5.1 RECOGNITION OF WILLS MADE IN OTHER JURISDICTIONS

STATE	SECTION
ACT	Part 11A, ss15A-15H
NSW	Part 1A, ss32A-32F
NT	ss13,15,15C
QLD	ss22-25
SA	ss25A-25C
TAS	ss28-30
VIC	Part 1A, ss20A-20D
VIC (1994)	ss17-19
WA	Part VII, ss20-23

These provisions are about the recognition of wills made in other jurisdictions. They are concerned with the requirements for execution of such wills, establishing what system of law applies to such wills, and the construction of the law applying to these wills. They are intended to conform with the Hague Convention of 1960 on the conflict of laws relating to the form of testamentary disposition. The. problem is that in adopting the Convention drafters have improved upon the original draft which appeared in the Wills Act 1963 (UK). Queensland adopted the English precedent almost verbatim; but other jurisdictions have used their own drafting styles. The rules may come to be of greater significance within Australia if Australian succession laws diverge substantially as a result of law reform. One main objective of having uniform succession laws is to prevent conflicts problems arising within Australia.

Nevertheless, these sections do date back to the Convention of 1960 and there does not appear to have been any substantial reconsideration of their substance in the mean time. There may therefore be some case for their reconsideration; but there is no reason why they should not be rendered uniform, the present differences between them being largely matters of drafting preference.

Reconsideration of this part of succession law requires a conflicts of laws approach as well as an Australian constitutional law approach.

Issue for consideration

Should the effect of these provisions relating to the recognition of wills made in other jurisdictions be the same?