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Phillip McGowan, Partner
de Groots Wills & Estate Lawyers
The Succession Act 2006 (NSW) (“the Act") commenced on 1 March 2008. The Act is the first step by New South Wales towards uniformity of succession laws throughout Australia.
In considering the provisions of the Act, this paper considers some of the provisions which have changed the law in a significant way from that under the formerly called Wills, Probate and Administration Act 1898 ("WPAA").
There are some fairly complex transitional provisions contained in Schedule 1 Part 2 of the Act.
The transitional provisions mean that the provisions of the WPAA may continue to have effect for quite some time. It may be necessary for practitioners to reflect upon their drafting style. It provides an opportunity to have clients review their wills and, if appropriate, update them.
Section 12 Marriage
12 Effect of marriage on a will
(1) A will is revoked by the marriage of a testator.
(2) Despite subsection (1), the following are not revoked by the marriage of the testator:
(a) a disposition to the person to whom the testator is married at the time of his or her death,
(b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death,
(c) a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or Public Trustee if the power of appointment was not exercised.
(3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.
(4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.
Section 12(1) of the Act retains the prior rule that marriage revokes a will. However, s 12(2) sets out a number of exceptions to the general rule[1]. Section 12(4) specifically provides that wills made in contemplation of marriage generally or in contemplation of a particular marriage are not revoked by the solemnisation of a marriage or the contemplated particular marriage of the willmaker.
Transitional rules apply to the application of s 12. Clause 3(8) of Schedule 1 applies s 12 to wills made before the commencement date of 1 March 2008, where the willmaker's marriage is solemnised on or after that date.
As would be expected, the application of the former s 15 WPAA (which deals with the effect of marriage on a will) is continued for wills made before the commencement date of s 12 where the willmaker's marriage was solemnised before that date. A will revoked by the former s 15 WPAA remains revoked.
There is extensive case law on what constitutes a will expressed to be in contemplation of marriage (s 15 WPAA) but the cases turn very much on their particular facts. For example, in Keong v Keong [1973] Qd R 516, a reference to "wife" was sufficient but in In the Will of Foss [1973] 1 NSWLR 180, Re Pluto (1969) 6 DLR (3d) 541 and Re Coleman [1975] 2 WLR 213, a reference to "fiancée" was insufficient. Yet in Re Chase [1951] VicLawRp 35; [1951] VLR 477, a similar reference was held to be in contemplation of marriage.
It seems the willmaker must also intend the will to remain in effect after marriage: Burton v McGregor [1953] 2 NSWLR 487.
In Re Roberts [1978] 1 WLR 653, it was held that a voidable marriage revokes a will as does a marriage which is prima facie valid.
There is no clear authority as to a solicitor's duty to advise clients of the existence of this rule when preparing wills but caution would seem to counsel that appropriate advice should be given (see Hall v Meyrick [1957] 2 QB 455).
It should be noted that a court-authorised will made by a minor in contemplation of marriage is of no effect if the marriage does not take place (s 5(2)).
Some provisions of a will are preserved despite the willmaker's marriage, eg. a disposition to, or appointment as executor of, the person to whom the willmaker was married when the willmaker died (s 12(2)).
Section 13 Divorce
13 What is the effect of divorce or an annulment on a will?
(1) The divorce of a testator or annulment of his or her marriage revokes:
(a) a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and
(b) an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and
(c) a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.
(2) Subsection (1) does not apply if a contrary intention appears in the will.
(3) The divorce of a testator or the annulment of his or her marriage does not revoke:
(a) the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children, or
(b) the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents.
(4) If a disposition, appointment or grant is revoked by this section, the will takes effect in respect of the revocation as if the testator’s former spouse had died before the testator.
(5) Nothing in this section affects:
(a) any right of the former spouse of a testator to make any application under the Family Provision Act 1982
, or
(b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse.
(6) In this section:
annulment, in relation to a testator, means:
(a) the annulment of the testator’s marriage by the Family Court of Australia, or
(b) the annulment of the testator’s marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975
of the Commonwealth.
divorce means the ending of a marriage by:
(a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975
of the Commonwealth, or
(b) a decree of nullity in respect of the marriage by the Family Court of Australia, or
(c) the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975
of the Commonwealth.
spouse includes a party to a purported or void marriage.
testator’s former spouse means the person who was the testator’s spouse immediately before the testator’s marriage was ended by divorce or annulment.
Section 13(1) of the Act revokes a gift to or the appointment as an executor, trustee, advisory trustee or guardian of a former spouse. Section 13(4) deems the former spouse to have predeceased the willmaker. Depending on the provisions of the will, the effect of
s 13(4) may differ from that under the former law which deemed the "appointment" provision to have been omitted from the will.
Divorce or annulment will not revoke an appointment of the former spouse as trustee of property held on trust for beneficiaries which include the children of the willmaker and former spouse.
Although there is no statutory provision in New South Wales for the appointment of an advisory trustee, the will may create the role. Generally, the role of an advisory trustee is to provide advice to the appointed trustee. Section 41 of the Public Trustee Act 1978 (Qld) provides that an advisory trustee can be appointed by an order of the court on an application made by a beneficiary or any person on whose application the court would have the power to appoint a new trustee[2] or by any person having the power to appoint new trustees[3].
In practice, a willmaker may wish to appoint an advisory trustee where the willmaker's child is appointed the sole trustee of his/her testamentary trust and the advisory trustee is appointed to guide him or her in how best to manage the trust.
Previously, the Court could determine that the willmaker did not intend the divorce to revoke the gift or power of appointment if there was evidence of statements by the willmaker to that effect. Now, the only evidence to be considered by the Court regarding the willmaker’s intention is the will[4].
The definition of “divorce”[5] has expanded the definition of “termination of marriage”[6] to include the dissolution of the marriage in accordance with the law of a place outside Australia, but only if the dissolution is recognized under the Family Law Act 1975 (Cth).
It should be borne in mind that this provision only affects the will of a party to the divorce or annulment and not any provision made in favour of the spouse of a third party.
Where the will contains no provision in favour of any person other than the former spouse, there appears to be commentary suggesting that it will be required by the courts to be proved since it is not formally revoked and conflicting views that the court will treat it as a revoked will and grant letters of administration.
In Re Loweke [1995] Qd R 615 the rule in Jones v Westcomb (1711) Prec Ch 316; 24 ER 149 was applied to avoid a possible intestacy as a result of the effect of the Queensland equivalent of s 15A WPAA. In that case, a willmaker left his whole estate to his wife if she survived him for 30 days failing which there was a gift over to his children. The former wife had no interest in the estate because of the section but there was doubt whether the gift over had taken effect.
Section 13 is different to s 15A WPAA as there is no specific provision regarding the republication of a will after divorce.
Schedule 1, Clause 3(9) provides that s 13 applies to wills made prior to 1 March 2008 where the divorce or annulment occurs on or after 1 March 2008.
Section 16 For minors
16 Court may authorise minor to make, alter or revoke a will
(1) The Court may make an order authorising a minor:
(a) to make or alter a will in the specific terms approved by the Court, or
(b) to revoke a will or part of a will.
(2) An order under this section may be made on the application of a minor or by a person on behalf of the minor.
(3) The Court may impose such conditions on the authorisation as the Court thinks fit.
(4) 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 or alteration or revocation of the will or part of the will and the extent of the property disposed of by it, and
(b) the proposed will or alteration or revocation of the will or part of the will accurately reflects the intentions of the minor, and
(c) it is reasonable in all the circumstances that the order should be made.
(5) A will is not validly made, altered or revoked, in whole or in part, as authorised by an order under this section unless:
(a) in the case of the making or alteration of a will (in whole or in part)—the will or alteration is executed in accordance with the requirements of Part 2.1, and
(b) in the case of a revocation of a will (in whole or in part):
(i) if made by a will—the will is executed in accordance with the requirements of Part 2.1, and
(ii) if made by other means—is made in accordance with the requirements of the order, and
(c) in addition to the requirements of Part 2.1, one of the witnesses to the making or alteration of the will under this section is the Registrar, and
(d) the conditions of the authorisation (if any) are complied with.
(6) A will that is authorised to be made, altered or revoked in part by an order under this section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of the will.
Section 16 of the Act empowers the Court to authorise a minor to make a will and extends that power to authorise the alteration or revocation of a will of a minor (cf s 6A WPAA which was limited to the making of a will). Sections 17(4) and 18(2) WPAA, which applied to revocations and alterations respectively, did not require the Court's authority.
A minor, or his or her representative, may apply to the court for authorisation to make or alter a will of the minor in terms stated by the court, or to revoke part or all of the minor's will (ss 16 (1) and (2)). The minor must understand the nature and effect of the proposed will. The court order has no dispositive effect and does not of itself make, alter or revoke a will. Consequently, if the court makes an order authorising a minor to make a will in specific terms, but the minor dies before executing the will, the minor dies intestate.
The registrar of the Supreme Court must be an attesting witness to the will for a minor and must hold the will (ss 16(6) and Part 2.5). A court-authorised will made in another jurisdiction is recognised as valid under s 17.
At the time of writing this paper, there appears to be no reported cases on court-authorised wills for minors.
Sections 18 to 26 For persons lacking testamentary capacity
18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity
(1) The Court may, on application by any person, make an order authorising:
(a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or
(b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity.
Note. A person may only make an application for an order if the person has obtained the leave of the Court—see section 19.
(2) An order under this section may authorise:
(a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or
(b) the alteration of part only of the will of the person.
(3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made.
(4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity.
(5) In making an order, the Court may give any necessary related orders or directions.
Note. The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit—see section 86 of the Civil Procedure Act 2005
. The Court also has extensive powers to make directions under sections 61 and 62 of that Act.
(6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of the will.
19 Information required in support of application for leave
(1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18.
(2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information:
(a) a written statement of the general nature of the application and the reasons for making it,
(b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought,
(c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought,
(d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval,
(e) any evidence available to the applicant of the person’s wishes,
(f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity,
(g) any evidence available to the applicant of the terms of any will previously made by the person,
(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person,
(i) any evidence available to the applicant of the likelihood of an application being made under the Family Provision Act 1982
in respect of the property of the person,
(j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person,
(k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will,
(l) any other facts of which the applicant is aware that are relevant to the application.
20 Hearing of application for leave
(1) On hearing an application for leave the Court may:
(a) give leave and allow the application for leave to proceed as an application for an order under section 18, and
(b) if satisfied of the matters set out in section 22, make the order.
(2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s approval is sought.
21 Hearing an application for an order
In considering an application for an order under section 18, the Court:
(a) may have regard to any information given to the Court in support of the application under section 19, 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.
22 Court must be satisfied about certain matters
The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:
(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and
(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and
(c) it is or may be appropriate for the order to be made, and
(d) the applicant for leave is an appropriate person to make the 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 person in relation to whom the order is sought.
23 Execution of will made under order
(1) A will that is made or altered by an order under section 18 is properly executed if:
(a) it is in writing, and
(b) it is signed by the Registrar and sealed with the seal of the Court.
(2) A will may only be signed by the Registrar if the person in relation to whom the order was made is alive.
(1) Despite section 52 (Delivery of wills by Registrar), a will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless:
(a) the Court has made an order under section 18 authorising the revocation of the whole of the will, or
(b) the person has acquired or regained testamentary capacity.
(2) On being presented with a copy of an order under section 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit.
25 Separate representation of person lacking testamentary capacity
If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation.
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 the execution of the will 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 provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity.
Sections 18 to 26 of the Act introduce the power of the court to authorise the making, altering or revocation of a will for a person lacking testamentary capacity.
An applicant must seek the leave of the court before proceeding with the application[7]. The decided cases indicate that the requirement to obtain leave is a screening process to eliminate frivolous and baseless claims. Once leave has been given, the court may proceed immediately with hearing the application[8].
The Court must be satisfied of the following before making an order:
• there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will[9]; and
• the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity[10]; and
• it is or may be appropriate for the order to be made[11]; and
• the applicant for leave is an appropriate person to make the application[12]; and
• 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 in relation to whom the order is sought[13].
The Court will consider extensive information in order to make an order[14], may request any other information as it sees fit[15] and is not bound by the rules of evidence[16].
The best guidance for an indication of how the Courts will approach this power to make, alter or revoke a will can be found in reported cases from South Australia[17] and Victoria[18].
Leave to apply for an order authorising the making of a proposed will was refused in Re Fletcher; ex parte Papaleo[19]. The only evidence from which the alleged willmaker's "likely intentions" (Wills Act 1997) could be inferred was equality of shares given to the willmaker's children in her existing will. The court was not satisfied that the proposed will (which deducted benefits already received by one child) reflected the willmaker's likely intentions.
The Victorian Court of Appeal undertook a detailed examination of the history of the legislation, distinguished English cases and reviewed Victorian cases in Boulton v Sanders[20]. In that case, the appellant, the willmaker's administrator for financial matters, proposed a will that distributed the residuary estate of $800,000.00 (the residuary beneficiary had predeceased the willmaker) to two charities and five persons, including the appellant who was to receive a one-eighth share. The appeal court refused the application because it was "entirely possible" that the willmaker preferred to have the residuary estate distributed on intestacy, if the named residuary beneficiary had predeceased her.
De Gois v Korp[21] illustrates the evidence and the circumstances which can lead to a court making an order. In that case the court revoked the willmaker's 1996 will which appointed her husband as the executor and gave him the whole estate. In 2005 he was charged with her attempted murder and because of the severe brain injury she suffered as a result of that attack, she lacked testamentary capacity. She was unlikely to regain that capacity. The estimated value of the estate was $475,220.00. The court was satisfied that the proposed will which excluded the husband from the will and passed the estate to the daughter and son of the willmaker in equal shares reflected the "likely intentions" of the willmaker.
A statutory will was authorised for an elderly widow where disputing parties had compromised their differences and had made a joint application to the court in Monger v Taylor[22].
In another case, the court revoked the provisions of an elderly widow's will which conferred substantial benefits on the defendant who was guilty of reprehensible conduct in the management of her affairs' (see State Trustees Limited v Hayden[23]).
In Hill v Hill, a willmaker left her modest estate equally to her daughter, an only child, and the Cat Protection Society. The court found "compelling evidence" that the willmaker, before losing testamentary capacity, had decided to leave her whole estate to the daughter[24].
In each case, the Court paid particular attention to the following:
• the capacity test as stated by Lord Cockburn in Banks v Goodfellow[25] is always considered;
• evidence from the treating doctor, neurologist or neuropsychologist;
• that all interested persons had been served and were given the opportunity to be heard;
• the current and future financial circumstances of the parties involved;
• the relationships between the parties involved; and
• what the advice of a competent solicitor would have been to the willmaker had he or she had testamentary capacity.
The Court will not authorise wills if the Court is not satisfied of what the willmaker’s intentions would have been if he or she had testamentary capacity[26].
Separate representation of the person lacking testamentary capacity
The Court may order that the person lacking testamentary capacity should have separate representation[27]. Often it is the attorney who commences the application. A person lacking testamentary capacity should be separately represented if he or she does not have a guardian or attorney.
Costs of the application
Boulton v Sanders[28] held that, “Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is “a fair case of dispute”.
In Plowright v Burge[29], the plaintiff was the administrator of the estate and was not seeking to benefit himself in the proposed will. The defendant had given false evidence in the proceedings. Hansen J held that the plaintiff’s costs of the proceeding, including reserved costs, were to be paid out of the estate on a solicitor and client basis. No order was made for the costs of the defendant.
The lapse of benefit provisions are contained in ss 35 and 41 of the Act.
Section 35 The 30 day survivorship rule
35 Beneficiaries must survive testator by 30 days
(1) If a disposition of property is made to a person who dies within 30 days after the testator’s death, or, if that or another period for survival appears in the will, within the period appearing in the will, the will is to take effect as if the person had died immediately before the testator.
(2) This section does not apply if a contrary intention appears in the will.
(3) A general requirement or condition that a beneficiary survive the testator does not indicate a contrary intention for the purposes of this section.
A beneficiary must survive the willmaker for a period of 30 days after the willmaker’s death to take their gift.
At common law, the doctrine of lapse applied where the beneficiary predeceased the willmaker. This section modifies the doctrine by extending it to cases where a beneficiary survives the willmaker but does not survive for 30 days[30].
The common law doctrine of lapse gave way to a contrary intention. However, the doctrine could not be excluded at common law by an express declaration that doctrine was not to apply[31], or by a declaration that the gift is to vest on the execution of the will[32]. It could be avoided by providing for a gift to a beneficiary or to the estate of that beneficiary if he or she had predeceased the willmaker.
This provision introduces the possibility of uncertainty as to whether the beneficiary survives for a period of 30 days where the death of the beneficiary occurs in circumstances such that the exact duration of the period of survivorship may not be established.
It should be noted that the section only applies to beneficial dispositions so that it will not prevent the operation of the chain of executorial representation under s 45 WPAA.
Also, the section does not affect the right of survivorship in relation to joint tenancies as the survivor does not take by reason of a "beneficial disposition".
Section 35(2) provides for the 30 day survivorship rule to be excluded by a contrary intention in the will. It is advisable to expressly exclude the effect of the section where it is desired that the subsection not apply. A mere substitutional provision "if X predeceases me" may be insufficient to exclude the operation of the section.
The key question is the meaning which the court will give to the word "general" in s 35(3).
The application of the provision is usually satisfactory to most willmakers but it should be considered when drafting a will. The possibility that a willmaker may wish to substitute another beneficiary to take in lieu of a beneficiary who predeceases the willmaker should be explored. The willmaker may be satisfied to have the intended benefit fall into residue but the effect of the lapse rule should be explained. As much as practicable, benefits should be protected from lapsing and creating a partial intestacy.
In the common situation where the estate is left to the surviving spouse but if he or she fails to survive for 30 days, then to their children, the client's attention should be directed to how he or she would wish the estate to be distributed should the family die together in some calamity.
In any event, it has been reasonably common practice to provide for such a survivorship period in the will itself. The purpose of the 30 day survivorship rule is to avoid the multiplicity of administration of the same property through several estates.
A circumstance in which a difficulty may arise in respect of survivorship periods is illustrated by the following example:
Assume a husband and wife each have a will whereby the whole of their estate is to pass to their respective spouse, but if the spouse fails to survive them then, for example, $1,000.00 to charity 'A' and the balance to their child. If the will is drafted so that each spouse must survive the other for thirty days, a problem arises if they die within thirty days of each other. Under both wills charity 'A' will receive $1,000.00 ie. a total of $2,000.00. This is not usually what was intended. In such cases the legacies might be expressed to be subject to being reduced to one half of the intended provision if the spouse does not survive for a period of thirty days.
Section 41 Gifts to issue
41 Dispositions not to fail because issue have died before testator
(1) This section applies if:
(a) a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator (the original beneficiary), and
(b) under the will, the interest of the original beneficiary in the property does not come to an end on or before the original beneficiary’s death, and
(c) the disposition is not a disposition of property to the testator’s issue, without limitation as to remoteness, and
(d) the original beneficiary does not survive the testator for 30 days or, if that or another period for survival appears in the will, for the period appearing in the will.
(2) The issue of the original beneficiary who survive the testator for 30 days or, if that or another period for survival appears in the will, for the period appearing in the will, take the original beneficiary’s share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving.
(3) Subsection (2) does not apply if a contrary intention appears in the will.
(4) (Repealed)
(5) A gift to persons as joint tenants on its own indicates a contrary intention for the purposes of subsection (3).
An exception to the 30 day survivorship rule is s 41. If a child of the willmaker predeceases the willmaker or does not survive for 30 days (or such other time period specified in the will) after the willmaker’s death, the gift to that child will not fail but will pass to that child's issue.
It is the writer's view that the provisions of s 41 should not be relied on to effect substitution of beneficiaries. Any provision for substitution should be clear from the will itself and this section should not be considered as an aid to drafting. Further, if the willmaker left immovable property in a jurisdiction which did not have the equivalent of s 41, the immovable property, being governed by the 'lex situs',[33] may pass to different issue unless the substitution provisions implied by s 41 are made clear in the will itself.
Section 41 will not apply if a contrary intention is expressed in the will. In the Public Trustee of Queensland v Jacob [2006] QSC 372, the court held that, the words of the will, 'to those of my children [who were named] as survive me for a period of thirty (30) days and if more than one in equal shares', indicated a contrary intention and so excluded the anti-lapse rule.
Knowledge
Section 7 of the Act states that witnesses to a will do not need to know the document they are witnessing is a will.
Blind persons
Section 9 of the Act states that a witness must be able to confirm a willmaker signed the will voluntarily and the signature is the willmaker’s. This means that blind persons cannot witness wills.
Interested beneficiary rule
Section 10 of the Act retains the interested witness rule and exceptions[34]. The Act no longer provides that a gift to the spouse of a witness is void.
An interested witness can retain their disposition if:
• there are at least 2 other attesting witnesses who are not beneficiaries[35];
• all the other beneficiaries consent in writing to the interested witness taking the gift (and have the legal capacity to do so)[36]; or
• the Court is satisfied the willmaker knew and approved of the disposition and it was freely and voluntarily given by the willmaker[37].
Unlike s 13(3) WPAA, s 10 does not prevent an executor from distributing the interested beneficiary’s interest in the estate to the interested beneficiary.
Section 54 of the Act entitles a number of classes of people to have access to wills, revoked wills, documents purporting to be wills, parts of wills and copies of wills. It is interesting that the definition of document is restricted to paper or material on which there is writing.
There is no penalty specified for not providing an entitled person access to a will. However, it is anticipated a person could make an application under s 54(3) and failure to comply with the order of the court would hold the usual penalty of a costs order.
Acknowledgement
The writer gratefully acknowledges the assistance of his colleague, Ms Hannah Avenell, in the preparation of this paper.
[1] Succession Act 2006 (NSW) s 12(2).
[2] Public Trustee Act 1978 (QLD) s 41(2)(a).
[3] Public Trustee Act 1978 (QLD) s 41(2)(c).
[4] Succession Act 2006 (NSW) s 13(2).
[5] Succession Act 2006 (NSW) s 13(6).
[6] Wills, Probate & Administration Act 1898 (NSW) s 15A(5).
[7] Succession Act 2006 (NSW) s 20.
[8] Ibid.
[9] Succession Act 2006 (NSW) s 22(a).
[10] Succession Act 2006 (NSW) s 22(b).
[11] Succession Act 2006 (NSW) s 22(c).
[12] Succession Act 2006 (NSW) s 22(d).
[13] Succession Act 2006 (NSW) s 22(e).
[14] Succession Act 2006 (NSW) s 19.
[15] Succession Act 2006 (NSW) s 21(b).
[16] Succession Act 2006 (NSW) s 21(c).
[17] Wills Act 1936 (SA) s 7.
[18] Wills Act 1997 (VIC) ss 21, 23 and 25.
[24] Hill v Hill [2001] VSC 83.
[26] Re Fletcher; ex parte Papaleo (administrator of estate of Fletcher) [2001] VSC 109.
[27] Succession Act 2006 (NSW) s 25.
[28] [2004] VSCA 112; (2004) 9 VR 495, Dodds-Streeton AJA at [153].
[30] Succession Act 2006 (NSW) s 35.
[31] Re Ladd [1932] 2 Ch 219.
[32] Browne v Hope [1872] UKLawRpEq 101; [1872] LR 14 Eq 343.
[33] See Lewis v Balshaw [1935] HCA 80; (1935) 54 C.L.R. 188.
[34] Western Australia, South Australia and the ACT have abolished the interested witness and interested beneficiary rules.
[35] Succession Act 2006 (NSW) s 10(3)(a).
[36] Succession Act 2006 (NSW) s 10(3)(b).
[37] Succession Act 2006 (NSW) s 10(3)(c).
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