Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

WILLS BILL 2008 (No. 67)

Second Reading

[3.19 p.m.]

Ms GIDDINGS (Franklin - Minister for Justice - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Deputy Speaker, although succession laws were uniform in the Australian colonies during the nineteenth century, they diverged during the twentieth century when the States and Territories began to enact their own legislation. 

Succession laws include laws relating to wills; laws covering the distribution of an estate when a person dies intestate; laws giving courts power to make provisions for dependents from an estate if the deceased failed to do so in a will; and laws that generally cover the procedure for obtaining probate and administering an estate.

The Standing Committee of Attorneys-General has been working on a uniform succession laws project for more than 10 years.  The project is co-ordinated by the Queensland Law Reform Commission and directed by a national committee established in 1995.  When the uniform succession laws project commenced there were no two States or Territories where succession laws were the same and there were numerous significant differences.  The goal behind the project was the development of model legislation to be used as the basis for reform by States and Territories. 

While word-for-word uniformity of succession legislation across all jurisdictions is unrealistic, the implementation of nationally consistent laws that are up to date is an achievable goal.  Having uniform or consistent succession laws is expected to make it easier and less costly to administer the estates of people who have moved between, or who have held assets in, different jurisdictions.

The national committee presented the final report on the law of wills to the Standing Committee of Attorneys-General in December 1997. The report included a draft model bill.  Five jurisdictions - Victoria, the Northern Territory, Queensland, Western Australia and New South Wales - have subsequently implemented the recommendations of the wills report.  While jurisdictions have adapted the model bill to suit local drafting styles and jurisdictional needs, there is still considerable uniformity.  The model bill has twice been circulated for comment in Tasmania.  The detailed feedback received was generally supportive of the model bill, although with some modifications and the retention of a few provisions of the current act.

I will now turn to the bill itself and highlight some of the changes it makes to the law of wills in Tasmania and also where modifications have been made to the model legislation.  The bill expands on the type of property that may be disposed of by a will by more thoroughly covering future interests and including property that does not devolve until after the testator's death.  It also explicitly states that a testator may not, by his or her will, dispose of property held by the testator on trust for other persons.  The bill also increases the capacity of a minor who is married to make arrangements for his or her estate by including the ability of the married minor to alter or revoke a will.

The bill allows for a minor to apply only to the court to approve a proposed will.  The Wills Act 1992 allowed an application to the Public Trustee as well as to the court but as there has been only one such application since the present act came into force in 1992 it was considered that empowering the Public Trustee was unnecessary.

The bill is less restrictive in respect of the execution of a will.  The testator's signature is no longer required to appear at the foot of the will, nor is an attestation clause essential.  However, it is necessary that the signature be made with the intention of attesting the will and be witnessed by two persons present at the same time.  The bill also makes it clear that a witness to a will does not need to be aware that it is a will that he or she is witnessing.

In relation to how a will may be altered, more than one submission in response to consultation on the model legislation suggested that, while the provisions of the model legislation and the current Tasmanian act were substantially similar, the provisions of the 1992 act were better expressed.  The bill therefore includes the 1992 act provisions.  Similarly, the provisions of the model legislation in respect of a gift to an interested witness were considered to be less thorough than the equivalent existing provisions of the Wills Act 1992.  The bill therefore incorporates the existing Tasmanian provisions, with the exception that a disposition to the spouse of a witness is no longer invalidated.

When the rule disqualifying the spouse of a witness from benefiting under a will evolved, husband and wife were one at law and the disqualification of a spouse would be almost automatic.  However, views about the legal position of spouses, especially wives, have moved on and the model bill has been adopted in this respect.

The bill also preserves certain matters in a will where marriage or divorce would otherwise automatically revoke the whole will.  For example the marriage of the testator does not revoke a disposition to the person to whom the testator is married at the time of his or her death.

As in the 1992 act the registration or revocation of a deed of relationship under part 2 of the Relationships Act has the same effect on a will as a marriage or divorce.

The bill also provides that the court may dispense with the requirements for execution of wills or rectify a will on satisfaction of certain matters beyond reasonable doubt.  The standard of proof in the model legislation was 'on the balance of probabilities' but the higher standard present in the current act is retained in the bill in recognition of the paramount importance of a will.

I will now turn to the issue of statutory wills for a person who lacks testamentary capacity.  The model legislation has provision for the Supreme Court to make a statutory will on behalf of a person who lacks testamentary capacity.  In the Wills Act 1992 the Guardianship and Administration Board has that power, provided the person lacking capacity has no valid will.  This bill retains the power of the Guardianship and Administration Board to make a statutory will where there is no existing will.

On average in the past five years the board has received three to four applications per year to make such a will, and the applications, while sometimes complex, are generally uncontroversial and uncontested.  However the bill also gives the court power to make a will and to alter or revoke a will for a person who lacks testamentary capacity.  If there is no existing will, the applicant may make an application for a will to be made for a person lacking testamentary capacity either to the court or the board.  The bill allows the board at any time to direct that an application before it should be dealt with by way of an application to the Supreme Court.  This will allow the board to refer to the court any matter which it believes would be more appropriately dealt with by the court, for example an application that is contested or where there is doubt about whether there is a prior will.  Importantly, the court will have the power to alter or revoke an existing valid will where the person who made it no longer has testamentary capacity. An example of a situation where this may be appropriate would be where a young recently married man, who has made a will leaving everything to his wife, sustains a brain injury leaving him without testamentary capacity and in need of ongoing care.  The husband receives a large damages payout as a result of the accident which disabled him.  The wife separates from her severely disabled husband, who is cared for by his sister for many years before his death, but husband and wife are never divorced. In a circumstance like this, it may be thought appropriate for the will to be altered so that the sister becomes the main beneficiary under the will, rather than the estranged wife.

Other States that have adopted the model bill have provided for the statutory alteration of an existing will by the court.  If Tasmania did not have a similar provision, Tasmanians would be at a disadvantage compared to residents in other States.  The board, while prepared to continue to deal with statutory wills where there is no existing valid will, does not consider that it is the appropriate body to deal with statutory alterations to existing wills.  In the former case the board is creating an interest and it is unusual for such applications to be contested, whereas in the latter case the application relates to the removing of an existing interest and therefore the issue may become controversial and adversarial.

The provisions in the bill relating to the court's and board's powers in relation to statutory wills have been drafted to be as consistent as possible.  The bill, following the model legislation, contains several clauses that have no equivalent in the current Tasmanian act.  These include:  clauses relating to the effect of a change in the testator's domicile; a requirement that beneficiaries must survive the testator for 30 days unless the will expressly provides otherwise; gifts to unincorporated bodies; delegation of the power to dispose of property; the effect of referring to a valuation in a will; persons entitled to see a will after the death of the testator; and finally the ability of a personal representative to make a maintenance distribution.

Mr Deputy Speaker, I  commend the bill to the House.

[3.29 p.m.]

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, Her Majesty's loyal Opposition supports the bill which, as the Attorney has said, is based on the model Wills Bill which was contained in the final report on the Law of Wills at the Standing Committee of Attorneys-General as long ago as December 1997, 11 years ago.  Once again, Tasmania is second-last by a long way.  Five jurisdictions have already adopted the model bill, and Tasmania is second-last. 

Mr Llewellyn interjecting. 

Mr MICHAEL HODGMAN - Under you we are normally last, under the Attorney we are second-last - it is disgraceful.

It is accepted that nationally uniform or consistent succession laws will make it easier and less costly to administer the estates of people who have moved between or have held assets in different jurisdictions.  Many of the provisions of this bill are substantially similar to the provisions in the Tasmanian Wills Act 1992, however this bill is less restrictive in respect of the execution of a will.  This bill gives the Supreme Court power to make or revoke a will for a person who lacks testamentary capacity -

Debate adjourned.