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Victorian law reform: Willing to modernise

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Cite as: April 2012 86 (04) LIJ, p.80

The laws of succession, wills and probate are being reviewed.

The Victorian Law Reform Commission (VLRC) is reviewing laws governing deceased estates under the Administration and Probate Act 1958 and the Wills Act 1997, focusing on whether the laws continue to meet the needs of the community.

In a time of increasingly mobile populations and complex family structures, the Victorian Attorney-General Robert Clark has asked the VLRC to identify what changes are necessary to modernise this important branch of the law.

Succession law affects almost all Victorians at some stage of their lives, whether in relation to their own estates or the estates of family and friends.

Australian Law Reform Commission president Rosalind Croucher has described succession law as “one of the slower moving waterways of jurisprudence – but also one of the most fundamental and most significant philosophically in relation to property in families”.

Harmonising succession law

The VLRC reference follows the completion of the National Uniform Succession Laws project. The Standing Committee of Attorneys-General (SCAG) decided in 1991 to investigate the possibility of harmonising succession law and practice across Australia. In 1995 SCAG established the National Committee for Uniform Succession Laws (the national committee) which conducted extensive research in conjunction with a number of law reform bodies over 14 years.

In April 2009, SCAG received the national committee’s final four-volume report on the administration of estates of deceased persons. Earlier reports dealt with the law of wills (1997), family provision (1997 and 2004) and intestacy (2007).

Current law

In 1997 the Wills Act 1997 repealed and replaced earlier legislation, implementing the majority of the national committee’s recommendations relating to requirements for valid wills and their execution.

The 1997 Act also amended provisions of the Administration and Probate Act 1958 which dealt with claims for family provision – challenges to wills by family members or others who believe that they have not been adequately provided for by the deceased. The Victorian provisions in this area are currently the broadest in the country in terms of who can apply, and the breadth of the grounds on which an application can be brought.

Terms of reference

Matters being considered by the VLRC include:

  • whether the current requirements for witnessing wills are sufficient to protect older and vulnerable will-makers from undue influence by potential beneficiaries;
  • whether the current provisions for allowing the Supreme Court to authorise wills for persons who do not have capacity should be revised;
  • the need to clarify when testamentary property disposed of during the will-maker’s lifetime will be adeemed and when it will be protected from ademption;
  • whether the current eligibility rules in Part IV of the Administration and Probate Act 1958 concerning family provision applications are appropriate;
  • whether the current rules for distributing estates on an intestacy are appropriate;
  • whether there should be special rules for legal practitioners who act as executors and also carry out legal work on behalf of the estate, including rules for the charging of costs and commission;
  • how assets are designated to pay the debts of an estate and the effect that this has on the estate available for distribution to beneficiaries or to meet a successful family provision claim;
  • whether a court should have the power to review and vary costs and commission charged by executors;
  • whether there are more efficient ways of dealing with small estates;
  • the application of costs rules in succession proceedings, taking into account any developments in rules or practice notes made or proposed by the Supreme Court; and
  • any other means of improving efficiency and reducing costs in probate and administration matters.

For the complete terms of reference and more information on the inquiry see www.lawreform.vic.gov.au.

Consulting with the community

Anyone interested in making a submission to the VLRC can register their interest by emailing their contact details to law.reform@lawreform.vic.gov.au.

The VLRC has until mid 2013 to provide the Attorney-General with the final report and recommendations for law reform in this area.




Contributed by the Victorian Law Reform commission. For more information ph 8608 7800 or see www.lawreform.vic.gov.au.

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