WILLS AMENDMENT (INTERNATIONAL WILLS) BILL 2011
PARLIAMENT OF VICTORIA Wills Amendment (International Wills) Bill 2011 TABLE OF PROVISIONS Clause Page 1 Main purpose 1 2 Commencement 1 3 Principal Act 2 4 New section 16A inserted 2 16A Division 6 does not limit the operation of Division 7 2 5 New Division 7 of Part 2 inserted 2 Division 7--International wills 2 19A Definitions 2 19B Application of Convention 3 19C Persons authorised to act in connection with international wills 3 19D Witnesses to international wills 4 19E Application of Act to international wills 4 6 New Schedule inserted 4 SCHEDULE--Annex to Convention providing a Uniform Law on the Form of an International Will 1973 4 7 Statute law revision 8 8 Repeal of amending Act 8 ENDNOTES 9 571050B.I-8/11/2011 i BILL LA INTRODUCTION 8/11/2011
PARLIAMENT OF VICTORIA Introduced in the Assembly Wills Amendment (International Wills) Bill 2011 A Bill for an Act to amend the Wills Act 1997 and for other purposes. The Parliament of Victoria enacts: 1 Main 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 5 International Will 1973. 2 Commencement 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 10 Law on the Form of an International Will 1973 enters into force in respect of Australia. 571050B.I-8/11/2011 1 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 3 3 Principal Act See: In this Act, the Wills Act 1997 is called the Act No. 88/1997. Principal Act. Reprint No. 1 as at 20 July 1998 and amending Act Nos 27/2001, 18/2005, 38/2007, 12/2008, 69/2009 and 29/2011. LawToday: www. legislation. vic.gov.au 4 New section 16A inserted 5 Before section 17 of the Principal Act insert-- "16A Division 6 does not limit the operation of Division 7 This Division does not limit the operation of Division 7.". 10 5 New Division 7 of Part 2 inserted After Division 6 of Part 2 of the Principal Act insert-- "Division 7--International wills 19A Definitions 15 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; 571050B.I-8/11/2011 2 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 5 international will means a will made in accordance with the requirements of the Annex to the Convention as set out in the Schedule. 5 19B Application 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. 10 19C Persons 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-- 15 (a) an Australian legal practitioner (within the meaning of the Legal Profession Act 2004); (b) a public notary of any Australian jurisdiction. 20 (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) 25 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. 30 Note This section gives effect to Articles 2 and 3 of the Convention. 571050B.I-8/11/2011 3 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 6 19D Witnesses to international wills The conditions requisite to acting as a witness to an international will are governed by the law of this jurisdiction. 5 Note For the relevant provisions of this Act, see Division 4. 19E Application of Act to international wills To avoid doubt, the provisions of this Act that apply to wills extend to international 10 wills.". 6 New Schedule inserted At the end of the Principal Act insert-- "__________________ SCHEDULE 15 Section 19B ANNEX TO CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL 1973 ANNEX 20 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 25 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 30 shall not affect its formal validity as a will of another kind. 571050B.I-8/11/2011 4 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 6 Article 2 This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument. 5 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. 10 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. 15 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 20 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, 25 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 30 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 35 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. 571050B.I-8/11/2011 5 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 6 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 5 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 10 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 15 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 20 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) 25 1. I, ....................... (name, address and capacity), a person authorized to act in connection with international wills 2. Certify that on ....................... (date) at ....................... (place) 30 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) 35 (b).................. (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof. 571050B.I-8/11/2011 6 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 6 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. 5 *(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 .................. 10 (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 15 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 20 following statement concerning the safekeeping of his will: ................................................. 12. PLACE 13. DATE 14. SIGNATURE and, if necessary, SEAL 25 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 30 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 35 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. 571050B.I-8/11/2011 7 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 s. 7 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. 5 ___________________________ * To be completed if appropriate.". 7 Statute law revision In section 3(1) of the Principal Act, in the definition of spouse, for "death;" substitute 10 "death.". 8 Repeal 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. 15 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). 571050B.I-8/11/2011 8 BILL LA INTRODUCTION 8/11/2011
Wills Amendment (International Wills) Bill 2011 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571050B.I-8/11/2011 9 BILL LA INTRODUCTION 8/11/2011