The Wills Act

1.13   When Victoria separated from New South Wales and became an independent colony in 1850, the laws then in force in New South Wales continued to apply here. They included the Wills Act 1837 (UK).⁷

1.14    An organising principle of the 1837 Act was the doctrine of ‘testamentary freedom’.

According to this doctrine, a person (the ‘testator’) should be free to determine how their property is distributed on their death by making a will (or ‘testament’) that sets out their intentions. The Act regulated who could make a will, the type of property that a will could dispose of, procedural formalities that must be followed in order for the will to be valid, and how to interpret it.

1.15    As a colony, and later as a state,Victoria’s wills legislation developed and changed slowly, but sometimes significantly.⁸ Although consolidated a number of times,⁹  the legislation was not comprehensively reviewed until 1984. In that year the Attorney-General established a working party to review the Wills Act 1958 (Vic).¹⁰

1.16   Two years later, in 1986, the working party presented the Attorney-General with a report recommending changes that would bring Victoria’s legislation into line with legislation in the other Australian jurisdictions.¹¹ Work began on drafting a new Wills Act, reflecting the Working Party’s recommendations. The eighth draft was referred to the Victorian Parliamentary Law Reform Committee in 1991. 

1.17    By that time, moves were being made nationally to establish the Uniform Succession Laws project. The Parliamentary Law Reform Committee sought to assist the national project by ‘avoiding unnecessary departures from formulations most likely to be generally adopted’.¹²

For its part, theQueenslandLaw Reform Commission focused the national project on the law of wills in order to accommodate the work of the Parliamentary Law Reform Committee.¹³ The Parliamentary Law Reform Committee presented its report in 1994, and its recommendations included a proposed Wills Act.¹⁴  

1.18    The National Committee presented its report on wills in 1996, which took account of the proposed Victorian Wills Act and recommended national model legislation.¹⁵  

1.19    The outcome in Victoria was the passage of the Wills Act 1997 (Vic). It is a ‘reasonably faithful’ replica of the model national legislation.¹⁶ The Commission is examining only three specific issues in relation to the law of wills.

FOOTNOTES

 7     7 Wm 4 & 1 Vict, c 26.
 8     For example, the lowering of the age of majority from 21 to 18 by the Wills (Minors) Act 1965 (Vic); and the amendment of the witness- beneficiary rule by the Wills (Interested Witnesses) Act 1977 (Vic).
 9     Wills Statute 1864 (Vic); Wills Act 1890 (Vic); Wills Act 1915 (Vic); Wills Act 1928 (Vic); Wills Act 1958 (Vic).
 10   The Attorney-General’s Working Party in 1984 comprised representatives of the Law Department, the Probate Office, the Law Faculty of theUniversityofMelbourne, the Law Institute of Victoria and the Victorian Bar.
 11   The report was not published.
 12    Law Reform Committee, Parliament of Victoria, Reforming the Law of Wills (1994) xiii.
 13    National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law  of Wills,QueenslandLaw Reform Commission Miscellaneous Paper 29 (1997) i.
 14    Law Reform Committee, above n 12.
 15    National Committee for Uniform Succession Laws, above n 13
 16     Rosalind Croucher, ‘Towards Uniform Succession inAustralia’ (2009) 83 Australian Law Journal 728, 730.