WILLS AMENDMENT (INTERNATIONAL WILLS) BILL 2011 Explanatory Memoranda
WILLS AMENDMENT (INTERNATIONAL WILLS) BILL 2011
Wills Amendment (International Wills)
Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The Wills Amendment (International Wills) Bill 2011 amends the Wills Act
1997 to adopt into Victorian law the Uniform Law contained in the
UNIDROIT Convention providing a Uniform Law on the Form of an
International Will 1973 (the Convention), which was signed in Washington
D.C. in 1973.
The primary objective of the Convention is to eliminate problems that arise
when cross border issues affect a will, for example where a will deals with
assets located overseas or where the will-maker's country of residence is
different to the country in which the will is executed.
The Convention's Uniform Law provides for an additional form of will--
an international will--that sits alongside other local forms of will.
An international will that complies with the Uniform Law will be recognised
as a valid form of will by courts of other States party to the Convention,
irrespective of where the will was made, the location of assets or where the
will-maker lives, and without the court having to examine the internal laws
operating in foreign countries to determine whether the will has been
properly executed.
The Uniform Law sets out requirements for the form of the will and the
process for its execution--it does not deal with issues such as the capacity
required of the will-maker or the construction of the terms of a will.
These are matters that will continue to be dealt with by local law.
By a decision of the Standing Committee of Attorneys-General in July 2010,
all Australian States and Territories have agreed to adopt the Uniform Law
into their local legislation to allow Australia to formally accede to the
Convention and to provide a consistent approach to the recognition of
international wills across Australian jurisdictions. The Bill is based on a
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model Bill although, as required by the Convention, the Schedule to the Bill
reproduces the text of the Uniform Law.
Clause Notes
Clause 1 sets out the purpose of the Bill, which is to amend the Wills Act
1997 to give effect to the Convention providing a Uniform Law
on the Form of an International Will 1973. The Convention is
defined in clause 5 of the Bill. The Uniform Law is set out in the
Schedule inserted by clause 6 of the Bill. Other clauses of the
Bill give effect to obligations under Articles of the Convention
that preface the Uniform Law.
Clause 2 provides for the commencement of the Bill. The amendments to
adopt the Convention's Uniform Law into the Wills Act 1997
will come into operation on a day or days to be proclaimed.
No forced commencement date is provided because it is not
possible at this time to determine one. Proclamation of
commencement will not be made unless the Convention has
entered into force in Australia. Article XI of the Convention
provides that the Convention will enter into force six months
after accession. The Convention will therefore enter into force
six months after Australia accedes to the Convention.
Clause 3 provides that in the Bill, the Wills Act 1997 is called the
Principal Act.
Clause 4 inserts a new section 16A at the beginning of Division 6 of Part 2
of the Wills Act 1997. Division 6 contains provisions for wills to
which foreign laws apply. New section 16A provides that
Division 6 does not limit the operation of the new Division 7,
inserted by clause 5 of the Bill, which provides for international
wills.
International wills are a separate form of will that sit alongside
existing forms of will recognised under the Wills Act 1997.
New Division 7 of Part 2 of the Wills Act 1997 will apply to
international wills made in accordance with the requirements of
the Convention's Uniform Law. Division 6 of Part 2 may
continue to apply to a "foreign will" that is not an international
will, either because there was no intention for it to be made in the
form of an international will or because, in spite of any
intentions, the will has not been validly made as an international
will. Article 1.2 of the Uniform Law provides that the invalidity
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of an international will does not affect its formal validity as a will
of another kind.
Clause 5 inserts new Division 7 into Part 2 of the Wills Act 1997.
New Division 7 provides for international wills made in
accordance with the requirements of Convention's Uniform Law.
New section 19A
New section 19A of Division 7 sets out the definitions of key
terms used in the Bill.
The section defines Convention to mean the Convention
providing for a Uniform Law on the Form of an International
Will 1973, which was signed in Washington D.C. on 26 October
1973. A copy of the Convention can be found at--
http://www.unidroit.org/english/conventions/1973wills/main.htm
The definition of the term international will refers to a will made
in accordance with the requirements of the Annex to the
Convention as set out in a new Schedule to the Wills Act 1997
(inserted by clause 6 of the Bill). This gives effect to Article I of
the Convention, which requires a Contracting Party to reproduce
the actual text of the Annex to the Convention. The Annex to the
Convention contains the Uniform Law.
New section 19B
New section 19B of Division 7 provides that the Annex to the
Convention, which sets out the Uniform Law requirements for an
international will, has the force of law in Victoria.
In accordance with clause 2 of the Bill, the Annex will not have
the force of law in Victoria until the Convention has entered into
force in Australia and this Act has been proclaimed.
New section 19C
New section 19C(1) designates the persons authorised to act in
connection with an international will made in Victoria.
This gives effect to Article II of the Convention, which requires a
Contracting Party to designate the persons who, in its territory,
shall be authorised to act in connection with international wills.
Under the Uniform Law, an authorised person is required to
certify that the proper formalities for an international will have
been performed.
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For the purposes of Division 7, the following persons are
authorised to act in connection with an international will made in
Victoria--
an Australian legal practitioner within the meaning of
the Legal Profession Act 2004--this means a person
who is admitted to the legal profession in Victoria or in
another Australian jurisdiction and who holds a current
Victorian or interstate practising certificate.
a public notary of any Australian jurisdiction--this
allows a public notary appointed in Victoria or another
State or Territory of Australia (but not a public notary
from a jurisdiction outside of Australia) to act in
connection with international wills in Victoria.
A public notary of another Australian jurisdiction, when
acting in connection with an international will in
Victoria, will still be required to certify that the
witnesses to the will meet the conditions requisite to
acting as a witness to a will in Victoria.
New section 19C(2) provides for the recognition of authorised
persons who have been designated and operate in other
Convention jurisdictions. This gives effect to Article III of the
Convention, which provides that the capacity of an authorised
person to act in connection with an international will, if conferred
in accordance with the law of a Contracting Party, shall be
recognised in the territories of other Contracting Parties.
New section 19C(2) provides that, in the Schedule to the Wills
Act 1997 (inserted by clause 6), which reproduces the Annex to
the Convention, a reference to a "person authorised to act in
connection with an international will" is a reference to--
an Australian legal practitioner or a public notary of any
Australian jurisdiction who is acting in connection with
an international will in Australia--this recognition
would mean, for example, that an international will
made and certified in NSW by a NSW public notary
must be considered prima facie as a valid form of
international will in Victoria.
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a person authorised by a foreign country or jurisdiction
that is party to the Convention (that is, not Australia)
and who is acting in connection with an international
will in that country or jurisdiction--this recognition
would mean, for example, that an international will
made and certified in Italy by a person authorised by
Italian law must be considered prima facie as a valid
form of international will in Victoria.
New section 19D
New section 19D of Division 7 provides that the requirements for
acting as a witness to an international will in Victoria are
governed by Victorian law. For example, section 10 of the Wills
Act 1997 provides that 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 in Victoria. This new section gives effect to Article V of
the Convention, which provides that the conditions requisite to
acting as a witness to an international will are governed by local
laws.
New section 19E
For the avoidance of doubt, new section 19E of Division 7
provides that the provisions of the Wills Act 1997 that apply to
wills extend to international wills. While the new Schedule to
the Wills Act 1997 (the Uniform Law) sets out the specific form
requirements for an international will and the process for its
execution, the other provisions of the Wills Act 1997 that apply
to wills, such as those dealing with revocation or the construction
of the terms of a will, also apply to international wills.
Clause 6 inserts a Schedule at the end of the Wills Act 1997, which
reproduces the Annex to the Convention. This gives effect to
Article I of the Convention, which requires a Contracting Party to
reproduce the actual text of the Annex to the Convention. The
Annex to the Convention contains the Uniform Law.
In summary--
Article 1 provides that a will shall be valid as regards
form, irrespective of the place where the will is made, of
the location of the assets and of the nationality, domicile
or residence of the testator, if it is made in the form of
an international will that complies with Articles 2 to 5
of the Uniform Law. If an international will is invalid
because it does not comply with Articles 2 to 5 of the
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Uniform Law, it may still be valid as a will of another
kind. For example, it may be a will to which foreign
laws apply, the validity of which can be determined
under Division 6 of Part 2 of the Wills Act 1997.
Article 2 provides that a joint will cannot be drawn up
in the form of an international will.
Article 3 requires an international will to be in writing.
It can be written in any language, by hand or by any
other means and it need not be written by the testator.
Article 4 requires the testator to declare that a document
is his or her will, and that he or she knows the contents
of the will, before two witnesses and an authorised
person. The testator does not have to inform the
witnesses or authorised person of the contents of the
will.
New section 19C(1) of the Wills Act 1997 designates
the persons authorised to act in connection with an
international will in Victoria. In accordance with new
section 19D of the Wills Act 1997, the requirements for
acting as a witness to an international will in Victoria
are governed by Victorian law. For example, section 10
of the Wills Act 1997 provides that 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 in Victoria.
Article 5 requires the testator to sign the international
will in the presence of the two witnesses and the
authorised person, or to acknowledge his or her
signature if signed previously. If the testator is unable
to sign the will, the authorised person must note on the
will the reason for the incapacity.
The Article recognises that the local law of a
Contracting Party may allow a testator to direct another
person to sign on his or her behalf. Section 7(1)(a)
of the Wills Act 1997 makes such provision.
The witnesses and authorised person must attest the will
by signing it in the presence of the testator.
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Article 6 requires the signatures of the testator,
witnesses and authorised person to be placed at the
end of the international will. If the will consists of
several pages, each page of the will should be numbered
and signed by the testator (or the person designated to
sign on his or her behalf or the authorised person).
However, an international will will not be rendered
invalid if these requirements are not met.
Article 7 provides that the date of the international will
will be the date on which it was signed by the
authorised person. The date should be noted at the end
of the will by the authorised person. The will will not
be rendered invalid if these requirements are not met.
If the will is undated or wrongly dated, the date will
have to be proved by some other means.
In the absence of any mandatory rule about the
safekeeping of a will, Article 8 requires the authorised
person to ask the testator whether he or she wishes to
make a declaration about the safekeeping of the
international will. If the testator wishes to make such a
declaration, he or she can request that the certificate that
the authorised person attaches to the will (under
Article 9) mentions the place that he or she intends to
have the will kept. The will will not be rendered invalid
if this requirement is not met.
Division 1A of Part 1 of the Administration and
Probate Act 1958 allows a will to be deposited in the
office of the Registrar of Probates. This is voluntary.
Article 9 requires the authorised person to attach a
certificate to the international will certifying that the
obligations of the Uniform Law have been complied
with.
The form of the certificate is prescribed in Article 10.
It is intended that the form allow small changes of detail
to the certificate, for example where the form allows for
the omission of particulars marked with an asterisk.
However, the certificate must be in a substantially
similar form to that set out in Article 10. The form of
the certificate is important as it aims to facilitate the
reading of the certificate, especially if a reader speaks a
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foreign language, and the easy identification of relevant
details such as the name of the testator and the
authorised person.
The certificate also requires the authorised person to
certify that the witnesses to the will meet the conditions
requisite to acting as a witness to a will in Victoria.
For example, section 10 of the Wills Act 1997 provides
that 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 in Victoria.
In accordance with Article 13, an absence or irregularity
of a certificate will not affect the formal validity of an
international will.
Article 11 requires the authorised person to keep a copy
of the certificate and deliver another copy to the testator.
As another copy of the certificate is attached to the
international will, this means that the authorised person
must make out three signed certificates. In accordance
with Article 13, an absence or irregularity of a
certificate will not affect the formal validity of an
international will.
Article 12 provides that, in the absence of evidence to
the contrary, the certificate will be conclusive of the
formal validity of an international will. Any challenge
to the validity of the will will be solved in accordance
with the legal procedure applicable in the Contracting
Party where the will and certificate are presented.
As noted above, Article 13 provides that the absence or
irregularity of a certificate will not affect the validity of
an international will.
Article 14 provides that an international will will be
subject to the ordinary rules of revocation of wills under
local laws. Division 5 of Part 2 of the Wills Act 1997
sets out the relevant law in Victoria in relation to
revocation.
Article 15 requires that, when interpreting and applying
the provisions of the Uniform Law, regard must be had
to its international origin and to the need for uniformity
in its interpretation.
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Further information on the intended operation of the
Uniform Law is set out in the Explanatory Report on the
Convention prepared by UNIDROIT, which can be
found at--
http://www.unidroit.org/english/conventions/1973wills/
1973wills-explanatoryreport-e.pdf
Clause 7 is a statute law revision provision that corrects a punctuation
error in section 3(1) of the Wills Act 1997 by changing a semi-
colon to a full stop in the definition of spouse. This amendment
does not have a special commencement date; it will commence
with the remaining amendments in the Bill.
Clause 8 provides for the automatic repeal of this amending Bill on the
first anniversary of the day on which the amendments made by
the Bill come into operation. The repeal does not affect in any
way the operation of the amendments made by the Bill
(see section 15(1) of the Interpretation of Legislation Act
1984).
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