Recent publications by law reform bodies worldwide

AuthorDug Cubie - John Lombard
PositionLL.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
Judicial Studies Institute Journal [2010:2
A. Alberta
Wills and the Legal Effects of Changed Circumstances
Final Report No. 98
August 2010
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
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
B. Australia
Secrecy Laws and Open Government in Australia
Final Report (ALRC 112)
December 2009
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

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