Wills Act 2008

Wills Act 2008

This Act may be cited as the Wills Act 2008.

This Act commences on a day to be proclaimed.

The purpose of this Act is to reform the law relating to the making, alteration, rectification, construction and revocation of wills and to make particular provision for –

the formalities required for the making, alteration, rectification and revocation of wills and the dispensation of those requirements in appropriate cases; and the making of wills by minors and other persons lacking testamentary capacity; and the effect of marriage and divorce on wills.

In this Act, unless the contrary intention appears –

Court means the Supreme Court of Tasmania;

disposition includes – any gift, devise or bequest of property under a will; and the creation by will of a power of appointment affecting property; and the exercise by will of a power of appointment affecting property;

document, except in section 10(4), means any paper or other material on which there is writing;

grant of probate includes grant of administration with the will annexed;

internal law, used in relation to a country or place, means the law that would apply in a case where no question of the law in force in any other country or place arose;

law practice has the same meaning as in the Legal Profession Act 2007;

minor means a person under the age of 18 years;

property includes – any contingent, executory or future interest in property; and any right of entry or recovery of property or right to call for the transfer of title to property;

Public Trustee means The Public Trustee referred to in section 4 of the Public Trustee Act 1930;

Registrar means the Registrar of the Court;

Rules means Rules of Court made and in force under section 65;

spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003, with that person;

statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity;

Tribunal means the Tasmanian Civil and Administrative Tribunal;

will includes a codicil and any other testamentary disposition.

This Act, except as provided in this section applies only to wills made on or after the commencement of this Act.

The Wills Act 1992, as in force immediately before the commencement of this Act, continues to apply to wills made before that commencement, in so far as those wills do not come under the operation of subsection (4), (5), (6) or (7) or under the operation of the sections specified in subsections (3) and (9).

Sections 9, 10, 42, 43, 44, 45, 47, 48, 50, 51, 52, 54, 57, 58, 59, 60, 61, 62 and 63 apply to wills whether or not they are executed before, on or after the commencement of this Act, where the testator dies on or after that commencement.

Sections 7, 15, 18 and 19 apply to the alteration, revocation or renewal of a will on or after the commencement of this Act even if the will was made before that commencement.

Section 11 applies to a document that alters or revokes a will and that is made on or after the commencement of this Act even if the will was made before that commencement.

Section 16 applies to a will made before the commencement of this Act in relation to a marriage solemnised, or the registration under Part 2 of the Relationships Act 2003 of a deed of relationship, on or after that commencement.

Section 17 applies to a will made before the commencement of this Act, if the granting of the decree absolute of the dissolution of the marriage or the annulment of the marriage has taken place, or the revocation under Part 2 of the Relationships Act 2003 of a deed of relationships registered under that Part has occurred, on or after the commencement of this Act.

The Court may make an order under section 20 or 22 with respect to the alteration or revocation of a will or part of a will even if the will was made before the commencement of this Act.

Despite subsection (1), section 55 applies to a will made before the commencement of this Act if the testator has died on or after the death of the issue and the deaths occurred on or after that commencement.

A person may dispose by will of property to which the person is entitled at the time of his or her death.

A person may dispose by will of property to which the personal representative of that person becomes entitled by virtue of the office of personal representative after the death of that person.

It does not matter if the entitlement of the person or of the personal representative did not exist at the date of the making of the will or at the time of the person's death.

A person may not dispose by will of property of which the person was trustee at the time of the death of the person.

A will made by a minor is not valid.

Despite subsection (1) – a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place; and a minor who is married may make, alter or revoke a will; and a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.

A will is not valid unless – it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

The signature of the testator must be made with the intention of executing the will, but it is not essential that the signature be made at the foot of the will.

It is not essential for a will to have an attestation clause.

If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

If a power is conferred on a person to make an appointment by a will that is to be 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 section, but is not executed in that manner or with that solemnity.

If a person who attests the execution of a will is, at the time of the execution of the will or at any time afterwards, incompetent to be admitted as a witness to prove the execution of the will, the will is not on that account invalid.

A person who is an executor of a will is not on that account incompetent to be admitted as a witness to prove the execution of that will or its validity or invalidity.

A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that it was a will.

A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will or the revocation of such a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his or her will, an alteration of his or her will or the revocation of his or her will.

In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this Act or otherwise) of statements made by the deceased person.

This section applies to a document whether it came into existence within or outside Tasmania.

For the purposes of this section – document has the same meaning as in section 24(bb) of the Acts Interpretation Act 1931.

A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.