on this construction of section 10(3)(c), by invalidating a particular provision (courtesy of section 10(2)) section 10 could operate to save the remainder of a will which might otherwise (upon an application of suspicious circumstances rule” “the grounded in Barry v Butlin) be held wholly invalid. In reaching a conclusion that section 10 governs a will admitted to probate under section 8, I am conscious that neither the report of the National Uniform Succession Laws Project Committee (in its report of December 1997 published as Miscellaneous Paper 29 of the Queensland Law Reform Commission) nor the consequential report of the NSW Law Reform Commission (LRC 85 of April 1998) adverts to the scope of what became section 10 in the context of a video will, or any other form of will, admitted to probate under section 8. I am also conscious that, in the context of a formal will compliant with section 6 of the Succession Act, the weight of opinion amongst those whose consideration of law reform proposals led to enactment of the Succession Act in NSW as part of the Uniform Laws Project looked with disfavour upon extending any form of witness rule” to all witnesses to the execution “interested of a will, not limited to attesting witnesses: NSW Law Reform Commission, paragraphs 3.33-3.36. LRC 85, In the present case, the witnesses to the making of the video will actively assisted the testatrix in the making of it. They were not mere, passive onlookers. They were directly, deliberately engaged in the making of the video will no less than are attesting witnesses to a formal 6” will. “section Any policy imperatives underpinning section 10 of the Succession Act apply with no less force to an informal 8” will than they do to a formal “section 6” will. Those imperatives might be thought, moreover, to apply with “section greater force to an informal will in the form of a video will than to other forms of informal will because of the potentially casual character of a will “spoken” captured on a video recording. Whether a person the execution” of a video will within the meaning of “attests section 10(1), read with section 8, should be tested against whether, as a question of fact, the person was present (at the time the deceased person
on this construction of section 10(3)(c), by invalidating a particular provision (courtesy of section 10(2)) section 10 could operate to save the remainder of a will which might otherwise (upon an application of “the suspicious circumstances rule” grounded in Barry v Butlin) be held wholly invalid. In reaching a conclusion that section 10 governs a will admitted to probate under section 8, I am conscious that neither the report of the National Uniform Succession Laws Project Committee (in its report of December 1997 published as Miscellaneous Paper 29 of the Queensland Law Reform Commission) nor the consequential report of the NSW Law Reform Commission (LRC 85 of April 1998) adverts to the scope of what became section 10 in the context of a video will, or any other form of will, admitted to probate under section 8. I am also conscious that, in the context of a formal will compliant with section 6 of the Succession Act, the weight of opinion amongst those whose consideration of law reform proposals led to enactment of the Succession Act in NSW as part of the Uniform Laws Project looked with disfavour upon extending any form of “interested witness rule” to all witnesses to the execution of a will, not limited to attesting witnesses: NSW Law Reform Commission, LRC 85, paragraphs 3.33-3.36. In the present case, the witnesses to the making of the video will actively assisted the testatrix in the making of it. They were not mere, passive onlookers. They were directly, deliberately engaged in the making of the video will no less than are attesting witnesses to a formal “section 6” will. Any policy imperatives underpinning section 10 of the Succession Act apply with no less force to an informal “section 8” will than they do to a formal “section 6” will. Those imperatives might be thought, moreover, to apply with greater force to an informal will in the form of a video will than to other forms of informal will because of the potentially casual character of a “spoken” will captured on a video recording. Whether a person “attests the execution” of a video will within the meaning of section 10(1), read with section 8, should be tested against whether, as a question of fact, the person was present (at the time the deceased person
2015-NSWSC-1107.docx