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Where am I now? Lawlink > Law Reform Commission > Publications > 5. Wills Made or Rectified Under Court Authorisation
Report 85 (1998) - Uniform Succession Laws: The Law of Wills
5. Wills Made or Rectified Under Court Authorisation
1. WILLS BY MINORS
(a) Basis for the model provision
5.1 Subclauses 5(3) to (6) were the basis for the model provision. Those subclauses provide:
(3) The Court may, on application by or on behalf of a minor, make an order authorising the minor to make or alter a will in specific terms approved by the Court, or to revoke a will or a part of a will.
(4) An authorisation under this section may be granted on such conditions as the Court thinks fit.
(5) Before making an order under this section, the Court must be satisfied that -
(a) the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of the property disposed of by it; and
(b) the proposed will, alteration or revocation accurately reflects the intentions of the minor; and
(c) it is reasonable in all the circumstances that the order should be made.
(6) A will or instrument making or altering a will made pursuant to an order under this section -
(a) must be executed as required by law and one of the attesting witnesses must be the Registrar; and
(b) must be deposited with the Registrar under section 5A of the Administration and Probate Act 1958.
(b) The National Committee’s decision
5.2 The National Committee generally accepted subclauses 5(3) to (6), although it gave consideration to a number of specific issues.
(i) Court-authorised wills
5.3 Subclauses 5(3) to (6) of the draft Wills Act 1994 (Vic), which give the court power to make a will for a minor, are almost identical to section 6 of the Wills Act 1936 (SA).
5.4 In the case of a minor, an application to the court would be made infrequently, but, when made, it would most probably be in a context where the court’s jurisdiction would be very much needed. For example, where a minor:
- was suffering from an illness or injury that may well be fatal; and
- had a sufficient estate to make application to the court worthwhile; and
- wished the estate to be distributed otherwise than in accordance with the intestacy rules, which might well only benefit both the parents of the minor. A minor may wish his or her estate to go to one parent rather than both, especially where the minor is estranged from one of his or her parents, or the minor may simply wish to benefit another person, for example, a de facto spouse, a particular sibling or a carer.
(ii) Should a will made under this provision be retained by the registrar?
5.5 Subsections 7(9) and (10) of the Wills Act 1936 (SA) provide, in relation to wills for persons lacking testamentary capacity, that an authorised will must be signed by the registrar, sealed with the seal of the court and retained by the registrar. Section 7(11) makes provision for the removal of the authorised will from the depository.68
5.6 The National Committee is of the view that the same considerations apply in the case of a court-authorised will for a minor, and that it is desirable that the will should be retained in the registry. This gives the court continuing control over the will created under its jurisdiction.
5.7 Although this is a procedural matter, it is nevertheless recommended because it allows the court to oversee the authorised will. It has, however, been suggested by a member of the National Committee that a failure to retain the will in the registry should not result in the will’s invalidity. The National Committee agrees with that suggestion.
(iii) Should a minor’s will authorised in one jurisdiction be accepted for probate in another jurisdiction?
5.8 There is a specific provision in section 25D of the Wills Act 1936 (SA) for the recognition of a statutory will for a person lacking testamentary capacity that is made according to the law of the place where the deceased person was resident at the time of execution. Section 25D provides:
(1) A statutory will made according to the law of the place where the deceased was resident at the time of execution will be regarded as a valid will of the deceased.
(2) In this section -
“statutory will” means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity.
Thus a statutory will made in another jurisdiction would be accepted in an application for probate in South Australia.
5.9 The National Committee is of the view that the same considerations apply in the case of a court-authorised will for a minor. It is clearly a desirable provision in the context of a uniformity project and is therefore recommended.
(iv) Registrar’s jurisdiction
5.10 The National Committee considered whether it would be appropriate for a registrar to be able to authorise a will for a minor in relation to a small estate (with authorisation by the court for larger estates). The following question was put to the National Committee:
Should the Court or the Chief Justice have the power to authorise the registrar to deal with certain matters? (This would cover the proposal to enable registrars to deal with “small estates” without having to settle on a uniform definition of “small estate”.)
5.11 The National Committee has agreed that the draft model wills legislation should be confined to substantive matters on which it is important that uniformity be achieved. The question of the registrar’s jurisdiction is procedural only; it is not a matter on which uniformity between the States and Territories is necessary. Any jurisdiction that considers it desirable for a registrar to have the power to approve certain wills for minors, for example, wills in relation to small estates, may always confer that power by its relevant rules of court.
RECOMMENDATION
The National Committee recommends that a provision to the effect of subclauses 5(3) to (6) of the draft Wills Act 1994 (Vic), with the necessary changes to give effect to the Committee’s decisions be included in the draft model wills legislation so that:
- the court may authorise a minor to make, alter or revoke a will;
- the court-authorised will of a minor must be retained by the registrar, but a failure to do so should not result in the will’s invalidity; and
- a minor’s will made under an equivalent provision in another jurisdiction should be accepted for probate.
MODEL PROVISIONS: CLAUSES 18 AND 51
18 Court may authorise wills by minors
(1) The Court may, on application by or on behalf of a minor, make an order authorising the minor to make or alter a will in specific terms approved by the Court, or to revoke the whole or any part of a will of the minor.
(2) An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that:
(a) the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of the property disposed of by it, and
(b) the proposed will, alteration or revocation accurately reflects the intentions of the minor, and
(c) it is reasonable in all the circumstances that the order should be made.
(4) A will or instrument making or altering, or revoking the whole or any part of, a will made pursuant to an order under this section:
(a) must be executed as required by law and one of the attesting witnesses must be the Registrar, and
(b) must be retained by the Registrar and, in any such case, is taken to have been deposited with the Registrar in accordance with Part 6, and
(c) is not valid if it is made in breach of any condition subject to which an authorisation under this section is granted.
(5) A will made by a deceased minor according to the law relating to wills of minors of the place where the deceased was resident at the time of execution is a valid will of the deceased.
51 Retention of wills
Any failure by the Registrar to retain a will as required by this Act does not affect the validity of the will.
2. WILLS FOR PERSONS WITHOUT TESTAMENTARY CAPACITY
(a) Basis for the model provisions
5.12 The basis for the model provisions was clause 6 of the draft Wills Act 1994 (Vic). Clause 6 provides:
(1) The Court may, on application by any person made with the leave of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2) The Court is not bound to authorise the making of an entire will for the person who lacks testamentary capacity: it may authorise the making of a particular, specific testamentary provision.
(3) No application under sub-section (1) shall be heard by the Court unless the application is made before or within six months after the death of the person who lacks testamentary capacity, provided that the time for making an application may be extended for a further period by the Court if the time for making an application under Part IV of the Administration and Probate Act 1958 has not expired and the interests of justice so require.
Leave of Court
(4) The leave of the Court must be obtained before the application for an order is made.
(5) The Court must refuse to give leave if it is not satisfied that:
(a) there is reason to believe that the person for whom the statutory will is to be made under the order is or may be incapable of making a will; or
(b) the proposed will, alteration of a will, or revocation of a will, is or might be one which would have been made by the person if he or she had testamentary capacity; or
(c) it is or may be appropriate for a statutory will to be made for the person; or
(d) the applicant is an appropriate person to make an application; or
(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person for whom the statutory will is to be made.
Applications for leave: making the application
(6) In applying for leave to make an application under this section the applicant for leave must, subject to the Court’s discretion, furnish to the Court -
(a) a written statement of the general nature of the application and the reasons for making it;
(b) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the person on whose behalf approval of the making of a will is sought;
(c) a proposed initial draft of the will or testamentary provision for which the applicant is seeking the court’s approval;
(d) any evidence, so far as it is available, relating to the wishes of the person on whose behalf approval for the making of the will is sought;
(e) evidence of the likelihood of the person on whose behalf approval for the making of the will is sought acquiring or regaining capacity to make a will at any future time;
(f) any testamentary instrument or copy of any testamentary instrument in the possession of the applicant, or details known to the applicant of any testamentary instrument, of the person on whose behalf approval for the making of a will is sought;
(g) evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the person on whose behalf approval for the making of the will is sought if the person were to die intestate;
(h) evidence of any facts indicating the likelihood, so far as they are known to the applicant, or can be discovered with reasonable diligence, of an application being made under Part IV - Family Provision of the Administration and Probate Act 1958 for or on behalf of a person entitled to make an application under that Part in respect of the property of the person on whose behalf approval for the making of a will is sought;
(i) evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the person on whose behalf approval for the making of the will is sought might reasonably be expected to make provision under will;
(j) a reference to any gift for a body, whether charitable or not, or charitable purpose which the person on whose behalf approval for the making of the will is sought might reasonably be expected to give or make by will;
(k) any other facts which the applicant considers to be relevant to the application.
Application for leave: the orders of the court
(7) On hearing an application for leave the Court may -
(a) refuse the application;
(b) adjourn the application;
(c) give directions, including directions about the attendance of any person as witness and, if it thinks fit, the attendance of the person on whose behalf approval for the making of a will is sought;
(d) revise the terms of any proposed will, alteration or revocation;
(e) grant the application on such terms as it thinks fit; and
(f) if it is satisfied of the propriety of the application, allow the application for leave to proceed as an application to authorise the making, alteration or revoking of the will, and allow the application.
Application for authorisation of making of statutory will
(8) Where leave has been granted to a person to apply for an order authorising the making, alteration or revocation of a will in specific terms, upon hearing the application for authorisation the Court may, after considering the course of the application for leave, and any further material or evidence it requires, and resolving any doubts -
(a) refuse the application; or
(b) grant the application on such terms and conditions, if any, as it thinks fit.
Rules of Court
(9) 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 all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person for whom the statutory will is to be made, 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) South Australian provision
5.13 In considering the issue of wills for persons without testamentary capacity, the National Committee also gave specific consideration to section 7 of the Wills Act 1936 (SA). Section 7 provides:
(1) The Court may, on application by any person made with the leave of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2) An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that-
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4) In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of-
(i) the beneficiaries under any will previously made by the person;
(ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii) any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv) any other person who has cared for or provided emotional support to the person;
(g) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(h) the likely size of the estate;
(i) any other matter that the Court considers to be relevant.
(5) An order may be made under this section in relation to a minor.
(6) The Court is not bound by rules of evidence in proceedings under this section.
(7) The following persons are entitled to appear and be heard at proceedings under this section:
(a) the person in relation to whom the order is proposed to be made;
(b) a legal practitioner representing the person or, with the leave of the Court, some other person representing the person;
(c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d) the person’s administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e) the person’s guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f) the person’s manager, if one has been appointed under the Aged and Infirm Persons’ Property Act 1940;
(g) the person’s attorney, if one has been appointed under an enduring power of attorney;
(h) any other person who has, in the opinion of the Court, a proper interest in the matter.
(8) In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
(9) A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows:
(10) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919.
(11) The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
(12) In this section-
“testamentary capacity” means the capacity to make a will1.
1. The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
(c) Background to clause 6 of the draft Wills Act 1994 (Vic)69
5.14 When the Victorian Law Reform Committee was considering the reform of the law of wills, it considered the issue of legislation enabling the court to make a will for a person lacking testamentary capacity.
5.15 Prior to that, the Chief Justice of Victoria’s Law Reform Committee had, in 1985, adopted a Report of a subcommittee on Wills for Mentally Disordered Persons,70 which recommended that legislation along the lines of sections 96 and 97 of the Mental Health Act 1983 (UK) be adopted but with some modifications.71
5.16 When the Victorian Law Reform Committee was considering this recommendation it also had before it a draft Bill72 to amend the Wills Act 1936 (SA) by introducing a provision relating to people lacking testamentary capacity, and the New South Wales Law Reform Commission’s Report, Wills for Persons Lacking Will-Making Capacity.73
5.17 Clause 6 of the draft Wills Act 1994 (Vic) is a product of the consideration of these earlier efforts, and draws upon both the 1993 draft South Australian Bill and the New South Wales Law Reform Commission Report. The Wills Act 1936 (SA) was subsequently amended in 1996 to enable the court to make a will for a person lacking testamentary capacity.74
5.18 In New South Wales, South Australia and Victoria, two stages are envisaged: the seeking of leave to make an application, and the making of an application once leave has been obtained. However, the draft Victorian provision places more emphasis on the application for leave in that it requires that at that stage the court should acquaint itself with the matters set out in the lengthy clause 6(6). In South Australia, the equivalent provision in section 7(4) applies to the making of the application after the granting of leave.
5.19 The reason for the difference is two-fold:
- It seems that much of, if not all, the information required should be available to the court when granting leave to apply; the court would be unlikely to grant leave without most of the information even if, perhaps, at application stage, rather more information might be called for.
- The draft Victorian provision envisages in clause 6(7)(f) that in a simple case the court may, upon application for leave, allow the application to proceed immediately as an application for authorisation of the making of the statutory will. This is not provided for in South Australia, but would save costs and could make the procedure available to a larger number of applicants. It would not be possible to enable an application for leave to be treated as an application for authorisation unless the information set out in clause 6(6) (section 7(4) in South Australia) was before the court. In any case, in an efficiently prepared application for leave, the applicant should have done most, if not all, of the work required for an application for authorisation.
5.20 The difference between the information required for leave and that required for making an application for which leave has been granted is a procedural matter, as is the provision allowing an application for leave to be treated as an application for authorisation. Nevertheless, for the reasons stated, it is the view of the National Committee that the draft Victorian provision, developed as it is from the South Australian and New South Wales precedents, is to be preferred.
(d) The National Committee’s decision
5.21 The National Committee generally accepted clause 6 of the draft Wills Act 1994 (Vic), although it was of the view that some refinements should be made to the model provisions taking into account section 7 of the Wills Act 1936 (SA). The following issues were specifically considered by the National Committee.
(e) Subsidiary issues
(i) Should it be possible to make an application within a certain period after the death of the incapacitated person?
5.22 Clause 6(3) of the draft Wills Act 1994 (Vic) would enable an application to be made after the death of the incapacitated person, within certain time limits. The South Australian legislation does not contain such a provision.
5.23 In some cases there may be reluctance on the part of the spouse or relatives of an incapacitated person to seek out the court’s jurisdiction to make a will for that person, or they may be ignorant of the effect of the intestacy rules until after the death of the person. Costs might well be an inhibiting factor, as well as the possibility of the incapacitated person surviving for many more years. To give the court jurisdiction to authorise the making of a will for a brief period after the death of the person might well make the jurisdiction more viable.
5.24 However, the National Committee has now completed its work on the second stage of the Uniform Succession Laws Project, namely, family provision. In that context, the National Committee has made recommendations for reform that would significantly liberalise the range of persons eligible to apply for family provision. If the range of persons eligible to apply for family provision is expanded, the need for this jurisdiction to be available after the death of a person is significantly diminished.
5.25 The advantage of excluding applications made after the death of a person is that all applications to adjust how the person’s estate will otherwise be distributed (whether by will or by the relevant intestacy rules) will be subject to a single legislative regime, namely, family provision legislation. This avoids the possible conflict that might arise if two different types of applications could be made after the death of a person.
5.26 The National Committee considered the possibility that a testator might make a will, and then lose capacity to make a new will, with the result that the old will, depending on the testator’s circumstances, becomes inappropriate. For example, a testator might make a will leaving all his or her estate to a spouse, and then receive a brain injury in a car accident resulting in a substantial award of damages. If the spouse separated from the testator soon after the accident, and the testator was cared for by some other person, it would be arguable that it would no longer be appropriate for the estranged spouse to receive the whole of the estate.
5.27 The National Committee considered, in relation to such a situation, the effect of excluding applications after the death of a person lacking testamentary capacity. Before death, the court could, under a provision such as clause 6 of the draft Wills Act 1994 (Vic), revoke a disposition in a previous will of a person lacking testamentary capacity if the disposition was no longer considered to be appropriate. However, the court would not, after the death of the person, be able to revoke such a disposition under family provision legislation.
5.28 While acknowledging this theoretical limitation of the court’s powers under family provision legislation, the National Committee was of the view that the result in practice would be that a successful application for family provision by a meritorious applicant would necessarily displace a disposition in favour of an unmeritorious beneficiary, given that there is only the one estate out of which any distributions can be made.
(ii) Date at which death of person should be relevant
5.29 Although the National Committee was of the view that this jurisdiction should not be invoked after the death of a person, it gave specific consideration to the date on which the death of the person should exclude the court’s jurisdiction. The following possibilities were considered:
- that the court may make an order for a statutory will only if the person is alive when the order is made;
- that the court may make an order if the application was heard when the person was alive;
- that the court may make an order if the application for leave was heard when the person was alive;
- that the court may make an order if the application for leave was filed when the person was alive.
5.30 The National Committee was of the view that, if an application for a statutory will is not to be brought after a person has died, it is consistent with the reasons for that recommendation that the court should not be able to make an order if the person is not alive when the order is made. Once a person has died, any claims for provision out of the estate should be brought under family provision legislation. It would be inconsistent to permit orders to be made for a statutory will in a deceased estate merely because the application was filed or heard at a time when the person was alive.
5.31 If it were otherwise, the provision would need to address the priorities as between an order conferring a benefit under a statutory will and an order for family provision. That problem does not arise in relation to a disposition in a statutory will made before the death of a person, as that disposition is subject to the possibility of being affected by a family provision claim, in the same way that a disposition in any other will may be subject to such a claim.
(iii) Should the jurisdiction be available to a minor?
5.32 Section 7(5) of the Wills Act 1936 (SA) makes it clear that the jurisdiction is available in the case of a minor. However, this is not clear in clause 6 of the draft Wills Act 1994 (Vic). The draft Victorian provision refers only to “a person who lacks testamentary capacity”, which could be construed restrictively to refuse jurisdiction to authorise the making of a will for a minor.
5.33 There is no reason why the jurisdiction should be denied merely because the person is a minor. A minor may have been incapacitated as a result of negligence and may have been awarded a large sum of damages. One parent of that minor may have deserted the family; but if the minor were to die both parents would inherit the estate, including the award of damages, in equal shares. There is every reason to allow the court to authorise the making of a will for a minor - whether the minor lacks testamentary capacity because of a particular incapacity or merely through immaturity. To the extent that this jurisdiction applied to a minor, it would complement the jurisdiction that the National Committee has recommended that the court have under the model provision based on subclauses 5(3) to (6) of the draft Wills Act 1994 (Vic).75
5.34 Moreover, since the model provision based on clause 5 of the draft Wills Act 1994 (Vic) would confer jurisdiction on the court to approve the making of a will by a competent minor,76 it seems proper to allow the court to make a statutory will for a minor who is not competent to have a will approved under that provision.
5.35 The National Committee is of the view that the provision should be available to a minor.
(iv) Should the authorised will be retained by the registrar?
5.36 Subsections 7(9) and (10) of the Wills Act 1936 (SA) provide that an authorised will must be signed by the registrar, sealed with the seal of the court and retained by the registrar. Section 7(11) makes provision for the removal of the authorised will from the depository.77
5.37 In view of the possibly controversial nature of the jurisdiction it is desirable that the will should be kept in the registry as this gives the court continuing control over the will created under its jurisdiction.
5.38 Although this is a procedural matter, it is nevertheless recommended because it allows the court to oversee the authorised will. It has, however, been suggested by a member of the National Committee that a failure to retain the will in the registry should not result in the will’s invalidity. The National Committee agrees with that suggestion.
(v) Should a statutory will made in one jurisdiction be accepted for probate in another jurisdiction?
5.39 Section 25D of the Wills Act 1936 (SA) provides for the recognition of a statutory will made according to the law of the place where the deceased person was resident at the time of execution. Section 25D provides:
(1) A statutory will made according to the law of the place where the deceased was resident at the time of execution will be regarded as a valid will of the deceased.
(2) In this section -
“statutory will” means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity.
Thus a statutory will made in another jurisdiction would be accepted in an application for probate in South Australia.
5.40 There is no similar provision in the draft Wills Act 1994 (Vic). However, it is clearly a desirable provision in the context of a uniformity project and is therefore recommended. The inclusion of such a provision should avoid arguments about whether a statutory will constitutes a “will” for the purpose of being admitted to probate in another jurisdiction.78
(vi) Possible orders
5.41 The Committee considered the possibility that a person for whom a statutory will was made might regain capacity, and whether, in anticipation of that possibility, the court should make an order as to how the person should be informed that such a will had been made. For example, a statutory will could be made for a person in a coma, who subsequently regains consciousness, but is not aware of the existence of the statutory will.
5.42 Although the National Committee saw some merit in a provision of this kind, it was conscious that in many cases such a provision might be impractical, as the person given the duty to inform the person for whom the will had been made would be required to monitor the capacity of that person. The National Committee also anticipated difficulties with enforcing such a duty. For these reasons, the National Committee does not propose to make a specific recommendation that the court should make such an order, but will leave the question to the court’s general discretion.
(vii) Registrar’s jurisdiction
5.43 The National Committee has considered whether a registrar should be able to screen applications before they are heard by the court, hear applications in relation to “small estates”, and authorise the making or alteration of a will in those cases. It also considered whether, rather than attempt to develop a uniform definition of “small estate”, a registrar should be able to hear matters referred to him or her by the Chief Justice or the court.
5.44 Clause 6(9) of the draft Wills Act 1994 (Vic) provides that the registrar may hear and determine certain applications.
5.45 This issue is one of procedure, rather than of substance. It is not significant for the uniformity process to insist on uniformity of procedure. The National Committee is of the view, therefore, that subclause (9) should be omitted from the draft model provision.
MODEL PROVISIONS: CLAUSES 19 TO 26 AND 51
19 Court may make certain orders
(1) The Court may, on application by any person, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of the whole or any part of a will, on behalf of a person who lacks testamentary capacity.
(2) The Court may authorise the making or alteration of a will that deals with the whole of the property of a person, the making or alteration of a will that deals with part only of the property of a person or the alteration of part only of any will.
(3) The Court is not to make an order under this Division unless the person on whose behalf approval for the making of a will is sought is alive when the order is made.
(4) The Court may make an order under this Division in respect of a minor.
20 Leave of Court is required to make an application
(1) The leave of the Court must be obtained before an application for an order under this Division is made.
(2) In applying for leave to make an application for an order under this Division the applicant for leave must, subject to the Court’s discretion, furnish to the Court:
(a) a written statement of the general nature of the application and the reasons for making it, and
(b) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the person on whose behalf approval for the making of a will or of any alteration or revocation is sought (the proposed testator), and
(c) an initial draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval, and
(d) any evidence, so far as it is available, relating to the wishes of the proposed testator, and
(e) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time, and
(f) any will, or any copy of any will, in the possession of the applicant, or details known to the applicant of any will, of the proposed testator, and
(g) any evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the proposed testator if the proposed testator were to die intestate, and
(h) any evidence of any facts indicating the likelihood, so far as they are known to the applicant, or can be discovered with reasonable diligence, of an application being made, under the [insert the short title of the relevant Act of the jurisdiction that deals with family provision], and
(i) any evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the proposed testator might reasonably be expected to make provision under a will, and
(j) a reference to any gift for a body, whether charitable or not, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will, and
(k) any other facts that the applicant considers to be relevant to the application.
21 Court must be satisfied as to certain matters
The Court must refuse leave to make an application for an order under this Division unless the Court is satisfied that:
(a) there is reason to believe that the proposed testator is or may be incapable of making a will, and
(b) the proposed will, alteration or revocation is or might be one that would have been made by the proposed testator if he or she had testamentary capacity, and
(c) it is or may be appropriate for an order authorising the making, alteration or revocation of a will to be made for the proposed testator, and
(d) the applicant is an appropriate person to make an application, and
(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the proposed testator.
22 Application for leave: the orders of the Court
On hearing an application for leave, the Court may:
(a) refuse the application, or
(b) adjourn the application, or
(c) give directions, including directions about the attendance of any person as a witness and, if it thinks fit, the attendance of the proposed testator, or
(d) revise the terms of any initial draft of the proposed will, alteration or revocation for which the Court’s approval is sought, or
(e) grant the application on such terms as it thinks fit, or
(f) if it is satisfied of the propriety of the application, allow the application for leave to proceed as an application to authorise the making, alteration or revocation of a will, and allow the application.
23 Application for authorisation of making, alteration or revocation of a will
(1) In considering an application for an order authorising the making, alteration or revocation of a will, the Court:
(a) may have regard to any information given to the Court in support of an application for leave, and
(b) may inform itself of any other matter in any manner it sees fit, and
(c) is not bound by the rules of evidence.
(2) On hearing an application for an order authorising the making, alteration or revocation of a will in specific terms, the Court may, after considering the course of the application for leave to make the application, and any further material or evidence it requires:
(a) refuse the application, or
(b) grant the application on such terms and conditions, if any, as it thinks fit.
24 Execution of a will
A will, or instrument altering or revoking a will, made pursuant to an order under this Division, must be signed by the Registrar and must be sealed with the seal of the Court.
25 Retention of a will or instrument
(1) A will, or instrument altering or revoking a will, made pursuant to an order under this Division, must be retained by the Registrar and, when so retained, is taken to have been deposited with the Registrar in accordance with Part 6.
(2) Despite section 50, the will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this Division authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
26 Recognition of statutory wills
(1) A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased.
(2) In this section:
statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity.
51 Retention of wills
Any failure by the Registrar to retain a will as required by this Act does not affect the validity of the will.
3. COURT MAY RECTIFY A WILL
(a) Basis for the model provision
5.46 The basis for the model provision was clause 37 of the draft Wills Act 1994 (Vic). Clause 37 provides:
(1) The Court may make an order to rectify a will to carry out the intentions of the testator if the Court is satisfied that the will does not carry out the testator’s intentions because -
(2) A person who wishes to claim the benefit of sub-section (1) must apply to the Court within six months from the date of the grant of probate.
(3) The Court may extend the period of time for making the application if the Court thinks this is necessary, even if the original period of time has expired, but not if the final distribution of the estate has been made.
(4) If a personal representative makes a distribution to a beneficiary, the personal representative is not liable if -
(b) Background
5.47 Within Australia, there is a diversity of approaches in relation to rectification; some jurisdictions have not legislated at all, while Queensland has legislated in a narrow manner by section 31 of the Succession Act 1981. Other States, including Victoria, have legislated in a relatively substantial manner and the Australian Capital Territory in a manner that might be considered to be revolutionary. Section 12A of the Wills Act 1968 (ACT) provides in part:
5.48 The National Committee briefly considered the broad rectification provision in the Wills Act 1968 (ACT), and the consequences that such a broad power to rectify a will would have on the construction of wills. The National Committee also briefly considered whether such a broad power of rectification should take into account matters and events that take place at or after the death of the testator.
5.49 Clause 37 of the draft Wills Act 1994 (Vic) is broader than section 31 of the Succession Act 1981 (Qld) in that it also covers the case where the will does not give effect to the testator’s instructions. However, it is not as broad as section 12A of the Wills Act 1968 (ACT), which is not confined to giving effect to the testator’s intention, but would permit the court to rectify a will to give effect to the “probable intention” of the testator, in light of circumstances not even known by the testator and even occurring after the testator’s death.
(c) The National Committee’s decision
5.50 The National Committee generally agreed to adopt clause 37 of the draft Wills Act 1994 (Vic) as representing the middle ground on this issue, but agreed that:
- the references in subclauses 37(2) and (4)(b)(ii) to “the grant of probate” and “after the grant of probate” should be references to “the date of death”. With the greater occurrence of informal administrations, a grant of probate will often not be sought, thereby making the period within which to bring an application to rectify a will uncertain; and
- the period prescribed in clause 37(4)(b)(ii) should also be six months from the date of the testator’s death.
MODEL PROVISION: CLAUSE 27
27 Court may rectify a will
(1) The Court may make an order to rectify a will to carry out the intentions of the testator if the Court is satisfied that the will does not carry out the testator’s intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 6 months after the date of the death of the testator.
(3) The Court may extend the period of time for making the application if the Court thinks this is necessary, even if the original period of time has expired, but not if the final distribution of the estate has been made.
(4) A personal representative who makes a distribution to a beneficiary is not liable if:
(5) The Court may direct that a certified copy of an order made under this section be attached to a will to which it applies and must, if it so directs, retain the will until the copy of the order is attached.
FOOTNOTES
68. Those subsections are set out at para 5.13 of this Report.
69. The following information relating to the background to clause 6 is taken from Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 34-53.
70. Chief Justice’s Law Reform Committee (Vic), Wills for Mentally Disordered Persons (1985).
71. Id at para 13.
72. Draft Wills (Miscellaneous) Amendment Bill 1993 (SA). Although a South Australian Wills (Miscellaneous) Amendment Act was enacted in 1994 in substantially the same terms as the 1993 draft Bill, it did not include a provision relating to people lacking testamentary capacity.
73. New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity (LRC 68, February 1992).
74. Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Act 1996 (SA).
75. See the National Committee’s recommendation (discussed at paras 5.1-5.11 of this Report) that a provision to the effect of cl 5(3) to (6) of the draft Wills Act 1994 (Vic) be adopted. Such a provision would enable a court to make an order authorising a minor to make, alter, or revoke a will where the court is satisfied, among other things, that “the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of the property disposed of by it”.
76. See cl 5(3), which is discussed at paras 5.1-5.11 of this Report.
77. Those subsections are set out at para 5.13 of this Report.
78. It should be noted that the Law Reform Commission of Western Australia in its Report on Recognition of Interstate and Foreign Grants of Probate and Administration (1984) recommended that in certain circumstances grants of probate and administration made by the jurisdiction of domicile should be automatically recognised throughout Australia, and that in all other cases they should be resealed according to a uniform resealing procedure. It recommended that these rules should apply not only to grants of probate and administration, but also to elections and orders to administer granted to a Public Trustee or Curator, or any other person or body. It would obviously be consistent with the spirit of this proposal to treat statutory wills in exactly the same way.
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