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incidence of death duties and income tax. It should be
no part of a Statute which deals with family law to
advance the interest of the Revenue at the expense of
the citizen but this Bill, if enacted, may do that very
thing by tying the hands of the testator in disposing of
his property by gifts
inter vinos.
Section 117 which
.'
•
invalidates dispositions made within ten years of the
testator's death will shake titles and place insuperable
obstacles in the way of raising capital by bank loans. It
is also contrary to public policy insofar as it makes it
difficult for parents to settle property on the occasion
of marriage of their children.
(8) It would be idle to ignore the fact that cases of divorce
have arisen in this country where there has been conflict
between the civil and the canon law. The wife entitled
to the legal rights under part IX may not be the wife
recognised by canon law.
:••
(9) The Bill does not take account of cases in which each
spouse has a separate estate. The surviving spouse may
be better off financially than the testator or any of the
issue but will be entitled to a legal right notwithstanding
this position.
(10) The restriction of free testamentary disposition may
discourage persons with capital from settling in this
country and some persons who have already settled here
may decide to leave.
These are merely illustrations but they cover a sufficiently
wide field to indicate the danger of attempting to deal with
this situation by general statutory rules.
7. It has been suggested to the Council that an attempt by
the legislature to prescribe general testamentary rules without
recourse to the Courts of Justice may be unconstitutional.
8. There are serious objections to part X of the Bill.
Section 119 (2) provides that a decree of divorce
a mensa et
thoro
will deprive a spouse against whom the decree has been
made of his or her legal rights. Such proceedings seldom
reach our Courts. Section 119
(2)
may compel the innocent
party to seek a Court order for divorce
a mensa et thoro
in order
to deprive the erring party of a statutory share in the estate.
The provisions of section 119 (4) are particularly objection
able. Apart from the dissension which will result from the
public washing of dirty linen by testamentary provisions of the
kind contemplated by sub-section (4) the provisions if they
become law will cause difficulties of interpretation and con
sequent litigation. The onus of proof lies on the executors
and may be rebutted by evidence on the part of the dis
inherited party that at the time of the death of the deceased
he had permanently abandoned such conduct. This involves
the Court in making an impossible determination as to the
intentions and future conduct of the disinherited party. The
commonly recognised, effective and most charitable method
of disinheriting an undeserving relative is the bequest of a
small legacy. It shows the legatee that he has not been over
looked, although he has been quietly relegated, and usually
no contention or contest can arise. The Bill seeks to substitute
for this time-honoured device a testamentary accusation of bad
character against the disinherited spouse or issue.
Such
declarations will repel testators. Difficult questions will arise
in determining
(a)
whether a disinherited person had per
manently abandoned dissolute or dishonourable conduct
(b)
the gravity or otherwise of injurious conduct
(c)
whether
a disinherited person was or was not in a substantially better
position than other issue. The provisions of the whole of
Part X are fraught with difficulty and open a vista of litigation
and family trouble.
PRACTICAL SUGGESTIONS
(1) Who require protection ? It is submitted only a surviving
spouse, infant children, and possibly adult children who are
dependent through physical infiimity or incapacity. .
Adult
children, merely as such, have no natural right to statutory
protection.
They are usually self-supporting, they may not have contri
buted to the estate and it is no injustice or hardship that they
should depend on their parents' generosity.
(2) A testator should have unfettered freedom to bequeath
the whole estate to the surviving spouse and in such case no
other persons should have statutory legal rights.
(3) The determination of the question whether a will is
inofficious should be a matter for a Court of Justice on the
facts and circumstances of the particular case.
(4) An application to the Court for an order making proper
provision from the estate on the grounds that a testator has
made an inofficious will should be made either by the surviving
spouse or on behalf of one or more of the testator's infant
children. The Court should have discretionary power to make
such provision as it thinks fit from the capital or income of the
estate, or both, in accordance with natural justice, after taking
into account all the relevant circumstances including the wishes
of the testator, the provisions of his will, his character and
conduct, the amount and nature of his estate and the circum
stances, character and conduct of his family. By restricting
the jurisdiction to claims by the surviving spouse and infant
children it would be possible to avoid abuse of the procedure
by nuisance claims by adult undeserving children which would
absorb part of the estate in costs.
(5) If the Society's submissions on part IX are accepted
section 117 will be unnecessary.
This section is open to
serious objection because it will raise uncertainty as to titles
and make it very difficult, if not impossible, to use the property
as security for raising capital.
(6) The jurisdiction to deal with claims under the Act might
be given to the Circuit Court.
OTHER PROVISIONS OF THE BILL
Section
9 (4) : A testator who makes a will before the com
mencement of the Act and subsequently becomes mentally
incapable will have no opportunity of revising his will in
the light of the Act.
Section
63 :
It is suggested that the doctrine of advancement
should apply only to shares on intestacy. The definition of
advancement in subsection (6) might be further considered,
particularly the second sentence which could cause disputes.
Section
77 (Signing and attestation of wills) :
It is suggested
that the provision in paragraph 2 that the witnesses need not
be present at the same time is an undesirable innovation. No
reason is suggested for it. The present system has worked
well and the change may open the gate to fraud.
Section
80 :
While recognising that this section is merely a
re-enactment it should be reconsidered. Is it wise to provide
that attestation by an incompetent witness shall
be
admissible ?
Section
84 (i) (a) : It is suggested that the fact of contemplation
of marriage should be stated in the will.
Section
100 (Prescribed forms for reference in will) :
It is
submitted that this section is undesirable as it involves will
making by reference. The President of the High Court may
be required to construe will forms drafted by himself. The
nature of the forms intended to be prescribed under this••••
section is not clear,
.4*