Where there's a will there's a way: examining the underuse of statutory will legislation in Australia through an access to justice lens

Charmaine Holyoak-Roberts

Research output: ThesisMaster's Thesis

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Abstract

Statutory will legislation has been a feature of the Australian legislative landscape since 1992 when
provisions authorising a court to approve a will for a person who lacks testamentary capacity were first enacted in Tasmania.
Since then, each Australian state and territory has introduced a version of the legislation. However, few applications have been made, despite it being promoted as important legislation that enhances the rights of persons with disabilities.

An examination of statutory will literature and the legislative and court based
procedures in each state and territory highlights the different approaches taken to manage these applications. In applying the legislation using the prescribed procedure, decision makers have articulated better ways to manage applications, identifying a need for change that has not been forthcoming.

More recently, in 2012 and 2013 underuse of the legislation has attracted the attention of the Victorian Law Reform Commission who initiated an investigation into possible reasons for underuse of the legislation in that jurisdiction.

Despite these initiatives, no uniform approach to examine the causes for underuse of the legislation in Australia has been considered. This thesis suggests that underuse of the legislation can be understood using an access to justice analysis. The analysis provides a sound basis for recommending change that will increase knowledge of the legislation and provide a fairer, more efficient and more effective system and encourage more applications to be initiated.
Original languageEnglish
QualificationMasters
Publication statusUnpublished - 2014

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