1. HOW A WILL SHOULD BE EXECUTED
(a) Basis for the model provision
3.1 The basis for the model provision was clause 7 of the draft Wills Act 1994 (Vic). Clause 7 provides:
(1) A will is not valid unless -
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and
(b) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(c) at least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator must be made with the intention of executing the will; but it is not essential that the signature be made at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(5) Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
(b) The National Committee’s decision
3.2 The National Committee accepted clause 7. It agreed that the required number of witnesses must be present when the testator signs or acknowledges the will, but that they need not attest and sign the will in the presence of each other. It also agreed that there should no longer be a requirement that a will be signed “at the foot or end thereof”.28
MODEL PROVISION: CLAUSE 8
8 How a will should be executed
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and
(c) at least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator must be made with the intention of executing the will, but it is not essential that the signature be made at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
2. WITNESSES NEED NOT KNOW THE CONTENTS OF WHAT THEY ARE SIGNING
(a) Basis for the model provision
3.3 The basis for the model provision was clause 8 of the draft Wills Act 1994 (Vic). Clause 8 provides:
A will which is executed in accordance with this Act is validly executed even if a witness to the will did not know that it was a will.
(b) Background
3.4 The requirement that a witness had to be aware that the document he or she was witnessing was a will was abolished in England in 1837. The National Committee sees no valid reason for its re-introduction.
(c) The National Committee’s decision
3.5 The National Committee accepted clause 8. In the National Committee’s view, a testator should have the right to make a will without having to disclose its contents to a witness, and without even having to disclose to a witness that the testator is making a will. The purpose of the witnessing requirement is simply to verify the authenticity of the testator’s signature, and to ensure that the testator is signing voluntarily.
MODEL PROVISION: CLAUSE 9
9 Witnesses need not know the contents of what they are signing
A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that it was a will.
3. WHEN COURT MAY DISPENSE WITH THE REQUIREMENTS FOR EXECUTION OF WILLS
(a) Basis for the model provision
3.6 The basis for the model provision was clause 9 of the draft Wills Act 1994 (Vic). Clause 9 provides:
(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, the exercise of a power of appointment, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute his or her will, the exercise of a power of appointment, an amendment to his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.
(3) This section applies to a document whether it came into existence within or outside the State.
(4) Rules of Court may authorise the Registrar to exercise the powers of the Court -
(a) without limit as to the value of the interests affected, in all cases in which those affected consent; and
(b) even if there is no consent, in all cases in which the value of the interests affected does not exceed a sum specified in the Rules.
(b) Background
3.7 The Issues Paper, The Law of Wills,29 described the different provisions existing in the various Australian jurisdictions that enable the court to admit to probate a will that has not been executed in compliance with the requirements of the wills legislation that deal with the form of a will.
3.8 There has been strong support expressed for the adoption by all jurisdictions of the South Australian provision, which is the basis of the proposed Victorian provision, and was also the basis of the provisions in Tasmania, Western Australia and New South Wales. The Tasmanian and Western Australian provisions,30 however, require a high standard of proof - by including the words “that there can be no reasonable doubt”. The standard of proof in Western Australia is that the court be satisfied “that there can be no reasonable doubt that the deceased intended the document to constitute his will”, whereas the South Australian provision now only requires the court to be “satisfied” of the testator’s intention31 (as in the New South Wales provision32 and clause 9 of the draft Wills Act 1994 (Vic)).
3.9 The Queensland requirement that there must be “substantial compliance”33 has proven to be so great a stumbling block that the provision has had poor success, and cases that would almost certainly have been found to come within the dispensing power in South Australia, New South Wales, Tasmania or Western Australia have failed in Queensland.34
(c) The National Committee’s decision
3.10 The National Committee was generally in favour of a dispensing power as found in clause 9 of the draft Wills Act 1994 (Vic), subject to giving consideration to the following subsidiary issues.
(d) Subsidiary issues
(i) The requisite standard of proof
3.11 In the National Committee’s view, the civil standard of proof that a court is “satisfied” of the testator’s intention should be adopted.
(ii) Definition of “document”
3.12 The National Committee agreed that the definition of “document” should cover computer-generated material. It agreed to incorporate into the draft model wills legislation the definition of “document” that is found in section 21(1) of the Interpretation Act 1987 (NSW), which provides:35
“document” means any record of information, and includes:
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.
This expanded definition of “document” should initially apply only to the dispensing power and not to the whole of the draft model wills legislation.36
(iii) Application of provision to part of a document
3.13 The National Committee agreed that the dispensing power should apply to “a part of a document” as well as to “a document”. The National Committee considered the dispensing power in section 11A of the Wills Act 1968 (ACT) to be better drafted than clause 9 of the draft Wills Act 1994 (Vic) in so far as it refers to “a document, or a part of a document”. Section 11A provides:
(1) A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.
(2) In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to -
(a) any evidence relating to the manner of execution of the document; or
(b) any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.
(iv) Registrar’s jurisdiction
3.14 The National Committee is of the view that clause 9(4) of the draft Wills Act 1994 (Vic), which deals only with procedural matters, should be omitted from the draft model wills legislation.37
MODEL PROVISION: CLAUSE 10
10 When Court may dispense with the requirements for execution of wills
(1) A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will, or the revocation of such a will, if the Court is satisfied that the deceased person intended the document to constitute his or her will, an alteration to his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.
(3) This section applies to a document whether it came into existence within or outside the [insert name of jurisdiction].
(4) For the purposes of this section:
document means any record of information, and includes:
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.
4. PERSONS WHO CANNOT ACT AS WITNESSES TO WILLS
(a) Basis for the model provision
3.15 The basis for the model provision was clause 10 of the draft Wills Act 1994 (Vic). Clause 10 provides:
A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
(b) The National Committee’s decision
3.16 The National Committee accepted clause 10. In its Report, Reforming the Law of Wills,38 the Victorian Law Reform Committee preferred the expression “unable to see” to “blind”, which is used in the Queensland precedent.39 It was concerned that the Queensland provision invited questions as to the definition of “blind”, and did not deal with the possibility of a person who was only temporarily unable to see.40
MODEL PROVISION: CLAUSE 11
11 Persons who cannot act as witnesses to wills
A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
5. CAN AN INTERESTED WITNESS BENEFIT FROM A DISPOSITION UNDER A WILL?
(a) Background to the interested witness rule41
3.17 The original rule of evidence law was that a person, and that person’s spouse, were disqualified from giving evidence in a cause in which either of them was interested. A consequence of this was that if a beneficiary, or the spouse of a beneficiary, witnessed a will, that witness could not testify to the execution of the will in probate proceedings. The result was that sometimes a will could not be admitted to probate at all and the testator’s obvious intention was thwarted. By the Wills Act 1752 (UK)42 the rule was changed, enabling the witness to give evidence in probate proceedings, but disqualifying the witness and the witness’s spouse from taking a benefit under the will. The former rules of evidence were reformed in the nineteenth century, in particular, by the Evidence Act 1851 (UK) and the Evidence Amendment Act 1853 (UK). However, the disqualification of beneficiary witnesses remained embedded in the Wills Act 1837 (UK) and a revised justification for it was posited - namely, that if a witness or a witness’s spouse were allowed to take a benefit under a will, an opportunity for undue influence would arise.
(b) Problems with the interested witness rule
3.18 The difficulty with the rule is that it does not distinguish between the innocent and the guilty witness. The editors of the Uniform Laws Annotated comment on the abolition of the interested witness rule in the Uniform Probate Code (US) as follows:43
Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator’s family on a home-drawn will would no longer be penalised.
This change does not increase appreciably the opportunity for fraud or undue influence. A substantial gift by will to a person who is one of the witnesses to the execution of the will would itself be a suspicious circumstance, and the gift could be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as witness, but to use disinterested witnesses.
3.19 In all Australian jurisdictions except South Australia and the Australian Capital Territory neither a witness to a will, nor the spouse of a witness to a will, may take any benefit under the will. The rule was abolished in South Australia and the Australian Capital Territory in 1972 and 1991 respectively and it is not apparent that the abolition of the rule has been the cause of concern in either jurisdiction since then.
3.20 The harshness of the rule has been addressed in a piecemeal way by legislatures and the judiciary. In some States the rule does not apply if there is a sufficiency of disinterested witnesses, and in Victoria there is currently a provision that allows an interested witness to take the lesser of an intestacy share or the benefit left by the will.44 In New South Wales there is a provision that allows the witness to approach the court for relief.45 In some States solicitors who have witnessed the execution of a will allowing them their reasonable costs for acting in the administration of the deceased estate have been relieved of the disqualification. In Tasmania a disqualified person may apply to the court for an order that the person be entitled under the will.46
3.21 In New South Wales there is a provision that enables all the persons who would directly benefit from the avoidance of the gift to consent in writing to the distribution of the gift according to the will.47 These persons must have capacity to do so. This provision is perhaps declaratory.
3.22 It is arguable that the accretion of exceptions to the disqualification rule has made the provision unnecessarily wordy and even counter-productive. For example, the current Victorian exception, which allows the witness to take an intestacy benefit, can have the effect of giving that benefit without any possibility of questioning the propriety of the witness’s conduct. The courts have tended towards creativity in diminishing the force of the rule by the doctrine of dependent relative revocation,48 and have been easily satisfied, where they are permitted to consider it, of the propriety of the witness’s conduct.49
3.23 It is unlikely, in the absence of adverse experience of the effect of the abolition of the rule, that jurisdictions that have abolished the rule could be persuaded to re-instate it. Consequently, the probable direction of a search for uniformity would be to abolish the rule throughout Australia. The divergence of the present law, however, requires that comparisons be made and that, if it is desired to retain the rule, a procedure should be allowed to ensure that the innocent witness is not disqualified.
3.24 The abolition of the rule would not prevent the court from requiring a beneficiary witness to answer an allegation that there was a suspicious circumstance concerning the execution of the will, or that there had been undue influence.
3.25 Another argument for the repeal of the interested witness rule is that, because of its monolithic character, it constitutes an impediment to the development of a mature doctrine of suspicious circumstances surrounding the execution of a will. The existence of the doctrine is undoubted. For instance, if a solicitor who prepares a will takes a benefit under it, the solicitor will have great difficulty in persuading the court that it is not suspicious.50 It is clearly a suspicious circumstance when a witness to a will takes a benefit under it, but, because of the statute, an innocent witness is not allowed to show that the circumstances of the particular case are not suspicious at all. It is this fact that impedes clear thinking about beneficiary witnesses and the suspicious circumstances doctrine. The doctrine is about what sorts of circumstances have the effect of shifting the onus of proof in relation to an allegation of undue influence, the testator’s competence, and the testator’s knowledge and approval of the contents of the will. This has been clarified by the recent Canadian case of Vout v Hay.51
3.26 If one retains the interested witness rule, instead of also retaining a myriad of specific, sometimes petty, exceptions to it, it is arguable that the number of exceptions should be reduced and that a general exception should be framed in terms of the suspicious circumstances doctrine - that is, that the witness may retain the benefit if the witness can satisfy the court that there are no suspicious circumstances infecting the gift. A submission from the Wills Advisory Group to the Victorian Law Reform Committee drew attention to the view of Dr Ian Hardingham - that is, in matters relevant to undue influence, the persuasive burden rests on the person wishing to challenge the will.52 From this it is arguable that, if the interested witness rule is retained, the beneficiary witness should be allowed to persuade the court that there is no suspicious circumstance infecting the benefit and that he or she should be permitted to keep it.
3.27 On the other hand, if one repeals the interested witness rule, as in South Australia, the Australian Capital Territory, and as is proposed for Victoria,53 room is given for the suspicious circumstances doctrine to occupy the space left by the repeal.
3.28 It is a fine balance whether the rule should be retained (but with a general exception allowing the witness to take the benefit upon satisfying the court that there are no suspicious circumstances infecting the gift) or whether the rule should be abolished (with the effect that no onus would be placed on the beneficiary witness, although there would be an initial onus on those who wished to challenge the benefit).
(c) The National Committee’s decision
3.29 The National Committee agreed that the interested witness rule should be retained, but that it should not absolutely disqualify a witness from taking a benefit. It was agreed that the rule should be redrafted to place the onus on the interested witness to satisfy the court that it was appropriate to take the benefit.
3.30 Three options for the rule were considered by the National Committee (the differences are between subclause (2) of each version):54
- Version A:
(1) If any beneficial gift is given or made by will to a person (in this section called “the interested witness”) who attests the execution of the will or to the interested witness’s spouse, the gift is void so far only as it concerns the interested witness or the interested witness’s spouse or any person claiming under either of them, unless subsection (2) applies.
(2) A beneficial gift given or made by will is not made void by this section if the court is satisfied that -
- Version B:
(1) [As above]
(2) A beneficial gift given or made by will is not made void by this section if the court is satisfied that -
- Version C: (which is based on section 13(2)(c) of the Wills, Probate and Administration Act 1898 (NSW)):
(1) [As above]
(2) A beneficial gift given or made by will is not made void by this section if the court is satisfied that -
3.31 The National Committee preferred Version C, based in part on the current New South Wales provision, to the other two suggested versions. In the National Committee’s view, Version C avoids some of the ambiguities in the drafting of Version B, especially the reference to the testator’s intention in subclause 2(a). Version C also more closely reflects the concept of testamentary intention.
(d) Subsidiary issues
3.32 The National Committee also considered a number of subsidiary issues in relation to the interested witness rule, the first two of which concern the scope of the rule.
(i) Should the rule cover all witnesses to the execution of a will and not simply attesting witnesses?
3.33 It was suggested that, if the interested witness rule were to be retained, it should be extended to apply to all witnesses to the execution of a will and not be confined to those witnesses who actually attest the execution of a will.
3.34 The interested witness rule has traditionally applied only to a witness who attests a will. A person may, however, orchestrate the making of a will in his or her favour, obtain the services of a solicitor, virtually dictate the terms of the will, ensure that the solicitor reads out the will to the testator, and be present at the execution of the will. There is no rule of law that allows that process to be questioned.
3.35 If the interested witness rule has substance to it, there is some logic to extending its operation to all persons who are in fact witnesses to the execution, and not confining it to the witnesses who happen to attest the will. (Of course a non-attesting witness could always leave the room just prior to execution of the will - but at least the chances of intimidation would be reduced, as the testator would have an opportunity to question the contents of what he or she was about to sign without that witness being present.)
3.36 However, the majority of the National Committee was against extending the interested witness rule to a non-attesting witness. South Australia and the Australian Capital Territory have already abolished the interested witness rule and it is extremely unlikely that it will be reintroduced in those jurisdictions. In light of the general trend to abolish the rule altogether, its expansion was seen as undesirable.
(ii) Disqualification of the witness’s spouse
3.37 The National Committee has considered whether the rule, if retained, should continue to disqualify the spouse of a witness from taking a benefit under a will and, if so, whether “spouse” should be defined to include a de facto partner.55
3.38 The Committee noted that the Victorian Law Reform Committee had recommended that, if the interested witness rule were to be retained, the current disqualification in respect of the spouse of a witness should be removed.56 The reasons cited by the Victorian Law Reform Committee were:57
3.39 The National Committee has agreed that the interested witness rule should no longer disqualify a witness’s spouse from taking a benefit under a will. The historical origins of the spousal disqualification no longer apply. Further, if the disqualification is to be logical, it should be extended so that a witness’s de facto partner is also disqualified.
3.40 However, given the trend towards abolishing the interested witness rule altogether,59 there seems little point in recommending that the operation of the rule should be expanded so as to disqualify a witness’s de facto partner, in addition to a witness’s spouse.
3.41 Consistent with its view on whether the rule should be expanded to cover all witnesses, rather than merely attesting witnesses,60 the National Committee is of the view that, rather than expand the ambit of the rule so as to disqualify the de facto partner of an interested witness from taking a benefit under a will, the preferable course is to remove the disqualification of the witness’s spouse altogether.
(iii) Agreement of the other beneficiaries
3.42 It is always possible for a witness in whose favour a disposition has been made to take that disposition if the other beneficiaries agree that the witness beneficiary should take his or her share under the will.
3.43 Although legislation is not required to enable such an agreement to be made, in New South Wales there is a provision to that effect. Section 13(2)(b) of the Wills, Probate and Administration Act 1898 (NSW) provides:
3.44 A concern has been expressed to the National Committee about stamp duty implications in the event that beneficiaries were to agree that an interested witness should take his or her benefit under a will. In New South Wales, such an agreement would not be liable to stamp duty. Section 13(4) of the Wills, Probate and Administration Act 1898 (NSW) provides:
A consent referred to in subsection (2)(b) is not liable to duty under the Stamp Duties Act 1920.
3.45 While section 13(2)(b) is really declaratory in nature, it seems to the National Committee that the inclusion of provisions to the effect of subsections 13(2)(b) and (4) of the Wills, Probate and Administration Act 1898 (NSW) is desirable.
3.46 The National Committee agrees that section 13(2)(b) should be included in the draft model wills legislation. However, as section 13(4) is concerned with the imposition of stamp duty, it should be located in each jurisdiction’s relevant stamp duty legislation, rather than in the draft model wills legislation.
(iv) A sufficiency of disinterested witnesses
3.47 Both Queensland and New South Wales have provisions to the effect that a disposition to an interested witness will not be void if there is a sufficiency of disinterested witnesses.
3.48 Section 15(2) of the Succession Act 1981 (Qld) provides:
The attestation of a will by a person to whom or to whose spouse there is made any disposition as aforesaid shall be disregarded if the will is duly executed without the person’s attestation and without that of any other such person, whether or not the attestation was made upon the execution of a will before the passing of this Act.
3.49 Section 13(2)(a) of the Wills, Probate and Administration Act 1898 (NSW) provides:
(2) A beneficial gift given or made by will is not made void by this section if:
(a) at least 2 persons who attest the execution of the will are not persons to whom any such gift is so given or made or the spouses of any such persons, ...
3.50 The National Committee is of the view that it is desirable to include such a provision in the model provision dealing with interested witnesses. Given that the interested witness provision recommended by the National Committee has largely been based on the New South Wales provision, the National Committee favours incorporating section 13(2)(a) of the Wills, Probate and Administration Act 1898 (NSW) rather than section 15(2) of the Succession Act 1981 (Qld), save for the reference to the witness’s spouse, which is no longer relevant in light of the decision at paragraph 3.41 above.
RECOMMENDATION
The National Committee recommends that the interested witness rule should be included in the draft model wills legislation, but in a modified form. In particular, the National Committee recommends that:
- a witness should not be absolutely disqualified from taking a benefit under a will, but should be able to retain the gift if:
(a) there is a sufficiency of disinterested witnesses, that is, at least two witnesses who are not beneficiaries under the will;
(b) all the persons who would benefit directly from the avoidance of the gift consent in writing to the distribution of the gift according to the will (all those persons having capacity at law to do so), or
(c) the court is satisfied that:
- the rule should no longer disqualify the spouse of a witness from taking a benefit under a will;
- each jurisdiction should amend its stamp duty legislation to include a provision to the effect of section 13(4) of the Wills, Probate and Administration Act 1898 (NSW), so that a consent under the subclause 2(a) of the model provision will not be liable to stamp duty.
MODEL PROVISION: CLAUSE 12
12 Can an interested witness benefit from a disposition under a will?
(1) If any beneficial disposition is given or made by will to a person (in this section called the interested witness) who attests the execution of the will, the disposition is void so far only as it concerns the interested witness or any person claiming under the interested witness.
(2) However, a beneficial disposition given or made by will is not made void by this section if:
(a) at least 2 of the people who attested the execution of the will are not interested witnesses, or
(b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition according to the will (if those persons have the capacity to give that consent), or
(c) the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.
FOOTNOTES
28. For a discussion of this issue, see Queensland Law Reform Commission, Uniform Succession Laws: Wills (MP 15, February 1996) at 17-18.
29. Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 1, The Law of Wills (WP 46, July 1994, reprinted June 1995) at 15-22.
30. Wills Act 1992 (Tas) s 26; Wills Act 1970 (WA) s 34.
31. Wills Act 1936 (SA) s 12(2).
32. Wills, Probate and Administration Act 1898 (NSW) s 18A.
33. Succession Act 1981 (Qld) s 9(a).
34. See Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 1, The Law of Wills (WP 46, July 1994, reprinted June 1995) at 17-18.
35. This definition is identical to the definition of “document” in the Dictionary to both the Evidence Act 1995 (NSW) and the Evidence Act 1995 (Cth).
36. See the definition of “document” recommended in cl 4 of the draft model wills legislation at page 24 of this Report.
37. See the National Committee’s recommendation at page 99 of this Report in relation to another procedural provision.
38. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 81.
39. Succession Act 1981 (Qld) s 14.
40. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 81.
41. This is taken from an article by Yale DEC, “Witnessing Wills and Losing Legacies” (1984) 100 Law Quarterly Review 453-467.
42. 25 Geo II c 6.
43. Uniform Probate Code (ULA) s 2-505.
44. Wills Act 1958 (Vic) s 13(3)(c). Note, however, that the Wills Act 1958 (Vic) will be repealed when the Wills Act 1997 (Vic) commences. The new Act will abolish the interested witness rule: see s 11.
45. Wills, Probate and Administration Act 1898 (NSW) s 13(2)(c).
46. Wills Act 1992 (Tas) ss 45 and 46.
47. Wills, Probate and Administration Act 1898 (NSW) s 13(2)(b).
48. See Will of Mills [1968] 2 NSWLR 393. Cf Estate of Brian [1974] 2 NSWLR 231.
49. Re Emanuel [1981] VR 113.
50. Wintle v Nye [1959] 1 WLR 284 per Viscount Simmonds at 291.
51. [1995] 2 SCR 876.
52. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 92.
53. See note 44 to para 3.20 of this Report.
54. Note the reference in subclause (1) of Version A to the witness’s spouse. At the time the National Committee was considering the general approach to take in relation to the interested witness rule, it had not yet made the decision to exclude the witness’s spouse from the operation of the rule. See paras 3.37-3.41 of this Report as to that decision.
55. For example, s 15 of the Succession Act 1981 (Qld) would not currently apply to a de facto partner, but only to a lawful spouse.
56. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 94.
57. Ibid.
58. See Married Women’s Property Act 1870 (Vic).
59. See paras 3.19-3.23 of this Report.
60. See paras 3.33-3.36 of this Report.
