Wills Act 1968

This Act is the Wills Act 1968.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act.

Note 2 A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Except as otherwise provided by this Act, this Act applies to and in relation to a will or testamentary disposition of a person who dies after the commencement of this Act, whether the will or testamentary disposition was made before or after the commencement of this Act.

Note See section 35 for particular provisions about wills made or republished after 24 March 1989 or taking effect after 7 November 1991.

Part 2 Wills

A person may, by his or her will, devise, bequeath or dispose of any real property or personal property to which he or she is entitled at the time of his or her death, whether he or she became entitled to the property before or after the execution of his or her will.

Without limiting subsection (1), a person may, by his or her will, dispose of—

property that, if not disposed of by his or her will, would devolve on the executor of his or her will or the administrator of his or her estate; and

an estate pur autre vie, whether there is or is not a special occupant of the estate, whether the estate is freehold or of any other tenure and whether the estate is a corporeal or incorporeal hereditament; and

a contingent, executory or future interest in real property or personal property, whether he or she becomes entitled to the interest under the instrument by which the interest was created or under a disposition of the interest by deed or will and whether he or she has or has not been ascertained as the person or 1 of the persons in whom the interest may become vested; and

a right of entry for conditions broken and any other right of entry.

Subject to this section and section 16, a will made by a child is not valid.

A child who is or has been married or in a civil union may make a valid will and may revoke a will, or a part of a will, that he or she has made.

A will made by a child who may marry or enter into a civil union and that is made in contemplation of a marriage or civil union is, on the solemnisation of the marriage or entry into the civil union contemplated, valid.

If the Supreme Court, on an application by a child under section 8A, makes an order in accordance with that section enabling the child to make a will in the specific terms of a proposed will attached to the application, the child may make a valid will in those terms.

If the Supreme Court, on an application by a child under section 8B, makes an order in accordance with that section enabling the child to revoke a will, or a part of a will, the child may revoke the will, or the part of the will, in accordance with that order.

A child who has made a will in accordance with an order of the Supreme Court under section 8A and who has not at any time been married or in a civil union may not revoke the will, or a part of the will, otherwise than in accordance with an order of the Supreme Court under section 8B.

This section has effect subject to section 9.

A child may apply to the Supreme Court for an order declaring that the child is entitled to make a will in the terms of a proposed will attached to the application.

On an application made by a child under subsection (1), the Supreme Court may, if it is satisfied that—

the child understands the nature and effect of the proposed will; and

the proposed will accurately reflects the intentions of the child; and

it is reasonable in all the circumstances that the child should be able to make the proposed will;

make an order declaring that the child is entitled to make a valid will in the specific terms of the proposed will attached to the application.

A child who has made a valid will and has not at any time been married or in a civil union may apply to the Supreme Court for an order declaring that the child is entitled to revoke the will, or a part of the will, by an instrument in the terms of a proposed instrument attached to the application.

On an application made by a child under subsection (1), the Supreme Court may, if it is satisfied that—

the child understands the nature and effect of the proposed instrument; and

the proposed instrument accurately reflects the intentions of the child; and

it is reasonable in all the circumstances that the child should be able to revoke the will, or the part of the will, by the proposed instrument;

make an order declaring that the child is entitled to revoke the will, or the part of the will, by executing an instrument in the specific terms of the proposed instrument attached to the application.

Subject to this Act, a will is not valid unless—

it is in writing; and

it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator; and

the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and

2 or more of those witnesses each attest that signing of the will or that acknowledgment of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.

Subsection (1) shall not be taken to require any form of attestation on a will.

A will, so far only as regards the position of the signature of the testator on the will, is not invalid if the signature is so placed at, after, following, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as his or her will.

Without limiting subsection (1), the validity of a will is not affected by reason of the fact—

that the signature of the testator does not follow, or is not immediately after, the foot or end of the will; or

that a blank space intervenes between the concluding word of the will and the signature; or

that the signature—

is placed among the words of the testimonium clause or of the clause of attestation; or

follows, or is after or under, the clause of attestation, whether or not a blank space intervenes between the concluding word of that clause and the signature; or

follows, or is after, under or beside, the names, or 1 of the names, of the subscribing witnesses; or

that the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or

that there appears to be sufficient space for the signature on or at the bottom of the preceding side, page or other portion of the paper on which the will is written.

The signature of the testator on a will does not operate to give effect to a disposition or direction that is underneath or follows that signature, or that is inserted in the will after that signature is made.

In this section, references to the signature of the testator are, in relation to a will signed by a person by the direction of the testator, references to the signature of that person.

If a testator purports to make an appointment by his or her will in exercise of a power of appointment, the appointment is not valid unless the will is—

executed in accordance with this part; or

under part 2A, to be taken to have been properly made.

If power is given to a person to make an appointment by a will that is executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this part but is not executed in that manner or with that solemnity.

A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.

In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to—

any evidence relating to the manner of execution of the document; or

any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.