1. WILL MAY BE DEPOSITED WITH REGISTRAR

(a) Background

8.1 The National Committee has made recommendations about court-authorised wills for competent minors¹²⁹ and for persons lacking testamentary capacity.¹³⁰ In both cases, the National Committee has recommended that the wills made pursuant to those recommended provisions be retained by the registrar.

8.2 In addition, the majority of the National Committee is of the view that generally it is desirable to have a central registry for wills. For this reason, the National Committee is of the view that it should be possible to deposit any will with the registrar.

RECOMMENDATION

The National Committee recommends that there should be a mechanism for the retention by the registrar of court-authorised wills and for the voluntary deposit of other wills.

MODEL PROVISION: CLAUSE 49

49 Will may be deposited with Registrar

(1) Any person may deposit a will in the office of the Registrar.

(2) Any will deposited in the office of the Registrar under this Act must be in a sealed envelope that has written on it:


(a) the testator’s name and address (as they appear in the will), and

(b) the name and address (as they appear in the will) of any executor, and

(c) the date of the will, and

(d) the name of the person depositing the will,


and must be accompanied by the fee prescribed by the regulations.

(3) A fee is not payable in respect of any will deposited with the Registrar if the deposit is made:


(a) in accordance with Part 3, or

(b) because a legal practitioner has died, or has ceased, or is about to cease, practising in [insert name of jurisdiction].


(4) The regulations may prescribe fees for the purposes of this section.

(5) Any regulations made under this section:


(a) may prescribe fees in respect of a particular class or classes of wills or will makers, and

(b) may prescribe different fees in respect of different classes of wills or will makers, and

(c) may authorise the Registrar to waive fees in particular cases or classes of cases.

2. DELIVERY OF WILLS BY REGISTRAR

RECOMMENDATION

If it is to be possible for a will to be deposited voluntarily with the registrar, it is necessary to make provision for the withdrawal of that will. However, in relation to court-authorised wills, the National Committee is of the view that it should be possible for the testator to withdraw the will only if he or she is of full age and capacity.

MODEL PROVISION: CLAUSE 50

50 Delivery of wills by Registrar

(1) If a will has been deposited with the Registrar under this Act, the testator may at any time apply in writing to the Registrar to be given the will or to have the will given to a person as directed by the testator.

(2) On receiving the application, the Registrar must give the will to the testator or to any person nominated by the testator, but only if the testator is, at the time of making the application, not a minor and not a person who lacks testamentary capacity.

(3) If a will has been deposited with the Registrar under this Act and the testator has died, any executor named in the will or any person entitled to apply for letters of administration with the will annexed may apply in writing to the Registrar to be given the will.

(4) On receiving the application, the Registrar must give the will to the executor or other person or to any legal practitioner or trustee company nominated by that executor or person.

(5) The Registrar may examine any will to enable the Registrar to comply with this Part.

(6) The Registrar must ensure that an accurate copy of every will given to a person under this section is made and retained by the Registrar.

(7) If there is any doubt as to whom a will should be given, the Registrar, or any other person, may apply to the Court for directions as to whom the Registrar should give the will.

FOOTNOTES

129. See pages 81-83 of this Report.

130. See pages 99-104 of this Report.