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Where am I now? Lawlink > Law Reform Commission > Publications > 19. Dealing with wills
Discussion Paper 42 (1999) - Uniform Succession Laws: Administration of Estates of Deceased Persons
19. Dealing with wills
1. INTRODUCTION
19.1 The administration and probate legislation in a number of jurisdictions1 has specific provisions which deal with the Court’s power to order a person in possession or control of a will to produce it to the Registrar or Court as the case may be. Some jurisdictions have also addressed ancillary matters in their legislation. Section 127 of the Administration and Probate Act 1929 (ACT), section 65 of the Administration and Probate Act 1935 (Tas) and section 66 of the Administration and Probate Act 1958 (Vic) each create a statutory cause of action for damages resulting from certain kinds of conduct in relation to a will. The latter provision also creates a criminal offence of concealing a will with intent to defraud.
2. WHO MAY SEE A WILL
19.2 The National Committee has previously recommended, in its report on the law of wills, that certain persons should be entitled to see a will. The draft provision based on that recommendation reads:2
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.
19.3 Section 50 of the Wills Act 1997 (Vic),3 which was based on the National Committee’s recommendation in its report on the law of wills, reads:
Who may see a will?
A person who has possession and control of a will, a revoked will or a purported will of a deceased person must allow the following persons to inspect and make copies of the will
(at their own expense) -
(a) any person named or referred to in the will, whether as beneficiary or not;
(b) any person named or referred to in any earlier will as a beneficiary;
(c) any spouse of the testator at the date of the testator’s death;
(d) any de facto spouse of the testator;
(e) any parent, guardian or children of the deceased person;
(f) any person who would be entitled to a share of the estate if the deceased person had died intestate;
(g) any 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;
(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
3. CONCEALMENT OF A WILL
| QLD | | WA | |
| ACT | | NT | |
| VIC4 | 50 | TAS | |
| NSW | 150 | UK | |
| SA | | NZ | |
19.4 Section 150 of the Wills, Probate and Administration Act 1898 (NSW) deals specifically with concealment of a will. Section 150 reads:
Order to produce an instrument purporting to be testamentary
(1) The Court may, on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration, order any person to produce and bring into the registry any paper or writing, being or purporting to be testamentary, or otherwise material to the matter before the Court, which may be shown to be in the possession or under the control of such person.
(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that the person has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court or upon interrogatories respecting the same.
(3) Such person shall be bound to answer such questions or interrogatories, and (if so ordered) to produce and bring in such paper or writing, and shall be subject to punishment for contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing.
4. FRAUDULENTLY DEALING WITH A WILL AND STATUTORY CAUSE OF ACTION
| QLD | | WA | |
| ACT | 127 | NT | |
| VIC | 66 | TAS | 65 |
| NSW | | UK | |
| SA | | NZ | |
19.5 Section 127 of the Administration and Probate Act 1929 (ACT) creates a statutory cause of action by providing that a person who fraudulently deals with a will is liable in damages. The section reads:
Person fraudulently disposing of will liable in damages
Where a person suffers damage as a result of the stealing of a will or a part of a will, or as a result of the fraudulent destroying, cancelling, obliterating or concealing of a will or a part of a will, the person may recover damages in respect of the damage by action in a court of competent jurisdiction from the person who stole, destroyed, cancelled, obliterated or concealed the will or part, as the case may be.
19.6 Section 65 of the Administration and Probate Act 1935 (Tas) also creates a statutory cause of action. The section reads:
Concealment &c., of will actionable
If any person retains or conceals, or is privy to the retention or concealment of, a will with intent to defraud any person, the person defrauded and any person claiming under him, shall have an action for damages against such first-mentioned person for any loss sustained by reason of such retention or concealment.
19.7 Section 66 of the Administration and Probate Act 1958 (Vic) creates an offence of concealing a will with intent to defraud as well as providing a statutory cause of action to a person who sustains loss by reason of the concealment of a will.
19.8 Section 66 of the Administration and Probate Act 1958 (Vic) reads:5
Concealment of will a misdemeanour
(1) Every person who retains or conceals or endeavours to retain or conceal any will or codicil or aids or abets any person in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment.
(2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless such previous notice of the application for leave to prosecute as the law officer directs has been given to the person for whose prosecution such sanction is sought.
5. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
19.9 The National Committee considered whether:
(1) the model legislation should include a provision to enable the court to order the production of testamentary instruments;
(2) the model legislation should include provisions creating criminal offences relating to concealing, stealing or “editing” a will, or whether those matters should be dealt with in criminal legislation;
(3) the model legislation should include a provision creating a statutory cause of action by providing that a person who fraudulently deals with a will is liable in damages.
6. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
19.10 The National Committee considered that the model legislation should include a provision to enable the court to order the production of testamentary instruments. This would be a further elaboration of section 6 of the Succession Act 1981 (Qld).
19.11 Section 150 of the Wills, Probate and Administration Act 1898 (NSW) has benefits additional to the benefits of the provision recommended in the draft Wills Bill 1997 in that:
- subsection (2) allows for examination of a person in court, and for persons to answer interrogatories;
- subsection (3) provides that failure to comply with such an order is a contempt.
19.12 The National Committee noted that subsections 150(2) and (3) of the Wills, Probate and Administration Act 1898 (NSW) are used frequently and are useful, for example, where the will is held in a safety deposit box. The National Committee considered that it would be beneficial to include provisions to the effect of sections 150(2) and 150(3) of the Wills, Probate and Administration Act 1898 (NSW) in the model legislation.
19.13 A provision to the effect of section 127 of the Administration and Probate Act 1929 (ACT) would also be a useful inclusion in the model legislation.
19.14 The National Committee has adopted a policy that statutory provisions are more appropriately placed in the principal legislation covering the subject matter of the provisions. Consequently, any jurisdiction which wishes to enact a provision creating a criminal offence relating to concealing, stealing or “editing” a will should do so in its criminal law.
Proposal 99
The model legislation should include provisions to the effect of sections 150(2) and 150(3) of the Wills, Probate and Administration Act 1898 (NSW).
Proposal 100
The model legislation should include a provision to the effect of section 127 of the Administration and Probate Act 1929 (ACT).
Footnotes
1. Wills, Probate and Administration Act 1898 (NSW) s 150; Administration and Probate Act 1919 (SA) s 25; Administration and Probate Act (NT) s 147; Administration and Probate Act 1929 (ACT) s 124; Supreme Court Act 1981 (UK) s 122, 123.
2. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997) at 109-112 and draft Wills Bill 1997 cl 52; New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R 85, 1998) at paras 9.1-9.11.
3. Clause 52(2) of the draft Wills Bill 1997 (Vic) was not included in s 50 of the Wills Act 1997 (Vic). However, the Administration and Probate Act 1958 (Vic) gives the Court express power in certain circumstances to order the production of testamentary instruments. The relevant power is conferred on the Court by s 15 of the Administration and Probate Act 1958 (Vic).
4. Wills Act 1997 (Vic).
5. This section is similar to s 400 of the Criminal Code (Qld) in so far as it creates an offence. Section 400 of the Criminal Code (Qld) provides:
Concealing wills
Any person who, with intent to defraud, conceals any testamentary instrument, whether the testator is living or dead, is guilty of a crime, and is liable to imprisonment for 14 years.
See also s 135 of the Crimes Act 1900 (NSW).
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