft Wills Act 1994 (Vic) and section 5(3) of the Wills Act 1936 (SA) would enable a minor to make a will in contemplation of marriage, but the will would be of effect only if the contemplated marriage were solemnised.

2.11 The National Committee agrees with that approach.

RECOMMENDATION

The National Committee recommends that a provision to the effect of subclauses 5(1) and (2) of the draft Wills Act 1994 (Vic) be included in the draft model wills legislation so that:

• the age of capacity to make a will generally remains at 18 years of age;
• a married minor may make, alter or revoke a will;
• a minor may make a will in contemplation of marriage, although a will made under this provision would come into effect only if the contemplated marriage were solemnised; and
• a minor who has been married may revoke the whole or any part of a will.

MODEL PROVISION: CLAUSE 7

7 Minimum age for making a will

(1) A will made by a minor is not valid.

(2) Despite subsection (1):


(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place, and

(b) a minor who is married may make, alter or revoke a will, and

(c) a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.




Note. Division 1 of Part 3 provides for the authorisation by the Court of wills by minors.

FOOTNOTES

24. See the discussion of cl 3 of the draft Wills Act 1994 (Vic) and cl 4 of the draft model wills legislation at paras 1.5-1.8 of this Report.

25. This would require court authorisation. See the discussion about court-authorised wills for minors at paras 5.1-5.11 of this Report.

26. Wills Act 1936 (SA) s 5(2).

27. See paras 5.1-5.11 of this Report.