Proposal 9–1 The Law Council of Australia, together with state and territory law societies, should review the guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they cover matters such as:
(a) common risk factors associated with undue influence;
(b) the importance of taking detailed instructions from the person alone;
(c) the importance of ensuring that the person understands the nature of the document and knows and approves of its contents, particularly in circumstances where an unrelated person benefits; and
(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents.
Guidelines for legal practitioners
9.18 The formalities for wills, including the requirement of witnessing, serve a number of purposes, one of which is to protect a testator from being forced to sign a document they do not wish to sign. However, as the VLRC observed,
increasing concern that older and vulnerable will-makers are being subjected to pressure about their wills has led some judges and commentators to suggest other ways of reducing the risk of undue influence in the will-making process. The key suggestion in this area is to ensure that legal practitioners take greater care when making wills.
9.19 Lawyers have a key role to play in safeguarding against coerced will-making. The VLRC recommended that, to minimise the risk of undue influence, the Law Institute of Victoria, as the professional body of Victorian legal practitioners, should prepare best practice guidelines ‘on the detection and prevention of undue influence when preparing a will’.
9.20 With respect to the doctrine of knowledge and approval, the VLRC commented that, while no changes in the law were necessary to ‘this well settled area of the law’, a constructive contribution would be for the Law Institute of Victoria to include discussion of knowledge and approval and suspicious circumstances in the recommended guidelines on undue influence. Proposal 9–1 is modelled on the VLRC recommendations.
Align probate and equitable doctrines
9.21 The VLRC also considered as a reform option the legislative change in British Columbia, which commenced in 2014, to introduce into the probate context the equitable doctrine of undue influence. Stakeholders to the VLRC inquiry were divided in responding to this suggestion: some ‘saw advantages in such a change, while others were concerned that the equitable doctrine is not appropriate to the probate context’.
9.22 The VLRC concluded that the British Columbia provision was ‘groundbreaking’ and could suggest a reform direction for Australia to follow. But the VLRC also pointed to the decision of Vickery J in Nicholson v Knaggs, which ‘appear to have made undue influence easier to prove’, which may mean that legislative change is unnecessary. The final recommendation was that Victoria should review the effect of the British Columbia legislation in practice, to consider whether a similar provision should then be introduced.
9.23 The ALRC considers that the emphasis of the proposed law reforms in this Inquiry should be on the role that lawyers can play in assisting older persons in their estate planning and the instruments to give effect to such plans; and the community education strategies that may be developed and enhanced through the National Plan discussed in Chapter 2.
Amend forfeiture rule
9.24 In succession law, a person who causes the death of another is not permitted to benefit from the person’s estate as a result of that killing. Known as the ‘forfeiture rule’, it is a common law rule of public policy. Two stakeholders suggested amending the forfeiture rule in response to elder abuse. The New South Wales Trustee & Guardian referred to amendments in the United States:
Several states in the USA have expanded their forfeiture legislation as it applies to an unlawful killing to disqualify persons from inheriting if they have been involved in abuse or financial exploitation of the deceased. Elder abuse is often linked to the abuser’s right to inherit; the term inheritance impatience has been coined. The reason for expanding the forfeiture legislation in the USA to financial abuse cases is to help prevent and reduce elder abuse. Family members often stand to inherit from the victim and by recognising elder abuse as a matter of succession law, the aim is to deter elder abuse by those who are likely to gain from the death of an elderly person. The introduction of such measures in Australia are worthy of investigation and evaluation.
9.25 The ALRC considers that the other strategies identified in this Discussion Paper for preventing and responding to elder abuse should be considered and evaluated, before consideration is given to amending the forfeiture rule in the way noted above.
9.26 The Hume River Community Legal Service (HRCLS) provided an example of community education as a strategy to make older persons less vulnerable to financial abuse. They cited wills workshops conducted especially for Aboriginal clients:
Over a two day period in the years 2015 and 2016, Gilbert and Tobin (a private law firm) assisted HRCLS on a pro bono basis with the running of a free Wills, Power of Attorney and Guardianship workshop for Aboriginal people in the Albury Wodonga region. On Day 1, Gilbert and Tobin provided education about legal planning and focused on issues particularly relevant to Aboriginal people. In the afternoon of Day 1, lawyers began taking instructions from people attending the workshop. On Day 2, lawyers drafted wills and power of attorney documents, and returned the completed documents for clients to sign and take home. The workshop in 2015 was held at Albury Wodonga Aboriginal Health Service and the workshop in 2016 was held at the Mungabareena Aboriginal Corporation in Wodonga.
This initiative was taken to address the low numbers of Aboriginal people who have wills or power of attorney documents. By delivering a workshop in partnership with the local Aboriginal Health Service, the workshop was culturally appropriate and also well promoted within the local Aboriginal community. As a result of having wills and power of attorney documents in place, elderly people are less likely to be exposed to elder abuse.
9.27 The ALRC commends such initiatives as supportive of older persons in exercising their rights. They provide illustrations of best practice approaches that can inform the education and awareness strategies developed through the National Plan.
See, eg, Andrew Lang, ‘Formality v Intention—Wills in an Australian Supermarket’ (1985) 15 Melbourne University Law Review 82; Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (LexisNexis Butterworths, 4th ed, 2013) [7.4].
Victorian Law Reform Commission, Succession Laws, Report (2013) [2.45].
Ibid rec 1. These are reflected in prop 9-1.
Wills, Estates and Succession Act, SBC 2009, c 13, s 52.
Victorian Law Reform Commission, Succession Laws, Report (2013) [2.76].
Ibid rec 2.
Details of the rule are set out in Gino Dal Pont and Ken Mackie, above n 19, [7.47]–[7.67]. See also Victorian Law Reform Commission, The Forfeiture Rule, Report (2014) ch 2.
NSW Trustee and Guardian, Submission 120. Citing Barbara Hamilton, ‘Be Nice to Your Parents: Or Else!’ (2006) 8 Elder Law Review Article 8. See also P Johnson, Submission 70.
Hume Riverina CLS, Submission 186.