1. PERSONS ENTITLED TO SEE WILL
(a) Basis for the model provision
9.1 The basis for the model provision was a new section 66A of the Administration and Probate Act 1958 (Vic), proposed in the draft Wills Act 1994 (Vic). The proposed section 66A provides:
Any person having the possession or control of a will (including a purported will) of a deceased person must -
(a) produce it in Court if required to do so;
(b) allow the following persons to inspect and, at their own expense, take copies of it, namely -
(i) any person named or referred to in it, whether as beneficiary or not;
(ii) the surviving spouse, any parent or guardian and any issue of the testator;
(iii) any person who would be entitled to a share of the estate of the testator if the testator had died intestate; and
(iv) any creditor or other person having any claim at law or in equity against the estate of the deceased.131
(b) Need for the provision
9.2 A major reason for the proposed provision is that sometimes a person who has the control of a will is reluctant to show it to anyone. The reluctance may be caused by a misconceived view that a will is a private document, or it may be out of a desire to keep the person who is seeking to see the will in ignorance of its contents.
9.3 When a will is admitted to probate, it becomes a public document. However, not all wills are brought to court for probate, particularly where the estate is small and not worth the expense involved. Possible beneficiaries and other claimants can be placed in an invidious position if they do not know anything about the contents of the will.
9.4 A person who is eligible to apply for family provision may not be able to discover whether the testator has made provision for him or her by will, and so will not be able to begin to consider whether to make a claim. An intestacy beneficiary may need to know whether the will lacks a valid residuary provision. Equally, a creditor may wish to know whether the testator had particular assets. This information may be discoverable to a certain extent from a will.
9.5 The proposed provision does not allow a person without a proper interest - for example, a member of the press - to see the will. If a personal representative does not want a creditor to be able to see the will, the creditor can always be paid, thereby removing the entitlement to see the will. In any case, persons entitled to share in the estate should be able to see the contents of a will. This information is always available once the will has been admitted to probate. The proposed provision is simply intended to ensure the same result prior to a will’s admission to probate, or in the event that no application is made for probate.
(c) The National Committee’s decision
9.6 The National Committee generally accepted the proposed section 66A of the Administration and Probate Act 1958 (Vic), subject to consideration of the following matters:
(i) Eligible persons
9.7 The National Committee was of the view that, in addition to the four categories of people listed in paragraph (b), the following people should also be entitled to see a will:
- beneficiaries of prior wills; and
- a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
(ii) Documents to which access should be available
9.8 The difficulty with the wording of the proposed provision is that it does not necessarily include either testamentary documents that have been revoked, or documents the testamentary nature of which may be disputable. A revoked instrument may well have significance to questions concerning, for example, the capacity of the testator or undue influence. So if there were a question of challenging an existing will on the grounds of incapacity or undue influence, an inspection of a previously revoked will might reveal such substantial consistency of the testator’s intention as to preclude or render unprofitable such a challenge.
9.9 An executor is not permitted by the probate court to pick and choose which testamentary instruments he or she should bring to court for probate purposes. For the same reason, the National Committee is of the view that a revoked or doubtful testamentary instrument should be included in this rule.
9.10 Obviously the rule can only apply to existing documents, although it might also apply to copies of testamentary instruments. Such documents could be of value in, for example, determining questions of construction.
9.11 For these reasons, the National Committee agreed that the following words should be inserted after the first occurrence of the word “will” in the first line of proposed section 66A of the Administration and Probate Act 1958 (Vic):
including a revoked will, or a copy of any such will and any part of such a will.
RECOMMENDATION
The National Committee recommends that a provision to the effect of the proposed section 66A of the Administration and Probate Act 1958 (Vic) be included in the draft model wills legislation, save that:
- the provision should apply to a person having the possession or control of a will, including a revoked will, a copy of any such will, or any part of such a will (including a purported will); and
- the following people should also be entitled to see a will:
- beneficiaries of prior wills; and
- a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
MODEL PROVISION: CLAUSE 52
52 Persons entitled to see will
(1) Any person having the possession or control of a will including a revoked will, or a copy of any such will and any part of such a will (including a purported will) of a deceased person must allow any or all of the following persons to inspect and, at their own expense, take copies of it:
(a) any person named or referred to in it, whether as beneficiary or not,
(b) the surviving spouse, any parent or guardian and any issue of the testator,
(c) any person who would be entitled to a share of the estate of the testator if the testator had died intestate,
(d) any creditor or other person having any claim at law or in equity against the estate of the deceased,
(e) any beneficiaries of prior wills of the deceased,
(f) a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
(2) Any person having the possession or control of a will, including a revoked will, or a copy of any such will and any part of such a will (including a purported will), of a deceased person must produce it in Court if required to do so.
2. ADEMPTION
(a) Background
9.12 In the context of considering who may see a will after the death of the testator, the National Committee discussed whether an attorney who was appointed by a testator under an enduring power of attorney should be able to see the testator’s will during the testator’s lifetime.
9.13 The testator may have given a copy of the will to the attorney prior to losing capacity. In some cases the attorney will have access to the will. For example, if the will is kept at the home of the incapacitated person, it might only be a question of the attorney opening a drawer to find it. However, in other situations the attorney might not have access to it, and might seek access from the person having custody of an enduring power of attorney.
9.14 In the case of Re Viertel,132 enduring attorneys were managing the property of a person who was residing in a home. The attorneys thought it appropriate to sell the person’s residence, and approached the Queensland Public Trustee in order to view the person’s will. The Public Trustee refused to show the attorneys the will. The attorneys sold the property, which was in fact devised to them. An issue arose as to whether the sale of the property had resulted in an ademption.133 The court held that there had been no ademption.
9.15 If one takes the ademption rule as a starting point, it is not difficult to predict that, if an attorney happens to know that he or she is a specific devisee or legatee under a will and that the devise or legacy would be adeemed if the subject matter were sold, the attorney would be unlikely to sell, even though the sale might be appropriate or highly desirable for good economic reasons. But if the attorney were the residuary beneficiary under the will of the principal, the attorney might be tempted to sell the subject matter of a specific devise or legacy unnecessarily so as to enlarge the value of the residuary estate through the ademption rule and, indeed, deprive the specific devisee or legatee of the benefit intended by the testator. Either way, a strict retention of the ademption rule could compromise the proper management of the principal’s estate.
9.16 The decision in Re Viertel does not help because it did not enunciate a general principle about the applicability of the ademption rule to the sale of the testator’s property under an enduring power of attorney. It only found that, in the circumstances of that case, there was an exception to the ademption rule. This might have the effect that in these cases in the future it would always be necessary to go to court to argue for or against the presence of an exception. One issue might be whether the deceased person knew about the sale and its ademptive effect and approved.
9.17 It was suggested to the National Committee that the question was not whether an attorney should have the right to see a will of the principal, but whether legislation should be recommended to provide that the sale by the attorney of property that happens to be the subject matter of a specific devise or legacy does not constitute an ademption of the legacy. It was further suggested that there should be a rule excepting such sales from the ademption rule, so that the potential for litigation of such a matter can be minimised. After all, if the principal recovers from his or her incapacity, he or she can make a new will if he or she does not wish the proceeds of the sale to go the original beneficiary.
(b) Suggested draft provision
9.18 The following draft provision was suggested to overcome the effects of the ademption rule in the case of a sale of the testator’s property by an enduring attorney:
(1) Where there is a specific devise or legacy contained in a will, the sale of the subject matter of the devise or legacy by a person who has been appointed as an enduring attorney by the testator does not constitute an ademption of that specific devise or legacy.
(2) Subject to the provisions of any will of the testator made after the sale of any property under (1), after the death of the testator an amount equal to the net proceeds of sale of any property in (1) shall be distributed in the same manner as if it were the subject matter of a specific devise or legacy contained in the will.
9.19 The following reasons were put forward to support the wording of the draft provision:
- It would not be sufficient to say that the net proceeds of sale should be considered to be a general legacy under the will, as that would place the beneficiary in a worse position than he or she would have been in had the property not been sold. In any case, the distribution of the sum must be seen as part of the general duties of the personal representatives in the distribution of the estate. One could not provide that the sum must be paid to the devisee, as that might be seen as affording him or her a preference as against other specific devisees or legatees.
- The suggested provision does not contain an exception where it can be shown that the incapacitated person has assented to the sale. The person would have to be competent to consent, and the standard of competence could hardly be less than that required for the execution of a new will or a codicil. It should not be left to oral evidence either, because of the opportunity for self-serving evidence that it could afford.
- The object of the provision is to ensure that an attorney is neither inhibited from selling, not tempted to retain, property belonging to the incapacitated person merely on account of his or her knowledge or ignorance of the terms of a will; and to ensure that the beneficiary intended by the incapacitated person is not prejudiced.
- The provision would also limit recourse to the court. Only a subsequent will of the incapacitated person could change this outcome.
RECOMMENDATION
The National Committee agreed that, while there was merit in reviewing the rule about the ademption of dispositions in wills, the rule as a whole should be reviewed.134 It should not be amended in a piecemeal fashion. For that reason, it was agreed that consideration of the ademption rule should not be considered at this stage of the project, but should be deferred and considered as a discrete project.
3. PERSONAL REPRESENTATIVES MAY MAKE MAINTENANCE DISTRIBUTIONS WITHIN 30 DAYS
(a) Basis for the model provision
9.20 The basis for the model provision was a new section 99B of the Administration and Probate Act 1958 (Vic), proposed in the draft Wills Act 1994 (Vic). The proposed section 99B provides:
(1) If a surviving spouse or child has an entitlement under a will that does not become absolute until 30 days after the testator’s death, the personal representative may make a distribution for the maintenance, support or education of that widow, widower or child within that 30 day period.
(2) The personal representative is not liable for any such distribution that is made in good faith.
(3) The personal representative may make such a distribution even though the personal representative knew of a pending application under this Part or under section 37 of the Wills Act 1994 at the time the distribution was made.
(4) Any sum distributed shall be deducted from any share of the estate to which the person receiving a distribution becomes entitled; but if any person to whom any distribution has been made does not survive the deceased for 30 days any such distribution shall (to the extent that it cannot be recovered from the estate of that person) be treated as an administration expense.
(b) Background
9.21 In this Report, the National Committee has already discussed the effect of, and recommended the adoption of, a provision to the effect of clause 26 of the draft Wills Act 1994 (Vic).135 However, the proposed section 99B would enable the estate to be used in the thirty day period following the testator’s death to maintain the testator’s spouse and issue if they would have, if they survived the testator for thirty days, an entitlement under the testator’s will.
9.22 This provision is seen as a desirable accessory to the rule that a disposition lapses if the beneficiary does not survive the testator for a period of thirty days.
(c) The National Committee’s decision
9.23 The National Committee initially accepted the proposed section 99B of the Administration and Probate Act 1958 (Vic). However, two subsidiary issues were subsequently considered by the National Committee.
(d) Subsidiary issues
(i) Persons entitled to be maintained
9.24 The proposed section 99B refers only to a surviving spouse or child who has an entitlement under a will. In the National Committee’s view, this may be too narrow. For example, it would not permit a personal representative during the thirty days following a testator’s death to maintain the testator’s de facto partner, notwithstanding that the de facto partner was a beneficiary under the will. There could be other people dependent on the testator who would need to be maintained during that period.
9.25 The National Committee is therefore of the view that subclause (1) of the model provision should be redrafted so that the provision applies to a person who is wholly or substantially dependent on the testator, rather than being confined to a spouse or child of the testator.
9.26 The current limitation that the person must have an entitlement under the will should be retained in the model provision.
(ii) Recovery from the estate of a person entitled to be maintained
9.27 The National Committee initially agreed to accept the proposed section 99B. However, an issue subsequently arose in relation to the words “(to the extent that it cannot be recovered from the estate of that person)”, which appear in the proposed section 99B(4). These words are not found in the equivalent provision in any other jurisdiction, and could be seen as offensive and illogical.
9.28 If there were no thirty day rule, those beneficiaries surviving the testator would be entitled to their entire benefit under the will. The thirty day rule takes the benefit away from them, the justification being the same as the justification for the lapse rule generally, namely, that the benefit is intended for them personally and not for others, such as beneficiaries under their wills. However, there is no reason to suppose that, with the importation of a thirty day rule, the intention of the testator is that they should not be benefited even to the extent of hospital expenses or other maintenance during the thirty day period.
9.29 Further, the suggestion that a personal representative should have a duty to recover costs of maintenance incurred for the benefit of the spouse or issue of the deceased is oppressive and would lead to unjustified expense.
MODEL PROVISION: CLAUSE 53
53 Personal representatives may make maintenance distributions within 30 days
(1) If a surviving person who is wholly or substantially dependent on the testator has an entitlement under a will that does not become absolute until 30 days after the testator’s death, the personal representative may make a distribution for the maintenance, support or education of that person within that 30 day period.
(2) The personal representative is not liable for any such distribution that is made in good faith.
(3) The personal representative may make such a distribution even though the personal representative knew at the time the distribution was made of a pending application under the [insert the name of the Act of the jurisdiction that deals with family provision].
(4) Any sum distributed is to be deducted from any share of the estate to which the person receiving the distribution becomes entitled, but if any person to whom any distribution has been made does not survive the testator for 30 days any such distribution is to be treated as an administration expense.
FOOTNOTES
131. The National Committee is of the view that subparagraph (iv) would be wide enough to cover a person with a claim for family provision.
132. [1997] 1 Qd R 110.
133. That is, whether the sale of the property by the attorneys had the effect of revoking the specific gift to them of the property.
134. Some jurisdictions have legislation that deals with this problem. See, for example, the Guardianship and Administration Board Act 1986 (Vic) s 53; the Guardianship and Administration Act 1993 (SA) s 43; and the Guardianship and Administration Act 1995 (Tas) s 60. See also the Powers of Attorney Bill 1997 (Qld) cl 106.
135. See page 76 of this Report. Clause 26 provides that a beneficial disposition made by will to a person who does not survive the testator for a period of thirty days lapses.
