Untitled document
Wills Amendment (International Wills) Act 2012
No. 44 of 2012
table of provisions
Section Page
1Main purpose
2Commencement
3Principal Act
4New section 16A inserted
16ADivision 6 does not limit the operation of Division 7
5New Division 7 of Part 2 inserted
Division 7—International wills
19ADefinitions
19BApplication of Convention
19CPersons authorised to act in connection with international wills
19DWitnesses to international wills
19EApplication of Act to international wills
6New Schedule inserted
SCHEDULE—Annex to Convention providing a Uniform
Law on the Form of an International Will 1973
7Statute law revision
8Repeal of amending Act
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Endnotes
Wills Amendment (International Wills) Act 2012
No. 44 of 2012
[Assented to 27 June 2012]
The Parliament of Victoria enacts:
1Main purpose
The main purpose of this Act is to amend the Wills Act 1997 to give effect to the Convention providing a Uniform Law on the Form of an International Will 1973.
2Commencement
This Act comes into operation on a day or days to be proclaimed, not being a day earlier than the day on which the Convention providing a Uniform Law on the Form of an International Will 1973 enters into force in respect of Australia.
3Principal Act
In this Act, the Wills Act 1997 is called the Principal Act.
4New section 16A inserted
Before section 17 of the Principal Act insert—
16ADivision 6 does not limit the operation of Division 7"
This Division does not limit the operation of Division 7.".
5New Division 7 of Part 2 inserted
After Division 6 of Part 2 of the Principal Act insert—
Division 7—International wills"
19ADefinitions
In this Division—
Convention means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington on 26 October 1973;
international will means a will made in accordance with the requirements of the Annex to the Convention as set out in the Schedule.
19BApplication of Convention
The Annex to the Convention has the force of law in this jurisdiction.
Note
The Annex to the Convention is set out in the Schedule.
19CPersons authorised to act in connection with international wills
(1)For the purposes of this Part, the following persons are authorised to act in connection with an international will—
(a)an Australian legal practitioner (within the meaning of the Legal Profession Act 2004);
(b)a public notary of any Australian jurisdiction.
(2)For the purposes of this Part, a reference in the Annex to the Convention to a person authorised to act in connection with international wills is a reference to—
(a)a person referred to in subsection (1) who is acting in Australia;
(b)any other person who is acting as an authorised person under the law of a State (other than Australia) that is a party to the Convention.
Note
This section gives effect to Articles 2 and 3 of the Convention.
19DWitnesses to international wills
The conditions requisite to acting as a witness to an international will are governed by the law of this jurisdiction.
Note
For the relevant provisions of this Act, see Division 4.
19EApplication of Act to international wills
To avoid doubt, the provisions of this Act that apply to wills extend to international wills.".
6New Schedule inserted
At the end of the Principal Act insert—
"__________________
SCHEDULE
Section 19B
Annex to Convention providing a Uniform Law on the Form of an International Will 1973
ANNEX
UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL
Article 1
1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereafter.
2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
Article 2
This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.
Article 3
1. The will shall be made in writing.
2. It need not be written by the testator himself.
3. It may be written in any language, by hand or by any other means.
Article 4
1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
Article 5
1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.
3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
Article 6
1. The signatures shall be placed at the end of the will.
2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.
Article 7
1. The date of the will shall be the date of its signature by the authorized person.
2. This date shall be noted at the end of the will by the authorized person.
Article 8
In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.
Article 9
The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.
Article 10
The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:
CERTIFICATE
(Convention of October 26, 1973)
1. I, ....................... (name, address and capacity), a person authorized to act in connection with international wills
2. Certify that on ....................... (date) at ....................... (place)
3. (testator) ....................... (name, address, date and place of birth) in my presence and that of the witnesses
4. (a).................. (name, address, date and place of birth)
(b).................. (name, address, date and place of birth)
has declared that the attached document is his will and that he knows the contents thereof.
5. I furthermore certify that:
6. (a) in my presence and in that of the witnesses
(1) the testator has signed the will or has acknowledged his signature previously affixed.
*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason .......................................
– I have mentioned this declaration on the will
* – the signature has been affixed by .................. (name, address)
7. (b) the witnesses and I have signed the will;
8. * (c) each page of the will has been signed by .................. and numbered;
9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;
10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;
11. * (f) the testator has requested me to include the following statement concerning the safekeeping of his will: .................................................
12. PLACE
13. DATE
14. SIGNATURE and, if necessary, SEAL
Article 11
The authorized person shall keep a copy of the certificate and deliver another to the testator.
Article 12
In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.
Article 13
The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.
Article 14
The international will shall be subject to the ordinary rules of revocation of wills.
Article 15
In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.
___________________________
* To be completed if appropriate.".
7Statute law revision
In section 3(1) of the Principal Act, in the definition of spouse, for "death;" substitute "death.".
8Repeal of amending Act
This Act is repealed on the first anniversary of the first day on which all of the provisions of this Act are in operation.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 9 November 2011
Legislative Council: 15 March 2012
The long title for the Bill for this Act was "A Bill for an Act to amend the Wills Act 1997 and for other purposes."
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