Absorbing South Australia's Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion

Abstract

ince 1975, SouthAustralia has been the epicentre of a notable development in the law of wills. In that year, the State Parliament passed the Wills Act Amendment Act (No 2) 1975 (SA), which amended s 12(2) of the WillsAct 1936 (SA) ('Wills Act'). Section 12(2) allows the Supreme Court to validate a will in which there has been some failure to comply with the formal requirements of the Wills Act, if the evidence in the case persuades the Court that the decedent intended the document to be his or her will. Section 12(2), widely known in the scholarly literature as the dispensing power, has had a shaping influence elsewhere in the common law world. Other Australian states and territories have enacted comparable legislation, as have most Canadian provinces. In the United States, the South Australian legislation and its case law have been the subject of sustained scholarly study, law revision activity, legislation, and case law. My main focus in this lecture will be to review the American experience, concluding with the most recent chapter, still being written, which is the story of how our absorption of the South Australian reform has led us to confront a completely unforeseen development - the enforcement of so-called digital or electronic wills.