Wills Act 1970

The Act rests on a set of connected legal concepts deployed throughout its Parts. Key concepts are defined in s 4 and used across the Act; understanding them explains many mechanical effects.

• Will: defined to include a codicil and any testamentary instrument or disposition (s 4). The Act thus treats non‑traditional testamentary writings as wills for many purposes.
• Disposition and dispose of: broad definitions encompassing gifts, devises, bequests and appointments contained in a will (s 4). Section 6 relies on this breadth to specify what may be done by will.
• Property: includes real and personal property and choses in action, so estates, leaseholds, debts, and contractual rights are potentially the subject of testamentary disposition (s 4).
• Internal law: the law that would apply where no foreign law issue arises; used for the private international law rules of formal validity in s 20 and the ascertainment rules of s 21 (s 4).
• Document: used in Part X and defined to include any record of information, physical or electronic, including maps, photographs and recordings (s 32(1)). That definition enables a wide set of non‑formal instruments to be considered by the Court under s 32.
• Person concerned: defined for Part XI as the living person who lacks testamentary capacity on whose behalf the Court might authorise a will, alteration or revocation (s 39(1)).

Formal validity and its exceptions form another core concept. Section 8 sets the baseline formalities: writing; signature by the testator or by another in the testator’s presence and by direction; signature acknowledged or made in the presence of at least two witnesses present at the same time; and attestation and subscription by witnesses in the testator’s presence. Part X (s 32) is a countervailing concept: a Supreme Court discretion to dispense with formal requirements if it is satisfied of the deceased’s testamentary intention in a document that lacks the statutory formalities.

Capacity is handled in two ways. The general age rule is s 7: a will by a person under 18 years is invalid subject to s 17 (saving for privileged wills historically). For mental capacity, Part XI gives the Supreme Court statutory jurisdiction to make orders on behalf of living persons who lack testamentary capacity (s 40), thereby creating a court‑supervised substitute decision making mechanism limited to the testamentary function.

Private international law features in s 20 and s 21. A will is properly executed if it conforms to internal law in specified connecting places (place of execution, domicile or habitual residence, nationality at execution or death), and special rules are given for wills on board vessels or aircraft and for immovables (s 20(1)-(2)). Section 21 prescribes how to select which internal law applies where multiple systems exist.

Evidentiary concepts include the limited admissibility of extrinsic evidence to clarify meaning in construction proceedings (s 28A). Evidence of a testator’s intention is admissible only to the extent language is meaningless or ambiguous, but not to establish the surrounding circumstances identified in subsection (1)(c). Part XII (s 50) imposes a six month outer period for rectification applications, subject to extension but not beyond final distribution.

Finally, international wills under the 1973 Convention are given force by s 32B and Schedule 1. The Annex prescribes a certificate to be attached by an authorised person; the certificate is conclusive in the absence of contrary evidence (Schedule 1 Article 12), and the authorised person must keep a copy and provide one to the testator (Article 11).

The Act reaches a wide class of actors and institutions. The principal categories are:

• Testators: Persons who make wills. The Act governs their capacity (s 7), what they may do by will (s 6) and how alterations, revocations and revivals operate (ss 10, 15, 16). Part XI attracts testators who lack testamentary capacity by providing a process for a court‑authorised testamentary instrument (s 40).
• Beneficiaries and potential claimants: Persons who will inherit, including lineal and collateral relatives where relationships must be determined under Part IX (ss 29-31). The Act affects expectant beneficiaries by setting anti‑lapse rules (s 27) and by specifying how failed dispositions fall into residuary gifts (s 26(1)(b), (g)).
• Witnesses and signatories: Witnesses must be present at the same time, attest and subscribe in the testator’s presence (s 8). A person who is unable to see and attest the testator’s signature cannot act as a witness (s 11). International wills have additional requirements for authorised persons and witness conditions (ss 32C, 32D; Schedule 1).
• Executors and personal representatives: Executors appear in deposit and identification obligations for wills made under Part XI (s 44(2)(b)) and in construction rules where dispositions include powers of appointment (s 26(1)(d)).
• Courts and court officers: The Supreme Court is the central decision maker under Part X (s 32), Part XI (ss 40-47) and Part XII (s 50). The Principal Registrar has duties to sign and seal statutory wills or instruments authorised by the Court (s 40(4)), to receive and release deposited instruments (s 44) and to supply copies on the Court’s leave (s 45).
• Legal practitioners and notaries: The Act designates legal practitioners and Australian public notaries as authorised persons in connection with international wills (s 32C). The Supreme Court Act fee referred to in s 44(1)(b) is payable by applicants for Part XI orders.
• Public bodies and other laws: The Act interacts with the Family Law Act 1975 and Family Court proceedings where marital dissolution affects testamentary consequences (s 14A(3)), and it refers to the Family Provision Act 1972 as a matter the applicant must consider in Court applications under s 41(1)(h).

Geographic and cross‑border actors are affected too. Section 20 brings in foreign internal laws for formal validity where there are connecting factors such as domicile, habitual residence, nationality or the place where immovable property sits; section 48 recognises statutory wills made under the law of another place where the deceased was resident at execution. International wills under the Convention implicate authorised persons acting either in Australia or overseas as specified in s 32C(2).

Who pays and who decides: applicants to the Supreme Court under Part XI must pay the prescribed fee under the Supreme Court Act (s 44(1)(b) referencing s 171(1)(c) of that Act), and decisions on informal wills, authorisations and rectifications are taken by the Supreme Court (ss 32, 40, 50). The Registrar has administrative duties once the Court has authorised an instrument (s 44).

The Act creates a mix of prescriptive duties and private rights. Below are the principal duties and rights with section references.

Duties arising from execution rules

• Testator execution duties: The baseline formal duties on execution lie with the testator to have the will in writing and signed by the testator or by another in the testator’s presence and direction, and to acknowledge or make the signature in the joint presence of two witnesses who attest and subscribe (s 8).
• Witness duties and limitations: Witnesses must attest and subscribe in the presence of the testator, and persons who cannot see and attest the signature cannot be witnesses (s 11). For international wills, the local witness eligibility rules of the jurisdiction govern witness capacity (s 32D with note to s 11).

Duties on alteration, revocation and revival

• Alterations after execution are ineffective unless executed in the manner in which a will is required or permitted to be executed (s 10(2)). There are drafting‑sensible rules on signature location and authentication of amendments (s 10(4)).
• Revocation only occurs by a later will, a writing declaring revocation executed with the formalities of a will, or physical destruction with intent by the testator (s 15). Revival requires re‑execution or execution of a later will showing intent to revive (s 16).

Court and Registrar duties

• The Supreme Court has duties and powers under Part X, Part XI and Part XII to admit informal documents (s 32), to authorise statutory wills and revocations for persons who lack capacity (s 40), to grant access to deposited instruments (s 45) and to rectify wills (s 50).
• The Principal Registrar must sign and seal wills authorised under s 40(4), receive deposited instruments in a sealed envelope with prescribed particulars (s 44(1)-(2)), and release deposited wills in specified circumstances (s 44(3)-(4)).

Rights given by the Act

• Right to have an informal document treated as a will: If the Court is satisfied a document embodies testamentary intention it constitutes a will or alteration, revocation or revival as appropriate (s 32(2)). This is a remedial right that converts non‑formal instruments into valid testamentary instruments when the Court is satisfied as to intention.
• Right to recognition of statutory wills from other places: A statutory will made under the law of the place where the deceased was resident at execution is to be regarded as a valid will for West Australian law purposes (s 48).
• Right to rectification: Interested persons may apply within six months after death for rectification of a will where clerical error or failure to give effect to instructions is shown (s 50(1)-(3)).
• Privacy protections: In Part XI proceedings the Court may order closed hearings, limit attendance and prohibit publication of reports or information, providing privacy protections for vulnerable persons (s 47).

Disclosure and application duties

• Applicants under s 40 must supply comprehensive material: a written statement of nature and reasons, estimate of assets and liabilities, a draft proposed will or instrument (s 41(1)(a)-(c)), evidence of the person’s wishes, enquiries about other wills and potential family provision claims, and any other relevant facts (s 41(1)(d)-(k)). The Court may dispense with particular requirements only if it allows otherwise.

Evidentiary duties and limits

• In construction proceedings extrinsic evidence is admissible only to the limited extent set out in s 28A(1); evidence of the testator’s intention cannot be used to establish surrounding circumstances in s 28A(2). This imposes an evidential constraint on how intent may be proved in construction disputes.

Fees and administrative duties

• The applicant for a Part XI deposit must pay the fee prescribed under s 171(1)(c) of the Supreme Court Act 1935 (s 44(1)(b)). The Act does not state the amount, but records the payment obligation and the deposit format and particulars (s 44(2)).

These duties and rights channel who acts, who pays and who decides. The Supreme Court is the gatekeeper for most remedial pathways, witnesses and authorised persons perform formal roles, and applicants carry disclosure, fee and documentary responsibilities when seeking court authorisation.

The statute does not create express criminal offences or fine regimes within the text provided. Enforcement and effect are instead exercised through civil and procedural mechanisms located in the Supreme Court and through the formalities that determine legal validity.

Primary enforcement mechanisms and consequences

• Invalidity as legal consequence: The primary sanction for non‑compliance with formal requirements is that the instrument is not a valid will. Section 8 states a will is not valid unless it meets the writing, signature, witness and attestation requirements, subject to exceptions (s 8). Where a will is invalid for formal reasons, there are two statutory remedial pathways: admission under Part X (s 32) and reliance on the private international law formal validity rules in s 20 (for foreign execution conformity).
• Court remedial powers: The Supreme Court enforces the Act's remedial policy by admitting informal instruments (s 32), authorising statutory wills for persons lacking capacity (s 40), and rectifying wills (s 50). The Court may give directions, revise proposed instruments, inform itself as it thinks fit, relax rules of evidence (s 43), and make orders as to costs. These operate as procedural enforcement tools rather than criminal penalties.
• Registrar control and administrative enforcement: Under s 44 the Principal Registrar must receive and hold, in sealed envelopes with prescribed particulars, any will or instrument signed by the Principal Registrar under s 40(4). The Registrar releases wills only on the Court’s order, when the person regains capacity, or when the Court has authorised revocation (s 44(3)-(4)). The Registrar’s duties effectively control access and preservation of court‑authorised instruments.
• Privacy and publication control: The Court may prohibit publication of proceedings or information in Part XI applications, or make publication subject to exceptions (s 47). This is an enforcement mechanism to protect privacy and sensitive information rather than a penalty on particular conduct.
• Fees and costs: Applicants for Part XI orders must pay a prescribed fee under the Supreme Court Act (s 44(1)(b)). The Court retains power to make orders as to costs in proceedings under s 43(1)(d), which is a potential financial consequence of litigation.

Limits on enforcement

• No express criminal penalties: The Act text contains no penalties attaching to failure to abide by formalities. The behavioural effect of the formal rules thus arises through property law consequences (invalidity), not direct sanctions.
• Discretionary remedies: Many remedial powers rest on judicial discretion (for example, s 32 and s 40) and require evidentiary satisfaction. This means that remedial enforcement is not automatic and depends on Court processes and discretionary criteria (s 42 sets mandatory criteria for Part XI authorisations).

Practical enforcement risks

• Costs of litigation: Because enforcement and remedial relief normally involve Supreme Court proceedings (s 32, s 40, s 50), parties face litigation costs, potential orders for costs (s 43(1)(d)), and time delays that affect estate administration.
• Probate and distribution timing risks: The period for rectification is limited to six months after death unless extended by the Court, and final distribution prevents extension (s 50(2)-(3)). Failure to seek rectification in time can foreclose remedial relief.

In short, the Act enforces its substantive rules through civil invalidity, court discretion, administrative deposit and access control, and cost orders. There are no statutory criminal penalties for non‑compliance contained within the Act text provided.

The Act makes multiple cross‑references and provides for interaction with Commonwealth and other State laws. The statute explicitly imports and engages other instruments in several places.

Family and matrimonial law

• Family Law Act 1975 and Family Court: The concept of marriage is defined by reference to the Commonwealth Marriage Act 1961 in s 4. Section 14A(3) uses the Family Law Act to define when a marriage ends by divorce under Commonwealth law, and it recognises decrees of nullity granted by the Family Court of Australia or the Family Court of Western Australia. The effect is that termination of marriage for testamentary revocation purposes depends on whether the ending is recognised under the Family Law Act or by the relevant Family Court decision (s 14A(3)).
• Family Provision Act 1972: Applicants under s 41(1)(h) must provide evidence of reasonable enquiry concerning the likelihood of a family provision claim under the Family Provision Act 1972. The interaction obliges applicants for Part XI orders to consider potential after‑the‑fact claims by dependants when the Court decides what a statutory will should contain.

Court and Registrar frameworks

• Supreme Court Act 1935: Section 44(1)(b) requires payment of the fee prescribed under s 171(1)(c) of the Supreme Court Act. The Principal Registrar is the office holder designated under the Supreme Court Act. The Wills Act therefore relies on the Supreme Court’s administrative framework and fee schedule for Part XI deposit procedures.
• Rules of evidence and procedure: Section 43(2) expressly disapplies strict rules of evidence in proceedings under s 40, giving the Court flexible fact‑finding powers. Part XI and Part X proceedings are thus governed principally by the Court’s procedural rules and its statutory discretion.

Private international law and international instruments

• Internal law concept and foreign formalities: Section 20 applies a private international law choice‑of‑law rule to formal validity, taking the internal law of specified connecting places into account. Section 21 prescribes how to select which system of internal law applies where multiple systems exist in a place.
• International Wills Convention: The Annex to the 1973 Convention is given the force of law in Western Australia by s 32B. The Schedule reproduces the Annex and the certificate form (Schedule 1 Articles 9-10). Section 32C identifies authorised persons in Australia, in line with Articles II and III of the Convention. Section 32D confirms witness conditions for international wills are governed by the law of this jurisdiction.
• Recognition of foreign statutory wills: Section 48 treats statutory wills made according to the law of the place where the deceased was resident at the time of execution as valid in Western Australia. This recognises foreign statutory mechanisms for persons lacking testamentary capacity, bridging overseas incapacity regimes and local recognition.

Other specialist statutes

• Artificial Conception Act 1985: Part IX contains an amendment note that references the Artificial Conception Act 1985 in relation to determining relationships (s 31(3) and compilation notes). The Act therefore cross‑references statutory parentage provisions when determining relationship for succession.
• Acts Amendment (Equality of Status) Act 2003 and other amendments: The compilation table in the statute text records multiple amendments, which interact with or modify operative provisions across the Act (see the Amendment history below).

Practical interaction effects

• Probate practice: The Court powers and formal validity rules will interact with probate practice and rules for proving wills. Parties seeking to admit informal documents (s 32) or seeking recognition of foreign executed instruments (s 20, s 48) must engage with the Court’s probate procedures.
• Cross‑jurisdictional consistency: The Convention implementation (s 32B) aims to render international wills formally valid across borders when they comply with the Annex, subject to Schedule 1 certificate rules and the authorised person regime (s 32C).

In sum, the Wills Act operates in a network of procedural, family, private international and court administrative laws. It relies on the Family Law Act for some matrimonial effects, on the Supreme Court Act for administrative fees and Registrar functions, and on the 1973 Convention and foreign law rules for international and foreign‑executed instruments.

The statute text provides a detailed compilation table. The Act has been amended multiple times since its original enactment in 1970. The compilation entries in the provided text are the primary source for amendment history. Key milestones from the compilation table and in‑text notes are:

• Original enactment and commencement: Wills Act 1970 No. 12 of 1970 received assent on 29 April 1970 and came into operation on 1 July 1970 (compilation table).
• Wills Amendment Act 1971 (No. 20 of 1971): commenced 21 January 1972, inserted Part IX material on illegitimacy (ss 29-31) and related changes (compilation table).
• Artificial Conception Act 1985 s 8: made amendments effective 1 July 1985 for parentage‑related provisions (compilation table; s 31(3) cross‑reference).
• Wills Amendment Act 1987 (No. 69 of 1987): amendments referenced in the execution (s 8) and other provisions; s 8 amended by No. 69 of 1987 s 4 (see marginal notes).
• Wills Amendment Act 1989 (No. 17 of 1989): further amendments (compilation table).
• Wills Amendment Act 1997 (No. 47 of 1997): further amendments (compilation table).
• Acts Amendment (Equality of Status) Act 2003 (No. 28 of 2003): Part 62 and consequential amendments affecting the treatment of wills on family status and related repeal effects; commenced 1 July 2003 (compilation table and other notes).
• Wills Amendment Act 2007 (No. 27 of 2007): substantial modernisation and insertion of multiple Parts and sections, including:
  • Insertion of ss 4 definitions, s 6 (provision by will), s 7 (age of capacity), s 10 (alterations), s 11 (witness incapacity), Part VII formal validity rules (ss 20-21), Part X informal wills (s 32), Part XI jurisdiction for incapacitated persons (ss 39-50), s 28A (extrinsic evidence), and other provisions. The amendments came into operation 9 February 2008 (compilation table shows s 3-24 inserted by No. 27 of 2007 with commencement 9 Feb 2008).
  • The repeal of ss 17-19 of the original Act and the consequential saving provision at new s 17 preserving certain privileged wills (see in‑text s 17 and notes).
• Inheritance (Family and Dependants Provision) Amendment Act 2011 (No. 48 of 2011): amendments commenced 16 January 2013, including changes referenced in s 41(1)(h) (compilation table notes).
• Wills Amendment (International Wills) Act 2012 (No. 47 of 2012): introduced Part XA (ss 32A-32E) and Schedule 1 giving force to the 1973 Convention Annex; the Act came into effect in stages with most provisions commencing 11 March 2015 (compilation table).
• Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022): amendment to s 32C regarding persons authorised to act in connection with international wills, commencing 1 July 2022 (compilation table).

In‑text repeal and deletion notes:

• Several earlier sections were deleted by later amendments; for example, sections 18 and 19 of the Act were deleted by No. 27 of 2007 s 16, and Parts IV and other sections are noted as deleted (marginal notes).
• The compilation notes and other notes in the statute indicate specific temporal application rules. For example, Part IX applies only to wills executed on or after the coming into operation of the Wills Act Amendment Act 1971 (s 29), and some changes operate only for deaths occurring on or after later commencement dates (see s 25 and other transitional notes).

The compilation table and marginal notes in the Act are the authoritative record for amendment chronology and commence dates. Users should consult the compilation table and the uncommenced provisions table in the Act text for any provisions not yet in force.

The Act text supplied does not name or record judicial decisions. There are no cases cited within the statute text itself. The statute contains procedural and substantive rules that create predictable categories of litigation, and those likely litigation loci are apparent from the Act’s provisions.

Areas where litigation is likely to arise, as indicated by the statute’s structure

• Part X informal wills (s 32): proceedings under s 32 require the Supreme Court to be satisfied the deceased intended a document to have testamentary effect. Litigation will arise from contested applications to admit informal documents where competing claimants dispute authorship, capacity, authenticity, or the deceased’s intention. Section 32(3) permits the Court to consider statements and evidence relating to manner of execution or testamentary intentions, which invites evidential disputes and factual hearings.
• Part XI court‑authorised wills (ss 40-47): applications for Court authorisation for persons lacking testamentary capacity impose detailed disclosure duties (s 41) and mandatory criteria (s 42). Disputes over the appropriateness of applicants (s 42(1)(c)), adequacy of representation for interested parties (s 42(1)(d)), or whether the person lacked testamentary capacity (s 42(1)(a)) will be litigated in the Supreme Court under the Act’s explicit non‑evidential rules (s 43(2)).
• Rectification (s 50): applications to rectify clerical errors or to give effect to the testator’s instructions are time‑limited (s 50(2)) and may generate contest as to whether the will fails to carry out instructions or whether the application is timely. The Court’s power to extend time is limited by final distribution (s 50(3)), which raises factually complex disputes over estate administration timing.
• Construction and extrinsic evidence (s 28A): disputes over admissibility and the scope of extrinsic evidence in will construction proceedings will occur under s 28A. The section sets limited admissibility but leaves open evidential questions about when language is "meaningless", "ambiguous on the face", or "ambiguous in the light of the surrounding circumstances" (s 28A(1)), so litigants will contest thresholds and traction of extrinsic material.
• Private international law and recognition (ss 20, 21, 48): cases may arise about which internal law governs formal validity, the connecting factors applicable, and whether a foreign statutory will or international will satisfies WA formal requirements. Section 21 prescribes choice‑of‑law rules, but factual disputes over domicile, habitual residence, or nationality at execution or death remain litigable.

Procedural features affecting litigation

• Rules of evidence: The Court is not bound by the rules of evidence in proceedings under s 40 (s 43(2)), which affects how evidence is tendered and may reduce formal barriers in Part XI applications but increases the importance of judicial discretion.
• Privacy powers: The Court can limit publication and attendance in Part XI proceedings (s 47), which can reduce public reporting of disputes and change litigation strategy where sensitive private information is at issue.
• Deadlines: Rectification has a six month limitation (s 50(2)), which can create procedural hurdles and urgency in filing claims.

Because the Act itself provides Court‑based remedial pathways and procedures rather than administrative appeals or criminal sanctions, the Supreme Court will be the central forum for contested matters. The statute text provides the jurisdictional and procedural framework but contains no case law or judicial commentary; practitioners must therefore match statutory tests to case law developed in the courts, recognising that the Act’s wording determines the scope of likely disputes.

The Act contains several drafting and procedural traps that can produce unexpected legal consequences if not attended to. These are not value judgements but operational risks arising from particular provisions.

Formal execution pitfalls

• Two‑witness simultaneity: Section 8 requires that the signature be acknowledged or made in the presence of at least two witnesses present at the same time, and that witnesses attest and subscribe in the presence of the testator. Failure to meet the simultaneity requirement will render the will not valid absent relief under Part X or conformity with foreign law under s 20.
• Witness incapacity and sight: Section 11 disqualifies a person who is unable to see and attest that the testator has signed the document from acting as a witness. Using a blind witness who cannot attest visually is a discrete execution error.
• Alterations after execution: Section 10(2) requires that alterations be executed with will formalities. Handwritten interlineations or informal corrections that are not re‑executed risk invalidity; subsection (3) is narrow and applies only where the words or effect are no longer apparent because of the alteration.
• Location of signatures: Section 10(4) permits signatures in the margin or as authentication of a memorandum on the will, but practitioners should be careful to place signatures so that authenticity cannot be challenged.

Timing and transitional application risks

• Part X commencement window: Section 33 limits the retrospective operation of s 32 to persons dying on or after the commencement day of s 23 of the Wills Amendment Act 2007. Documents that came into existence before that commencement day are nevertheless within s 32 for persons dying after the commencement. Practitioners must check the date of death and the relevant commencement dates stated in the compilation notes.
• Changes in law after execution: Section 21(2) allows account to be taken of later alterations in an applied foreign law that enable the will to be treated as properly executed. This can introduce retrospective complexity where a foreign law later liberalises formalities; the practitioner must identify historical versions of foreign law.

Marriage and ending of marriage consequences

• Automatic revocation on marriage and ending of marriage: A will is revoked by marriage except where it is made in contemplation of marriage (s 14). Section 14A provides that a will is revoked by the ending of marriage unless a contrary intention appears. The timing of marriage, contemplation evidence, and the precise nature of "contrary intention" in the will may lead to disputes about whether a will remains effective.

International and foreign law issues

• International wills certificate conclusive presumption: Schedule 1 Article 12 makes the authorised person’s certificate conclusive of formal validity unless contrary evidence is shown. However Article 13 states the absence or irregularity of a certificate does not affect formal validity, so a certificate issue can be a double‑edged sword for parties relying on or challenging international wills.
• Choice of internal law: Section 20 and s 21 require careful selection of which foreign internal law applies. Multiple systems in the place of execution require determining which system the testator was most closely connected to (s 21(1)(b)), which is a fact‑intensive enquiry.

Evidentiary constraints

• Limits on proving intention: Section 28A restricts admissibility of extrinsic evidence: evidence of a testator’s intention is not admissible to establish surrounding circumstances within s 28A(1)(c) per s 28A(2). Litigation strategies relying on broad use of testamentary intention evidence must account for this constraint.

Procedural and administrative traps

• Deposit and access formalities in Part XI: A will signed by the Principal Registrar must be deposited in a sealed envelope and the prescribed fee paid (s 44(1)-(2)). Missing particulars on the envelope or failure to pay the fee could cause procedural complications.
• Time limit for rectification: Rectification applications must be made within six months after death unless the Court extends time, but extension is not available after final distribution (s 50(2)-(3)). Practitioners should not assume indefinite rectification opportunities.

Absence of statutory penalties

• Lack of direct sanctions: Because failure to comply with formalities results in invalidity rather than statutory penalties, the "sanction" is legal nullity rather than a monetary penalty. Parties and advisers must therefore be alert to the need for Court remedies rather than expecting administrative enforcement.

These "gotchas" are mechanical consequences of particular provisions. The appropriate mitigation is attention to the sections cited, meticulous execution practice, careful records of testamentary intention and clear disclosure in court applications.

Below is a practical, section‑referenced checklist for lawyers, trustees, practitioners and executors to reduce legal risk and align practice with the statute.

Preliminary items

• Confirm dates and commencement rules: Check whether the relevant provision applies given commencement dates and transitional rules noted in the compilation table, especially for Part X (s 33) and provisions inserted by the Wills Amendment Act 2007.
• Verify capacity and age: Ensure the testator has reached 18 years (s 7) and assess testamentary capacity, or where capacity is lacking consider a Part XI application (s 40).

Drafting and execution checklist (s 8)

• Writing: Ensure the will is in writing; the Act defines "writing" broadly but the instrument should be a readable record (s 8(a)).
• Signature: The testator should sign the will or have another person sign in the testator’s presence and by the testator’s direction; the signature should be placed on the will so it is apparent on the face of the instrument that the testator intended the signature to give effect to the document as the will (s 8(b)).
• Witnesses: Arrange for at least two witnesses to be physically present at the same time for the testator’s signing or acknowledgement, to attest and subscribe in the testator’s presence (s 8(c)-(d)).
• Witness eligibility: Do not use a witness who cannot see and attest the testator’s signature (s 11). For international wills, check local witness conditions per s 32D referring to s 11.
• Execution location: For wills executed on vessels or aircraft, consider the law with which the vessel is most closely connected (s 20(2)(a)). For dispositions of immovable property ensure compliance with the internal law of the place where the property is situated (s 20(2)(b)).

Alterations and revocations (ss 10, 15, 16)

• Avoid casual handwritten changes: If an alteration is needed, re‑execute the will with the same formalities. If not possible, ensure that any alteration made by or at the direction of the testator which makes the words or effect no longer apparent is handled per s 10(3).
• If revoking, use a later will, a writing executed with will formalities, or physical destruction by the testator with intent to revoke (s 15). To revive a revoked will re‑execute or execute a later document showing an intention to revive (s 16).

Record keeping and evidence

• Record testamentary intention for informal‑will risk minimisation: Although Part X lets the Court dispense with formalities where the deceased intended the document to be a will (s 32), keep contemporaneous notes and witness statements about intention, manner of execution and surrounding circumstances to assist any later Part X application (s 32(3)).
• Preserve originals and contemporaneous evidence: Maintain original signed copies, witnesses’ contact details and any certificate or attestation for international wills (Schedule 1 Articles 9-11). For international wills, the authorised person should keep a copy and deliver one to the testator as required by Schedule 1 Article 11.

International wills (Part XA and Schedule 1)

• Use authorised persons: For international wills use a legal practitioner or public notary of an Australian jurisdiction (s 32C(1)). If acting under foreign law, ensure the authorised person is acting under the law of a state party to the Convention (s 32C(2)).
• Certificate and safekeeping: Ensure the authorised person attaches the certificate in the form required by Schedule 1 Article 10, notes date and place, signs and seals where necessary, keeps a copy and gives one to the testator (Schedule 1 Articles 9-11). Be aware Article 12 makes the certificate presumptively conclusive.

Part XI procedure for incapable persons (ss 39-47)

• Pre‑application enquiries: Before applying under s 40, make reasonable enquiries about the person’s assets and liabilities (s 41(1)(b)), existing wills or codicils (s 41(1)(f)), interests of people who might inherit (s 41(1)(g)), likelihood of family provision claims (s 41(1)(h)), and other relevant circumstances (s 41(1)(i)-(k)).
• Draft proposed instrument: Prepare a suggested draft will or alteration (s 41(1)(c)) and be ready for the Court to revise terms under s 43(1)(b). Provide evidence of the person’s wishes if available (s 41(1)(d)).
• Fee and deposit mechanics: After a Court order, deposit the sealed instrument with the Principal Registrar and pay the prescribed Supreme Court fee (s 44(1)(a)-(b)). Put the required particulars on the envelope (s 44(2)).
• Access requests: If others seek copies of deposited instruments, apply for Court leave and be prepared to show adequate representation of all persons with legitimate interest (s 45).

Construction and extrinsic evidence (s 28A)

• Limit reliance on intention evidence: In construction proceedings use extrinsic evidence only within the s 28A parameters: to clarify meaningless or ambiguous language (s 28A(1)). Evidence of intention cannot be used to establish surrounding circumstances per s 28A(2).
• Keep contemporaneous statement evidence: Statements made by the testator may be admissible under s 32(3) for Section 32 applications, and other evidence may be admissible in construction proceedings under s 28A(3), so preserve such evidence carefully.

Rectification (s 50)

• Time the application: File rectification applications within six months after death unless circumstances require the Court to extend time and final distribution has not occurred (s 50(2)-(3)). Attach a certified copy of any rectification order to the original will and probated copy (s 50(4)).

General practice advice tied to statutory text

• Use clear language and express contrary intentions: If a testator wishes to safeguard against marriage or divorce revoking a will, consider expressing the will as made in contemplation of marriage or clearly stating a contrary intention (s 14(1), s 14(3); s 14A(2)).
• Consider cross‑border factors at drafting stage: If the testator has property overseas, is domiciled abroad or is a national of another country, document intentions and consider formal execution under the applicable internal law or the international wills Convention (ss 20-21; Part XA).
• Seek early legal advice: Because remedial relief under the Act is discretionary and Court processes can be time consuming and costly, early compliance with s 8 formalities and careful preservation of execution evidence are the most reliable risk mitigation strategies.

Following the sections cited in this checklist reduces the need to rely on discretionary court remedies and aligns testamentary practice with the statute’s procedural and substantive priorities.