8.1 Wills are ‘important family, social, economic and legal documents’. Almost 60% of adult Australians have made a will and 93% of people over 70 years of age have a will. Pressuring older people to make or change their wills in particular ways are examples of financial abuse, both in general guidelines on elder abuse and raised by stakeholders in this Inquiry.
8.2 Advance planning documents, such as wills, are a key part of estate planning and are an expected part of a lawyer’s practice—either because it is the kind of practice the lawyer undertakes or as an aspect of serving the wishes of particular clients. A lawyer has an important role in supporting a client to make a will and understand its nature and content. A lawyer can also protect a client in situations of potential undue influence. As the National Older Persons Legal Services Network commented, advance planning documents ‘can prevent harm and be used to cause harm’.
8.3 This chapter considers existing doctrines, particularly those that respond to coerced wills, and notes a number of aspects of succession law generally that may be considered appropriate to reflect upon, in time, through state law reform processes and in a cooperative way as was undertaken through the wide-ranging uniform succession laws project undertaken principally between 1995 and 2009.
8.4 To aid in combating elder abuse and to reduce undue influence in the making of wills, the ALRC recommends a national coordinated response to improving lawyers’ understanding, through national best practice guidelines developed by state law societies and the Law Council of Australia. Other professionals, such as financial advisers, may similarly benefit from improved understanding. Where lawyers are not involved in will making, the ALRC recommends community education in addressing the difficulties associated with ‘do-it-yourself’ wills.
Cheryl Tilse et al, ‘Having the Last Word? Will Making and Contestation in Australia’ (University of Queensland, 2015) 6.
National Older Persons Legal Services Network, Submission 363.
The Uniform Succession Laws Project is a useful model of cooperation. It was initiated by the Standing Committee of Attorneys-General in 1991; and in 1995 a National Committee on Uniform Succession Laws was established to direct it. Its brief was to review the laws in the Australian jurisdictions relating to succession and to recommend model national uniform laws. The Queensland Law Reform Commission was the co-ordinating agency and the Committee comprised representatives from all Australian jurisdictions, including a representative from the Australian Law Reform Commission. The publications of the participating agencies towards the project are listed in New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Report No 124 (2009) xiv–xv.