Page 3524 - Week 12 - Thursday, 19 September 1991
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
However, before highlighting some of the more significant of them, I should initially make mention of the fact that the law relating to the making of, and interpretation of, wills can be an especially complex area. In an effort to ensure certainty and to secure the elimination of fraudulent activity from the testamentary process, there has been a very large number of rules and principles developed by parliaments and by the courts over many years.
The consequence of this has been that the courts have sometimes found themselves in the position of being bound to make some decision about the interpretation of a will, with that decision being recognised as contrary to the true intentions of the testator. An example is the limited ability of some courts to save wills, about which there are no suspicions, from failing when the execution procedures have not been precisely followed. The problem can be particularly acute with wills which have been drafted without the aid of professional legal advice. These amendments will give the courts a much greater discretion to examine individual circumstances and to ensure that justice is done.
I now turn to the more significant provisions of this Bill. The first substantive amendment contained in this Bill deals with the ability of persons who are under the age of 18 to make a valid will. Presently, the only minors who are permitted to validly provide for the disposition of their property after their deaths are those who are active military personnel. This amendment recognises that there are a number of minors who get married or who may have substantial assets, and gives them the opportunity of providing for the disposition of their property other than in line with the normal rules of intestacy.
For those minors who are or have been married, this reform gives them full testamentary capacity. For other minors, the Bill provides the option of court supervised will-making; that is, if the court is satisfied that the minor understands what he or she is doing and that it is reasonable, in all the circumstances, for the minor to take the proposed course of action, the court can permit the minor to make, or revoke, the will.
A further major amendment confers a general dispensing power on the court. This will enable the court to admit a document to probate, even though it has not been executed in accordance with the formal requirements of the Act, where the court is satisfied that the deceased person intended the document to constitute her or his will, or an amendment to, or a revocation of, her or his will. The utility of such a provision is particularly evident in circumstances where a will is attempted to be made in emergency situations or, as I indicated earlier, without professional legal advice.
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .