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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
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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
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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
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Clause Page
THIS PAGE IS TO BE MASKED
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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--
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(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
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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.
_______________
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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.
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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.
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(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
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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
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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
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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?
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(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
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(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.
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(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
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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
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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.
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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.
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(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
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s. 23
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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
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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.
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(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;
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(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
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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
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(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.
_______________
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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.
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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.
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(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.
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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?
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(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.
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(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.
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(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--
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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--
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(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.
_______________
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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.
_______________
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s. 51
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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.
_______________
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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
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s. 55
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(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;
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s. 55
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(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;
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s. 56
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(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
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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
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
40
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