Page 3525 - Week 12 - Thursday, 19 September 1991
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This particular reform, which is becoming a feature of the wills legislation of common law jurisdictions, is complemented by an additional measure enabling the court to have regard to a wide range of evidence from which to form a view about the relevant intentions of the deceased person.
The Bill also includes comprehensive provisions dealing with the ability of the courts to rectify wills in two particular circumstances. The first is where the will is so expressed that it fails to carry out the testator's intention.
The second concerns the matter of unforeseen circumstances. This second matter will enable a court to insert words into, or omit words from, a will where the court is satisfied that certain circumstances or events existed, either before or after the will was made, that were generally not known to the testator. As a consequence of the lack of knowledge, the provisions of the will then fail to accord with what the testator's intentions would have been had he or she known of those circumstances. The provision represents a significant increase in the ability of the court to examine, and give effect to, the testator's underlying intentions in cases where, through no fault of the testator, circumstances combine to shipwreck those intentions.
Other significant reforms contained in this Bill will permit a court, when interpreting the provisions of a will, to have regard to the dispositive intentions of the testator when the will is ambiguous or uncertain in some respect; provide for the continued validity of a will which has been witnessed by a person who is also a beneficiary under that will; and provide for the revocation of gifts in a will to the testator's spouse upon the termination of the marriage. The revocation by divorce provision recognises the major economic separation that accompanies the end of a marriage. However, it will operate only in the absence of a contrary intention from the testator.
The reforms contained in this Bill have been formulated around the central goal of testate succession law; that is, the implementation of the testator's true intentions. In this regard, these reforms are both sensible and timely, and I commend them to the Assembly. There are no financial considerations for government in this Bill. I now present the explanatory memorandum for the Bill.
Debate (on motion by Mr Collaery) adjourned.
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