Part 1 Wills 4 To what wills and estates this part shall not extend




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EXTRACTS FROM THE FORMER WILLS, PROBATE AND ADMINISTRATION ACT 1898

Part 1 Wills

4 To what wills and estates this part shall not extend


This part shall not extend to any will made before the passing of this Act, and every will re-executed or re-published or revived by any codicil shall, for the purposes of this part, be deemed to have been made at the time at which the same is so re-executed, re-published, or revived, and this part shall not extend to any estate pur autre vie of any person dying before the passing of this Act.

6 Will of minor


A will made by a minor is not valid, unless the minor is or has been married or section 6A or 6B applies.

6A Will of minor pursuant to leave of the Court


(1) The Court may grant a minor leave to make a will the terms of which have been disclosed to the Court.

(2) Leave may be granted subject to such conditions (if any) as the Court thinks fit.

(3) A will made by a minor pursuant to leave granted under this section is valid.

6B Will of minor in contemplation of a marriage


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

7 Form and manner of execution of wills


(1) A will is not valid unless:

(a) it is in writing, and

(b) it is signed by the testator, and

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

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

(e) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other or of any other witness).

(2) Without limiting paragraphs (d) and (e) of subsection (1), those paragraphs shall be taken to have been complied with if the following things happen in the following order:

(a) the signature of the testator is made or acknowledged by the testator in the presence of a witness (in this subsection called "the first witness"), and

(b) the first witness attests and signs the will in the presence of the testator, and

(c) the signature of the testator is acknowledged by the testator in the presence of one or more other witnesses and also of the first witness present at the same time, and

(d) the other witness, or at least one of the other witnesses, attests and signs the will in the presence of the testator (but not necessarily in the presence of the first witness or of any other witness).

(3) No form of attestation by a witness is necessary.

(4) In this section, a reference to the signing of a will by a testator includes a reference to the signing of the will by some other person who signs the will in the presence and by the direction of the testator.

13 Gifts to interested witnesses


(1) If any beneficial gift is given or made by will to a person (in this section called "the interested witness") who attests the execution of the will or to the interested witness’s spouse, the gift is void so far only as it concerns the interested witness or the interested witness’s spouse or any person claiming under either of them, unless subsection (2) applies.

(2) A beneficial gift given or made by will is not made void by this section if:

(a) at least 2 persons who attest the execution of the will are not persons to whom any such gift is so given or made or the spouses of any such persons, or

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

(c) 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.

(3) Except in the case of a will to which subsection (2) (a) applies, the executor of an estate in relation to which a beneficial gift to an interested witness or an interested witness’s spouse is made shall not 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, unless:

(a) all the persons to whom subsection (2) (b) applies have given the requisite consent, or

(b) the Court is satisfied as to the matters referred to in subsection (2) (c).

(4) A consent referred to in subsection (2) (b) 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 appointment of or affecting any real or personal estate, but does not include a charge or direction for the payment of any debt.

15 Effect of marriage


(1) Every will made by any person shall be revoked by the person’s marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not, in default of such appointment, pass to the person’s executor or administrator).

(2) A will made after the commencement of the Conveyancing (Amendment) Act 1930 and before the commencement of subsection (3) which is expressed to be made in contemplation of a marriage, shall not be revoked by the solemnisation of the marriage contemplated.

(3) A will made after the commencement of this subsection in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated.

(4) A will made after the commencement of subsection (3) which is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.


15A Effect of termination of marriage


(1) If, 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 is revoked, and

(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.

(2) A beneficial gift or power of appointment is not revoked pursuant to subsection (1) (a), and an appointment shall not be taken to be omitted from a will pursuant to subsection (1) (b), if:

(a) the Court is satisfied by any evidence, including evidence (whether admissible before the commencement of this section 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.

(3) 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 (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or administrator of the estate of the former spouse.

(4) In this section:
"Family Law Act" means the Family Law Act 1975 of the Commonwealth.
"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 purported marriage.
"promise" includes any statement or representation of fact or intention.

(5) For the purposes of this section, the termination of a marriage occurs or shall be taken to occur:

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

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

(c) on the annulment of the marriage in accordance with the law of a place outside Australia if the annulment is recognised in Australia pursuant to the Family Law Act.

17 Manner of revocation


(1) A will shall not be revoked wholly or in part except as mentioned in section 15 or 15A or in this section.

(2) A will may be revoked by another will.

(3) A will may be revoked:

(a) by some writing declaring an intention to revoke the will and executed in the manner in which a will is required to be executed by section 7,

(b) if the will is in writing, by the burning, tearing or destruction otherwise of the will by the testator or by some person in the testator’s presence and by the testator’s direction, with the intention of revoking the will, or

(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, if 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.

(4) A testator may revoke the testator’s will as mentioned in subsection (3) notwithstanding that the testator is a minor.

(5) This section applies to a revocation made after the commencement of the Minors (Property and Contracts) Act 1970 .


18 Effect of alteration in a will


(1) No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed in like manner as hereinbefore is required for the execution of a will, but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

(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.


18A Certain documents to constitute wills etc


(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will.

(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.


19 Revival


(1) No will or any part thereof which is in any manner revoked shall be revived otherwise than by:

(a) the re-execution thereof, or

(b) a codicil executed in the manner required by section 7 and showing an intention to revive the same.

(3) Where a will which is partly revoked and afterwards wholly revoked is revived, the revival shall not extend to so much of the will as was revoked before the revocation of the whole of the will, unless an intention to the contrary is shown.


29 Gifts to children or other issue who leave issue living at the testator’s death shall not lapse


Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of such person dies in the lifetime of the testator, leaving issue, and any such issue of such person is living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will.

Note: See also Conveyancing Act 1919 , sec 37.

29A Power of the Court to rectify wills


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

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

(3) The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period.

(4) Nothing in this section renders the executor of the estate of a testator liable for having distributed the assets, or any part of the assets, of that estate if the executor has complied with section 92.

(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 if the assets have, or any part of the assets has, been distributed.

(6) In this section:


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


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