1.1 AUSTRALIAN WILLS LEGISLATION

Wills legislation in all Australian States and Territories has the English Wills Act 1837 as its origin. That Act sought amongst other things to resolve difficulties of earlier law. Its language therefore looks back to the eighteenth century as much as forward to the nineteenth. So far as the law of devises was concerned the Wills Act 1837 (UK) necessarily reflects old system conveyancing, 1837 style. A major general objective of any re-writing of the statutory law of wills must therefore ensure that all references to the pre-1837 law, whether expressed or implied, and all language redolent of old system conveyancing, must be eliminated.

1.2 ISSUES OF WILLS LAW IN MOST URGENT NEED OF UNIFORMITY

Issues in most urgent need of uniformity are:

• formalities required for the execution of wills
• a power enabling the Court to dispense with compliance with those formalities
• a clear explanation of what property can pass by operation of will
• assimilating, consistently with their function, the law of powers of appointment exercised by will with the law of wills
• the effect of marriage and divorce on wills
• extent of proof of contrary intention negativing a statutory provision
• conflict of laws issues
• statutory rules for the construction of wills, with particular attention to getting rid of old language
• statutory anti-lapse (substitutional) provisions
• Court’s power to rectify wills
• Court’s power to make wills for minors
• Court’s power to make wills for persons with intellectual disabilities.

These issues are expressed in general terms and are not intended to be exhaustive.

There follows a section by section precis of most sections to be found in the wills legislation of the Australian States and Territories. The order which has been followed reflects most of the time the New South Wales Wills, Probate and Administration Act 1898.

1.3 ABBREVIATIONS

In the following chapters the State legislation is referred to as follows:

ACT	The Wills Act 1968 (ACT)
NSW	The Wills, Probate and Administration Act 1898 (NSW)
NT	The Wills Act 1990 (NT)
Qld	The Succession Act 1981 (Qld)
SA	The Wills Act 1936 (SA)
Tas	The Wills Act 1992 (Tas)
Vic	The Wills Act 1958 (Vic)
Vic (1994)	The Wills Act 1994 (Vic) as proposed by the Final Report of the Victorian Law Reform Committee, May 1994.
WA	The Wills Act 1970 (WA)

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