weekly hansard - Queensland Parliament - Queensland Government

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.