Questions

 

Witnessing wills and undue influence


Requirements for witnessing a will

W1   Should there be special witnessing provisions in respect of certain will-makers? If so, who should those will-makers be and what should the special witnessing provisions require?

W2   Should witnesses to the execution of a will be required to understand that the document in question is a will?


The witness-beneficiary rule

W3   Should Victoria reintroduce the witness-beneficiary rule in the form recommended by the National Committee for Uniform Succession Laws?

 
Prevention of undue influence through other changes to the will-making process

W4   Would introducing a professional requirement that solicitors obtain a medical capacity assessment for their clients prior to drafting a will for them be useful in preventing undue influence?

(a) If so, in what circumstances should the requirement apply (such as where a will-maker is over a particular age)?

(b) If not, what disadvantages would there be in such a requirement?

W5   Would introducing a professional requirement that solicitors must either decline to act or seek independent advice when an existing client asks them to draft a will for another person that would confer significant benefits on the existing client be useful in preventing undue influence?

W6   Should guidelines be provided for professionals who make wills in Victoria dealing with how to minimise the incidence of undue influence on older and vulnerable will-makers? If so, what should those guidelines contain?

W7   In what other ways could the process of preparing a will by a solicitor be improved to protect vulnerable will-makers from undue influence?

 
Determining whether a will reflects the will-maker’s true intentions

W8   Are any changes to the law relating to testamentary capacity necessary to improve protection for older and vulnerable will-makers?

W9   Are any changes to the law relating to knowledge and approval and suspicious circumstances necessary to improve protection for older and vulnerable will-makers?

W10   Are any changes to the law concerning fraud or forgery necessary to improve protection for older and vulnerable will-makers?

W11 Should the equitable doctrine of undue influence for lifetime transactions be applied to wills?

W12 Are there changes that could usefully be made to the doctrine of undue influence as it currently operates in the probate context?

 

Statutory wills


Determining the intentions of the incapacitated person

W13   Should Victoria adopt the National Committee’s recommended guiding principle for authorising a statutory will or retain the current principle?


Involvement of the incapacitated person in the hearing

W14   Should the Wills Act 1997 (Vic) concerning statutory wills specify that the court may order separate representation for the incapacitated person (rather than stating that the incapacitated person is entitled to appear on the application)?

 
Accessibility of the statutory will process

W15   How can the statutory will procedure be made more accessible? In particular, would any of the following reforms be desirable?

(a) Remove reference to the two-stage application process for statutory wills from the Wills Act 1997 (Vic).

(b) Have applications for statutory wills heard in the Guardianship List of the Victorian Civil and Administrative Tribunal rather than in the Supreme Court.

(c) Encourage judges to decide unopposed statutory will applications on the papers without a hearing in open court.

W16   Are any other changes desirable to the statutory will provisions of the Wills Act 1997 (Vic)?

 
Determining who pays for the application

W17   Should the Wills Act 1997 (Vic) include costs provisions specific to statutory will applications? If so, what should the costs provisions provide? Should the legislation distinguish between interested and disinterested applicants?

 

Ademption


The ademption rule

W18   Should the ademption rule be changed to one based on the will-maker’s intentions? If so, in what way? For example:

(a) Should the Wills Act 1997 (Vic) provide a presumption against ademption?

(b) Should the Wills Act 1997 (Vic) provide a presumption in favour of ademption that would allow a beneficiary of a specific gift to present evidence that the will-maker would not have intended ademption?

W19   What effect (if any) would changing the ademption rule to one based on the will-maker’s intentions have on:

(a) the cost and time involved in administering an estate?

(b) the fairness of the outcome?

 
Acts by administrators appointed by the Victorian Civil and Administrative Tribunal

W20   Have you experienced any difficulties with the operation of section 53 of theGuardianship and Administration Act 1986 (Vic)?

 
Acts by persons holding an enduring power of attorney

W21   Should an exception to the ademption rule be included in legislation for actions of persons holding an enduring power of attorney, as well as administrators? If so:

(a) Should a beneficiary of an otherwise adeemed gift be entitled to:

-- the same interest they would have had in the property if it had not been sold (section 53 of the Guardianship and Administration Act 1986 (Vic)), or

-- an order to ensure that no beneficiary gains a disproportionate advantage or suffers a disproportionate disadvantage (South Australia and New South Wales), or

--  an appropriate order for compensation from the estate (Queensland)?

(b) Should the exception apply to any actions by the donee of the power, or only those actions taken after the donor of the power has lost capacity?

(c) In the present context, what special accounting obligations should the donee of the power of attorney have in relation to proceeds of the transaction?

 
Access to a person’s will for anti-ademption purposes

W22   Should a person acting under an enduring power of attorney be able to access a person’s will in the same way as an administrator? If so, should access depend upon proof of the will-maker’s lack of capacity?

 

Publication Status: 
Publication Process: 
Date Published: 
Friday, February 1, 2013 - 12:30

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