Recent publications by law reform bodies worldwide

• Author: Dug Cubie - John Lombard
• Position: LL.B (Hons) (Dundee), LL.M (Cantab). PhD Candidate, University College Cork - LL.B (Hons) (University of Limerick), LL.M (NUI). PhD Candidate, University College Cork
• Pages: 135-180

Judicial Studies Institute Journal [2010:2

148

RECENT PUBLICATIONS BY LAW

REFORM BODIES WORLDWIDE

COMPILED BY

DUG CUBIE AND JOHN LOMBARD †

A. Alberta

Wills and the Legal Effects of Changed Circumstances

Final Report No. 98

August 2010

http://www.law.ualberta.ca/alri/docs/fr098.pdf

The Alberta Law Reform Institute was established in 1968

by the Government of Alberta, the University of Alberta and the

Law Society of Alberta to conduct legal research and propose

recommendations for the reform of the law. This Final Report on

Wills and the Legal Effects of Changed Circumstances follows on

from the Final Report on the Creation of Wills (No. 96 – 2009).

The current Alberta Wills Act, 2000 (like those of most

Canadian jurisdictions) is based on the Uniform Wills Act

originally proposed by the Uniform Law Conference of Canada in

1929, and revised in 1953. This uniform model incorporated the

most important reform aspects introduced into succession law by

the (English) Wills Act, 1837 but also went further by

incorporating some important Canadian reforms. Alberta adopted

the uniform model in 1960, replacing its existing wills legislation.

In the last 50 years, the Alberta Wills Act has not been

frequently amended. The most important amendments added anti-

lapse provisions, lowered the age of testamentary capacity from

21 years to 18 years, clarified the rules concerning power of sale

and signature on behalf of a testator, added uniform provisions

 LL.B (Hons) (Dundee), LL.M (Cantab). PhD Candidate, University College

Cork.

† LL.B (Hons) (University of Limerick), LL.M (NUI). PhD Candidate,

University College Cork.

2010] Law Reform Update 149

concerning international wills, and extended the statute’s

application beyond married spouses to include unmarried

opposite-sex and same-sex adult interdependent partners.

While these amendments have updated the act, there has not been

a systematic or comprehensive policy review of the whole statute

since 1960.

This Report addresses many disparate topics and issues in

the law of wills. However, the underlying theme regards what is

or should be the legal effect of changed circumstances? All kinds

of factors can change between the date a will is created and the

date it takes effect on the testator’s death. The testator may make

some alterations to the will or perhaps revoke it or revive it after

revocation. Beneficiaries may predecease the testator. Property

may be disposed of and added to the estate. The testator may

marry, divorce or have children who are born during the testator’s

lifetime or after the testator’s death.

Within the theme of intervening change, the Report also

addresses two recurring reform issues. First, what evidence can a

court look at in order to determine the meaning of the will or the

testator’s intention? Second, what role should be played by

various common law presumptions or rules of construction? Is it

time to modernise these aspects, rationalise their application or

displace them by statute?

The Report is divided into nine chapters. Chapter 1 is

introductory, and discusses the methodology and consultation

process. Chapter 2 addresses changes that alter or revoke a will.

Chapter 3 explores revocation by law when testators marry or

divorce. Chapter 4 discusses revival of a revoked will.

The admission of extrinsic evidence is considered in Chapter 5,

while a court’s ability to rectify accidental drafting mistakes in a

will is addressed in Chapter 6. Chapters 7 and 8 examine gifts that

fail by action of a beneficiary or by disposition of property during

the testator’s lifetime, respectively. Finally, Chapter 9 reiterates

the Alberta Law Reform Institute’s previous call for legislation on

the status of children and explores the discriminatory effects

against illegitimate children of certain common law constructions

in the law of wills.

Judicial Studies Institute Journal [2010:2

150

B. Australia

Secrecy Laws and Open Government in Australia

Final Report (ALRC 112)

December 2009

http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC

112.pdf

This Report focuses on possible options for ensuring that

Commonwealth information is protected in a consistent manner

across government while also recognising the importance of

transparent and accountable government by providing suitable

access to information. As such, this Report focuses on secrecy

offences. In establishing the current law in this area it was noted

that there are 506 provisions relating to secrecy in 176 pieces of

legislation. This includes 358 distinct criminal offences.

The ALRC recognises that a number of the provisions are

excessively broad and that criminal sanctions are relied on a

disproportionate amount. In addition to this, it was noted that

there is inconsistency in structure, terminology and penalties

across the provisions. This report is divided into sixteen chapters

and five appendixes.

Chapters 1-4 establishes the conceptual framework for

secrecy laws as well as outlining the existing law on secrecy.

In particular, Chapter 1 provides an introduction to this area of

law and provides an outline of the Report. Chapter 2 considers the

relationship between secrecy and transparency in government.

Chapter 2 also examines the balance between secrecy and

people’s freedom of expression. Chapter 4 recommends that in

the criminal context the burden of proof that a disclosure occurred

should be on the prosecution. It must also be shown by the

prosecution that the disclosure was reasonably likely to cause

harm or there was an intention to cause harm to specific public

interests. The ALRC suggest that in the absence of any form of

harm an administrative penalty or contractual remedy may be

most appropriate.

Chapters 5-7 focus on the structure and contents of a new

general secrecy offence. Chapter 5 concentrates on the exceptions

contained in the Freedom of Information Act 1982 (Cth). Chapter