1. BASIS FOR THE MODEL PROVISIONS

7.1 The provisions that formed the basis for the model provisions were clauses 17, 18 and 19 of the draft Wills Act 1994 (Vic). Clauses 17, 18 and 19 provide:

17. When do requirements for execution under foreign law apply?

(1) A will is to be taken to be properly executed if its execution conforms to the law in force in the place -


(a) where it was executed; or

(b) which was the testator’s domicile or habitual residence, either at the time the will was executed, or at the testator’s death; or

(c) of which the testator was a national, either at the date of execution of the will, or at the testator’s death.


(2) The following wills are also to be taken to be properly executed:

(a) A will executed on board a vessel or aircraft, if the will has been executed in conformity with the law in force in the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances; or

(b) A will, so far as it disposes of immovable property, if it has been executed in conformity with the law in force in the place where the property is situated; or

(c) A will, so far as it revokes a will or a provision of a will which has been executed in accordance with this Act, or which is taken to have been properly executed by this Act, if the later will has been executed in conformity with any law by which the earlier will or provision would be taken to have been validly executed; or

(d) A will, so far as it exercises a power of appointment, if the will has been executed in conformity with the law governing the validity of the power.


(3) A will to which this section applies, so far as it exercises a power of appointment, is not to be taken to have been improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the power.

18. What system of law applies to these wills?

(1) If the law in force in a place is to be applied to a will, but there is more than one system of law in force in the place which relates to the formal validity of wills, the system to be applied is determined as follows:


(a) If there is a rule in force throughout the place which indicates which system applies to the will, that rule must be followed; or

(b) If there is no rule, the system must be that with which the testator was most closely connected either -

(i) at the time of his or her death, if the matter is to be determined by reference to circumstances prevailing at his or her death; or

(ii) in any other case, at the time of execution of the will.

19. Construction of the law applying to these wills

(1) In determining whether a will has been executed in conformity with a particular law, regard must be had to the formal requirements of that law at the time of execution, but account may be taken of a later alteration of the law affecting wills executed at that time, if the alteration enables the will to be treated as properly executed.

(2) If a law in force outside Victoria is applied to a will, a requirement of that law that special formalities must be observed by testators of a particular description or that the witnesses to the execution of a will must have certain qualifications, is to be taken to be a formal requirement only, despite any rule of that law to the contrary.

2. BACKGROUND

7.2 These provisions deal with the recognition of wills made in other jurisdictions. They are concerned with the requirements 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 to the 1961 Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions.

7.3 The Hague Convention of 1961 has been adopted in most Australian jurisdictions by legislation based on the Wills Act 1963 (UK), which was enacted to comply with the Convention.¹²¹

7.4 Understandably, all the jurisdictions used their own drafting styles when adopting the Convention; some jurisdictions did not adopt every part of the English complying legislation, and others merged provisions.

3. DIFFERENCES BETWEEN CLAUSES 17 TO 19 OF THE DRAFT WILLS ACT 1994 (VIC) AND THE EQUIVALENT PROVISIONS IN OTHER AUSTRALIAN JURISDICTIONS

7.5 The National Committee has considered the differences between the draft Victorian provisions and the equivalent provisions in other Australian jurisdictions. The main differences are:

• The omission from clauses 17(1), 17(2)(a), 17(2)(b) and 18 of the draft Wills Act 1994 (Vic) of the word “internal” before the words “law in force” wherever they appear. Wills legislation in all Australian States and Territories presently qualifies the references to “law in force” in the various Acts with the word “internal”.
• The omission of definitions of “internal law”, “country” and “place”. Most jurisdictions include the following definitions¹²² (or ones that are virtually identical in language or effect):¹²³

“internal law” in relation to any country or place means the law which would apply in a case where no question of the law in force in any other country or place arose;

“country” means any place or group of places having its own law of nationality (including the Commonwealth of Australia and its territories);

“place” means any territory (including a State or territory of the Commonwealth of Australia).




The purpose of the references to the “internal law” in force in a place is to make it clear that it is a reference to the domestic law of that place. The jurisdiction’s rules of private international law (which might have the effect of applying the domestic law of another jurisdiction) are thereby excluded.

• The omission of the word “essential” before the word “validity” in clause 17(2)(d).

With the exception of the Wills Act 1968 (ACT), which does not include a provision that is equivalent to clause 17(2)(d), all Australian States and Territories refer to the “essential validity” of the power of appointment in the comparable provisions of their wills legislation.¹²⁴ That term is also used in section 2(1)(d) of the Wills Act 1963 (UK).

7.6 It does not appear that the omission of the relevant words in the draft Victorian provisions was intended to effect a change to the law.¹²⁵ On the contrary, the Victorian Law Reform Committee recommended that there be no change to the law as to the applicability of foreign law to the execution of wills.¹²⁶

4. THE NATIONAL COMMITTEE’S DECISION

7.7 The National Committee generally accepted clauses 17, 18 and 19 of the draft Wills Act 1994 (Vic).

7.8 However, the National Committee was of the view that it is desirable for the model provisions based on clauses 17 and 18 to make it clear that a reference to the law of another jurisdiction is a reference to the domestic law of that jurisdiction, and not to its rules of private international law. For that reason, the National Committee was of the view that the following changes should be made to the model provisions:

• the references in clauses 17 and 18 to “the law in force” should be references to “the internal law in force”; and
• “internal law” should be defined as follows:

“internal law” in relation to a place means the law that would apply in a case where no question of the law in force in any other place arose.

7.10 The National Committee also considered the effect of the proposed deletion of the word “essential” from the model provision based on clause 17(2)(d).¹²⁷ If a power of appointment is exercised by a will that is taken to be properly executed under subclauses 17(1) or 17(2)(a), (b) or (c), the power of appointment is validly exercised. However, it is possible that a will purporting to exercise a power of appointment will not be taken to have been validly executed, even having regard to those provisions. It is in those circumstances that clause 17(2)(d) has particular importance. It provides a further basis for upholding the validity of the exercise of the power of appointment. To the extent only that the will exercises the power of appointment, it is taken to be properly executed if it is executed in accordance with the law of the place that governs the validity of the power.¹²⁸

7.11 The insertion of the word “essential” is to make it clear that this is a reference to the law of the jurisdiction that governs the essential validity of the original instrument, rather than to the law governing the formal validity of that instrument (where the two are different).

7.12 The National Committee is, therefore, of the view that it is desirable to insert “essential” before “validity” in the model provision based on clause 17(2)(d).

RECOMMENDATION

The National Committee recommends that provisions to the effect of clauses 17, 18 and 19 of the draft Wills Act 1994 (Vic) be included in the draft model wills legislation, save that:

• the references in clauses 17 and 18 to “law in force” should be changed to references to “internal law in force”; and
• the model provision should contain a definition of “internal law” based on section 20A(1) of the Wills Act 1958 (Vic), but without the reference to “country”; and
• the model provision based on clause 17(2)(d) should refer to the “essential validity” of the power, rather than merely to the “validity” of the power.



MODEL PROVISIONS: CLAUSES 45 TO 48

45 Definition of “internal law”

In this Part:

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

46 General rule as to formal validity

(1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place:


(a) where it was executed, or

(b) that was the testator’s domicile or habitual residence, either at the time the will was executed, or at the testator’s death, or

(c) of which the testator was a national, either at the date of execution of the will, or at the testator’s death.


(2) The following wills are also taken to be properly executed:

(a) a will executed on board a vessel or aircraft, if the will has been executed in conformity with the internal law in force in the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances,

(b) a will, so far as it disposes of immovable property, if it has been executed in conformity with the internal law in force in the place where the property is situated,

(c) a will, so far as it revokes a will or a provision of a will that has been executed in accordance with this Act, or that is taken to have been properly executed by this Act, if the later will has been executed in conformity with any law by which the earlier will or provision would be taken to have been validly executed,

(d) a will, so far as it exercises a power of appointment, if the will has been executed in conformity with the law governing the essential validity of the power.


(3) A will to which this section applies, so far as it exercises a power of appointment, is not taken to have been improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the power.

47 Ascertainment of system of internal law

If the internal law in force in a place is to be applied to a will, but there is more than one system of internal law in force in the place that relates to the formal validity of wills, the system to be applied is determined as follows:


(a) if there is a rule in force throughout the place that indicates which system of internal law applies to the will, that rule must be followed,

(b) if there is no rule, the system of internal law is that with which the testator was most closely connected either:

(i) at the time of his or her death, if the matter is to be determined by reference to circumstances prevailing at his or her death, or

(ii) in any other case, at the time of execution of the will.

48 Construction of the law applying to wills under foreign law

(1) In determining whether a will has been executed in conformity with a particular law, regard must be had to the formal requirements of that law at the time of execution, but account may be taken of a later alteration of the law affecting wills executed at that time, if the alteration enables the will to be treated as properly executed.

(2) If a law in force outside [insert name of jurisdiction] is applied to a will, a requirement of that law that special formalities must be observed by testators of a particular description or that the witnesses to the execution of a will must have certain qualifications, is to be taken to be a formal requirement only, despite any rule of that law to the contrary.

FOOTNOTES

121. Note, however, that cl 17(2)(d) of the draft Wills Act 1994 (Vic) and its counterparts in other jurisdictions are based on s 2(1)(d) of the Wills Act 1963 (UK). That provision was not based on the Hague Convention, but, rather, on a recommendation made in a Report by the Wynn Parry Committee: see Private International Law Committee (UK), Fourth Report (Formal Validity of Wills) (Cmnd 491, July 1958) at 8 (Proposal 11(c)).

122. These definitions are taken from s 20A(1) of the Wills Act 1958 (Vic). The Wills Act 1958 (Vic) will be repealed when the Wills Act 1997 (Vic) commences. Although the 1997 Act omits these definitions, it still uses the term “internal law” in ss 17 and 18.

123. See, for example, the definitions of “internal law” in the Wills, Probate and Administration Act 1898 (NSW) s 32A; Wills Act 1936 (SA) s 25A; Wills Act 1958 (Vic) s 20A; Wills Act 1968 (ACT) s 15A; Wills Act 1970 (WA) s 4; Succession Act 1981 (Qld) s 5; Wills Act 1990 (NT) s 15A; and Wills Act 1992 (Tas) s 3. See note 122 to para 7.5 of this Report in relation to the Victorian position.

124. See the references to “essential validity” in the Wills, Probate and Administration Act 1898 (NSW) s 32D(1)(d); Wills Act 1936 (SA) s 25C(d); Wills Act 1958 (Vic) s 20C(1)(d); Wills Act 1970 (WA) s 22(d); Succession Act 1981 (Qld) s 24(d); Wills Act 1990 (NT) s 15C(d); and Wills Act 1992 (Tas) s 30(1). The Wills Act 1958 (Vic) will be repealed when the Wills Act 1997 (Vic) commences. The word “essential” is omitted in s 17(2)(d) of the 1997 Act.

125. Neither the Victorian Law Reform Committee, nor the Victorian Wills Working Party, whose recommendations that Committee was considering, recommended the omission of these words: see Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 119-123.

126. Victorian Law Reform Committee, Reforming the Law of Wills (Final Report, May 1994) at 121.

127. See note 121 to para 7.3 of this Report as to the origins of this provision.

128. A power of appointment may be created by a will or by an inter vivos settlement. The reference in this provision to “the power” is a reference to the original instrument conferring the power of appointment: see Private International Law Committee (UK), Fourth Report (Formal Validity of Wills) (Cmnd 491, July 1958) at 8.