Wills, Probate and Administration (Amendment) Bill 1986

A BILL FOR

An Act to amend the Wills, Probate and Administration Act 1898 with respect to the execution, rectification and revocation of wills

BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:

Short title

1. This Act may be cited as the” Wills, Probate and Administration (Amendment) Act 1986”.

Commencement

2. (1) Sections 1 and 2 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.

Principal Act

3. The Wills, Probate and Administration Act 1898 is referred to in this Act as the Principal Act.

Amendment of Act No. 13, 1898

4. The Principal Act is amended in the manner set forth in Schedule 1.

Application of Act

5. (1) Except as provided by subsection (2), the Principal Act, as amended by this Act applies in relation to a will, whether made before, on or after the commencement of this Act, if the maker of the will dies after the commencement of this Act.

(2) Section 29A of the Principal Act, as amended by this Act, applies in relation to a will, whether made before, on or after the commencement of this Act, if the will is not admitted to probate or letters of administration with the will annexed are not granted, before the commencement of this Act.

Schedule 1

(Sec. 4)

Amendments to the Principal Act

(1) Section 3, definition of “Privileged testator -

Omit the definition

(2) Section 6 -

Omit the section, insert instead:

Will of minor

6. (1) Except as provided by sections 6A and 6B, a will made by a minor, other than a minor who is or has been married, shall not be valid.

(2) Nothing in this section invalidates a will validly made after the commencement of the Minors (Property and Contracts) Act 1970 and before the commencement of the Wills, Probate and Administration (Amendment) Act 1986.

(3) Sections 6A, 6B -

After section 6, insert:

Will of minor pursuant to leave of the Court

6A. (1) The Court may, subject to such conditions, if any, as it thinks fit, grant a minor leave to make a will the terms of which have been disclosed to the Court.

(2) A will made by a minor pursuant to leave granted under subsection (1) shall be valid.

Will of minor in contemplation of a marriage

6B. A will made by a minor who may marry and which is made in contemplation of a marriage shall, on the solemnisation of the marriage contemplated, be valid.

(4) Sections 7, 8 -

Omit the sections, insert instead:

Form and manner of execution of wills

7. (1) A will shall not be valid unless-

(a) it is in writing and is signed by the testator (or by some other person who signs the will in the presence and by the direction of the testator);

(b) it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will;

(c) the signature is made, or acknowledged by the testator, in the presence of 2 or more witnesses present at the same time; and

(d) at least 2 of those witnesses attest and sign the will in the presence of the testator(but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

(2) Without limiting the generality of subsection(1) (d), one witness may sign the will after the testator (or some other person who signs the will in the presence and by the direction of the testator) signs the will and before the testator acknowledges his or her signature or the signature of that other person and another witness may sign the will after the testator acknowledges his or her signature or the signature of that other person.

(5) Section 10 -

Omit the section

(6) Section 12 -

Omit the section, insert instead:

Competency of witness

12. Any person competent to be a witness in civil proceedings in a court, other than a blind person, may be a witness to the execution of a will.

(7) Section 13 -

Omit the section, insert instead:

Gifts to interested witnesses

13. (1) Except as provided by subsection (3), where any beneficial gift is given or made by will to a person who attests the execution of the will (such a person being referred to in this section as the interested witness) or to the interested witness’s spouse, the gift shall be void so far only as concerns the interested witness or the interested witness’s spouse or any person claiming under either of them, unless-

(a) all the persons who would benefit directly from the avoidance of the gift, having capacity at law to do so, consent in writing to the distribution of the gift according to the will; or

(b) the Court is satisfied -

(i) that the testator knew and approved of the gift, and

(ii) that the gift was given or made freely and voluntarily by the testator.

(2) The executor of an estate in relation to which a gift referred to in subsection (1) is made shall not, unless -

(a) all the persons to whom subsection (1)(a) applies have given the requisite consent; or

(b) the court is satisfied as to the matters referred to in subsection (1)(b),

distribute that part of the estate the subject of the gift before the expiration of one month after the date on which the executor notifies the interested witness or the interested witness’s spouse, as the case requires, of the executor’s intention to make the distribution

(3) A beneficial gift given or made by will shall not be avoided by subsection (1) where at least 2 persons who attest the execution of the will are not persons to whom any stich gift is 50 given or made or the spouses of any such persons.

(4) A consent referred to in subsection (1) (a) is not liable to duty under the Stamp Duties Act 1920.

(5) In this section -

executor includes a person to whom letters of administration are granted with the will annexed;

“gift” includes a devise, legacy, estate, interest or personal estate, but does not include a charge or direction for the payment of any debt.

(8) Section 14 -

Omit the section

(9) (a) Section 15(2) -

After “1930,”, insert “and before the commencement of the Wills, Probate and Administration (Amendment) Act 1986”.

(b) Section 15(3). (4) -

After section 15(2), insert.

(3) A will made on or after the commencement of the Wills, Probate and Administration (Amendment) Act 1986 in contemplation of a marriage, whether or not that contemplation is expressed in the will, shall lint be revoked by the solemnisation of the marriage contemplated.

(4) A will made on or after the commencement of the Wills, Probate and Administration (Amendment) Act 1986 which is expressed to be made in contemplation of marriage shall not be revoked by the solemnisation of a marriage of the testator.

(10) Section 15A -

After Section 15, insert.

Effect of termination of marriage

15A. (1) In this section -

“Family Law Act 1975” means the Family Law Act 1975 of the Commonwealth, as amended from time to time, or any Act, as so amended, made in substitution for that Act;

“former spouse”, in relation to a testator, means the person who, immediately before the termination of the testator’s marriage, was the testator’s spouse. or, in the case of a purported marriage of the testator which is void, was the other party to the marriage.

(2) For the purposes of this section, the termination of a marriage shall occur or be deemed to have occurred -

(a) when a decree of dissolution of the marriage pursuant to the Family Law Act 1975 becomes absolute;

(b) on the making of a decree of nullity pursuant to the Family Law Act 1975 in respect of a purported marriage which is void; or

(c) oil the annulment of the marriage in accordance with the law of a place outside Australia where the annulment is recognized in Australia pursuant to the Family Law Act 1975.

(3) Except as provided by subsection (4). where, after a testator has made a will, the testator’s marriage is terminated -

(a) any beneficial gift (including any devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but not including any charge or direction for the payment of any debt) in favour of the former spouse of the testator and any power of appointment conferred on a former spouse shall be revoked;

(b) any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will; and

(c) any property which would, but for this subsection, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass as if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked.

(4) A beneficial gift or power of appointment shall not be revoked pursuant to subsection(3)(a), and an appointment shall not be taken to be omitted from a will pursuant to subsection (3) (b) where -

(a) the Court is satisfied by any evidence, including evidence (whether admissible before the commencement of the Wills, Probate and Administration (Amendment) Act 1986, or otherwise) of statements made by the testator, that the testator did not, at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment; or

(b) the gift, power of appointment or appointment is contained in a will which is republished after the termination of the marriage by a will or codicil which evidences no intention of the testator to revoke the gift, power of appointment or appointment.

(5) Nothing in this section affects -

(a) any right of the former spouse of a testator to make any application under the Family Provision Act 1982; or

(b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability of the testator to the former spouse of the testator or to the executor or administrator of the estate of the former spouse.

(11)(a) Section 17(1) -

After “15”, insert or “15A”.

(b) Section 17(3)(a) -

Omit” sections 7 and 8”, insert instead “section 7”.

(c) Section 17(3)(c) -

Omit the paragraph. insert instead:

(c) by some writing on the will, or by any dealing with the will, by the testator or by some person in the presence of the testator and by the testator’s direction. where the Court is satisfied from the state of the will that the writing was made or the dealing was done with the intention of revoking the will.

(12) Section 18(2) -

Omit the subsection, insert instead:

(2) Subsection (1) applies to and in respect of an obliteration, interlineation or other alteration made in the will of a minor who may make a valid will under this Act in the same way as it applies to and in respect of an obliteration, interlineation or other alteration made in the will of a testator who is not a minor.

(13) Section 18A -

After section 18, insert

Certain documents to constitute wills, etc

18A. A document purporting to embody the testamentary intentions of a deceased person, notwithstanding that it has not been executed with the formalities required by this Act, shall constitute a will of the deceased person, an amendment of such a will or the revocation of stich a will, as the case maybe, if the Court is, having regard to the document and any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of the Wills, Probate and Administration (Amendment) Act 1986, or otherwise) of statements made by the deceased person, satisfied that the deceased person intended the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will, as the case may be.

(14) (a) Section 19(1)(b) -

Omit” sections 7 and 8”, insert instead “section 7”.

(b) Section 19(2) -

Omit the subsection

(15) Section 29A -

After section 29. insert.

Power of Court to rectify wills

29A (1) If the Court is satisfied that a will is 50 expressed that it fails to carry out the testator’s intentions, it may order that the will shall he rectified so as to carry out the testator’s intentions.

(2) An application for an order under this section shall not, except as provided by subsection (3), be made after the expiration of the period of 18 months after the death of the testator.

(3) The Court may grant leave to make an application for an order under this section after the expiration of the period referred to in subsection (2) where the Court is satisfied that sufficient cause is shown for the application not having been made within that period.

(4) Nothing in this section renders the executor of the estate of a testator, where the executor has complied with section 92, liable for having distributed the assets, or any part of the assets, of that estate, after the expiration of the period referred to in subsection (2).

(5) Nothing in subsection (4) prevents a person who becomes a beneficiary in respect of assets of the estate of a testator by virtue of an order under this section from recovering the assets where the assets have, or any such part has, been distributed.

(16) Section 152A -

After section 152, insert.

Rules of Court

152A. (1) Rules of Court may be made under the Supreme Court Act 1970 regulating practice and procedure in respect of proceedings under this Act.

(2) Subsection (1) does not limit the rule- making powers conferred by the Supreme Court Act 1970.