Page 4103 - Week 14 - Tuesday, 22 October 1991
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MR COLLAERY (10.18): We are dealing with wills and forfeiture and other matters in this legislation. This legislation, in fact, is historic. It brings our wills legislation into state of the art for Australia, as the Attorney quite properly acknowledged, in effect, in his introductory speech; but one ponders, to some extent, on the situation of the history of will making.
If you look at clause 3 of the Bill - that is, new sections 8, 8A and 8B - you will see that it deals with the age of testamentary capacity. From a historical point of view, Justinian's Institutes prescribe the minimum age for making a will at puberty because persons under that age have not the requisite judgment of mind. They fix puberty at 12 years for girls and 14 years for boys.
These rules were adopted by the ecclesiastical lawyers in England. It was only in 1837, with the enactment of the Wills Act, that the minimum age was fixed right up at 21 years. The English Wills Act was adopted in New South Wales by 3 Victoria No. 5, and 21 became and remained the minimum age for making a will in the ACT until the Age of Majority Act 1974, which, we all recall, came into force under Mr Whitlam. This Act made the age of majority 18 years. That is the background to new section 8.
Clause 6 of the Bill deals with the dispensing power. Many examples could be given of wills that have been held void because the testator and/or his solicitor failed, for one reason or another, to comply with the required statutory formalities. Where it is clear that the testator's intention was to make a will, and there is no question of fraud, the court should be able to uphold a will in spite of the fact that the formalities have not been complied with.
One example which happens from time to time is that two testators, usually husband and wife, accidentally sign each other's wills. As a practising solicitor, I can certainly tell you how easy it is to hand the wrong will to a married couple. I have done it on occasion and have realised it, fortunately on the spot, and have had to have another one run off the machine. So, there are two examples of that, and one can see those elsewhere.
Clause 8 of the Bill deals with rectification. In Collins v. Elstone, reported in 1893, an elderly testator had a will. She decided to make a small addition to it. She purchased a will form and filled it in accordingly, so that it dealt with only a portion of her estate. The will form contained a printed revocation clause.
She got the help and advice of a layman. She wanted to delete the revocation clause, but he told her that it was an oddity of the law of wills that a will was not valid unless it contained a revocation clause and that the revocation clause did not mean that the earlier will would
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