The Gazette 1964/67

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*

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. .'