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23 Aug 2005 Succession Amendment Bill 2587 bill were based on the draft Victorian Wills Act 1994, which drew on Queensland’s Succession Act. Consequently, many of the amendments contained in the model legislation were either identical to, or substantially the same as, corresponding provisions of the Succession Act. However, the model legislation simplified and modernised the language used and introduced some significant changes to the law of wills, such as the concept of court authorised wills for minors and people who lack testamentary capacity. In December 1997, the Queensland Law Reform Commission released report No. 52 on the law of wills. This report assessed the extent to which the model legislation represented a change in existing law under the Succession Act and recommended several departures from the model legislation. The bill implements the model legislation with several modifications recommended by the commission’s report. The bill does this by replacing part 2 and other miscellaneous provisions of the Succession Act which deal with the making, revocation, formal validity, interpretation of wills and powers of personal representatives. The bill brings the law of wills into the 21st century. I seek leave to have the remainder of my second reading speech incorporated in Hansard. Leave granted. I would like to highlight some of the key changes made by the Bill that bring the law of wills into the 21st century. Changes regarding a minor’s capacity to make a will Mr Speaker, the Bill extends the current law in relation to a minor’s will-making capacity. Until now, an unmarried person under the age of 18 years has not been able to make a valid will. This means that if a minor dies before reaching 18, his or her estate is dealt with according to the intestacy rules that govern what happens to a person’s estate when they die without a will. The Bill enables a minor to validly make, alter or revoke a will in contemplation of marriage to a particular person—the will takes effect if and when that marriage is solemnised. This complements the law relating to a minor’s ability to marry under the Marriage Act 1961 (Cth). In addition, the Bill expands the Supreme Court’s succession law jurisdiction to enable it to authorise a minor to make, alter or revoke a will. This recognises there are circumstances in which it is desirable for a child to make a will. For example, a child who is suffering from a potentially fatal illness or injury may have received a significant inheritance or damages and may want their estate to be distributed other than in accordance with the intestacy rules which might benefit only the child’s parents. The child may want their estate to go to one parent only, for example where the minor is estranged from the other parent, or the minor may wish to benefit another person eg. a particular sibling or a carer. Before exercising this jurisdiction, the court must be satisfied that the minor understands the nature and effect of the proposed will, the extent of the property to be disposed under it and that the will reflects the minor’s intentions. The Registrar of the Supreme Court must be a witness to the will and must retain it in safe custody. Court-authorised wills for persons lacking testamentary capacity Mr Speaker, the Bill further expands the court’s succession law jurisdiction to enable it to authorise the making, alteration or revocation of a will on behalf of a person who lacks testamentary capacity. I consider this to be the most significant and innovative aspect of the bill. Queensland will join jurisdictions including the United Kingdom, South Australia, Tasmania, Victoria and the Northern Territory in establishing the concept of a statutory will. Testamentary capacity is essential to the making of a valid will—it requires a testator to know and understand the nature of what they are doing. The testator must also understand the extent of the property they are dealing with by will and be able to comprehend and appreciate the claims to which they ought to give effect. A person who lacks testamentary capacity may never have had the capacity to make a will or they may have lost capacity, for example, due to injury or disease. Currently when the person dies, their property is distributed according to the intestacy rules. In the case of a person who has lost capacity, the person may have previously made a valid will which is no longer appropriate due to a change of circumstances eg. the subsequent birth of a child not mentioned in the will. In these circumstances, the child would have to bring a family provision application for a share of their parent’s estate. The statutory will provisions offer a solution in situations where a person’s known intentions would not otherwise be given effect because of unforeseen circumstances or events eg. accident or illness. There is no restriction on who can apply for a court-authorised will for a person lacking testamentary capacity. Having regard to interstate experience, it is anticipated that most applications will be made by the person’s spouse, family member or guardian. The Bill establishes a two-stage process whereby an applicant must first seek leave of the court to apply for an order. the requirement for leave is intended to perform a screening function to allow only adequately-founded applications to proceed. A leave application must be accompanied by comprehensive material including evidence of: • The person’s lack of testamentary capacity and the likelihood of acquiring or regaining it; • The size and nature of the person’s estate; • The person’s testamentary wishes; • The terms of any previous will; • The likelihood of someone bringing a family provision application in respect of the person’s estate; • The circumstances of any other person for whom the person lacking testamentary capacity might reasonably be expected to make provision for under a will; • Any other persons who might be entitled to claim on intestacy. Requiring the applicant to provide such detailed information at this stage will enable the court to gauge the dimensions of the application at an earlier stage of the process. There will be an opportunity for persons with an interest in the proceedings eg. the person alleged to lack testamentary capacity, family members etc to be represented and heard at an application for leave hearing. The court cannot grant leave unless satisfied that: • The applicant is an appropriate person to make the application; • Adequate steps have been taken to allow all persons with a proper interest in the application to be represented; • There are reasonable grounds for believing the person does not have testamentary capacity;
2588 Succession Amendment Bill 23 Aug 2005 • The applicant’s testamentary proposal is or may be what the person would have done if he or she had testamentary capacity; and • It is or may be appropriate for an order to be made in relation to the person. Once leave has been granted, the next stage is for the court to consider the actual application. In this regard, the Bill allows for the merger of the leave application and the application proper. Before it makes an order, the court must be satisfied that the person is in fact incapable of making a will and that the proposed will reflects what he or she would have done if they had capacity. The court must also be satisfied that appropriate steps have been taken to allow representation of all persons with an interest in the application. The will must be signed by the Registrar of the Supreme Court and retained by the registrar until further court order, or the person dies or acquires or regains testamentary capacity. This new aspect of the court’s jurisdiction also applies to minors—it is intended to complement the court’s jurisdiction in respect of competent minors. This means the court can make a statutory will for a minor to whom the court cannot otherwise give authorisation because the minor lacks the requisite degree of understanding, eg. because of immaturity or because of a particular incapacity. Mr Speaker, many aspects of the Bill shift the emphasis from matters of ‘form’ to the intent of the testator—it moves us from a system where formalities were paramount to one where the court has greater discretion to interpret the testator’s intentions. This underlines the policy thrust of the Bill that the greatest possible effect should be given to the testator’s intentions. Court’s power to dispense with formal execution requirements—testamentary intention test Under the current Act, a failure to make a will that conforms with the formal execution requirements, however slight, will generally result in the will being invalidated. Formal execution requirements can only be relaxed where the Supreme Court is satisfied that there has been substantial compliance with them. This test has proved extremely onerous, with very few substantial compliance applications being successful. It has created inequitable results—an oversight or an inadvertent error by the testator or an attesting witness can invalidate a document that for all intents and purposes would otherwise constitute the testator’s will. The testator’s obvious testamentary intentions are thwarted and the testator dies intestate with their property being distributed according to the intestacy rules, which may benefit people the testator had no intention of benefiting under the terms of his or her will. To address this and provide a more equitable result, the Bill replaces the substantial compliance test with a testamentary intention test. Under this test, the court will be able to admit a document to probate if it is satisfied the document embodies the testamentary intentions of a deceased person, even though it does not comply with the formal requirements for executing a will. In deciding the deceased person’s intentions, the court may have regard to statements made by the deceased person about their intentions. Relaxation of certain formal execution requirements Mr Speaker, the Bill also relaxes certain formal execution requirements by removing the current requirement that a will must be signed ‘at the foot or end thereof’. Until now, this requirement has meant that where a signature is unconventionally placed on a will, all gifts that appear below it are invalid. The Act will now require that the signature of the testator is made with the intention of executing the will but it is not essential that the will be signed at its foot. The Bill retains the current requirement for at least two attesting witnesses to witness the will in the testator’s presence, but no longer requires them to do so at the same time. Admission of extrinsic evidence to assist in the interpretation of wills For the first time, Queensland will have a statutory provision that permits a court to admit extrinsic evidence to assist in the interpretation of a will. The provision will extend the admissibility of evidence of the testator’s actual intention where, on its face, the will is meaningless, ambiguous or ambiguous in light of surrounding circumstances. New rules about beneficiaries and interpreters who witness wills The Bill changes the interested witness rules which operate to disqualify an attesting witness or interpreter for the will (or their spouse) from benefiting under the will. These rules are usually justified on the basis that allowing a beneficiary or spouse of a beneficiary to witness or interpret a will provides an opportunity for the person to exert undue influence over the testator. Unintended consequences flowed from the application of these rules eg. wills have been witnessed by persons who were not contemplated at the time of execution as being a potential beneficiary, but who through the passage of time became a beneficiary because others died before the testator. The rule meant that any dispositions to these witnesses failed. To address this, the Bill provides that a gift to an attesting witness or interpreter for a will is void unless: • The court is satisfied that the testator knew and approved the making of the gift and the gift was made freely and voluntarily; or • All of the people who would benefit if the gift to the witness was void, consent to the witness receiving the gift; or • There are at least two other witnesses to the will who do not receive a gift under the will. The Bill also abolishes the rule that a gift to the spouse of an attesting witness or interpreter is void. New rules about the effect of marriage on wills Under the current Act, a person’s will is revoked when they marry, unless the will was made in contemplation of a specific marriage. The Bill changes this by providing that a gift to a person to whom the testator is married at the time of his or her death will not be revoked. In addition, an appointment of the person to whom the testator is married at death as executor, trustee or guardian will no longer be revoked. The Bill will also preserve those wills that have been made in contemplation of marriage generally (as opposed to a specific marriage) provided the testator subsequently marries. New rules about who is entitled to see the will of a deceased person As a general principle, only a named beneficiary has a right to see the will. The Bill inserts a new provision in the Act that will require the person who has custody or control of a will of a deceased person to allow certain categories of people to inspect the will and copy it. The entitlement extends to a part of a will and to purported wills and revoked wills (and parts thereof), as well as copies. These testamentary instruments can be significant to the determination of questions concerning, for example, the testator’s capacity, undue influence or interpretation.
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PROOF ISSN 1322-0330 WEEKLY HANSARD
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Table of Contents — Tuesday, 23 A
Page 5 and 6: 2536 Papers 23 Aug 2005 PAPERS PAPE
Page 7 and 8: 2538 Ministerial Statement 23 Aug 2
Page 19 and 20: 2550 Scrutiny of Legislation Commit
Page 21 and 22: 2552 Private Members’ Statements
Page 23 and 24: 2554 Questions Without Notice 23 Au
Page 33 and 34: 2564 Members’ Ethics and Parliame
Page 35 and 36: 2566 Matters of Public Interest 23
Page 45 and 46: 2576 Constitutional and Other Legis
Page 47 and 48: 2578 Transport Legislation Amendmen
Page 49 and 50: 2580 Transport Legislation Amendmen
Page 51 and 52: 2582 Housing Legislation Amendment
Page 53 and 54: 2584 Education (Queensland College
Page 55: 2586 Succession Amendment Bill 23 A
Page 59 and 60: 2590 Queensland Competition Authori
Page 69 and 70: 2600 Racing Venues Development Amen
Page 81 and 82: 2612 Plumbing and Drainage and Othe
Page 99 and 100: 2630 Child Safety Legislation Amend
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2638 Child Safety Legislation Amend
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2640 Child Safety Legislation Amend
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2642 Adjournment 23 Aug 2005 One pa
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2644 Adjournment 23 Aug 2005 years.
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2646 Adjournment 23 Aug 2005 Finall
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