06 February 2018

Robots and Estates

The Rise of Robots and the Law of Humans (Oxford Legal Studies Research Paper No. 27/2017) by Horst Eidenmueller comments
In this article, I attempt to answer fundamental questions raised by the rise of robots and the emergence of ‘robot law’. The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.
The South Australian South Australian Law Reform Institute report  Who may inspect a will  released late last year responds to the Institute's exploration of  'the areas of succession law that were most in need of review in South Australia'

The Institute's recommendations are -
Recommendation 1 SALRI recommends that no change to the present law is necessary to allow inspection of a will prior to a testator’s death as SALRI does not support a legislative provision to allow inspection of a will prior to a testator’s death beyond any limited situations contemplated under current law and practice 
Recommendation 2 SALRI recommends that legislative provision be made in South Australia for an entitlement to inspect a will after a testator’s death based on the draft Wills Bill 1997 and s 54 of the Succession Act 2006 (NSW) and such a provision should extend to the following categories:
1. Any person named or referred to in the will, whether as a beneficiary or not; any person named or referred to in an earlier will as a beneficiary of the deceased person. 
2. The surviving spouse, domestic partner (whether of the same sex or not) or child or stepchild of the deceased person. 
3. A parent or guardian of the deceased person. 4. Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate. 
5. Any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate. 
6. Any person committed with the management of the deceased person’s estate under the Guardian and Administration Act 1993 (SA), immediately before the death of the deceased person. 
Recommendation 3 SALRI recommends that legislative provision should be made for a party (including a creditor) who has or may have a claim at law or in equity against the estate of a deceased person to be able to inspect a will but only by order of a court and such an order should only be granted where the applicant has some proper interest and can establish why inspection of the will is appropriate. 
Recommendation 4 SALRI recommends that consolidation of South Australian succession law legislation into one new Succession Act for ease of reference be progressed, either after, or at the same time as, any amendments to the Inheritance (Family Provision) Act 1972 (noting SALRI’s previous Report into Intestacy).
The Institute states
There is no entitlement to inspect a will before the testator’s death. The will of a living person is considered a private document (and SALRI sees no reason to change this position). There is also no entitlement in South Australia under either statue or the common law to inspect a will after the testators’ death (or at least until a will is admitted to probate when it becomes a public document). There is no apparent statutory or inherent power for a court to order inspection of a will before a grant of probate as Master Sanderson explained in the recent West Australian case of Chapman v Garrigan (which is equally applicable in a South Australian context). The Master commented: ‘There appears to be no reported case in which a party has sought, let alone obtained, a copy of a will not yet admitted to probate.’ 
The National Committee supported a legislative provision to allow inspection of a will after a testator’s death. It noted that a person who has the control of a will after the testator’s death may be reluctant to show it to anyone owing to a misconceived view that a will is a private document or a desire to keep the person who is seeking to see the will in ignorance of its contents. The National Committee also noted that not all wills are brought to court for probate, particularly where an estate is small and not worth the expense involved. In such a situation, possible beneficiaries and other claimants may be placed in ‘an invidious position if they do not know anything about the contents of the will’.30 A person who is eligible to apply for family provision may not be able to discover whether the testator has made provision for him or her by a will, and is unable to begin to consider whether to make a claim. 
The National Committee accepted that only a person with a ‘proper interest’ (not say a journalist) should be able to see the will and that the persons entitled to share in the estate should be able to see the contents of a will. The Committee noted such information is always publicly available once a will has been admitted to probate. 
The National Committee drew on the proposed s 66A of the Administration and Probate Act 1958 (Vic), but stated that, in addition to the four categories of eligible parties listed in s 66A,  the following people should also be entitled to see a will: beneficiaries of prior wills or a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate. The National Committee considered that any new provision should include either testamentary documents that have been revoked, or documents the testamentary nature of which may be disputable. It noted an executor is not permitted by a probate court to pick and choose which testamentary instruments he or she should bring to court for probate purposes. The National Committee recommended that the term ‘will’ in any provision should include ‘a revoked will, or a copy of any such will and any part of such a will’. The National Committee prepared a draft Wills Bill 1997 which was intended to be adopted across Australia. Clause 52 of this Bill dealt with the inspection of a will.  
The National Committee in 2005 reiterated its support for such a provision to allow inspection of wills. 
Similar laws to that suggested by the National Committee now exist in New South Wales, the ACT, Northern Territory, Queensland, Tasmania and Victoria. No such law exists in South Australia or Western Australia. No such law, despite the support of the New Zealand Law Reform Commission, exist in New Zealand. The will of a living person is considered private in England. Upon a testator’s death, but before a grant of probate, only the executor has the strict authority to access the will. A will becomes public after probate and any person may search the probate records and receive a copy of the will. 
The Tasmanian section allowing access to a will provides that it does not operate while a testator is alive. The Victorian provision extends to de facto spouses (or ‘domestic partners’ to use the South Australian expression). The Queensland provision extends to an ‘entitled person’. This means a person considered to have a proper interest in the will such as a person who may apply for a family provision order. The ACT section extends to ‘an interested party’ which includes a child or domestic partner of the deceased. 
The NSW model is most recent and most detailed and the one that SALRI has examined.    
The Succession Act 2006 (NSW) (the NSW Act) commenced on 1 March 2008. The object of the Act is to restate with amendments the law relating to wills in New South Wales to implement, with modifications, the relevant recommendations of the National Committee. One of several changes introduced was a change in the persons entitled to inspect the will of a deceased person. 
Section 54(2) of the NSW Act gives specified persons a right of inspection or to receive copies of the will of a deceased. This right was not previously available. Section 54 applies to wills whenever made if the testator dies on or after 1 March 2008 being the commencement date of the Act (reproduced at Appendix B). For the purposes of s 54, a will includes (reflecting the view of the National Committee) a revoked will, a document purporting to be a will, a part of a will and a copy of a will. 
Section 54(2) provides that a person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense): (a) Any person named or referred to in the will, whether as a beneficiary or not; (b) Any person named or referred to in an earlier will as a beneficiary of the deceased person; (c) The surviving spouse, de facto partner (whether of the same or opposite sex) or issue of the deceased person; (d) A parent or guardian of the deceased person; (e) Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; (f) Any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; (g) Any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person; (h) Any person committed with the management of the deceased person’s estate under the Protected Estates Act 1983, immediately before the death of the deceased person, (i) Any attorney under an enduring power of attorney made by the deceased person; (j) Any person belonging to a class of persons prescribed by the regulations. 
Master Sanderson in Chapman v Garrigan noted the reluctance on the part of executors named in a will to provide an interested party with a copy of the will ‘is an issue which not infrequently causes problems both in relation to probate matters and particularly in relation to [family provision] matters’. The Master encouraged practitioners to exercise common sense in this area and remarked that it is difficult to envisage any circumstance where it would be appropriate for a party who has or may have an interest in an estate to be denied a copy of the will. The Master commented that, even if a potential beneficiary were to object to that course of action, the named executor would still be justified in providing a copy of the will upon request. The Master noted the benefit of a legislative provision to allow inspection before probate. 
The Institute goes on to comment
SALRI accepts that there are situations where it would be helpful to allow inspection of a will before a testator’s death56 but this undermines legitimate consideration of privacy and confidentiality (a view also emphasised by the Hon Tom Gray QC). SALRI does not support a legislative provision to allow inspection of a will prior to death beyond any limited situations contemplated under current law and practice. In contrast, SALRI supports allowing inspection of a will after a testator’s death to parties with a proper interest or potential interest in the estate. 
SALRI considers that there are four benefits to a legislative provision for the inspection of wills after a testator has died. 
First, it would encourage openness and transparency in the administration of estates. In the absence of a clear obligation to provide access to a will, those in control of the will may be reluctant to show it to anyone or allow inspection. This may be because they view a will as a private item or desire to keep it secret. Refusing to allow access may lead to suspicion and mistrust. In contrast, allowing those with a proper and legitimate interest (not a mere ‘busy body’ as Mr Rymill notes) in the estate to see a will may help defuse distrust and prevent unnecessary litigation. Given the tensions and stresses all too often evident in the aftermath of a testator’s death, anything which serves to alleviate tension and distrust is welcome. 
Secondly, it would assist in the orderly administration of estates. As Master Sanderson observed, the administration of estates would run more smoothly if access to a will was provided as a rule rather than as an exception to some assumed rule. 
Thirdly, to allow access to a will promotes fairness. It enables creditors to find out about the assets of the deceased. Those eligible to make a claim under the IFPA will have more time to consider whether to make a claim because they can determine earlier if any claim under the IFPA is likely to be successful. A person only has six months in South Australia to make a claim under the IFPA after probate is granted. Access to the will may address the unfairness experienced by possible beneficiaries and other claimants (including under the IFPA) where an estate is informally administered without a grant of probate60 (this is a regular event, notably in smaller estates). 
Finally, to allow access promotes clarity and certainty. SALRI has been told by succession lawyers that they often hold wills on behalf of their clients and may have no instructions from the testator but they often receive requests after the testator’s death for access to the will. The firm may be placed in a difficult position in deciding who should or should not have access. Tasmanian practitioners welcomed the Tasmanian section based on the draft Wills Bill 1997 setting out access to a will and remarked that the provision simply gave effect to what already happened in practice. 
SALRI considers that its proposal does not undermine considerations of privacy or confidentiality. A will is always publicly available once it has been admitted to probate. The proposed provision is simply designed to ensure the same result prior to a will’s admission to probate, or in the event that no application is made for probate. 
SALRI considers that there is benefit in a legislative provision to provide for access to wills prior to probate. It draws on what was identified by Master Sanderson as sound practice and common sense.