Statutory will applications in Victoria – procedural changes taking effect from 1 January 2015

In a previous post on 26 August 2014 (accessible here), we highlighted proposed changes to the Wills Act 1997 (Vic), that would affect some procedural aspects of statutory will applications in Victoria.

The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) received Royal Assent on 21 October 2014.  The relevant part of the Act containing the changes to the statutory will provisions – part 5 – commenced on 1 January 2015 (by proclamation dated 29 October 2014, Special Gazette S400).  During the passage of the legislation, there were no changes to part 5 of the bill.

It should be noted that during the course of the consultation process that led to these changes to the statutory will provisions, some more radical reforms were mooted.  The Victorian Law Reform Commission, in its final report, observed that ‘most of those who made submissions or attended consultations told the Commission that the statutory wills system is working well and does not require any major reform’ (Succession Laws, report of the VLRC, August 2013 at [3.5]).

What is the practical effect of the changes?

  • There is no longer a two-stage approach (application for leave, followed by substantive application) in Victoria.  The application process now involves a single stage.  The only other Australian jurisdictions that have a single stage approach are Western Australia, and Tasmania (for applications to the Guardianship and Administration Board only).  In practice, this change may not make a significant difference, since under the former two-stage approach, a well-prepared application would in any event contain the relevant supporting information required for the Court to deal with both the leave application and the substantive application at the same hearing.  The move to a single stage approach is unlikely, in our view, to result in any overall saving in legal costs required to prepare and present an application.
  • The listed information that was previously required, under s 28, to be provided in support of the application for leave must now be provided in support of the application.  The listed information now appears at s 21A.  The list is unaltered, except for the addition of one new item: “(e) any evidence available to the applicant of the ability of the person to participate in the proceedings and express the person’s wishes”.  This reinforces the point that, where the proposed testator is capable of expressing their wishes in respect of the proposed will or revocation, even though they may lack testamentary capacity, those wishes are of particular relevance in the Court’s inquiry into whether the ‘core test’ is met, and whether an order should be made.  For a recent South Australian example of this, see Re Dennis [2014] SASC 158.  The reference, in the new s 21A(e), to ‘ability of the person to participate in the proceedings’ ties in with the question of whether the Court should order separate representation for the proposed testator, and the new s 21D (see below).
  • The three pre-requisites that formerly needed to be met on the application for leave (located in s 26: ‘Matters of which the Court must be satisfied before making an order under section 21’) must still be met, on the application.  They are now located in s 21B (‘Matters of which the Court must be satisfied before making an order under section 21’).
  • Interestingly, the last of those three pre-requisites – the ‘reasonableness’ requirement (formerly s 26(c), now s 21B(c)) – has been adjusted so that it no longer needs to be met in respect of an application for an order authorising the revocation of a will, as distinct from an order authorising the making of a will.  This appears illogical, and takes the Victorian legislation out of step with the corresponding statutory wills legislation in the other Australian jurisdictions, in this respect.  The ‘reasonableness’ requirement (as to which, see GAU v GAV [2014] QCA 308, concerning the nature and scope of the ‘appropriateness’ requirement in Queensland) should serve an equally valid function in respect of applications for the court-authorisation of a revocation, and applications for court-authorisation of the making of a will.
  • Importantly, there has not been any change to the ‘core test’ – the requirement that ‘the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be’ if the person had testamentary capacity.
  • The requirement that various persons be entitled to appear and be heard on the application (formerly s 29, now s 21C) applies in respect of the application, rather than the application for leave. The list of those persons is unchanged.
  • A new provision has been inserted, at s 21D, that enables the Court, if it considers appropriate to do so, to order that the proposed testator be separately represented.  This is in line with the corresponding statutory provision in the Australian Capital Territory and New South Wales, and the procedural requirements in South Australia and Western Australia (see Statutory Will Applications: A Practical Guide at [5.2 to 5.5]).

In a future post, we will consider the potential relevance to statutory will applications of changes that have also been made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) to the eligibility rules relating to family provision in Victoria.  A copy of the Act is accessible here.