Div 4Wills made outside the State

Division 4—Wills made outside the State 35—Interpretation In this Division— country means any place or group of places having its own law of nationality (including Australia and its territories); internal law in relation to any country or place means the law which would apply in a case where no question of the law in force in any other country or place arose; place means any territory (including a State or Territory of Australia); statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity. 36—Application of system of law (1) If under this Act the internal law in force in any country or place is to be applied in the case of a will, but there are in force in that country or place 2 or more systems of internal law relating to the formal validity of wills, the system to be applied must be ascertained as follows: (a) if there is in force throughout the country or place a rule indicating which of those systems can properly be applied in the case in question—that rule must be followed; (b) if there is no such rule—the system will be that with which the testator was most closely connected at the relevant time (and for this purpose the relevant time is the time of the testator's death where the matter is to be determined by reference to circumstances prevailing at the testator's death and the time of execution of the will in any other case). (2) In determining for the purposes of this Act whether or not the execution of a will conformed to a particular law, regard must be had to the formal requirements of that law at the time of execution, but this does not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed. (3) If (whether in pursuance of this Act or not) a law in force outside this State falls to be applied in relation to a will, any requirement of that law by which special formalities are to be observed by testators answering a particular description, or witnesses to the execution of a will are to possess certain qualifications, will be treated, despite any rule of that law to the contrary, as a formal requirement only. 37—General rule as to formal validity Despite any other provision of this Act, a will executed outside this State is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, the testator was domiciled or had their habitual residence, or in a country of which, at either of those times, the testator was a national. 38—Additional rules as to validity Without limiting the generality of section 37, the following wills executed outside this State are to be treated as properly executed for the purpose of being admitted to probate in this State: (a) a will executed on board a vessel or aircraft of any description, if the execution of the will conformed to the internal law in force in the place with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected; (b) a will so far as it disposes of immovable property if its execution conformed to the internal law in force in the country or place where the property was situated; (c) a will so far as it revokes a will which under this Act would be treated as properly executed or revokes a provision which under this Act would be treated as comprised in a properly executed will if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated; (d) a will so far as it exercises a power or appointment if the execution of the will conformed to the law governing the essential validity of the power. 39—Validity of statutory wills made outside State A statutory will made according to the law of the place where the deceased was resident or domiciled at the time of execution will be regarded as a valid will of the deceased. 40—Operation of international wills provisions not limited by this Division This Division does not limit the operation of Division 5.