1. THE PROJECT’S BEGINNING AND THE CO-ORDINATING ROLE OF THE QUEENSLAND LAW REFORM COMMISSION

In 1991 the Standing Committee of Attorneys General approved the development of uniform succession laws for the whole of Australia. In 1992 the Queensland Law Reform Commission was requested by the Queensland Attorney General to co-ordinate that project.

At that time the Queensland Law Reform Commission was engaged upon a reference to reform Queensland’s intestacy rules. Work on that reference was prioritised in the hope that updated Queensland intestacy rules could be used as the basis for work on a future uniformity project on intestacy. The Commission’s work on that reference culminated in the completion of its Report, Intestacy Rules, in June 1993.³

In 1993 and 1994 Mr W A (Tony) Lee, a then part-time member of the Queensland Law Reform Commission (and currently a consultant to that Commission), assisted the Victorian Parliamentary Law Reform Committee in the preparation of its Report, Reforming the Law of Wills, and of the draft Wills Act 1994 (Vic), which was included in that Report.⁴

In order to accommodate the work of the Victorian Law Reform Committee in the uniformity reference, the Queensland Law Reform Commission confined its initial attention to the law of wills. In 1994, the Queensland Law Reform Commission released an Issues Paper, The Law of Wills,⁵ which identified a number of significant issues relating to uniform wills legislation. Shortly thereafter, the Commission published an Issues Paper, Family Provision.⁶ Since 1994, the Commission has produced a large number of papers on various issues relating to wills, family provision and other succession law topics.⁷

2. THE NEED FOR UNIFORMITY AND ITS ACHIEVABILITY

Although the succession laws were uniform in the Australian colonies during the nineteenth century, they diverged during the twentieth century when the colonies began to enact their own legislation. Those divergences have become more marked as States and Territories have embarked on more purposive law reform. As a result, there are no two States or Territories in Australia where the succession laws are the same.

Among the States and Territories there are numerous significant differences in the law of wills. In intestacy, the rights of a surviving spouse vary greatly from jurisdiction to jurisdiction. In family provision schemes, qualification to apply for provision is far from uniform, as are also the grounds on which the courts in different jurisdictions may order that provision be made. In the administration of deceased estates, there is a lack of uniformity in the law relating to devolution of title and the payment of debts from assets, and uncertainty with respect to interstate recognition of grants of probate.

Less significant differences are numerous, particularly in those relatively neglected areas of law reform such as probate and administration. To practise successfully in succession law requires State by State expertise. Since most succession practice is, or should be, concerned with minimising the costs of administering deceased estates, the majority of which are of no great financial value, it is ordinary people who suffer most from the inevitable increase in costs which must occur if a deceased estate has a connection with more than one jurisdiction.

To date, in Australia, State and Territory succession laws have been reformed in a piecemeal manner. There has never been an attempt to reconsider all the succession laws in their entirety in any State or Territory. Piecemeal reforms have tended to be concentrated on relatively urgent or popular issues.

Ideally, uniform laws should be identical, word for word, in every State and Territory, although in practical terms consistency might be the most achievable result. Whether uniform or consistent, all the succession laws must be up-to-date. The law of wills, intestacy, family provision, administration and probate, and administration of assets must be brought together in one piece of legislation and must share, as far as possible, a common underlying principle. Unnecessary provisions and old language must be recognised and removed.

Such a project inevitably entails law reform. Nevertheless, it may be said that, between them, the statutes of the States and Territories probably achieve all that could be desired to ensure that proper provision can be guaranteed for persons having legitimate claims on the estates of deceased persons. Furthermore, in recent years, a number of law reform bodies have reported on a need for reform in their respective jurisdictions in one or more significant areas of succession law. These reports invariably contain the most comprehensive and up-to-date thinking on the topics covered, and are the ideal starting point for a discussion on appropriate directions for uniformity.

The development by the National Committee of model legislation⁸ to be used as the basis for reform by individual States and Territories provides an opportunity for the States and Territories to adopt uniform, or at least consistent, laws relating to wills.

3. CO-ORDINATION OF THE PROJECT ON A NATIONAL BASIS

In order to ensure that the Uniform Succession Laws Project maintained an Australia-wide focus and was regarded as an undertaking of all Australian jurisdictions, the Queensland Law Reform Commission, as co-ordinator of the project, asked the Queensland Attorney General to request each of his counterparts in other Australian jurisdictions to nominate a person or agency to represent his or her respective jurisdiction on a National Committee to guide the project. Nominees were subsequently appointed in each Australian jurisdiction.

The New Zealand Law Commission asked to be represented on the National Committee. As the New Zealand Law Commission was also working on succession law reform, Professor Richard Sutton, a Commissioner of the Law Commission and an expert in succession law, was welcomed on to the National Committee.⁹ The New Zealand Law Commission is strongly supportive of the Uniform Succession Laws Project, and that Commission’s contribution will be of great assistance to the development of uniform succession laws in Australia and possibly between Australia and New Zealand.¹⁰

The current members of the committee are:¹¹

• Professor Don Chalmers, Professor of Law, University of Tasmania¹²
• Professor Michael Tilbury, Academic Secretary to the Victorian Attorney General’s Law Reform Advisory Council and Commissioner, New South Wales Law Reform Commission
• Mr Peter Hennessy, Executive Director, New South Wales Law Reform Commission
• Ms Margaret Doyle, Director, Policy and Research, Attorney General’s Department, South Australia
• Ms Barbara Bradshaw, Policy Officer, Policy Division, Northern Territory Attorney-General’s Department
• Mr Charles Rowland, Special Adviser (Succession Law), Community Law Reform Committee, Attorney-General’s Department, Australian Capital Territory
• Ms Ruvani Wicks, Legal Officer, Victorian Department of Justice
• Mr David Edwards PSM, Deputy President, Australian Law Reform Commission
• Mr D F Dugdale, Commissioner, Law Commission, New Zealand
• Mr Wayne Briscoe, Commissioner, Queensland Law Reform Commission
• Ms Claire Riethmuller, Senior Research Officer, Queensland Law Reform Commission

Since the National Committee was first formed there have been some changes in its membership. This was to be expected given the nature of the organisations from which most National Committee members were drawn. Also, a number of the Attorneys General who were in office at the time the original nominations were made no longer hold office. Nevertheless, the National Committee has retained the expertise and interest in succession law that are vital to the success of the project.

Individual members of the National Committee are not necessarily plenipotentiaries of the organisations they represent, although, wherever possible, members of the National Committee have sought the views of their organisations before adopting a stance in relation to particular issues discussed at the National Committee level. The Queensland Law Reform Commission, for example, has considered all significant issues. The advantage in that approach for Queensland will be that the Queensland Law Reform Commission will be able to report to the Queensland Attorney General on reforms that should be implemented in Queensland to bring Queensland in line with the preferred uniform approach.

A number of the organisations from which the National Committee members are drawn have particular references from their respective Attorneys General that are relevant to the Uniform Succession Laws Project. For example, the New South Wales Law Reform Commission and the Queensland Law Reform Commission have specific references relating to the Uniform Succession Laws Project.

The Queensland Law Reform Commission as co-ordinating body for the project is indebted to the individual members of the National Committee for their interest and efforts to date. It is hoped that the National Committee structure will continue for future uniform succession law topics to be dealt with by this project.

4. THE ACHIEVEMENTS OF THE UNIFORM SUCCESSION LAWS PROJECT TO DATE

(a) The Issues Papers

In an attempt to identify matters that could be the subject of a common approach to succession law throughout Australia, the Queensland Law Reform Commission prepared an Issues Paper on The Law of Wills¹³ and an Issues Paper on Family Provision¹⁴ as well as a number of memoranda, referred to below.

In Queensland, the Issues Papers were widely distributed to individuals and organisations with a particular interest or expertise in the issues under review. Submissions were received from within Queensland and from national organisations. Consultations in other jurisdictions were also based on the Issues Papers.

(b) The National Committee’s deliberations

The National Committee established as a result of nominations from all Australian Attorneys General met for the first time in Brisbane in September 1995. All States and Territories, as well as the Commonwealth and New Zealand, were represented at that meeting. It was agreed at that meeting that the National Committee would concentrate on the law of wills as its first project and that the draft Wills Act 1994 (Vic), included in the Victorian Parliamentary Law Reform Committee’s Report, Reforming the Law of Wills,¹⁵ would be used as the basis for discussion. The draft Victorian legislation was the most recent proposal for wills law reform in Australia.

It was also agreed at the 1995 meeting of the National Committee that work would be undertaken on the discrete topic of the abolition of the lex situs rule in relation to succession to immovable property. It was generally considered that the abolition of that rule may diminish the adverse effects of lack of uniformity.

Following the September 1995 meeting, the Queensland Law Reform Commission prepared a series of memoranda for the National Committee on particular issues raised by the draft Wills Act 1994 (Vic) and on the lex situs rule.¹⁶ The various memoranda were:

1. Preliminary Matters and Capacity

2. Executing a Will

3. Revocation, Alteration and Revival

4. Interested Witnesses

5. Marriage and Divorce

6. Foreign Laws

7. Construction of Wills - The Anti-Lapse Rule

8. Construction of Wills and Miscellaneous Matters

9. Admission of Extrinsic Evidence

10. The Effect of the Lex Situs and Mozambique Rules on Succession to Immovable Property

Consultations on the issues relating to the law of wills were undertaken in each jurisdiction by the National Committee’s member in that jurisdiction.

The Queensland Law Reform Commission used the memoranda to seek specific comment from individuals and organisations within Queensland with an interest or expertise in the law of wills.

The New South Wales Law Reform Commission re-published and distributed the Issues Papers on The Law of Wills¹⁷ and Family Provision¹⁸ to assist in its consultation process.

The Law Reform Commission of Western Australia sought comment on the issues discussed in the memoranda from Mr Neville Crago of the University of Western Australia. Mr Crago has wide experience, both academic and professional, in the area of succession law. Comment was also sought from about forty individuals and organisations in Western Australia including judges, lawyer-politicians, academics, the Law Society, various government agencies and trustee companies. A press release was sent out and a notice was placed in the journal of the Law Society of Western Australia (Brief).

The Constitutional and Law Reform Branch of the Australian Capital Territory’s Attorney General’s Department sought advice from Mr Charles Rowland, then of the Australian National University. Mr Rowland is an internationally recognised expert on succession law and is now a member of the National Committee.

The Tasmanian Law Reform Commissioner convened an advisory committee of experienced Tasmanian legal practitioners and a member of the judiciary.

Members of the National Committee in other jurisdictions conducted such consultations as they considered appropriate.

The National Committee next met in Melbourne on 20 May 1996. The meeting was hosted by the Victorian Department of Justice and was chaired by Dr Robert Dean MP, Parliamentary Secretary to the Victorian Department of Justice and former member of the Victorian Parliamentary Law Reform Committee.

The principal aims of the Melbourne meeting were to:

• assist the process of wills law reform in Victoria (and hence provide a standard for other jurisdictions in Australia) by providing Australia-wide comment on the proposed Victorian wills legislation;
• assist the process of uniform succession law reform by exchanging views and seeking consensus on particular succession law issues - in particular, in relation to the law of wills and the lex situs rule; and
• set an agenda for future work on the Uniform Succession Laws Project.

The Melbourne meeting was very successful. All Australian jurisdictions except South Australia and the Northern Territory were represented. A representative of the New Zealand Law Commission also attended. Agreement was reached on a large number of issues. At the conclusion of the meeting, it was agreed that a report on wills law reform would be prepared for the Standing Committee of Attorneys General.

(c) The National Committee’s Reports on Wills

Following the May 1996 Melbourne meeting of the National Committee, the Queensland Law Reform Commission prepared a Report to the Standing Committee of Attorneys General on behalf of the National Committee. That Report addressed a number of significant issues relating to the law of wills.¹⁹ It was forwarded to the Standing Committee of Attorneys General in October 1996.

At an April 1997 meeting of the National Committee, it was noted that the Standing Committee of Attorneys General had expressed support for the concept of the National Committee and had requested the completion of the Wills project by the end of 1997. The National Committee decided to prepare a Consolidated Report for the Standing Committee of Attorneys General on the issues covered by the October 1996 Report as well as a number of outstanding wills issues.

It was also decided that the Consolidated Report should include draft model wills legislation based upon the National Committee’s recommendations. The model legislation could form the basis of legislative reform in any jurisdiction interested in adopting the proposals contained therein.

The National Committee met further in September 1997 to finalise its recommendations and to consider a first draft of its model wills legislation.

This Consolidated Report on The Law of Wills represents the culmination of the National Committee’s deliberations on this topic. It also includes draft model wills legislation prepared by the New South Wales Parliamentary Counsel on instructions from the National Committee. The National Committee gratefully acknowledges the assistance provided by the New South Wales Parliamentary Counsel to this project.

(d) The next stages of this project

At the April 1997 meeting of the National Committee, discussion commenced on the issues covered by the Issues Paper on Family Provision, and on a number of other issues with respect to family provision that had been raised primarily by respondents to the Issues Paper. It was noted that the Standing Committee of Attorneys General had requested the completion of the Family Provision project by the end of 1997.

That part of the Uniform Succession Laws Project has also now been completed. A Report on Family Provision will be presented to the Standing Committee of Attorneys General in December 1997, together with this Consolidated Report on The Law of Wills.

Work has commenced on the third stage of this project, the administration of estates. The final major stage of this project will be a review of intestacy laws.

FOOTNOTES

3. Queensland Law Reform Commission, Intestacy Rules (R 42, June 1993).

4. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994).

5. Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 1, The Law of Wills (WP 46, July 1994, reprinted June 1995).

6. Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 2, Family Provision (WP 47, June 1995). See page 15 of this Preface for references to publications produced and consultations conducted in other jurisdictions.

7. See, for example, page 14 of this Preface.

8. Draft model wills legislation is included in this Report.

9. Professor Sutton has subsequently retired from the Law Commission.

10. The New Zealand Law Commission has recently reported on the law of wills in New Zealand: Succession Law: A Succession (Wills) Act (NZLC R 41, October 1997). The recommendations made in that Report were developed after considering the draft Wills Act 1994 (Vic) and the initial work of the National Committee for Uniform Succession Laws.

11. In August 1997, Dr Peter Handford, of the Law Reform Commission of Western Australia, resigned from the National Committee pursuant to the Attorney General of Western Australia’s decision to restructure the Law Reform Commission of Western Australia of which Dr Handford is Executive Officer and Director of Research.

12. Formerly the Tasmanian Law Reform Commissioner.

13. Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 1, The Law of Wills (WP 46, July 1994, reprinted June 1995).

14. Queensland Law Reform Commission, Uniform Succession Laws for Australian States and Territories, Issues Paper No 2, Family Provision (WP 47, June 1995).

15. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at xxxv.

16. See Queensland Law Reform Commission, Uniform Succession Laws, Wills (MP 15, February 1996) and Queensland Law Reform Commission, Uniform Succession Laws: The Effect of the Lex Situs and Mozambique Rules on Succession to Immovable Property (MP 16, February 1996).

17. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Issues Paper 10, February 1996).

18. New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision (Issues Paper 11, February 1996).

19. National Committee for Uniform Succession Laws, Uniform Succession Laws for the Australian States and Territories: Report to the Standing Committee of Attorneys General: The Law of Wills (MP 19, October 1996).