Adoption of Act Wills 1842 (SA)

No, 16,

AN A CITcf'or adopting a certain Act of Parliament itttitulcd '' 14n Act .for the ~rnetidrnent of the Laws with respect to Wills " in the administration of Justice in Bouth Australia in like mamer

as other laws in England are applied therein.

HEREAS a certain Act of Parliament was passed in the First

year of Her present Majesty's reign intituled " An Act for the amendment of the laws tvith respect to Wills" and whereas it is ex-

pedient to adopt and apply the said recited Act of Parliament in the	-
administration of Justice in South Australia Be it therefore Enacted
by IIis Excellency Ocorge Grey Esquire Governor and Commander-
in-chief of the Province of South Australia and its dependencies and Vice-Admiral of the same by and with the advice and consent of the Legislative Council thereof That the said recited Act of Parliament and every clause provision and enactment therein contained shall be and thc same is and are hereby adopted and directed to be a p plied in the administration of Justice in the said Colony and its dependencies from and after the time hereinafter mentioned in like manner as other laws of England are therein applied,

That the said recited Act of Parliament shall not commence or take effect in the Province aforesaid before the first day of August one thousand eight hundred and forty-two and that every clause and provision

11. And whereas it is expedient that the said recited Act of Par-

liament should not commence or take effect in the Province of South

Australia until the first day of August next ensuing BC it Enacted 4

provision in the said recited Act shall on from and after the said first day of August have only the same effect in the Province of South Australia as the same would havc had in Her Majesty's Kingdom of England from and after the first day of January one thousand eight hundred and thirty-eight.

GEORGE GREY,

Governor of South Australia,

Passed in Council this eighteenth day

of April one thousand eight hundwd

and forty-two.

A. M. Mumu,

Clerk of Council.

ACT

ACT OF PARLIAMENT REFERRED TO.

An Act for the amc?~llment qf the laws with respect to Wills.-3rd July, 1837.

BE IT ENACTED BY THE QUEEN'S MOST EXCELLENT MAJESTY by and

with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same that the words and expressions hereinafter men- Construction tlallse.

tioned which in their ordinary signification have a more confined or a different meaning shall in this Act except whcre the nature of the provision or the context of the Act shall exclude such construction be interprctcd as follows (that is to say) the word "will" shall extend to a testament and t o a codicil and to an appointment by mill or by writing in the nature of n will in exercise of a power and also to a disposition by will and testament or devise of the custody and tuition of any child by virtue of an Act passed in the twelfth year of the ~ i g n of King Charles the Second intituled "Bn Act for taking away the Court of wards and livcrics and tenures

in cap& and knight's service and purveyance and for settling a

rcvcnuc upon His Majesty in lieu thereof" or by virtue of an Act passed in the Parliament of Ircland in thc fourteenth and fifteenth years of the reign of King Charles the Second intituled "An Act for taking away the Court of wards and liveries and tenures in capite and by knight service and to any otlrer testamentary dispo- sition" and the words "real estate" shall extend to manors advow- sons messunges lands tithes rents and hereditaments whether freehold customary freehold tenant right customary or copyhold or of any othcr tcnurc and whether corporeal incorporeal or personal and to any unclivided share thcrcof and to any estate right or interest (other than a chattel interest) therein and the words 'Lpersonal estate" shall extend to leasehold estates and other chattels real and also to moneys shares of Government and otllcr funds securities for money (not being r ed estates) debts choses in action rights credits

upon the executor or administrator and to any share or interest goods and all other property whatsoever which by law devolves therein and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing and every word importing thc masculine gender only shall extend and be applied to a female as -vvcll as male.

11. And be it further Enacted That an Act passed in the thirty- Iiepeal of the statute

second year of the reign of Icing Henry the Eighth intituled "The Act of Wills 3% Hen. P c.

a,d Hen.

of wills wards and primer seisins" whereby a man may devise two d c. 5-

parts of his land and also an Act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth intituled The Bill concerning the explanation of Wills" and also

an Act passed in the Parliament of Ireland in the tenth year of the

reign of King Charles the First intituled "An Act how lands tene- 10 Chas. 1 sesm. 2

ments &c. may be disposed by will or atherwise and concerning ,. 2.

wards and primer seisins" and also so much of an Act passed in the

twen ty-nin th

twenty-ninth year of the reign of King Charles the Second intituled

An Act for the prevention of frauds and perjuries" and of an Act

29 Chae. 2 c. 3. passed in the Parliament of Ireland in the seventh year of the reign of King William the Third intituled '' An Act for prevention of

7 Wm. 3 c. 12.

frauds and perjuries" as relates to dcvises or bcquests of lands or tenements or to the revocation or alteration of any devise in writing of any lands tenements or hereditaments ou any clause thereof or to the devise of any estate pur autre vie or to any such estate being assets or to nuncupative wills or to the repeal altcring or changing of any will in writing concerning any goods or chattels or personal estate or any clause devise or bequest therein" and also so much of an Act passed in the fourth and fifth years of the reign of Queen Anne intituled " An Act for the amendment of the Law and the

4 and 6 Anne c. 16.	better advancement of Justice" and of an Act passed in thc Par- liament of Ireland in the sixth year of the reign of Quecn Anne intituled An Act for the amendment of the law and the better
6 Anae o. 10.	advancement of justice as relates to witnesses to nuncupative wills"
and also so much of an Act passed in the fourteenth year of the
14 Oeo. 2 c. 20.	reign of King George the Second intituled "An Act to amend the law concerning common recoveries and to explain and amend an Act madc in the twenty-ninth year of the reign of Ring Charles the Second intituled 'An Act for prevention of frauds and perjuries' " as relates to estates pur autre vie and also an Act passed in the twenty-fifth year of the reign of King George the Second intituled U An Act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estatee in that part of Great Britain called England and in His Majesty's colonies and plantations in America except so far as re- lates to His Majesty's colonies and plantations in America" and also an Act passed in the Parliament of Ireland in the same twenty- fifth year of the reign of King Georgo the Second intitulcd " An Act for the avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning
seal estates" and also an Act passed in the fifty-fifth year of the
reign of King George the Third intituled " An Act to rcmove certain difficulties in the disposition of copyhold estates by will"
shall be and the same are hereby repealed except so far as the samc Acts or any of them respectively rclatc to any wills or estates pur
autre vie to which thi~l Act does not extend.
All pruperty may be	111. And be it further Enacted That it shall be lawful for every person to devise bequeath or dispose of by his will executed in manner hereinafter required all real estate and all personal estate which he shall be entitled to either at law or in equity at the time of his death and which if not so devised bequeathed or disposed of would devolve upon the heir at law or customary heir of him or if he became entitled by descent of ancestor or upon his executor or administrator and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right or customary or copyhold notwithstanding that the testator may not have sunenderd the same to the use of his will or notwithstanding
rliepoiwd of by will.

that

that being entitled as heir devisee or otherwise to be admitted there- to he shall not have been admitted thereto or notwithstanding that the same in consequcncc of the want of a custom to devisc or sur- render to the use of a will or otherwise could not at law have been disposed of by will if this Act had not been made or notwithstand- ing that the same in consequence of there being a custom that a will or a surrender to thc use of a will should continue in force for a limited time only or any other special custom could not have been disposed of by will according to the power contained in this Act if this Act had not been made and also to estates pur autre vie whether there shall or shall not be any special occupant thcrcof and whether the same shall be freehold customary freehold tenant right customary or copyhold or any other tenure and whether the same shall be a corporeal or an incorporeal hereditament and also to all contingent executory or other future interests in any real or pcrsonal cstatc whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may becomc vested and whether he may be entitled thereto under the instrument

by which the same respectively were created or under any dispo-

sition thereof by deed or will and also to all rights of entry for con- ditions broken and other rights of entry and also to such of the samc estates interests and rights rcspectivcly and other real and personal estate as the testator may be entitled to at the timc of his death notwithstanding that he may become entitled to the same subse- quently to the execution of his will.

TV. Provided always and be it further Enacted That where any AB to the fees and

real estate of the nature of customary freehold or tenant right or % $ n ~ J ' ~ ~ ~ ~ ~ J " $

customary or copyhold might by the custom of the manor of which and copyhold estates.

the samc is holden have been surrendered to the use of a will and

the testator shall not have surrendered the samc to the use of his

will no person entitled or claiming to be entitled thereto by virtue

of such will shall be entitled to be admitted except upon payment

of sll such stamp duties fees and sums of money as would have been lawfully due and payable in respect of the surrendering of such real	estate to the use of the will or in respect of presenting registering
or enrolling such surrender if the samc real estate had been sur-
rendered to the use of the will of such testator Provided also that where the testator was entitled to have been admitted to such real estate and might if he had been admitted thereto have surrendered the same to the use of his will and shall not have been admitted thereto
no person entitled or claiming to be entitled to such real estate in con-
sequence of such will shall be entitled to be admitted to the same red estate by virtue thereof except on payment of all such stamp duties fees fine and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate and also of all such stamp duties fees and sums of money
as would have been lawfully due and payable in respect of surren-
dering such real estate to the use of the will or of presenting re- gistering or enrolling such surrender had the testator been dnly ad- mitted to such real estate and afterwards surrendered the same to

the

the use of his will all which stamp duties fees fine or sums of money due as aforesaid shall be paid in addition to the stamp duties fees fine or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid.

V. And be i t fu~ther Enacted That when any real estate of thc

Wills or extracts of

wills of customary

freoholds ancl copy-	naturc of customary freehold or tenant right or customary or copyhold
holds to be entered on	shall be disposed of by will the lord of the manor or reputed manor
the court rolls and the
lord to be entitled to	of which such real estate is holden or his steward orr the deputv of
the same fine &c.	such stc~varil shall cause the will by which such disposition s id i be
when such esMm
not now devinable as	made or so much thereof as shall contain the disposition of such real

he	been	estate to be entered in the court rolls of such manor or reputed
from th.heir in
of deacent	manor and when any trusts are declared by the will of suc6 real estate it shall not be necessary to enter the declaration of such trusts but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will and when any such real estate could not have becn disposed of by will if this Act had not been made the same finc heriot dues duties and scrvices shall be paid and rendered by the devisee as would have been due from the customary heir in casc of the desceilt of the same real estate and the lord shall as against the devisee of such cstate bave the same remedy for recovering and enforceing such fine heroit dues duties and sorvices as he is now entitled to for recover- ing and enforcing the same from or against the customary heir in case of a descent.

Estates pw- nrrtre vie	VI. And be it further Enacted That if no disposition by will shall be made of any estate pur autre vie of a freehold nature the same shall be chargeable in the hands of thc heir if i.t shdl come to hiin by reason of syocial occupancv as asscts by descent as in thc case of freehold land in fee simple jnd in ease there shall be no special occupant of any estate pur autre vie whether freehold or customary freehold tenant right customary or copyhold or of any othcr tenure
and whether a corporeal or incorporeal hereditament it shall go to the executor or administrator of the party that. had the estate thereof
by virtue of the grant and if the same shall come to thc executor or administrator either by reason of a special occupancy 01- by virtue of thie Act it shall be assets in his hands and shall go and be applied and distributed in the same manner as the personal cstate of the testator or intcstate.
No will of a minor

valid. VII. And be it further Enacted That no will made by any per-

son under the age of twenty-one years shall be valid.

Nor of a femmc

covert &c.

VIII. Provided also and be it further Enacted That no will made

by any married waman shall be valid except such a will as might

have been made by a married waman before the passing of this Act.

Every will to be in

writing and ei@;ned in IX. And be it further Enacted That no will shall be valid unless

the two it shall be in writing and executed in manner hereinafter mentioned

witnsraes. (that

1 (that is to say) it shall be signed at the foot or cnd thereof by the testator or by some other person in his prescnce an3 by his direction and such signature shall bc made or acknowledged by the testator in the presence of two or more 'witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary. - - - - - ._V_ _..I_

X. And be it further Enacted That no appointment made by will Appointments by will

in exercisc of any power shall be valid unless the same be executed ~ ~ ~ e $ ~ ~ ~ L i k e

in manner hereinbefore required and evcry will executed in manner

hereinbefore required shall so far as respects the execution and at-

testation thereof be a valid execution of a power of appointment by

will notwithstanding it shall have been expressly required that a

will made in exercise of such power should be executed with some

additional or other form of execution or solemnity.

XI. Provided always and be it further Enacted That any soldier soldiers' and mari-

being in actual military servicc or any marine or seaman being at ners' wiua

excepted.

sea may dispose of his personal estate as he might haw done before

the making of this Act,

I

XII. And be it further Enacted That this Act shall not prejudice A C ~ not to affect pro-

or affect any of the provisions contained in an Act pnssed in the g!?;'!: :% *

eleventh year of the reign of His Majesty King Gcorge the Fourth with respect to the wille of petty officers

and the first year of the reign of His late Majesty King William thc &	,
Fourth intituled " An Act to amend and consolidate the laws re-
lating to the pay of the Royal Navy respecting the wills of petty
officers and seamcn in the Royal Navy and non-commissioned offi-	r
cers of marines and mariners so far as relates to their wages pay prize money bounty money and allowances or other moneys payable in respect of services in Her Majesty's Navy.

XIII. Ancl be it further Enacted That every will executed in J'ohlic&ionnot re-

manner hereinbcfore rcquired ~hal i

be valid without any other pub- quisite.

lication thereof.

XIV. And be it further fi'lnacted That if any person who shall will not void by :ln-

I

oompetenoy of w ~ t -

attest the execution of a will shall at the time of the execution ,,,,

thereof or at any time afterwards bc incompetent to be admitted a

witness to prove the execution thereof such will shall not on that

account be invalid.

l

XV. And be it further Xnacted That if' any person shall attcst G*ta witness to OBnat"Sfing be void.

the execution of any will to whom or to whose wife or husband any beneficial devise legacy estate interest gift or appointment of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts) shall be thereby given or made such dcvise legacy estate interest gift or appointment shall so far only as concerns such person rtttcsting the execution of such will or the wife or husband of such person or any person claiming under such person or wife or husbaid be utterly h i l l and

void

l

void and such person so attesting shall be admitted as a witness to prove the execution of such will or to prove the validity or invalidity thereof notwithstanding such devise legacy estate interest gift or appointment mentioned in such will.

GCHWX seating to

be admitted a witnese.	XVI. And be i t further Enacted That in case by any will any real or personal estate shall be charged with anv debt or debts and any crditor or the wife or husbandWof anv creditor whose debt is so charged shall attest the execution of &h will such creditor nob withstanding such charge shall be admitted a witness to prove the execution of such will or to prove the validity or invalidity thcrcof.
Executor to be ad-	XVII. And be it further Enacted That no person shall on ac- count of his being an executor of a will be incompetent to be ad- mitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.
mitted s witness.
Will to be revoked	XVIII. And be it further Enacted That every will made by a man or woman shall be revoked by his or her marriage (except a, will made in exercise of a power of appointment when the real or pcrsonal estate thereby appointed would not in default of such ap- pointment pass to his or her heir customary heir cxccutor or ad- ministrator or the person entitled as his or her next of kin under the statute of distributions).
by marriage.

NO will to bo revoked XIX, And be it further Enacted That no will shall be revoked

by presumption.	by any presumption of an intention on the ground of an alteration in circumstances.
In what case wille
may be revoked.	XX. And be it further Enacted That no will or codicil or any part' thereof shall be revoked otherwise than as aforesaid or by another will or codicil executed in manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is hereinbefore required to be executed or by the burning tearing or otherwise destroying the
same by the testator or by some person in his presence and by his direction with the intention of rcvoking the same.
No alteration in S will
&all have any affect	XXI. And be i t further Enacted That no obliteration interlinea- tion 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 shall not be apparent unless such alteration shall be executed in like manner as hereinbefore is re- quired for the execution of the 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 be made in the margin or on some other pari 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.

XXII. And

I

XXII. And be it further Enacted That no will or codicil or any uow revoked will

p r t thereof which shall be in any manner revoked shall be revived be revived.

than by the re-execution thereof or by a codicil executed

I in rnanncr hereinbefore required and showing an intention to revive

the same and when any will or codicil which shall be partly revoked

and afterwards wholly revoked shall be revived such revival shall

,lot extend to so much thereof as shall have been revoked before the

rpvoeation of the whole thereof unless an intcntion to the contrary

$hall be shown.

XXIII. And be it further Enacted That no conveyance or other When ndeviae not to

act madr or done subsequently to the execution of a will of m re- :$5pred	inopera-
Is,ting to any red or persold estate therein comprised except an
act by which wzch will shall be revoked as aforesaid shall prevent thc operation of the will with respect to such cstate or iiitercst in
such rcal or personal estate as the testator shall have powcr to dis-
pose of by will at the time of his dcnth.

XXIV. And be it further Enacted That every will shall be con- A mill to peak

strued with reference to thc real estate and pcrsnnal estate cornpikxl ,,,,,	the death of the tes-
in it to speak and take effect as if i t had been executed immediately
before the death of the testator un l~s s a contrary intention shall
appear by the will.

XXV. And he it further Enacted That unless a contra~y inten- m a t a reaiciuary dc-

tion shall appear by the will such real estate or intcrcst therein as vise slid1 inclndc.

shall bc comprised or intended to be comprised in any devise in such will contained which shall fail or be void by reason of the death of the clevisce in the lifetime of the testator or by reason of snch de- rise being contrary to law or othcrmise incaputde of taking effect shall be included in thc residuary devise (if any) contained m such mill.

XXVI. And be it fu~ther Enacted That a devise of the land of What R general de-

testator or of the land of the testator in any place or in the oc- vise shall indude.

ation of any person mentioned in his will or otllerwise described

escribe a customary copyhold or leasehold estate if the testator had	a general manner and in any other general devise which would
freehold estate which could be described by it shall be construed include the customary copyhold and leasehold estates of the tes-
tor or his customary copyhold and leasehold estates or m y of them
which such description shall extend as the case may be as well as eehold estates unless a contrary intention shall appear by the will.
XXVII. And be it further Enacted That a general devise of the what n general gift estate of the testator in any place or in the occupation of any shall include.

mentioned in his will or otherwise described in a general shall be construed to include any real estate or any real

to which such description shall extend (as the case may be) he may have power to appoint in any manner he may think and shall operate as an execution of such power unless a

contrary

contrary intention shall appear by the will and in like manner a be. quest of a personal estate of the testator or any bequest of persona] property described in a general manner shall be construed to in. clude any personal &ate or any personal estate to which such de. scription shall extend (as the case may be) which hc may have power to appoint in any manner he may think proper and shal] operate as an execution of such power unless a contrary intention shall appear by the will.

HOW a devise without

O"hitatiQn XXVIII. And be it further Enacted That where any red estatt shall be deviscd to any person without any words of limitation sod devise shall be construed to pass the fee simple or other the wholf estate or interest which the testator had power to dispose of by will ir such real estate unless a contrary intention shall appear by the will

s h d be construed.

IIOW the words [(die

without iaaue " or without leaving of real or personal estate the words "die without issue" or %iie with XXIX. And be it further Enacted That in any devise or bequesi

atrued. ism" shall becon- out leaving issue" or "have no issue" or any other words whid

may itnport either a want or failure of issuc of any person in hi lifetime ox at the time of his death or an indefinite failure of his issut shall be construed to mean a want or failure of issue in the lifetiml or at the time of the death of such person and not an indefinit~

failure of his issue unless a contrary intention shall appear by th~

will by reason of such person having a prior estate tail or of a pre

ceding gift being without any implication arising from such word/

a limitation oE an estate tail to such person or issue or otherwist

Provided that this Act shall not extend to cases where such word! as aforesaid import if no issue described in a preceding gift shall born or if there shall be no issue who shall live to attain the age o otherwise answer the description required for obtaining a vestec estate by a preceding gift to such issue.

NO devise to trustees	XXX.	And be it further Enacted That where any real estate othe
or executom &U. shall

pass a chathl intorest. than or not being a presentation to a church shall be devised to an;

trustee or executor such devise shall be construed to nass the fe

power to dispose of by will in such real eatate unless a definite tern simple or other the whole estate or interest which theLtestator han	of years absolute or determinable .or aa estate of freehold shal
thereby be given to him expressly .or by implication.

a Tmteeu under an XXXI. And be it further Enacted That where any real estate shal

dey'5e "c.y be devised to a trustee without any express limitation of the estat

ta take the fee.

to * be taken by such trustee,and the beneficial interest in such rea estate or in the surplus rents and profits thereof shall not be give to any person for life or such beneficial interest shall be given t any person for life but the purposes of the trust may continue bt: yonct the life of such person, such dcvise shall be construed to V C ~ in such trustee the fee simple or other the whole legal estate whic

the testator had power to dispose of by will in such real estate an not an estate determinable when the purposes of the trust shall b

satisfied. XXXII. An

XXXII. And be it further Enacted That wllcrc any person to nrviscl of estates tail

whom any real estate shnll be devised for an evtata tail or an estate shh'lnotlapse.

in quasi entail shall die in the lifetime of the testator leaving issue

who mould be inheritable under such entail and any such issue shall be living at the time of the death of the testator such devise shall

not lapse but shall take effect as if the death of such person had

happened immedintcly after the death of the testator unless a con-

trary intention shnll appear by the will

XXXIII. And be it further Xnacted That where any person bcing Gitts to children or

a child or other issue of the testator to whom any real or personal ~~~~~,~~~~~ $iFz:

estate shall be devised or bequeathed for any estate or interest not tator's death &all not

determinable at or before the death of such person, shall die in the lapse.	7
lifetime of the testator leaving issue and any such issue of such pcrsons shall be 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 lrappened immediately after thc death of the tes- I tator unless a contrary intention shall appear by the will.

XXXIV. And be it further Enacted That this Act shall not ex* TO whCit wills am1

tent to any will made before the first day of January one thousand ~ ~ ~ ~ t ~ ~ ~. A L t eight hundred and thirty-eight and that every will re-executed or	1	l	"	'
republished or revived by any coclicil shall for the purposes of this
Act be deemed to have been made at the time at which the same
shall be so re-executcd republished or revived and that this Act shall not extend to any estate pur nutre vie of any person who shall
die before the first day of January one thousand eight hundred and
thirty-eight.

XXXV. And bc it further Enacted That this Act shall not cu- Not to

tend to Scotland.

I

XXXVI. And be it Enactcd That this iict may be arnended .ic*t nmy be ammtled.

altered or repealled by any Acts or Act to be passed in this present

Session of Parliament.

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Adclaide: By authority, E. ~PILLEE, Government Printer, North-terrace.