(Delivered in Parliament on 9 May 2016)
I would like to seek some clarifications on the amendments being made to the Wills Act, the Government Proceedings Act and the Legal Profession Act.
I declare that I am a lawyer with a practising certificate in force.
Wills Act
Clause 50 of the Bill will introduce a new provision to the Wills Act. The new Section 28 will allow a court to order that a will be rectified if the court is satisfied that a will is expressed in such a way that it fails to carry out the testator’s intention due to a clerical error, or a failure to understand the testator’s instructions, or both.
This provision seems to be influenced by legislation in other countries such as the UK Administration of Justice Act 1982, which contains a Section 20 similar in wording to the Bill. I have noted that an NUS law academic, Assoc Prof Barry Crown, had recommended that our Wills Act be amended to include such a statutory right to rectify a will, to bring more certainty to this area of the law (reference (2015) 27 SAcLJ 222, case note on Marley v Rawlings [2014] 2 WLR 213). This is because a 2014 case decided by the UK Supreme Court has suggested that the courts had a common law right to rectify wills even if there is no statutory right, and it is probably more prudent to legislate the right to make clear what powers the court should have.
Nevertheless, the case in question, Marley v Rawlings, also raises questions about how wide the power under the new provision should be. In that case, a husband and wife made mirror wills to leave their entire estate to a non-family member, but each spouse signed the other spouse’s will by mistake. Clearly, the lawyer’s office was at fault in not checking that the wills were executed by the proper party. What the court did in that case was to exercise the statutory power under the Administration of Justice Act to rectify the will by replacing wholesale the words of each will with the text of the other spouse’s will. This is way beyond the usual understanding of rectification being the adding or omitting of certain words only.
Is the Ministry intending the Court to have such a wide rectification power?
I would also like a confirmation about the implication of such a provision on lawyers who have been negligent in drafting wills or in will execution. How far will this provision save them from being liable for negligence? Will clients be expected to go to court first to try to rectify the will, before suing lawyers for negligence? This will put a heavy burden on clients.
Government Proceedings Act
The Government Proceedings Act enables the government to sue and to be sued. Clause 9 of the Bill amends Section 29 of the Act to provide that in such law suits, it is possible that the court can certify that legal costs for more than two government lawyers may be payable. This is a change from the current position, where the maximum number of government lawyers a litigant may have to pay for is two.
According to the Explanatory Note, the change is to bring the position in line with that in other civil suits or family matters. The current position in other civil suits and family matters is that the court may order a litigant who loses to pay legal costs for more than two solicitors on the winning side. In order for such a court order to be obtained, the court must find that more than two lawyers were reasonably required to handle the case, due to factors such as the complexity of the case or novel points of law being raised.
I have concerns about the government taking such a position, as the prospect of a very heavy legal burden in legal costs could have a dampening or even crushing effect on persons involved in suits against the government.
As it currently stands, anyone who is thinking of suing the government or defending a legal action by the government is aware that if the action is lost, he will likely have to pay legal costs to the government. This is on top of funding his own lawyers to meet the fierce challenges thrown by the government’s legal team, whose limitless resources include having the entire legal service and civil service at its disposal. Not many individuals or entities have the financial resources needed to take the government to court or to defend a suit by the government.
I believe the government should consider taking a broader view on this matter and keep the current provision of capping its claim for legal costs to no more than two legal officers. After all, the purpose of the Government Proceedings Act is to enable the government to sue and be sued. If the costs of suing or being sued by the government are too high, people will surrender. There must not be a signal sent that the government is trying to use the prospect of crushing legal costs to deter or wear down those who may wish to sue the government or to defend government law suits vigorously.
Legal Profession Act
Clause 16 of the Bill makes various amendments to the Legal Profession Act. My query relates to clause 16 (t) and (u), which deal with the disciplinary proceedings against lawyers who have misconducted themselves. Under clauses 16 (t) and (u), the Minister may make rules to exempt lawyers from disciplinary action if they have given gratifications or remuneration to those who procure business for themselves or other lawyers, under circumstances to be prescribed in the rules.
The act of giving gratifications for procuring legal services is generally abhorrent to the profession. What sorts of exemptions are being contemplated, and under what circumstances?