Lawlink NSW: Report 85 (1998) - Uniform Succession Laws: The Law of Wills

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Report 85 (1998) - Uniform Succession Laws: The Law of Wills

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History of this Reference (Digest)

Table of Contents

Terms of Reference

Participants

THE REPORT OF THE NATIONAL COMMITTEE

Uniform Succession Laws Project Committee

PREFACE

1. THE PROJECT’S BEGINNING AND THE CO-ORDINATING ROLE OF THE QUEENSLAND LAW REFORM COMMISSION

2. THE NEED FOR UNIFORMITY AND ITS ACHIEVABILITY

3. CO-ORDINATION OF THE PROJECT ON A NATIONAL BASIS

4. THE ACHIEVEMENTS OF THE UNIFORM SUCCESSION LAWS PROJECT TO DATE

(a) The Issues Papers

(b) The National Committee’s deliberations

(d) The next stages of this project

1. PRELIMINARY

1. COMMENCEMENT

(a) Basis for the model provision

(b) The National Committee’s decision

2. PURPOSE

(a) Basis for the model provision

(b) The National Committee’s decision

3. DEFINITIONS

(a) Basis for the model provision

(b) The National Committee’s decision

2. CAPACITY

1. PROPERTY THAT MAY BE DISPOSED OF BY WILL

(a) Basis for the model provision

(b) The National Committee’s decision

2. MINIMUM AGE FOR MAKING A WILL

(a) Basis for the model provision

(b) The National Committee’s decision

(i) Minor who is no longer married

(ii) Wills by minors in contemplation of marriage

3. EXECUTION OF A WILL

1. HOW A WILL SHOULD BE EXECUTED

(a) Basis for the model provision

(b) The National Committee’s decision

2. WITNESSES NEED NOT KNOW THE CONTENTS OF WHAT THEY ARE SIGNING

(a) Basis for the model provision

(b) Background

3. WHEN COURT MAY DISPENSE WITH THE REQUIREMENTS FOR EXECUTION OF WILLS

(a) Basis for the model provision

(b) Background

(d) Subsidiary issues

(i) The requisite standard of proof

(ii) Definition of “document”

(iii) Application of provision to part of a document

(iv) Registrar’s jurisdiction

4. PERSONS WHO CANNOT ACT AS WITNESSES TO WILLS

(a) Basis for the model provision

(b) The National Committee’s decision

5. CAN AN INTERESTED WITNESS BENEFIT FROM A DISPOSITION UNDER A WILL?

(a) Background to the interested witness rule

(b) Problems with the interested witness rule

(d) Subsidiary issues

(i) Should the rule cover all witnesses to the execution of a will and not simply attesting witnesses?

(ii) Disqualification of the witness’s spouse

(iii) Agreement of the other beneficiaries

(iv) A sufficiency of disinterested witnesses

4. REVOCATION, ALTERATION AND REVIVAL OF WILLS

1. HOW A WILL MAY BE REVOKED

(a) Basis for the model provision

(b) The National Committee’s decision

2. EFFECT OF MARRIAGE ON A WILL

(a) Basis for the model provision

(b) The National Committee’s decision

(i) Expression of contemplation of marriage

(ii) Commencement of provision

3. EFFECT OF DIVORCE ON A WILL

(a) Basis for the model provision

(b) The National Committee’s decision

4. HOW A WILL MAY BE ALTERED

(a) Basis for the model provision

(b) The National Committee’s decision

5. HOW A REVOKED WILL MAY BE REVIVED

(a) Basis for the model provision

(b) The National Committee’s decision

5. WILLS MADE OR RECTIFIED UNDER COURT AUTHORISATION

1. WILLS BY MINORS

(a) Basis for the model

(b) The National Committee’s decision

(i) Court-authorised wills

(ii) Should a will made under this provision be retained by the registrar?

(iii) Should a minor’s will authorised in one jurisdiction be accepted for probate in another jurisdiction?

(iv) Registrar’s jurisdiction

2. WILLS FOR PERSONS WITHOUT TESTAMENTARY CAPACITY

(a) Basis for the model provisions

(b) South Australian provision

(d) The National Committee’s decision

(e) Subsidiary issues

(i) Should it be possible to make an application within a certain period after the death of the incapacitated person?

(ii) Date at which death of person should be relevant

(iii) Should the jurisdiction be available to a minor?

(iv) Should the authorised will be retained by the registrar?

(v) Should a statutory will made in one jurisdiction be accepted for probate in another jurisdiction?

(vi) Possible orders

(vii) Registrar’s jurisdiction

3. COURT MAY RECTIFY A WILL

(a) Basis for the model provision

(b) Background

6. CONSTRUCTION OF WILLS

1. GENERAL RULES FOR THE CONSTRUCTION OF WILLS

(a) Background

(b) The National Committee’s decision

2. WHAT INTEREST IN PROPERTY DOES A WILL DISPOSE OF?

(a) Basis for the model provision

(b) The National Committee’s decision

3. WHEN A WILL TAKES EFFECT

(a) Basis for the model provision

(b) Background

4. EFFECT OF FAILURE OF A DISPOSITION

(a) Basis for the model provision

(b) Background

5. USE OF EXTRINSIC EVIDENCE TO CLARIFY A WILL

(a) Background

(b) Possible bases for a model provision

(i) English provision

(ii) Victorian provision and draft proposal

(iii) Tasmanian provision

(iv) Australian Capital Territory provision

(d) The National Committee’s decision

(e) Preservation of admissibility of extrinsic evidence otherwise admissible by law

6. EFFECT OF A CHANGE IN TESTATOR’S DOMICILE

(a) Basis for the model provision

(b) The National Committee’s decision

7. INCOME ON CONTINGENT, FUTURE OR DEFERRED DISPOSITIONS

(a) Basis for the model provision

(b) Background

8. BENEFICIARIES MUST SURVIVE TESTATOR BY 30 DAYS

(a) Basis for the model provision

(b) Background

9. WHAT DOES A GENERAL DISPOSITION OF PROPERTY INCLUDE?

(a) Basis for the model provision

(b) Background

10. WHAT DOES A GENERAL DISPOSITION OF LAND INCLUDE?

(a) Basis for the model provision

(b) Background

11. EFFECT OF DEVISE OF REAL PROPERTY WITHOUT WORDS OF LIMITATION

(a) Basis for the model provision

(b) The National Committee’s decision

12. HOW DISPOSITIONS TO ISSUE OPERATE

(a) Basis for the model provision

(b) The National Committee’s decision

13. HOW REQUIREMENTS TO SURVIVE WITH ISSUE ARE CONSTRUED

(a) Basis for the model provision

(b) Background

14. DISPOSITIONS NOT TO FAIL BECAUSE ISSUE HAVE DIED BEFORE TESTATOR

(a) Basis for the model provision

(b) Background to the anti-lapse rule

(d) Subsidiary issues

(i) Gift to issue as “joint tenants”

(ii) Effect of non-fulfilment of a contingency required by the will

(iii) The position of unmarried minor issue

(iv) Maintenance and advancement of minor substitutionary beneficiary

15. CONSTRUCTION OF DISPOSITIONS

(a) Basis for the model provision

(b) Background

16. LEGACIES TO UNINCORPORATED ASSOCIATIONS OF PERSONS

(a) Basis for the model provision

(b) Background

17. CAN A PERSON, BY WILL, DELEGATE THE POWER TO DISPOSE OF PROPERTY?

(a) Basis for the model provision

(b) Background

18. EFFECT OF REFERRING TO VALUATION IN A WILL

(a) Basis for the model provision

(b) Background

7. WILLS UNDER FOREIGN LAW

1. BASIS FOR THE MODEL PROVISIONS

2. BACKGROUND

3. DIFFERENCES BETWEEN CLAUSES 17 TO 19 OF THE DRAFT WILLS ACT 1994 (VIC) AND THE EQUIVALENT PROVISIONS IN OTHER AUSTRALIAN JURISDICTIONS

4. THE NATIONAL COMMITTEE’S DECISION

8. DEPOSIT OF WILLS WITH REGISTRAR

1. WILL MAY BE DEPOSITED WITH REGISTRAR

(a) Background

2. DELIVERY OF WILLS BY REGISTRAR

9. MISCELLANEOUS

1. PERSONS ENTITLED TO SEE WILL

(a) Basis for the model provision

(b) Need for the provision

(i) Eligible persons

(ii) Documents to which access should be available

2. ADEMPTION

(a) Background

(b) Suggested draft provision

3. PERSONAL REPRESENTATIVES MAY MAKE MAINTENANCE DISTRIBUTIONS WITHIN 30 DAYS

(a) Basis for the model provision

(b) Background

(d) Subsidiary issues

(i) Persons entitled to be maintained

(ii) Recovery from the estate of a person entitled to be maintained

APPENDIX A: DRAFT WILLS BILL 1997

APPENDIX B: SELECT BIBLIOGRAPHY

TABLE OF LEGISLATION

TABLE OF CASES

INDEX

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