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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-31 Daily Xml
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WILLS (INTERNATIONAL WILLS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2012.)

Ms CHAPMAN (Bragg) (12:06): The Attorney introduced the Wills (International Wills) Amendment Bill 2012 on 17 October this year. The opening statement of his second reading explanation was as follows:

This bill amends the Wills Act 1936 to adopt into the act the uniform law contained in the UNIDROIT Convention providing a Uniform Law on the Form of an International Will 1973 (the Wills Convention). UNIDROIT, the International Institute for the Unification of Private Law, is an intergovernmental organisation that formulates uniform law instruments aimed at harmonising and coordinating private laws between countries. The Wills Convention is one such instrument.

I have to say on behalf of the opposition that dealing with this bill is a bit like dealing with Rome burning with a wet knapsack. When I read this bill, I could hardly believe that it was being introduced to deal with this uniform application in relation to how we might validate and deal with International Wills while just about every other field, issue, policy or current law in respect of wills and succession law is in turmoil.

In the 11 years I have been here I cannot tell you how many times I have received submissions from the Law Society or from members of the legal profession particularly, some who work in the probate office. I cannot tell you how many times I had met with the previous attorney on a number of issues, where I would inquire as to the advancement of the reform in relation to wills and succession law in this state.

Two years into the attorney-generalship of this current incumbent, what do we get? We get this little bit of piffle. I will talk in a minute about how useless I suspect this will be. The Liberal Party will not be opposing this bill, but I highlight that Rome is still burning in this area. It is very concerning to me that, 11½ years or so into this government, we get this little bit dished up while the complete smorgasbord of problems is not even being addressed.

The Hon. J.R. Rau: This is an appetiser—just an appetiser.

Ms CHAPMAN: 'An appetiser,' the Attorney interjects. An appetiser? This is not even putting a fork on the table, this is so pathetic.

The South Australian Law Reform Institute, which is the body which now actually starts to look at things effectively, hopefully will get some response from the government when they have considered their current undertaking because they have identified a number of concerns in their workload. One of them, of course, in their view, is to conduct this comprehensive look at South Australia's laws on succession. Complaints that we get as members of parliament are often in relation to relatives' disputed intestacy and/or claims by those who have usually missed out under a bequest or whatever in relation to wills. Members, I am sure, would be familiar with this.

We have these big areas in relation to surety guarantees in relation to family provision—which is probably the biggest area of complaint that I would have in my office—sometimes in relation to the rules of intestacy, questions about whether we need to have a register of wills and whether we need to look at that at a national level or even here in South Australia, whether there should be a small claims jurisdiction for deceased estates and whether the role of the Public Trustee in the administration of deceased estates is effective and/or could be complemented by some other process.

These are all issues which members, I am sure, in this house, would have files on back at their electorate officers where people have complained—some with good reason; some, of course, because they are aggrieved at the decision which, at first flush, is quite a reasonable decision. Nevertheless, this is a big area of concern in the community and here we get a bill, 11½ years into government, about international wills. I just want to place on record the opposition's appreciation of the institute looking and researching into this important area. I can only hope that this Attorney or any successor of his will look at these issues and come back to the parliament with something useful.

It is very interesting to note that, as I said yesterday, when it suits the government to have excuses for not dealing with urgent issues, namely, as they did yesterday, in the courts efficiency legislation—I highlighted it yesterday, but it had been on previous days—their attitude is one where they cannot possibly deal with some little cherrypicked issue because they are looking at a comprehensive reform and review on one day and will not accept good members' contributions, for example, like the member for Adelaide who spoke on increasing the retirement age for magistrates from 65 to 70. This is a very sensible recommendation, but what does the government say? 'We did not think of this, but we are thinking about it though in the context of a whole tranche of reform and, therefore, we are not going to agree to yours: we have to have ours.' That is how pathetic and petty they are on these sorts of issues.

But when it suits them, like with this bill, they come in to us and say, 'We need to deal with this really important little tiny piece of reform in relation to wills in respect of the enforcement and validation of international wills.' I would ask: how many of the 47 members of parliament here have had somebody come in to them, email their office or write to them, pleading with them to have some kind of law reform in respect of recognition of international wills? I would be surprised if any of them have ever in the time that they have been in the parliament.

It is just incredible that they need to push this through the parliament, that they need to rush this in as their great area of reform for the week to tell us what we need to do in relation to international wills. Whilst at first blush it suggests that it is to adopt this uniform law, blah blah blah, they have been off to all these committees to discuss the uniformity. Uniformity is the great golden word of this government. Everything the same means that—

The Hon. J.R. Rau: Hey, hey, hey! You're talking to the wrong person.

Ms CHAPMAN: Well, you sign up to them. You go along to these SCAGs, or whatever they are called these days, and you sign up to uniformity, harmonisation. I mean, really! This is what we are getting under this one—this very important issue for people in South Australia—the signing up by us to an international convention, the UNIDROIT convention. I think it was in July 2010 (this is how important it is, as we are now at end of October 2012) they had agreed that they would adopt this uniform law to accede to the convention, and here we are.

It sets out all the formalities for international wills which are to be similar to the state requirements, for example, and most of them are. That is, it needs to be in writing and it has to be signed by the person who is the will maker. There have to be two witnesses and it has to be in the presence of each other and so on. They are all pretty basic. They are all in our Wills Act already. For recognition of international wills, these are to comply. The Attorney tells us that the main difference is that the uniform law contains an additional requirement that the will must be declared in the presence of an authorised person, then there are a whole lot of requirements of the authorised person, in particular, to provide a certification that all of these things have occurred.

I should say that the authorised person, as agreed at the SCAG meeting, should be a legal practitioner or a notary public. For members of the house who are not familiar with notaries public, we do have a number in South Australia. We have a number in most commonwealth jurisdictions, I think, but in any event the notaries public are persons who on application to the Supreme Court can be appointed. I am not sure whether they pay an annual licence fee but in any event, once you are appointed, I think you are appointed for life or until you might be removed by a Supreme Court order presumably.

There are a number of documents, including international documents, which require a notarial seal on them by someone who has to be approved by a Supreme Court judge who actually has the capacity to identify or certify certain documents. We are not very glamorous in the notarial seals that we apply in South Australia but over the years I am sure some of the members in the parliament have worked in the legal profession and would have seen some rather impressive ones from other jurisdictions around the world. Just like in wills these days, we do not even have a red sticker on them anymore and we certainly do not have any waxed seals.

I get back to the point about the notaries public, and we have a few in South Australia. I think the very first appearance I had in a superior court, apart from being admitted, was to apply for a notary public appointment for my boss. It was a rather nervous application really because it was not going to be very career enhancing if I had lost the application, but fortunately my boss was duly appointed as a notary public on my application.

They have certain entitlements, including the right to be able to charge for the consultation and so on. In any event, what is proposed is that if we sign up to this we will need to recognise these international wills if they have gone through this process. The only problem with this, as I see it—and I will refer to the annexure which is to become schedule 1 under the bill. This is to annexe to Convention providing a Uniform Law on the Form of an International Will 1973. It sets out a number of articles as one does with these and I think it is fair to say that articles 1 to 6 are all very similar to what we have in our state laws and the Attorney-General is quite right in that regard—signed by the testator, two witnesses, in the presence of each other, etc. Then we get to article 7 and it says:

The date of the will shall be the date of its signature by the authorized person.

Article 8:

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will.

There is further provision in relation to what is to happen then. Article 9 requires that:

The authorized person shall attach to the will a certificate in the form prescribed in Article 10.

Article 10, of course, tells us what it is and that is quite long. Article 11:

The authorized person shall keep a copy of the certificate and deliver another to the testator.

And the validity of the certificate or recognition of it under article 12 that:

In the absence of evidence to the contrary, the certificate of the authorised person shall be conclusive of the formal validity of the instrument.

Then we get to article 13 and it says:

The absence or irregularity of a certificate shall not affect the formal validity of a will under this law.

All this obligation, all this certifying, and yet when we get to article 13, it says its 'absence'. It is not just an irregularity; it is not just that they could not put the dot on it, or did not actually put the certificate in three copies or anything, but it is complete absence. Still will not invalidate it. What are we doing here? We have this teeny-weeny little piece of reform on something that, frankly, is pretty useless, especially when you get to article 13. Then you get to article 14 which says:

The international will shall be subject to the ordinary rules of revocation of wills.

Again, where are we on all this? Article 15:

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

I have to say that, whilst the opposition is not going to stand in the way of the two-year-old SCAG agreement to comply with this convention and to sign up, we in South Australia already have a Wills Act which has very clear obligations in respect of the validity of our wills. To have it in writing alone is important. We have gone past all those days of just being able to scribble on something and it is meant to be recognised. The old examples of putting your will on the side of your cow and getting two people to put a tick or a cross next to it are gone. We have proper systems in South Australia to deal with wills, and signing up to this piece of material, frankly, does not even stack up to what obligations we have and just adds an extra layer of obligation—all these requirements that the authorised person, that is, the extra legal practitioner or notary public has to do—evaporates into nothing by the time you get down to articles 9, 10, 11 and 12.

It just seems to me that this government are so desperate to fill up our debating hours in government business with things that are, frankly, irrelevant and add nothing to what is a very effective provision in relation to the validity of wills in South Australia, while we have so many other things that we need to deal with in relation to succession law in this state. It is just mind-blowingly unbelievable that under this Attorney-General, where there was going to be such a great wave of reform relative to the last one, this is what we get. Surely, Attorney, you can do better than this.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:24): Again, excoriated by the member for Bragg. I have a dream—

Members interjecting:

The Hon. J.R. RAU: No, not that kind of dream, but I have a dream that one day I will come into this place and be treated with gentle kindness by the member for Bragg. I have a dream that one day people from the Labor Party and the Liberal Party will be nice to each other. I have a dream. That is not entirely original but I thought I would throw that in as a starting point.

I was told that this is complete rubbish and why are we wasting our time on it. According to what I can work out, by my reckoning, the honourable member for Bragg has just spent 25 minutes on complete rubbish that we should not be bothering with. I guess that that is indicative of the fact that either it is not complete rubbish or the member for Bragg can talk about anything including complete rubbish. I am not sure about that.

The next thing is, a point that was made yesterday—one teeny bit of something, namely retiring ages for magistrates—was popped into a courts efficiency omnibus bill by a member of the opposition, and our response was, 'Look, we're actually doing that as part of a global thing, why do it here?' Incidentally, we let it go through because we made no secret of the fact that we were intending to do it.

I was being criticised for that but today we have the opposite: we are doing the little bit and we are being criticised because we are not doing the big bit. It is very hard to please the member for Bragg. I have been trying very hard. Ever since I have been Attorney, I have been trying to please the member for Bragg, and whatever I do always falls short. I am not sure if she is ratcheting the bar up, or if I just cannot clear it, but I thought surely she would love this one.

I thought she would love this one because it has this sort of international flavour about it—the Peter Stuyvesant sort of look, jets up, jets down, all over the place. If the member for Bragg is not happy about this, there is a gentleman whose name is Mr Ki-moon. You should probably write to him about it because he is in charge of the outfit that has had this sitting there since 1973. I think it was U Thant or Trygve Le or somebody back then, I cannot remember—it is a long time ago—it might even be Kurt Waldheim, but this has been an international instrument since 1973. I did not write the instrument and I gather that everyone signed up for this. The practicalities are, though—

Ms Chapman: You signed up for it.

The Hon. J.R. RAU: No, other countries have signed.

Ms Chapman interjecting:

The Hon. J.R. RAU: I will get to that in a minute. The point is this: when a person goes to have a will made, normally most people, sensible people, go to a lawyer, because making a will can be a tricky thing and you can inadvertently do all sorts of things that you do not mean to do by not using a lawyer to get a will. If you do use a lawyer to get a will, with the degree of difficulty in having a will that complies with this instrument and one that does not, the additional degree of difficulty for the lawyer is virtually zero because they are already an official functionary and all they would have to do is fill out another form which is a certificate and give you a copy of it.

The practical difficulty in achieving this outcome is negligible. Why are we doing this? Early on in this particular role I went to a meeting where there was an advanced discussion about national agreement on uniform wills, and it seemed to be something that had national agreement on. I must say it is not something that kept me awake at night thinking about it but here it is, we have it. With the bigger picture, and I say this in all seriousness, and the honourable member for Bragg is quite right about this, there are issues about succession laws in South Australia which do need to be looked at.

There are a couple of areas there, and I could raise them now but I will not because next thing I know there will be a private member's bill in from the honourable member for Bragg telling me off because I have not agreed to something, so I will keep some mystery about it, but she knows what the area is. That is why the first reference we gave to the Law Reform Institute was to look at exactly this issue of succession law in South Australia, and they have been working on that for some time, and I have been seeking some advice during the debate as to when we think we will get that report.

I can promise you this, Mr Deputy Speaker, and promise the honourable member for Bragg, that as soon as we get that report from the Law Reform Institute, I will make it public. It will be my intention that we have a conversation involving the member for Bragg, who obviously has an interest in this area, about settling some legislation which will reflect whatever recommendations come out of that and which we are comfortable with. It would be my intention that next year we would deal with that matter, which I do agree is an important matter and needs to be the subject of attention.

I am grateful that the opposition will be supporting this measure. I accept that in and of itself it is not an earth-shattering change to things, but it is small progress and, as I think I said before, a bit of an appetiser, because the main course will come next year, when we get the report of the Law Reform Institute and we look at a more broad ranging reform in an important area. The Law Society has been engaged in that project with the Law Reform Institute, and I have every expectation the product they come up with will be first class.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (12:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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