February 2008

Wills & estates news: Succession Act to commence operation on 1 March 2008

The NSW Succession Act 2006 was assented to on 27 October 2006 with the aim of modernising the law of wills and moving towards consistent succession laws in Australia. The Statute Law (Miscellaneous Provisions) Act (No. 2) 2007 made significant changes to the Act in December 2007. At long last, the Succession Act 2006 (SA) will commence operation on 1 March 2008. The Succession Regulation 2008 also commences on 1 March 2008.

Transitional Provisions

Part 2 of Schedule 1 to the SA contains the transitional provisions. The important starting point in all matters will be to determine whether the provisions of the SA apply or whether the provisions of the Wills, Probate and Administration Act 1898 (now known as the Probate and Administration Act) apply.

In general:

  • wills validly made before 1 March 2008 will continue to be effective. The laws affecting these Wills are the repealed provisions of the Wills, Probate and Administration Act 1898 and in some cases, certain sections of the SA; and
  • wills made on or after 1 March 2008 will be subject only to the SA (with one limited exception relating to wills for minors).

Major Changes

The following is a summary of some of the major changes.

1. The statutory dispensing power (section 8) has a wider scope because of the definition of "document" in section 3. An informal will does not necessarily need to be in writing and such things as audio and video wills can be admitted to probate under the dispensing power.

2. New rules about witnessing wills (sections 7, 9 and 10).

3. The provision of statutory guidance of the matters that the Supreme Court may consider when authorising a minor to make a will (section 16).

4. The conferral of new powers on the Supreme Court to make orders authorising the making, alteration and revocation of wills for people who lack testamentary capacity (sections 18-26).

5. The narrowing of the power of the Court to rectify wills (section 27). Rectification is now only permitted where the Court is satisfied either a clerical error was made, or the will does not give effect to the willmaker's instructions. Previously, the Court only had to be satisfied that the will failed to reflect the willmaker's intentions without specifically requiring reference to instructions.

6. New rules about survivorship (section 35) which provides that a gift to a person who dies within 30 days (or some other stated period in the will) of the willmaker's death, will be construed as taking effect as if the person had died immediately before the willmaker, but only if there is no contrary intention in the will.

7. New extrinsic evidence rules to assist in the interpretation of a will (section 32).

8. Gifts to issue of the willmaker who die before the willmaker leaving issue will not fail (section 41), but this section will not apply if there is a contrary intention in the will.

9. New provisions allowing for the deposit of wills in the Court (section 51).

10. New provisions about who is entitled to see a will on the death of the willmaker (section 54).

Succession Regulation 2008

Section 51(3) of the SA provides that a fee prescribed by the regulations must accompany any will to be deposited with the Registrar of the Supreme Court. Clause 4 of the Succession Regulation 2008 states that the prescribed fee is $102. There are no other significant clauses in the Regulation.

The Challenge

The main challenge ahead is to be certain of the transitional provisions, apply the correct law and ensure all relevant documents reflect the commencement of the Succession Act.

Author: Gerard Basha