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WILLS BILL 1997

PARLIAMENT OF VICTORIA Wills Act 1997 Act No. TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1. Purpose 1 2. Commencement 2 3. Definitions 2 PART 2--THE MAKING, ALTERATION, REVOCATION AND REVIVAL OF WILLS 4 Division 1--Will-making powers 4 4. What property may be disposed of by will? 4 5. Minimum age for making a will 4 6. Wills by minors who are married 5 Division 2--Executing a will 5 7. How should a will be executed? 5 8. Must witnesses know that they are signing a will? 6 Division 3--Dispensing with requirements for execution 6 9. When may the Court dispense with requirements for execution or revocation? 6 Division 4--Witnessing a will 7 10. What persons cannot act as witnesses to wills? 8 11. Can an interested witness benefit from a disposition under a will? 8 Division 5--Alteration, revocation and revival of wills 8 12. When and how can a will be revoked? 8 13. What is the effect of marriage on a will? 9 14. What is the effect of divorce on a will? 9 15. Can a will be altered? 11 16. Can a revoked will be revived? 11 i 531228B.I1-7/10/97

 


 

Clause Page Division 6--Wills to which foreign laws apply 12 17. General rule as to validity of a will executed in a foreign place 12 18. Ascertainment of the system of law which applies to a will 13 19. Construction of the law applying to wills 14 PART 3--WILLS MADE OR RECTIFIED UNDER COURT AUTHORISATION 15 Division 1--Court authorised wills by minors 15 20. Wills by minors authorised by the Court 15 Division 2--Court authorised wills for persons who do not have testamentary capacity 16 21. Wills for persons who do not have testamentary capacity authorised by the Court 16 22. Hearing an application for an order 16 23. Powers of the Court in making an order 17 24. Revocation of a will made under an order under section 21 17 25. Execution and storage of wills made under an order under section 21 17 26. Matters of which Court must be satisfied before application for leave to make an application may be granted 18 27. Hearing an application for leave 18 28. Information which the Court may require in support of an application for leave 19 29. Persons who are entitled to appear at an application for leave 20 30. Recognition of statutory wills 20 Division 3--Court authorised rectification of wills 21 31. Can a will be rectified? 21 32. Order to be attached to will 22 PART 4--CONSTRUCTION OF WILLS 23 Division 1--General rules about the construction of wills 23 33. What interest in property does a will operate to dispose of? 23 34. When does a will take effect? 23 35. What is the effect of a failure of a disposition? 23 36. When is evidence admissible to clarify a will? 24 37. What is the effect of a change in the testator's domicile? 24 38. Income on contingent and future dispositions 24 39. Beneficiaries must survive testator by 30 days 24 ii 531228B.I1-7/10/97

 


 

Clause Page Division 2--Construction of particular provisions in wills 25 40. What does a general disposition of land include? 25 41. What does a general disposition of property include? 26 42. What is the effect of a disposition of real property without words of limitation? 26 43. How are dispositions to issue to operate? 26 44. How are requirements to survive with issue construed? 26 45. Dispositions not to fail because issue have died before the testator 27 46. Construction of residuary dispositions 28 47. Dispositions to unincorporated associations of persons 29 48. Can a person, by will, delegate the power to dispose of property? 30 49. What is the effect of referring to a valuation in a will? 30 PART 5--GENERAL 32 50. Who may see a will? 32 PART 6--TRANSITIONAL AND CONSEQUENTIAL PROVISIONS 33 51. Repeal of Wills Act 1958 33 52. Transitional provisions 33 PART 7--AMENDMENT OF THE ADMINISTRATION AND PROBATE ACT 34 53. Principal Act 34 54. Amendment of reference 34 55. New section 91 inserted 34 91. Power of the Court to make maintenance order 34 56. Powers of Court--Amendment of section 94 37 57. Repeal of section 95 37 58. Amendment of section 96--powers to refuse applications 37 59. Amendment of section 97--contents of order 37 60. Substitution of Part V 38 PART V--TRANSITIONAL 38 100. Transitional provision--Wills Act 1997 38 NOTES 39 iii 531228B.I1-7/10/97

 


 

Clause Page THIS PAGE IS TO BE MASKED iv 531228B.I1-7/10/97

 


 

PARLIAMENT OF VICTORIA A BILL to re-state with amendments the law relating to wills in Victoria, to repeal the Wills Act 1958 and to amend the Administration and Probate Act 1958. Wills Act 1997 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The purpose of this Act is to re-state, with amendments, the law relating to wills in Victoria 5 by making provision for-- (a) the making, alteration, revocation and revival of wills, including-- 1 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 2 Act No. (i) the capacity of minors to make wills; and (ii) the effects of marriage and divorce of testators on wills made by them; and 5 (b) the capacity of the Court to authorise the making or rectification of wills in certain circumstances; and (c) the construction of wills; and (d) other general matters in relation to wills; and 10 (e) the repeal of the Wills Act 1958 and the amendment of the Administration and Probate Act 1958. 2. Commencement (1) Section 1 and this section come into operation on 15 the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. 20 (3) If a provision referred to in sub-section (2) does not come into operation before 1 January 1999, it comes into operation on that day. 3. Definitions (1) In this Act-- 25 "Court" means the Supreme Court; "de facto spouse" means-- (a) in relation to a deceased person who was a man, a woman who; and (b) in relation to a deceased person who 30 was a woman, a man who-- at the date of death of the deceased person, was living with the deceased person as a 2 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 3 Act No. member of a couple on a genuine domestic basis, although not legally married; "disposition" includes the following-- (a) any gift, devise or bequest of property 5 under a will; (b) the creation by will of a power of appointment affecting property; (c) the exercise by will of a power of appointment affecting property; 10 "document" means any paper or material on which there is writing; "minor" means a person who is less than 18 years old; "Registrar" has the same meaning as in the 15 Administration and Probate Act 1958. (2) This Act applies to a codicil or other testamentary writing in the same manner as it applies to a will. _______________ 3 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 4 Act No. PART 2--THE MAKING, ALTERATION, REVOCATION AND REVIVAL OF WILLS Division 1--Will-making powers 4. What property may be disposed of by will? 5 (1) A person may, by will, dispose of-- (a) any property to which the person is entitled at the time of his or her death, whether or not the entitlement of the person did or did not exist at the date of the making of the will; 10 and (b) any property to which the personal representative of that person becomes entitled, by virtue of the office of personal representative to that person, after the death 15 of that person-- other than property of which the testator is trustee. (2) In this section "property" includes-- (a) a contingent, executory or future interest in property-- 20 (i) whether the person becomes entitled to the interest by way of the instrument which created the interest or otherwise; and (ii) whether that person has or has not been 25 ascertained as the person in whom the interest may become vested; and (b) a right of entry or recovery of property or a right to call for the transfer of title of property. 30 5. Minimum age for making a will A will made by a minor is not valid. 4 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 6 Act No. 6. Wills by minors who are married Despite section 5-- (a) a minor may make a will in contemplation of marriage, and may alter or revoke such a 5 will, but the will is of no effect if the marriage contemplated does not take place; (b) a minor who is married may make, alter or revoke a will; (c) a minor who has been married may revoke 10 the whole or any part of a will made while the person was married or in contemplation of that marriage. Division 2--Executing a will 7. How should a will be executed? 15 (1) A will is not valid unless-- (a) it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and (b) the signature is made with the testator's 20 intention of executing a will, whether or not the signature appears at the foot of the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more 25 witnesses present at the same time; and (d) at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other. (2) A statement in a will that the will has been 30 executed in accordance with this section is not necessary for the will to be valid. 5 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 8 Act No. (3) Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this 5 section. (4) Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a 10 will that is executed in accordance with this section, but is not executed in that manner or with that solemnity. 8. Must witnesses know that they are signing a will? A will which is executed in accordance with this 15 Act is validly executed even if a witness to the will did not know that it was a will. Division 3--Dispensing with requirements for execution 9. When may the Court dispense with requirements for execution or revocation? 20 (1) The Supreme Court may admit to probate as the will of a deceased person-- (a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or 25 (b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act-- if the Court is satisfied that that person intended 30 the document to be his or her will. (2) The Supreme Court may refuse to admit a will to probate which the testator has purported to revoke 6 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 9 Act No. by some writing, where the writing has not been executed in the manner in which a will is required to be executed by this Act, if the Court is satisfied that the testator intended to revoke the will by that 5 writing. (3) In making a decision under sub-section (1) or (2) the Court may have regard to-- (a) any evidence relating to the manner in which the document was executed; and 10 (b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator. (4) This section applies to a document whether it came into existence within or outside the State. 15 (5) The Registrar may exercise the powers of the Court under this section-- (a) where the Court has authorised the Registrar to exercise the Court's powers under this section; and 20 (b) where-- (i) all persons who would be affected by a decision under this section so consent; or (ii) if consent is not given, the value of the 25 estate does not exceed the limit set for the purposes of this section by the Court. (6) In this section "document" has the same meaning as in the Interpretation of Legislation Act 1984. 30 Division 4--Witnessing a will 7 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 10 Act No. 10. What persons cannot act as witnesses to wills? A person who is unable to see and attest that a testator has signed a document, may not act as a witness to a will. 5 11. Can an interested witness benefit from a disposition under a will? A person who witnesses a will or his or her spouse, at the time the will is witnessed, is not disqualified from taking a benefit under the will. 10 Division 5--Alteration, revocation and revival of wills 12. When and how can a will be revoked? (1) A will is revoked by the making of a later will by the testator. (2) Subject to-- 15 (a) sub-section (1); and (b) sections 13 and 14; and (c) any order made by the Court under this Act authorising the revocation of a will; and (d) any order made by the Court under this Act 20 dispensing with the formal requirements for revoking a will-- the whole or any part of a will may not be revoked except-- (e) by some writing, declaring an intention to 25 revoke it, executed in the manner in which a will is required to be executed by this Act; or (f) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with 30 the intention of revoking it; or 8 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 13 14 Act No. (g) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied, 5 from the state of the will, that the testator intended to revoke it. 13. What is the effect of marriage on a will? (1) A will is revoked by the marriage of the testator. (2) Despite sub-section (1)-- 10 (a) a disposition to the person to whom the testator is married at the time of his or her death; or (b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom 15 the testator is married at the time of his or her death; or (c) a power to exercise, by will, a power of appointment, when, if the testator did not exercise the power, the property so 20 appointed would not pass to the executor or administrator or the State Trustees under section 19 of the Administration and Probate Act 1958-- is not revoked by the marriage of the testator. 25 (3) Despite sub-section (1)-- (a) a will made 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; 30 and (b) a will which is expressed to be made in contemplation of marriage generally is not revoked by the marriage of the testator. 14. What is the effect of divorce on a will? 9 531228B.I1-7/10/97

 


 

Wills Act 1997 Act No. (1) The divorce of a testator revokes-- (a) any disposition to the divorced spouse of the testator, made in a will in existence at the time of the divorce; and 5 (b) the grant of a power of appointment by the will exercisable by or in favour of the spouse, other than a power of appointment exercisable by the spouse only in favour of persons who are the children of both the 10 testator and the spouse; and (c) any appointment made by the will of the spouse as an executor, trustee, advisory trustee or guardian other than the appointment of the spouse as a trustee of 15 property left by the will upon trust for beneficiaries that include the children of the spouse. (2) This section does not apply to any disposition, appointment or grant, if it appears that the testator 20 did not want the disposition, appointment or grant to be revoked upon the ending of the marriage. (3) A will in which there is a disposition, appointment or grant to which sub-section (1) applies takes effect as if the spouse had predeceased the 25 testator. (4) In this section-- "divorce" means the ending of a marriage by-- (a) a decree of dissolution of the marriage becoming absolute under the Family 30 Law Act 1975 of the Commonwealth; or (b) the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or 10 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 15 16 Act No. (c) the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, if that dissolution or annulment is recognised 5 in Australia under the Family Law Act 1975 of the Commonwealth; "divorced spouse" means the spouse of the testator by the marriage which was the subject of the divorce; 10 "spouse" includes a party to a purported or void marriage. 15. Can a will be altered? (1) An alteration to a will after it has been executed is not effective unless the alteration is executed in 15 the manner in which the will is required to be executed under this Act. (2) Sub-section (1) does not apply to an alteration to a will if the words or effect of the will are no longer apparent because of the alteration. 20 (3) If a will is altered, it is sufficient compliance with the requirements for execution, if the signature of the testator and of the witnesses to the alteration are made-- (a) in the margin, or on some other part of the 25 will beside, near or otherwise relating to the alteration; or (b) as authentication of a memorandum referring to the alteration and written on the will. 16. Can a revoked will be revived? 30 (1) A will or part of a will which has been revoked is revived by re-execution or by execution of a codicil which shows an intention to revive the will or part. 11 531228B.I1-7/10/97

 


 

Wills Act 1997 Act No. (2) A revival of a will which was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked. (3) Sub-section (2) does not apply if a contrary 5 intention appears in the document which revives the will. (4) A will which has been revoked and later revived, either wholly or partly, is to be taken to have been executed on the date on which the will is revived. 10 Division 6--Wills to which foreign laws apply 17. General rule as to validity of a will executed in a foreign place (1) A will is to be taken to be properly executed if its execution conforms to the internal law in force in 15 the place-- (a) where it was executed; or (b) which was the testator's domicile or habitual residence, either at the time the will was executed, or at the testator's death; or 20 (c) of which the testator was a national, either at the date of execution of the will, or at the testator's death. (2) The following wills are also to be taken to be properly executed-- 25 (a) a will executed on board a vessel or aircraft, if the will has been executed in conformity with the internal law in force in the place with which the vessel or aircraft may be taken to have been most closely connected 30 having regard to its registration and other relevant circumstances; or (b) a will, so far as it disposes of immovable property if it has been executed in 12 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 18 Act No. conformity with the internal law in force in the place where the property is situated; or (c) a will, so far as it revokes a will or a provision of a will which has been executed 5 in accordance with this Act, or which is taken to have been properly executed by this Act, if the later will has been executed in conformity with any law by which the earlier will or provision would be taken to have 10 been validly executed; or (d) a will, so far as it exercises a power of appointment, if the will has been executed in conformity with the law governing the validity of the power. 15 (3) A will to which this section applies, so far as it exercises a power of appointment, is not to be taken to have been improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the 20 power. 18. Ascertainment of the system of law which applies to a will If, in the case of a will to which the internal law in force in a place is to be applied, there is more than 25 one system of internal law in force in the place which relates to the formal validity of wills the system to be applied is determined as follows-- (a) if there is a rule in force throughout the place which indicates which system applies to the 30 will, that rule must be followed; or (b) if there is no rule, the system must be that with which the testator was most closely connected-- (i) at the time of his or her death, if the 35 matter is to be determined by reference 13 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 19 Act No. to circumstances prevailing at his or her death; or (ii) in any other case, at the time of execution of the will. 5 19. Construction of the law applying to wills (1) In determining whether a will has been executed in conformity with a particular law, regard must be had to the formal requirements of that law at the time of execution, but account may be taken of 10 a later alteration of the law affecting wills executed at that time, if the alteration enables the will to be treated as properly executed. (2) If a law in force outside Victoria is applied to a will, a requirement of that law that special 15 formalities must be observed by testators of a particular description or that the witnesses to the execution of a will must have certain qualifications, is to be taken to be a formal requirement only, despite any rule of that law to 20 the contrary. _______________ 14 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 20 Act No. PART 3--WILLS MADE OR RECTIFIED UNDER COURT AUTHORISATION Division 1--Court authorised wills by minors 20. Wills by minors authorised by the Court 5 (1) Despite section 5, the Court may make an order under this section authorising a minor to make a will in specific terms or revoke a will. (2) An order under this section may be made on the application of the minor or a person on behalf of 10 the minor. (3) In making an order under this section, the Court must approve the terms of the will. (4) The Court may impose any conditions on the authorisation that the Court thinks fit. 15 (5) Before making an order under this section, the Court must be satisfied that-- (a) the minor understands the nature and effect of the proposed will or revocation and the extent of the property disposed of by it; and 20 (b) the proposed will or revocation accurately reflects the intentions of the minor; and (c) it is reasonable in all the circumstances that the order should be made. (6) In addition to the requirements for the execution 25 of a will specified in Part 2, one of the witnesses to the making of a will under this section must be the Registrar. (7) A will made under this section must be deposited with the Registrar under Part 1, Division 1A of the 30 Administration and Probate Act 1958. 15 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 21 Act No. (8) Despite section 5C of the Administration and Probate Act 1958, any will which has been deposited with the Registrar under sub-section (7), must not be withdrawn from deposit unless-- 5 (a) the Court has made an order under this section authorising the revocation of the will; or (b) the testator has attained 18 years of age or marries. 10 (9) A failure to comply with sub-section (7) does not affect the validity of the will. Division 2--Court authorised wills for persons who do not have testamentary capacity 21. Wills for persons who do not have testamentary 15 capacity authorised by the Court (1) The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity. 20 (2) Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application. (3) The Court may make an order under this section on behalf of a person who is a minor and who 25 does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made. 22. Hearing an application for an order 30 In considering an application for an order under section 21-- (a) the Court may have regard to any information given to the Court in support of 16 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 23 Act No. an application for leave under section 28; and (b) the Court may inform itself of any other matter in any manner it sees fit; and 5 (c) the Court is not bound by the rules of evidence. 23. Powers of the Court in making an order In making an order under section 21, the Court may make any necessary related orders or 10 directions. 24. Revocation of a will made under an order under section 21 If a will has been made under an order under section 21 on behalf of a person who regains 15 testamentary capacity after the making of the order, that person may revoke or deal with the will without an order under section 21. 25. Execution and storage of wills made under an order under section 21 20 (1) A will which is made under an order under section 21 is not valid unless it is in writing, signed by the Registrar and sealed with the seal of the Court. (2) The revocation of a will which is made under an order under section 21 is not valid unless it is 25 effected by a document which is signed by the Registrar and sealed with the seal of the Court. (3) Any will and any document to which this section applies must be deposited with the Registrar under Part 1, Division 1A of the Administration and 30 Probate Act 1958. (4) Despite section 5C of the Administration and Probate Act 1958, any will and any document to which this section applies, which has been 17 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 26 Act No. deposited with the Registrar, must not be withdrawn from the deposit unless-- (a) the Court has made an order under this section revoking the will; or 5 (b) the person on whose behalf the will has been made has regained testamentary capacity. (5) A failure to comply with sub-section (3) does not affect the validity of the will. 26. Matters of which Court must be satisfied before 10 application for leave to make an application may be granted Before granting leave to apply for an order under section 21, the Court must be satisfied that-- (a) the person on whose behalf the will is to be 15 made or revoked does not have testamentary capacity; and (b) the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity; and 20 (c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person. 27. Hearing an application for leave 25 (1) In considering an application for leave to make an order under section 21-- (a) in addition to any matter which the Court may take into account under section 28, the Court may inform itself in any manner it sees 30 fit; and (b) the Court is not bound by the rules of evidence. 18 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 28 Act No. (2) If the Court is satisfied, on the evidence tendered under sub-section (1) of the matters set out in section 26(a) to (c), the Court may determine that the application for leave to apply for an order 5 under section 21 proceed as an application for such an order. 28. Information which the Court may require in support of an application for leave In proceedings for the hearing of an application 10 for leave to apply for an order under section 21, the applicant must, if so required by the Court, give-- (a) a written statement of the general nature of the application and the reasons for making it; 15 (b) a reasonable estimate, formed from any evidence available to the applicant, of the size and character of the estate of the person on whose behalf the will is to be made; (c) a draft of the proposed will for which the 20 applicant is seeking the Court's approval; (d) any evidence available to the applicant of the wishes of the person; (e) any evidence available to the applicant of the likelihood of the person acquiring or 25 regaining testamentary capacity; (f) any evidence available to the applicant of the terms of any will previously made by the person; (g) any evidence available to the applicant of the 30 likelihood of an application being made under Part IV of the Administration and Probate Act 1958 in respect of property of the person; 19 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 29 Act No. (h) any evidence available to the applicant of the circumstances of any person for whom provision might reasonably be expected to be made under the will; 5 (i) any evidence available to the applicant of any persons who might be entitled to claim on intestacy; (j) any evidence available to the applicant of any gift for a charitable or other purpose that 10 the person might reasonably be expected to give or make by will; (k) any other evidence available to the applicant and which is relevant to the application. 29. Persons who are entitled to appear at an application 15 for leave Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for leave to apply for an order under section 21-- 20 (a) the person on whose behalf the will is to be made; (b) a legal practitioner representing that person; (c) an attorney appointed by that person under an enduring power of attorney; 25 (d) any guardian or administrator of the person within the meaning of the Guardianship and Administration Board Act 1986; (e) any other person who has, in the opinion of the Court, a genuine interest in the matter. 30 30. Recognition of statutory wills (1) A statutory will made according to the law of the place where the deceased was resident at the time 20 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 31 Act No. of the execution of the will is deemed to be a valid will of the deceased. (2) In this section, "statutory will" means a will executed under a statutory provision on behalf of 5 a person who, at the time of the execution, lacked testamentary capacity. Division 3--Court authorised rectification of wills 31. Can a will be rectified? (1) The Court may make an order to rectify a will to 10 carry out the intentions of the testator, if the Court is satisfied that the will does not carry out the testator's intentions because-- (a) a clerical error was made; or (b) the will does not give effect to the testator's 15 instructions. (2) A person who wishes to make an application for an order under sub-section (1) must apply to the Court within 6 months from the date of the grant of probate. 20 (3) The Court may extend the period of time for making an application if the Court thinks this is necessary, even if the original period of time has expired, but not if the final distribution of the estate has been made. 25 (4) If the personal representative makes a distribution to a beneficiary, the personal representative is not liable if-- (a) the distribution is made-- (i) to a person who is, at the date of the 30 deceased's death, the spouse of the deceased; or 21 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 32 Act No. (ii) to the de facto spouse or a child of the deceased-- and is made-- (iii) in good faith; and 5 (iv) for the purpose of providing for the maintenance, support or education of the person to whom it is made; or (b) the distribution has been made-- (i) when the personal representative has 10 not been aware of any application under this section or any application under Part IV of the Administration and Probate Act 1958 having been made; and 15 (ii) at least 6 months after the grant of probate. 32. Order to be attached to will The Court must direct that a certified copy of an order made under this section must be attached to 20 a will to which it applies and must retain the will until the copy of the order is attached. _______________ 22 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 33 Act No. PART 4--CONSTRUCTION OF WILLS Division 1--General rules about the construction of wills 33. What interest in property does a will operate to dispose of? 5 If-- (a) a testator has made a will disposing of property; and (b) after the making of the will and before his or her death, the testator disposes of an interest 10 in that property-- the will operates to dispose of any remaining interest the testator has in that property. 34. When does a will take effect? (1) A will takes effect, with respect to the property 15 disposed of by the will, as if it had been executed immediately before the death of the testator. (2) Sub-section (1) does not apply if a contrary intention appears (whether in the will or elsewhere). 20 35. What is the effect of a failure of a disposition? (1) If any disposition of property is ineffective, the will takes effect as if the property were part of the residuary estate of the testator. (2) Sub-section (1) does not apply if a contrary 25 intention appears (whether in the will or elsewhere). (3) In this section "disposition of property" does not include the exercise of a power of appointment. 23 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 36 Act No. 36. When is evidence admissible to clarify a will? (1) In any proceedings to construe a will, if the language used in a will renders the will or any part of the will-- 5 (a) meaningless; or (b) uncertain or ambiguous on the face of the will; or (c) uncertain or ambiguous in the light of surrounding circumstances-- 10 evidence may be admitted to assist in the interpretation of that language. (2) Evidence which may be admitted under sub- section (1)(c) does not include evidence of the testator's intention. 15 37. What is the effect of a change in the testator's domicile? The construction of a will is not altered by a change in the testator's domicile after he or she has executed the will. 20 38. Income on contingent and future dispositions A contingent, future or deferred disposition of property, whether specific or residuary, includes any intermediate income of the property which has not been disposed of by the will. 25 39. Beneficiaries must survive testator by 30 days (1) If a disposition is made to a person who dies within 30 days after the death of the testator, the will is to take effect as if the person had died before the testator. 30 (2) Sub-section (1) does not apply if a contrary intention appears in the will. 24 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 40 Act No. (3) A general requirement or condition that a beneficiary survive the testator is not a contrary intention for the purpose of this section. (4) If the personal representative makes a distribution 5 under the will to a person who is-- (a) the spouse of the testator at the date of the testator's death; or (b) the de facto spouse or a child of the testator-- 10 within 30 days after the death of the testator, the personal representative is not liable if the distribution is made-- (c) in good faith; and (d) for the purpose of providing for the 15 maintenance, support or education of the person to whom it is made-- whether or not an application has been made under Part IV of the Administration and Probate Act 1958 or under section 31 of this Act. 20 (5) Any distribution made to a person under sub- section (4) must be deducted from the share of the estate to which the person is entitled under the will, or, if the person does not survive the testator by 30 days, must be treated as an administration 25 expense. Division 2--Construction of particular provisions in wills 40. What does a general disposition of land include? (1) A general disposition of land or of the land in a particular area includes leasehold land whether or 30 not the testator owns freehold land. 25 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 41 44 Act No. (2) Sub-section (1) does not apply if a contrary intention appears (whether in the will or elsewhere). 41. What does a general disposition of property include? 5 (1) A general disposition of-- (a) all or the residue of the testator's property; or (b) all or the residue of his or her property of a particular description-- includes any property over which he or she has a 10 general power of appointment exercisable by will and operates as an exercise of the power. (2) Sub-section (1) does not apply if a contrary intention appears (whether in the will or elsewhere). 15 42. What is the effect of a disposition of real property without words of limitation? (1) A disposition of real property to a person without words of limitation is to be construed as passing the whole estate or interest of the testator in that 20 property to that person. (2) Sub-section (1) does not apply if a contrary intention appears (whether in the will or elsewhere). 43. How are dispositions to issue to operate? 25 (1) A disposition to a person's issue, without limitation as to remoteness, must be distributed to that person's issue in the same manner as if that person had died intestate and as if that person had died leaving only issue surviving. 30 (2) Sub-section (1) does not apply if a contrary intention appears in the will. 44. How are requirements to survive with issue construed? 26 531228B.I1-7/10/97

 


 

Wills Act 1997 Act No. (1) If there is a disposition to a person in a will which is expressed to fail if there is either-- (a) a want or a failure of issue of that person either in his or her lifetime or at his or her 5 death; or (b) an indefinite failure of issue of that person-- those words must be construed to mean a want or failure of issue in the person's lifetime or at the person's death and not an indefinite failure of his 10 or her issue. (2) Sub-section (1) does not apply if a contrary intention appears in the will. (3) For the purposes of avoiding doubt, sub-section (2) does not affect the operation of the rule against 15 perpetuities. 45. Dispositions not to fail because issue have died before the testator (1) If a person makes a disposition to any of his or her issue, where-- 20 (a) the disposition is not a disposition to which section 43 applies; and (b) one or more of the issue do not survive the testator for thirty days; and (c) the interest in the property is not 25 determinable at or before the death of the issue-- the issue of the deceased issue who survive the testator for 30 days take the deceased issue's share of the disposition in place of the deceased issue in 30 the same manner as if the testator had died intestate and as if the testator had died leaving only issue surviving. 27 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 46 Act No. (2) Sub-section (1) applies to dispositions to issue either as individuals or as members of a class. (3) Sub-section (1) does not apply if a contrary intention appears in the will, but a general 5 requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purposes of this section. (4) If an original beneficiary under a will-- 10 (a) is issue of the testator; and (b) did not survive the testator by 30 days; and (c) did not fulfil a contingency required by the will (other than a requirement to survive the testator or attain a certain age)-- 15 sub-section (1) does not operate to entitle issue of that beneficiary to a disposition under the will. 46. Construction of residuary dispositions (1) A disposition of the whole or of the residue of the estate of a testator which refers only to the real 20 estate of the testator or only to the personal estate of the testator is to be construed to include both the real and personal estate of the testator. (2) Sub-section (1) does not apply if a contrary intention appears in the will. 25 (3) If any part of-- (a) a residuary disposition which is in fractional parts; or (b) a disposition of the whole of the estate which is in fractional parts-- 30 fails, the part that fails passes to the part which does not fail and, if there is more than one part which does not fail, to all those parts proportionately. 28 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 47 Act No. (4) Sub-section (3) does not apply if a contrary intention appears in the will. 47. Dispositions to unincorporated associations of persons 5 (1) A disposition-- (a) to an unincorporated association of persons, which is not a charity; or (b) to or upon trust for the aims, objects or purposes of an unincorporated association of 10 persons, which is not a charity; or (c) to or upon trust for the present and future members of an unincorporated association of persons, which is not a charity-- has effect as a disposition in augmentation of the 15 general funds of the association. (2) Property which is or which is to be taken to be a disposition in augmentation of the general funds of an unincorporated association must be-- (a) paid into the general fund of the association; 20 or (b) transferred to the association; or (c) sold or otherwise disposed of on behalf of the association and the proceeds paid into the general fund of the association. 25 (3) If-- (a) the personal representative pays money to an association under a disposition, the receipt of-- (i) the Treasurer; or 30 (ii) a like officer, if the officer is not so named-- 29 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 48 49 Act No. of the association is an absolute discharge for that payment; or (b) the personal representative transfers property to an association under a disposition, the 5 transfer of that property to a person or persons designated in writing by any two persons holding the offices of President, Chairman, Treasurer or Secretary or like officers, if those officers are not so named, is 10 an absolute discharge to the personal representative for the transfer of that property. (4) Sub-section (3) does not apply if a contrary intention appears in the will. 15 (5) It is not an objection to the validity of a disposition to an unincorporated association of persons that-- (a) a list of persons who were members of the association at the time the testator died 20 cannot be compiled; or (b) that the members of the association have no power to divide assets of the association beneficially among themselves. 48. Can a person, by will, delegate the power to dispose of 25 property? A power or a trust to dispose of property, created by will, is not void on the ground that it is a delegation of the testator's power to make a will, if the same power or trust would be valid if made by 30 the testator, by instrument during his or her lifetime. 49. What is the effect of referring to a valuation in a will? If-- 30 531228B.I1-7/10/97

 


 

Wills Act 1997 Act No. (a) there is an express or implied requirement in a will that a valuation be made or accepted for any purpose; and (b) the will does not provide a method of 5 calculating the valuation or the method of calculating the valuation is not provided for by the law of Victoria or of another jurisdiction-- the reference to the valuation in the will is to be 10 construed as if it were a reference to a valuation of the property as at the testator's death made by a competent valuer. _______________ 31 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 50 Act No. PART 5--GENERAL 50. Who may see a will? A person who has possession and control of a will, a revoked will or a purported will of a 5 deceased person must allow the following persons to inspect and make copies of the will (at their own expense)-- (a) any person named or referred to in the will, whether as beneficiary or not; 10 (b) any person named or referred to in any earlier will as a beneficiary; (c) any spouse of the testator at the date of the testator's death; (d) any de facto spouse of the testator; 15 (e) any parent, guardian or children of the deceased person; (f) any person who would be entitled to a share of the estate if the deceased person had died intestate; 20 (g) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate; (h) any creditor or other person who has a claim 25 at law or in equity against the estate of the deceased person and who produces evidence of that claim. _______________ 32 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 51 Act No. PART 6--TRANSITIONAL AND CONSEQUENTIAL PROVISIONS 51. Repeal of Wills Act 1958 The Wills Act 1958 is repealed. 5 52. Transitional provisions (1) This Act, other than sections 4, 8, 9, 10, 31, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48 and 49 applies only to wills made on or after the commencement of this section. 10 (2) The Wills Act 1958, as in force immediately before the commencement of this section, continues to apply to wills made before the commencement of this section, in so far as those wills do not come under the operation of sub- 15 section (3) or under the operation of the sections specified in sub-section (4). (3) Section 14 applies to a will made before the commencement of this section, if the granting of the decree absolute of the dissolution of the 20 marriage or the annulment of the marriage has taken place after the commencement of this section. (4) Sections 4, 8, 9, 10, 31, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48 and 49 apply to wills whether or not 25 they are executed before, on or after the commencement of this section, where the testator dies on or after that commencement. _______________ 33 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 53 Act No. PART 7--AMENDMENT OF THE ADMINISTRATION AND PROBATE ACT 53. Principal Act In this Part the Administration and Probate Act 5 1958 is called the Principal Act. 54. Amendment of reference In section 19 of the Principal Act, for "State Trust" substitute "State Trustees". 55. New section 91 inserted 10 For section 91 of the Principal Act substitute-- "91. Power of the Court to make maintenance order (1) Despite anything in this Act to the contrary, the Court may order that provision be made 15 out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. (2) The Court must not make an order under 20 sub-section (1) in favour of a person unless-- (a) that person has applied for the order; or (b) another person has applied for the order on behalf of that person. 25 (3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by-- 30 (a) his or her will (if any); or 34 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 55 Act No. (b) the operation of the provisions of Part I, Division 6; or (c) both the will and the operation of the provisions-- 5 does not make adequate provision for the proper maintenance and support of the person. (4) The Court in determining-- (a) whether or not the deceased had 10 responsibility to make provision for a person; and (b) whether or not the distribution of the estate of the deceased person as effected by-- 15 (i) the deceased's will; or (ii) the operation of the provisions of Part I, Division 6; or (iii) both the will and the operation of the provisions-- 20 makes adequate provision for the proper maintenance and support of the person; and (c) the amount of provision (if any) which the Court may order for the person; and 25 (d) any other matter related to an application for an order under sub- section (1)-- must have regard to-- (e) any family or other relationship 30 between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship; 35 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 55 Act No. (f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate; 5 (g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject; (h) the financial resources (including earning capacity) and the financial 10 needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future; (i) any physical, mental or intellectual 15 disability of any applicant or any beneficiary of the estate; (j) the age of the applicant; (k) any contribution (not for adequate consideration) of the applicant to 20 building up the estate or to the welfare of the deceased or the family of the deceased; (l) any benefits previously given by the deceased person to any applicant or to 25 any beneficiary; (m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court 30 considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility; (n) the liability of any other person to 35 maintain the applicant; 36 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 56 Act No. (o) the character and conduct of the applicant or any other person; (p) any other matter the Court considers relevant. ". 5 56. Powers of Court--Amendment of section 94 At the end of section 94 of the Principal Act insert-- "; and (c) accept any evidence of the deceased person's 10 reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing.". 57. Repeal of section 95 15 Section 95 of the Principal Act is repealed. 58. Amendment of section 96--powers to refuse applications In section 96 of the Principal Act, sub-section (1) is repealed. 20 59. Amendment of section 97--contents of order (1) In section 97(1) of the Principal Act, for "widow widower or child" substitute "person". (2) In section 97(5) of the Principal Act, for "widow widower or child" substitute "person". 25 (3) For section 97(6) of the Principal Act substitute-- "(6) Subject to sub-section (7), the Court may make any order as to the costs of an application under section 91 that is, in the 30 Court's opinion, just. (7) If the Court is satisfied that an application for an order under section 91 has been made 37 531228B.I1-7/10/97

 


 

Wills Act 1997 s. 60 Act No. frivolously, vexatiously or with no reasonable prospect of success, the Court may order the costs of the application to be made against the applicant.". 5 60. Substitution of Part V For Part V of the Principal Act substitute-- "PART V--TRANSITIONAL 100. Transitional provision--Wills Act 1997 The amendment of Part IV of this Act by 10 Part 7 of the Wills Act 1997 does not apply to an application made under Part IV of this Act before the commencement of Part 7 of the Wills Act 1997.". 15 38 531228B.I1-7/10/97

 


 

Wills Act 1997 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 39 531228B.I1-7/10/97

 


 

Wills Act 1997 Act No. 40 531228B.I1-7/10/97