1. The National Committee for Uniform Succession Laws
In 1991 the Standing Committee of Attorneys General approved the development of uniform succession laws for the whole of Australia. In 1992 the Queensland Law Reform Commission was requested by the Queensland Attorney-General to co-ordinate that project.
In order to ensure that the Uniform Succession Laws Project maintained an Australia-wide focus and was regarded as an undertaking of all Australian jurisdictions, the Queensland Law Reform Commission, as co-ordinator of the project, asked the Queensland Attorney-General to request each of his counterparts in other Australian jurisdictions to nominate a person or agency to represent his or her respective jurisdiction on a National Committee to guide the project. Nominees were subsequently appointed in each Australian jurisdiction.
The New Zealand Law Commission asked to be represented on the National Committee. As the New Zealand Law Commission was also working on succession law reform, Professor Richard Sutton, a Commissioner of the Law Commission and subsequently in Professor Sutton’s place, Mr D F Dugdale, Commissioner of the New Zealand Law Commission, were welcomed on to the National Committee.1 However, as the New Zealand Law Commission no longer has a reference relating to succession laws, it is no longer represented on the National Committee, although it continues to provide valuable assistance upon request.
The current members of the National Committee are:2
- Professor Don Chalmers, Professor of Law, University of Tasmania3
- Professor Michael Tilbury, Academic Secretary to the Victorian Attorney-General’s Law Reform Advisory Council and Commissioner, New South Wales Law Reform Commission
- Mr Peter Hennessy, Executive Director, New South Wales Law Reform Commission
- Mr Joseph Waugh, Legal Officer, New South Wales Law Reform Commission
- Ms Katherine O’Neill,4 Senior Legal Officer, Policy and Legislation, Attorney General’s Department, South Australia
- Mr Robert Bradshaw, Law Officer, Policy Division, Northern Territory Attorney-General’s Department
- Associate Professor Charles Rowland, Special Adviser (Succession Law), Law Reform Commission, Attorney-General’s Department, Australian Capital Territory
- Mr David Edwards PSM, Deputy President, Australian Law Reform Commission
- Mr Wayne Briscoe, Commissioner, Queensland Law Reform Commission
- Ms Claire Riethmuller, Senior Research Officer, Queensland Law Reform Commission
- Ms Penny Cooper, Director, Queensland Law Reform Commission
Since the National Committee was first formed there have been some changes in its membership. This was to be expected given the nature of the organisations from which most National Committee members were drawn. Also, a number of the Attorneys-General who were in office at the time the original nominations were made no longer hold office. Nevertheless, the National Committee has retained the expertise in succession law that is vital to the success of the project.
Individual members of the National Committee are not necessarily plenipotentiaries of the organisations they represent, although, wherever possible, members of the National Committee have sought the views of their organisations before adopting a stance in relation to particular issues discussed at the National Committee level.
The Queensland Law Reform Commission as co-ordinating body for the project is indebted to the individual members of the National Committee for their interest and efforts to date. It is hoped that the National Committee structure will continue for future uniform succession law topics to be dealt with by this project.
2. The National Committee’s Work on Wills and
Family Provision
In 1996 the National Committee forwarded an interim Report to the Standing Committee of Attorneys General on a number of significant issues relating to The Law of Wills.5
In 1997 the National Committee forwarded a Consolidated Report to the Standing Committee of Attorneys General on the issues covered by the 1996 interim Report as well as a number of outstanding wills issues.6 The Consolidated Report included model wills legislation based upon the National Committee’s recommendations. The model legislation was prepared for the National Committee by the Office of New South Wales Parliamentary Counsel.
The National Committee’s Report on Family Provision was presented to the Standing Committee of Attorneys General in December 1997. The Report included drafting instructions for model family provision legislation. At the date of this Discussion Paper, the Office of New South Wales Parliamentary Counsel had made significant progress in drafting the model legislation, although a number of issues remain to be resolved.
The National Committee is grateful to the Office of New South Wales Parliamentary Counsel for the assistance provided by that office to this project.
3. The National Committee’s Work on the Administration of Estates
The administration of estates is the third stage of the Uniform Succession Laws Project. The administration of estates stage has itself been divided into two parts to facilitate identification of issues and for ease of discussion. This Discussion Paper represents the National Committee’s work to date on the first part, which is a review of the general law relating to the administration of estates in all Australian States and Territories. The second part, which will be the subject of a separate Discussion Paper and a separate Report to the Standing Committee of Attorneys General, will concentrate on the Recognition of Interstate and Foreign Grants of Probate and Letters of Administration. A draft discussion paper on the second part is currently being prepared for the National Committee by Dr Peter Handford of the Law School, University of Western Australia, pursuant to funding from the Queensland Department of Justice and Attorney-General and the Western Australian Ministry of Justice.
For the first part of the administration of estates project, the National Committee has used the relevant provisions of the Succession Act 1981 (Qld) as the starting point for its deliberations. That Act represents the most recent overall revision of the law in this area.
Two members of the National Committee, Professor Don Chalmers and Associate Professor Charles Rowland met with all Australian Registrars of Probate at a meeting of the Registrars in Melbourne in October 1997 to discuss the National Committee’s project with the Registrars. As a result of the interest expressed in the project by the Registrars at that meeting, the National Committee invited all Australian Registrars of Probate to participate in the project. The National Committee recognised that the Registrars would be able to make an invaluable contribution to the development of the National Committee’s recommendations in this area because of their day to day involvement with issues relating to the administration of estates.
The National Committee met with the Probate Registrars in June 1998 and in November 1998.
The Registrars of Probate who have contributed to the project are:7
- Mrs Jill Circosta (ACT)
- Ms Jenni Daniel-Yee (NT)
- Mr Alured Faunce-de Laune (SA)
- Mr John Finlay (NSW)
- Mr Michael Halpin (VIC)
- Mr Ken Toogood (QLD)
- Mr Robert Walker (TAS)
- Mr Colin Watt (WA)
The views and proposals of the National Committee are generally achieved by consensus. However, not all decisions may have been considered by all members.
The aim of the National Committee is to produce model legislation to deal with the administration of estates (as it has done for the wills and family provision stages of this project) which will be attached to its report to the Standing Committee of Attorneys General.
4. The Next Stage of this Project
The next stage of the Uniform Succession Laws project will be a review of the Intestacy Rules. In 1993 the Queensland Law Reform Commission reported to its Attorney General on reform of the Queensland intestacy rules.8 Being the most recent significant review of this area of the law, that report will form the basis of the National Committee’s deliberations. It is anticipated that work will commence on this stage of the project in the year 2000.
The Honourable Mr Justice John Muir
Chairman
Queensland Law Reform Commission
Co-ordinating Agency for the National Committee for Uniform Succession Laws
28 May 1999
Footnotes
1. Professor Sutton has subsequently retired from the Law Commission.
2. In August 1997, Dr Peter Handford, of the Law Reform Commission of Western Australia, resigned from the National Committee following the decision by the Attorney-General of Western Australia to restructure the Law Reform Commission of Western Australia of which Dr Handford was then Executive Officer and Director of Research. There is currently no Western Australian representative on the National Committee.
3. Formerly the Tasmanian Law Reform Commissioner.
4. Ms O’Neill has recently replaced Ms Margaret Doyle as the South Australian representative on the National Committee.
5. National Committee for Uniform Succession Laws, Report, Uniform Succession Laws for the Australian States and Territories: Report to the Standing Committee of Attorneys General: The Law of Wills (QLRC MP 19, 1996).
6. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997); New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R 85, 1998).
7. The National Committee also acknowledges the assistance of the Honourable Mr Justice D Harper of the Supreme Court of Victoria for his assistance in ensuring that the Registrars were able to meet with the National Committee.
8. Queensland Law Reform Commission, Report, Intestacy Rules (R 42, 1993).
