Issue: 38
Sent: 15-05-2006 08:48:42
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A Change as good as a holiday - tony crilly
Change as good as a holiday
They say a change is as good as a holiday. I don’t think they were referring to changes in legislation at the time.
We have just had a significant change in Queensland by virtue of the Succession Act Amendment Act, which has shaken up the old regime a little.
Of course this means more work by the poor suffering lawyers and greater pitfalls in practice when dealing with clients.
Some of the changes are an attempt to bring the laws into line with other states and with an eye on eventual uniformity throughout Australia.
What are the changes? Well there are a few and of course the numbering in the Act has all changed so we will have to start from scratch.
A new rule in s33Z allows the will to be accessed by “entitled persons” including :
- A person mentioned in the will, whether as a beneficiary or not;
- A person mentioned in an earlier will;
- A spouse parent or child of the testator;
- A de facto spouse
- A person who would be entitled if the testator died without a will
- a parent or guardian of a minor
- a creditor of the estate
- any person entitled to make an application for Family provision
Well this certainly opens up the possibilities of further arguments regarding an estate. Previously, only certain people were entitled to see the will and there must be procedures adopted to allow these new classes of applicants to obtain a copy.
Under s 11 a new witness rule has been enshrined, to allow for a person to witness the signing of a will without causing disentitlement of a gift made under that document. Spouses are no longer disqualified and gifts can be made where that person is a witness on certain conditions. These include where the beneficiaries consent and there is no issue regarding influence or capacity over the testator.
Under s 18 a new rule of substantial compliance has been created. This allows a will that lacks the formalities of being in writing signed by the testator in the presence of two witnesses. The new section is focused on the testamentary intent and allows partial compliance to give rise to an effective will. This includes a revocation which could be made just by writing a letter and having it signed and sending it to the solicitors’ office.
Clearly there are great challenges ahead in working out the effect of the legislation.
We will look at a number of the other changes next week but it is clear that the legislation attempts to fix a number of problem areas arising from the case law over the years.
We will have to wait and see whether it actually achieves what it sets out to do in terms of the live cases that come before the courts. In the meantime there is greater uncertainty and the advice of a qualified lawyer is even more necessary than before.
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