Who is affected

• Testators (people making wills), their witnesses and signatories (s 9–12).
• Beneficiaries and potential intestate claimants who rely on the will’s validity or on statutory distribution rules (Part 4, esp. ss 25–31C).
• Executors, trustees and guardians named in wills (ss 11; 29–30).
• The Supreme Court and its registrar (Part 3A; s 32) — the Court decides on statutory wills, rectification and validation applications and the registrar deals with deposited wills.
• Public trustee and guardian and legal aid commission where used for custody/registration of wills (ss 32–33).
• Australian legal practitioners and public notaries acting in connection with international wills (s 16L).

Why it matters (stated purpose and practical effects)

Stated purpose: "to make provisions in relation to the execution and interpretation of wills" (short title/preamble). Mechanically, the Act defines what makes a will formally valid, who can make one, how courts can correct or validate non‑standard documents, and how foreign/international wills are treated (s 1; s 9; Part 2A; Part 3A; Part 3B).

Testing that stated purpose against costs, incentives and trade‑offs (source‑grounded):

• Compliance burden and private costs: the Act enforces formal execution steps (writing, signature, two witnesses) (s 9). These formalities promote predictable proof but impose time, attention and, at times, expense (witnesses/legal advice) on individuals making wills. Alterations after execution require fresh witnessing to be effective (s 12), adding further procedural cost.

• Access and substitution effects: where formal requirements are not met, the Act provides two routes to preserve testamentary intentions: (1) the Supreme Court may declare a non‑formally executed document to be a will if it is satisfied of the deceased’s intention (s 11A); and (2) the Court may authorise statutory wills for people without testamentary capacity (ss 16A–16F). Both routes create legal work and court time (evidence and hearings) and shift decision‑making from private individuals to judicial determination.

• Concentrated benefits and diffuse costs: the Court‑authorisation route concentrates possible benefit on incapacitated persons who would otherwise be intestate or under an older will (ss 16A–16F). The wider population bears the general cost of increased court workload and the potential for litigation about testamentary intention, though these costs are diffused and arise only in a subset of cases.

• Bureaucratic and judicial discretion: the Supreme Court has broad discretion to accept evidence, to inform itself "in any manner it sees fit", and to make related orders and directions in statutory‑will applications (ss 16D–16E). The registrar has discretion about depositing, transferring and, with judicial permission, destroying wills (s 32). These allocations of discretion create implementation risk: outcomes depend on judicial assessment and administrative practice.

• Cross‑border mobility and complexity: the formal‑validity rules for wills made under other internal laws and the adoption of the international wills convention (Part 2A; Part 3B; sch 1) expand options for mobile testators and those with foreign assets. Mechanically this increases legal complexity — choice‑of‑law inquiries (ss 15B–15E) and compliance with foreign formalities become relevant to whether a will is "properly made" in the ACT.

• Incentives for pre‑emptive administration: rectification (s 12A) and the registrar’s record‑keeping powers (s 32) reduce some risk of unintended outcomes and create incentives for executors and personal representatives to use public processes (advertising, depositing) to limit future challenges. The Act also protects personal representatives who distribute estates in good faith before a rectification order (s 12A(5)).

Who pays, who decides, and what behaviour changes

• Who pays: individuals seeking Court orders (ss 16A–16E; s 11A) will incur legal and court costs; witnesses and registrars bear little direct cost but may face administrative procedures. The public trustee/registrar bear administrative costs tied to record keeping and storage (ss 32–33). The Act does not specify fees here, but it shifts transactional and dispute costs primarily onto applicants or estate parties by requiring court proceedings or formal compliance.

• Who decides: the Supreme Court determines validation, rectification and statutory wills applications (ss 12A; 11A; 16A–16E). The registrar executes administrative decisions about deposited wills and transfers (s 32). Authorized persons (legal practitioners/notaries) certify international wills (s 16L; sch 1).

• Behaviour changes: people making wills must follow prescribed formalities or expect that proving intent later could require court proceedings (s 9; s 11A). Those concerned about cross‑border estate planning may use international will formalities or seek professional assistance (Part 2A; Part 3B). Executors/personal representatives are encouraged to use registrar and public trustee processes for custody and record‑keeping (s 32) and to observe advertising periods before distribution where rectification applications may be possible (s 12A(4)).

Implementation risks and trade‑offs (brief)

• Risk of increased litigation when informal documents are relied on for testamentary intent (s 11A) and when courts must judge substituted intentions for incapacitated persons (ss 16A–16E).

• Trade‑off between legal certainty from strict formalities (s 9) and flexibility to give effect to genuine testamentary intention (s 11A; ss 16A–16F). Flexibility reduces the risk of unintended intestacy but increases evidentiary and administrative burdens.

• Choice‑of‑law and international provisions (ss 15A–15H; Part 3B; sch 1) improve mobility but add decision complexity for courts and practitioners.

Key provisions to read first

• Formal execution (s 9) and signature rules (s 10).
• Court validation and statutory wills (s 11A; Part 3A, ss 16A–16F).
• Formal‑validity choice‑of‑law rules (Part 2A, ss 15A–15H) and international wills (Part 3B, ss 16J–16M; sch 1).
• Rectification and extrinsic evidence (ss 12A–12B).

(References in parentheses are to sections cited in the Act.)

Rectification (section 12A). The Supreme Court may order that the probate copy of a will be rectified to carry out the testator's intentions where the will as expressed fails to do so. An extended jurisdiction to rectify applies where circumstances or events not known to or anticipated by the testator (including post-death events) cause the will's provisions to fail to give effect to the testator's probable intention (section 12A(2)). Rectification applications must generally be made within 6 months of probate (section 12A(3)).

Construction (section 12B). Extrinsic evidence is admissible to assist in the construction of a will if the will is meaningless or contains a patent ambiguity, or if extrinsic evidence shows the testator intended to include or exclude property or persons that a provision of the will would not otherwise include or exclude. This provision reflects a judicial tradition of construing wills in light of the testator's evident intention.

Court-authorised wills for persons without testamentary capacity (Part 3A, section 16A). The Supreme Court may, on application with leave, authorise a will to be made, altered, or revoked for a person who does not have testamentary capacity. The order may be made for adults or children. The authorised will must reflect the probable intention of the person for whom it is made. The court will not make an order unless the person is alive at the time.

Private international law (Part 2A). Part 2A sets out rules for determining whether a will made in another country or jurisdiction is formally valid in the ACT, applying the law that was applicable where the will was executed, where the testator was domiciled, or where the testator's property is situated.

International wills (Part 3B). Part 3B incorporates the provisions of the 1973 UNIDROIT Convention on international wills, providing a formal mechanism for wills to be recognised across multiple jurisdictions.