At the time of the reference the Wills Act 1970 (WA) provided that a will was not valid unless certain formalities were met. Although the requirements were not unduly onerous, a testator could fail to comply due to oversight or misreading the technical requirements. Judges had expressed regret that on such occasions they were forced to make the entire will invalid. Various academic commentators and law reform agencies had urged that the courts be given power to validate wills that had substantially complied with the formalities if they could be certain that the document represented the intention of the testator.
Terms of Reference
In 1979 the Commission was asked to examine and report upon two matters with respect to the law of wills:
- whether or not it would be desirable to adopt some modification of the requirement of strict compliance with the formalities of the Wills Act 1970 (WA) by the adoption of the doctrine of substantial compliance; and
- the effect of marriage or divorce on a will including, in particular, the wills of people who subsequently lose the mental capacity to make a new will.
The Commission divided the reference into two parts.
Outcomes
The Wills Amendment Act 1987 (WA) and the Wills Amendment Act 1989 (WA) implemented the Commission’s recommendations.
