Wills Act 2000 (Northern Territory)

The Wills Act 2000 (NT) restates and modernises the law governing testamentary dispositions in the Northern Territory. Mechanically, it:

Prescribes formalities for valid wills: writing, signature by the testator (or at their direction), acknowledgment in the presence of two or more witnesses present at the same time, and attestation by at least two witnesses (s 8(1)(a)-(c)). The signature must be made with the intention of executing the will; it need not be at the foot of the document and an attestation clause is not required (s 8(3)-(4)).
Limits who may witness: a person who cannot see and attest that the testator has signed may not be a witness (s 11). Witnesses need not know the contents of the document to validly attest (s 9).
Allows the Supreme Court to dispense with formalities and to admit informal documents as wills where the deceased intended the document to carry testamentary effect (s 10).
Sets capacity rules: subjects the minimum age to make a will and provides exceptions for minors who are married or making a will in contemplation of marriage, while establishing a Court-authorisation route for wills by minors (s 7; Part 3 Div 1, s 18).
Establishes a Court-authorisation regime for persons who lack testamentary capacity: leave to apply, evidentiary requirements, the Court’s gatekeeping and the form of orders (Part 3 Div 2, ss 19-26). Orders for statutory wills are to be signed by the Registrar and sealed (s 24) and retained by a prescribed person (s 25).
Provides rectification powers where a will does not carry out the testator’s intentions due to clerical error or failure to give effect to instructions, with a general six-month time limit for applicants (s 27).
Contains detailed construction rules that specify how dispositions operate (Part 4, ss 28-44): survivorship requirements (s 34), how dispositions to "issue" operate (s 38), the treatment of unincorporated associations (s 42), inclusion of leasehold land in general dispositions (s 36), and treatment of devises without words of limitation (s 37).

NORTHERN TERRITORY OF AUSTRALIA WILLS ACT 2000 As in force at 1 January 2022 Table of provisions Part 1 Preliminary 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Definitions ........................................................................................ 1 4 Purpose ........................................................................................... 2 5 Application of Act ............................................................................. 2 Part 2 Capacity and formal requirements Division 1 Capacity 6 Property that may be disposed of by will ......................................... 3 7 Minimum age for making will ........................................................... 3 Division 2 Execution of wills 8 How wills should be executed.......................................................... 4 9 Witnesses need not know the contents of what they are signing ............................................................................................. 4 10 When Court may dispense with requirements for execution of wills .................................................................................................. 5 11 Persons who may not be witnesses to wills ..................................... 5 12 Can interested witnesses benefit from dispositions under wills? ................................................................................................ 6 Division 3 Revocation, alteration and revival of wills 13 How wills may be revoked ............................................................... 6 14 Effect of marriage on wills................................................................ 7 15 Effect of divorce etc. on wills ........................................................... 7 16 How wills may be altered ................................................................. 8 17 How wills may be revived ................................................................ 9 Part 3 Wills made or rectified under court authorisation Division 1 Wills made by minors 18 Court may authorise wills by minors ................................................ 9

Wills Act 2000 ii Division 2 Wills for persons without testamentary capacity 19 Court may make certain orders regarding persons without testamentary capacity .................................................................... 11 20 Leave of Court is required to make application.............................. 11 21 Court must be satisfied as to certain matters................................. 12 22 Orders Court may make on application for leave ........................... 13 23 Application for authorisation of making etc. of will ......................... 13 24 Execution of will ............................................................................. 14 25 Retention of will or instrument ....................................................... 14 26 Recognition of statutory wills ......................................................... 14 Division 3 Rectification of wills by Court 27 Court may rectify will ..................................................................... 15 Part 4 Construction of will 28 What interests in property do wills dispose of? .............................. 16 29 When do wills take effect? ............................................................. 16 30 Effect of failure of dispositions ....................................................... 16 31 Use of extrinsic evidence to clarify wills ......................................... 16 32 Effect of change in testator's domicile ........................................... 17 33 Income on contingent, future or deferred dispositions ................... 17 34 Beneficiaries must survive testator by 30 days .............................. 17 35 What do general dispositions of property include? ........................ 17 36 What do general dispositions of land include?............................... 17 37 Effect of devise of real property without words of limitation ........... 18 38 How dispositions to issue operate ................................................. 18 39 How requirements to survive with issue are to be construed ......... 18 40 Dispositions not to fail because issue have died before testator .......................................................................................... 18 41 Construction of dispositions ........................................................... 19 42 Legacies to unincorporated associations of persons ..................... 19 43 Can persons delegate, by will, power to dispose of property? ....... 20 44 Effect of referring to valuation in a will ........................................... 20 Part 5 Wills under foreign law 45 Definition of internal law ................................................................ 21 46 General rule as to formal validity ................................................... 21 47 Ascertainment of system of internal law ........................................ 22 48 Construction of the law applying to wills under foreign law ............ 22 48A Part does not limit international wills provisions............................. 23 Part 5A International wills 48B Definitions ...................................................................................... 23

Wills Act 2000 iii 48C Application of Convention .............................................................. 23 48D Persons authorised to act in connection with international wills .... 23 48E Witnesses to international wills ...................................................... 24 48F Application of Act to international wills ........................................... 24 Part 6 Deposit of wills with prescribed person 49 Prescribed person ......................................................................... 24 50 Will may be deposited with prescribed person............................... 24 51 Delivery of will by prescribed person ............................................. 25 52 Examination of will by prescribed person ...................................... 26 53 Failure to retain will does not affect validity of will ......................... 26 Part 7 Miscellaneous 54 Persons who are entitled to see will .............................................. 26 55 Personal representative may make maintenance distribution within 30 days ................................................................................ 26 56 Regulations.................................................................................... 27 57 Repeal ........................................................................................... 28 58 Savings .......................................................................................... 28 Schedule Repealed Acts Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 1 January 2022

WILLS ACT 2000 An Act to clarify, amend and reform the law relating to the making, alteration, revocation, rectification and construction of wills and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Wills Act 2000. 2 Commencement This Act comes into operation on the date fixed by the Administrator by notice in the Gazette. 3 Definitions In this Act, unless the contrary intention appears: Convention, for Part 5A, see section 48B. Court means the Supreme Court. disposition means a disposition by will and includes: (a) a gift, devise or bequest of property under a will; (b) the creation by will of a power of appointment affecting property; and (c) the exercise by will of a power of appointment affecting property. document means any paper or other material on which there is writing. internal law, for Part 5, see section 45. international will, for Part 5A, see section 48B. minor means a person who is less than 18 years of age.

Part 1 Preliminary Wills Act 2000 2 prescribed person means a person prescribed under section 49(1) to be a person with whom wills may be deposited or, if no such person has been prescribed, the Public Trustee. property includes: (a) a contingent, executory or future interest in property; (b) a right of entry or recovery of property; and (c) a right to call for the transfer of title to property. Public Trustee has the same meaning as in section 5 of the Public Trustee Act 1979. Registrar means the Registrar of the Supreme Court performing the functions of the Registrar of Probates. will includes a codicil and any other testamentary disposition. 4 Purpose The purpose of this Act is to clarify, amend and reform the law relating to the making, alteration, rectification, revocation and construction of wills and to make particular provision for: (a) the formalities required for the making, alteration and revocation of wills and the dispensation of those requirements in appropriate cases; (b) the making of wills by minors and other persons lacking testamentary capacity; and (c) the effect of marriage and divorce on wills. 5 Application of Act (1) Subject to this section, this Act applies only to wills executed on or after the commencement of this Act. (2) Subject to subsections (3) and (4), the Wills Act 1938 in force immediately before the commencement of this Act continues to apply to wills executed before the commencement of this Act. (3) If: (a) a person is divorced after the commencement of this Act; or (b) a person's marriage is annulled after the commencement of this Act,

Part 2 Capacity and formal requirements Division 1 Capacity Wills Act 2000 3 section 15 applies to the person's will (if any) whether the will was executed before, on or after the commencement. (4) If a testator dies on or after the commencement of this Act, sections 6, 9, 10, 11, 12, 13, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 42, 43 and 44 apply to his or her will whether it was executed before, on or after that commencement. Part 2 Capacity and formal requirements Division 1 Capacity 6 Property that may be disposed of by will (1) A person may dispose by will of property to which the person is entitled at the time of his or her death. (2) A person may dispose by will of property to which the personal representative of that person becomes entitled by virtue of the office of personal representative after the death of that person. (3) Subsection (2) applies whether or not the entitlement of the person or of the personal representative exists at the date of making the will or at the time of the person's death. (4) A person may not dispose by will of property of which the person is trustee at the time of his or her death. 7 Minimum age for making will (1) Subject to subsection (2) and Part 3, a will made by a minor is not valid. (2) A minor: (a) may make a will in contemplation of marriage (and may alter or revoke the will) but the will is of no effect if the marriage contemplated does not take place; (b) if he or she is married – may make, alter or revoke a will; and (c) if he or she has been married – may revoke the whole or any part of a will made while the minor was married or in contemplation of his or her marriage.

Part 2 Capacity and formal requirements Division 2 Execution of wills Wills Act 2000 4 Division 2 Execution of wills 8 How wills should be executed (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; (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator. (2) It is not necessary for the 2 witnesses referred to in subsection (1)(c) to attest and sign the will in the presence of each other. (3) The signature of the testator: (a) must be made with the intention of executing the will; and (b) is not required to be made at the foot of the will. (4) It is not necessary for a will to have an attestation clause. (5) If 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 section. (6) If: (a) 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; and (b) the person exercises the power by a will that is in accordance with this section and not in that manner or with that solemnity, the exercise of the power is valid. 9 Witnesses need not know the contents of what they are signing A will that is executed in accordance with this Act is validly executed even if one or more of the witnesses to the will did not know that the document he or she attested and signed was a will.

Part 2 Capacity and formal requirements Division 2 Execution of wills Wills Act 2000 5 10 When Court may dispense with requirements for execution of wills (1) In this section, document means a record of information and includes: (a) anything on which there is writing; (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (c) anything from which sounds, images or writings can be reproduced with or without the aid of another thing or device; and (d) a map, plan, drawing or photograph. (2) If the Court is satisfied that a deceased person intended a document or part of a document that purports to embody the testamentary intentions of the deceased person (but which is not executed in the manner required by this Act) to constitute his or her will or an alteration of his or her will or to revoke his or her will, the document or part of the document constitutes the will of the deceased person or an alteration of the will or revokes the will, as the case requires. (3) In forming its view whether a deceased person intended a document or part of a document to constitute his or her will or an alteration of his or her will or to revoke his or her will, the Court may have regard (in addition to the document or a part of the document) to any evidence relating to the manner of execution or the testamentary intentions of the deceased person, including evidence (whether or not admissible before the commencement of this section) of statements made by the deceased person. (4) This section applies to a document whether it came into existence in or outside the Territory. 11 Persons who may not be witnesses to wills A person who is not able to see and attest that a testator has signed a document may not be a witness to a will.

Part 2 Capacity and formal requirements Division 3 Revocation, alteration and revival of wills Wills Act 2000 6 12 Can interested witnesses benefit from dispositions under wills? (1) Subject to subsection (2), if a beneficial disposition is given or made by will to a person who is a witness to the will, the disposition is void to the extent that it concerns the person or a person claiming under him or her. (2) A beneficial disposition is not void under subsection (1) if: (a) at least 2 of the witnesses to the will are not persons to whom a beneficial disposition is given or made by the will; (b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition according to the will; or (c) the Court is satisfied that: (i) the testator knew and approved of the disposition; and (ii) the disposition was given or made freely and voluntarily by the testator. Division 3 Revocation, alteration and revival of wills 13 How wills may be revoked The whole or a part of a will may be revoked but only: (a) in the circumstances in respect of revoking a will specified in Division 1 or 2 of Part 3; (b) by the operation of section 14 or 15; (c) by a later will; (d) by some writing declaring an intention to revoke the will, executed in the manner in which a will is required to be executed by this Act; (e) by the testator, or another person in the testator's presence and at the testator's direction, burning, tearing or otherwise destroying the will with the intention of the testator of revoking it; or (f) by the testator, or another person in the testator's presence and at the testator's direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.

Part 2 Capacity and formal requirements Division 3 Revocation, alteration and revival of wills Wills Act 2000 7 14 Effect of marriage on wills (1) Subject to this section, a will is revoked by the marriage of the testator. (2) The marriage of a testator does not revoke the following: (a) a disposition to the person to whom the testator is married at the time of his or her death; (b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death; and (c) a will made in exercise of a power of appointment but only in the case where the property appointed would not pass to the executor, administrator or the Public Trustee if the power of appointment was not exercised. (3) 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 that marriage. (4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator. 15 Effect of divorce etc. on wills (1) In this section testator's spouse means the person who is the testator's spouse immediately before the testator's marriage ends by divorce or annulment. (2) For the purposes of this section, a testator's marriage ends by divorce or annulment: (a) when a decree of dissolution of the testator's marriage becomes absolute under the Family Law Act 1975 of the Commonwealth; (b) on the granting of a decree of nullity in respect of the testator's marriage by the Family Court; or (c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.

Part 2 Capacity and formal requirements Division 3 Revocation, alteration and revival of wills Wills Act 2000 8 (3) The divorce of a testator or annulment of his or her marriage revokes: (a) a beneficial disposition made by the testator to the testator's spouse in a will in existence at the time of the divorce or annulment; (b) an appointment of the testator's spouse as an executor, trustee, advisory trustee or guardian made by the will; and (c) a grant made by the will of a power of appointment exercisable by or in favour of the testator's spouse. (4) Subsection (3) does not apply if a contrary intention appears in the will or is otherwise established. (5) The divorce of a testator or the annulment of his or her marriage does not revoke: (a) the appointment of the testator's spouse as trustee of property left on trust for beneficiaries that include the spouse's children by a will in existence at the time of the divorce or annulment; or (b) the grant made by the will of a power of appointment exercisable by the testator's spouse exclusively in favour of the children of whom both the testator and his or her spouse are the parents. (6) A will referred to in this section takes effect in respect of the revocation by this section of a disposition, appointment or grant as if the testator's spouse had died before the testator. 16 How wills may be altered (1) An alteration made to a will after the will is executed is not effective unless the alteration: (a) is executed in a manner in which a will is required to be executed by this Act; (b) is made by a minor pursuant to an order of the Court made under section 18(1) and is otherwise in accordance with section 18; (c) is made for and on behalf of a person without testamentary capacity pursuant to an order of the Court made under section 19(1) and is otherwise in accordance with Division 2 of Part 3; or

Part 3 Wills made or rectified under court authorisation Division 1 Wills made by minors Wills Act 2000 9 (d) is a document that under section 10 the Court is satisfied embodies testamentary intentions of a deceased person and so constitutes an alteration to the will of the deceased person; or (e) obliterates words in the will so that their effect is no longer apparent. (2) In altering a will, it is sufficient compliance with the requirements for execution if the signatures of the testator and of the witnesses to the alteration are made: (a) in the margin or on some other part of the will beside, near or otherwise in relation to the alteration; or (b) as authentication of a memorandum referring to the alteration and written on the will. (3) This section 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. 17 How wills may be revived (1) A will or a part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part. (2) A will that has been revoked and is later wholly or partly revived is to be taken to have been executed on the date on which the will or part of the will is revived. (3) If a will is partly revoked and later a part or the whole of the remaining will is revoked, a will reviving the will revives only that part of the will most recently revoked. (4) Subsection (3) does not apply if a contrary intention appears in the reviving will. Part 3 Wills made or rectified under court authorisation Division 1 Wills made by minors 18 Court may authorise wills by minors (1) The Court may, on application by or on behalf of a minor, make an order authorising the minor to: (a) make or alter a will in the terms approved by the Court; or

Part 3 Wills made or rectified under court authorisation Division 1 Wills made by minors Wills Act 2000 10 (b) revoke the whole or a part of the will of the minor. (2) Before making the order the Court must be satisfied that: (a) the minor understands the nature and effect of the proposed will or alteration or revocation of the will and the extent of the property disposed of by it; (b) the proposed will or alteration or revocation of the will accurately reflects the intentions of the minor; and (c) it is reasonable in all the circumstances that the order should be made. (3) The Court may make an order under subsection (1) subject to the terms and conditions the Court considers fit. (4) A will or an instrument made pursuant to an order made under subsection (1) that makes or alters or revokes the whole or a part of a will is not valid unless: (a) it is executed as required by this Act; (b) one of the attesting witnesses is the Registrar; and (c) it is made in accordance with the conditions of the order. (5) After the will or instrument referred to in subsection (4) is executed, the Registrar must: (a) if the Registrar is a prescribed person – retain the will or instrument; or (b) in any other case – deposit the will or instrument with a prescribed person, and, on the will or instrument being retained by or deposited with a prescribed person under paragraph (a) or (b), it is to be taken to have been deposited with the prescribed person in accordance with Part 6. (6) A will made by a deceased minor is a valid will if it is made in accordance with the law relating to wills of minors in force in the place where the deceased was residing at the time of execution of the will.

Part 3 Wills made or rectified under court authorisation Division 2 Wills for persons without testamentary capacity Wills Act 2000 11 Division 2 Wills for persons without testamentary capacity 19 Court may make certain orders regarding persons without testamentary capacity (1) The Court may, on application, make an order under this Division authorising: (a) the making or alteration of a will in the terms approved by the Court; or (b) the revocation of the whole or a part of a will, for and on behalf of a person who lacks testamentary capacity. (2) An order referred to in subsection (1)(a) may authorise: (a) the making or alteration of a will that deals with the whole or part only of the property of the person; or (b) the alteration of part only of the will of the person. (3) The Court must not make an order under this Division unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this Division in respect of a minor. 20 Leave of Court is required to make application (1) A person must obtain the leave of the Court to make an application to the Court for an order under this Division. (2) In applying for the leave of the Court, the person must file at the Court: (a) a written statement of the general nature of the application for the order and the reasons for making it; (b) an estimate, to the extent that the person is aware, of the size and character of the estate of the person in respect of whom the application is proposed to be made (the proposed testator); (c) an initial draft of the proposed will, alteration or revocation to be authorised by the order; (d) evidence, to the extent that it is available, relating to the wishes of the proposed testator;

Part 3 Wills made or rectified under court authorisation Division 2 Wills for persons without testamentary capacity Wills Act 2000 12 (e) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; (f) a will or a copy of a will of the proposed testator that is in the person's possession or any details known to the person of a will of the proposed testator; (g) evidence of the interests, to the extent that they are known to the person or can be discovered with reasonable diligence, of a person who would be entitled to receive a part of the estate of the proposed testator if he or she were to die intestate; (h) evidence of any facts, to the extent that they are known to the person or can be discovered with reasonable diligence, indicating the likelihood of an application relating to the proposed testator being made under the Family Provision Act 1970; (j) evidence of the circumstances, to the extent that they are known to the person or can be discovered with reasonable diligence, of a person for whom the proposed testator might reasonably be expected to make provision under a will; (k) a reference to any gift for a body, whether charitable or otherwise, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and (m) any other facts that the applicant considers to be relevant to the application, as the Court requires. 21 Court must be satisfied as to certain matters The Court must refuse leave to make an application for an order under this Division unless the Court is satisfied that: (a) there is reason to believe that the proposed testator is or may be incapable of making a will; (b) the proposed will or alteration or revocation of a will is or might be one that would have been made by the proposed testator if he or she had testamentary capacity; (c) it is or may be appropriate for an order authorising the making, alteration or revocation of a will to be made for the proposed testator;

Part 3 Wills made or rectified under court authorisation Division 2 Wills for persons without testamentary capacity Wills Act 2000 13 (d) the applicant is an appropriate person to make the application; and (e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the making of the application, including persons who have reason to expect a gift or benefit from the estate of the proposed testator. 22 Orders Court may make on application for leave On hearing an application for leave to make an application for an order under this Division, the Court may: (a) refuse the application; (b) adjourn the application; (c) give directions, including directions about the attendance of a person as a witness and, if it considers appropriate, the attendance of the proposed testator; (d) revise the terms of any initial draft of the proposed will, alteration or revocation provided to the Court; (e) grant the application on the terms it considers just; or (f) if it is satisfied of the propriety of the application: (i) allow the application for leave to proceed as an application for an order under this Division authorising the making, alteration or revocation of a will; and (ii) allow the application for an order and make an order in accordance with sections 19 and 23 authorising the making, alteration or revocation of a will, as the case requires. 23 Application for authorisation of making etc. of will (1) In considering an application for an order under this Division authorising the making, alteration or revocation of a will, the Court: (a) may have regard to any information given to the Court in support of an application for leave to make the application; (b) may inform itself on any matter in the manner it considers fit; and (c) is not bound by the rules of evidence.

Part 3 Wills made or rectified under court authorisation Division 2 Wills for persons without testamentary capacity Wills Act 2000 14 (2) On hearing the application, the Court may, after considering the outcome of the application for leave to make the application and any further material or evidence it requires: (a) refuse the application; or (b) grant the application subject to the terms and conditions it considers just. 24 Execution of will A will or instrument altering or revoking a will pursuant to an order under this Division is to be signed by the Registrar and sealed with the seal of the Court. 25 Retention of will or instrument (1) A will or instrument altering or revoking a will pursuant to an order under this Division must be retained by a prescribed person and, on being retained by a prescribed person, is to be taken to have been deposited with the prescribed person in accordance with Part 6. (2) Despite section 51, a will referred to in subsection (1) may not be withdrawn from deposit with the prescribed person by or on behalf of the person on whose behalf it was made unless: (a) the Court makes an order under this Division authorising the revocation of the will; or (b) the person acquires or regains testamentary capacity. (3) On being presented a copy of an order referred to in subsection (2)(a), the prescribed person must comply with the order. 26 Recognition of statutory wills (1) In this section, statutory will means a will executed by virtue of a provision of or under an Act of the Territory or another place on behalf of a person who, at the time of execution, lacked testamentary capacity. (2) A statutory will made in accordance with the law in force in the place where the deceased was residing at the time of execution of the will is a valid will of the deceased.

Part 3 Wills made or rectified under court authorisation Division 3 Rectification of wills by Court Wills Act 2000 15 Division 3 Rectification of wills by Court 27 Court may rectify will (1) If the Court is satisfied that a will does not carry out the intentions of the testator because: (a) a clerical error was made; or (b) the will does not give effect to the testator's instructions, the Court may make an order to rectify the will so it carries out the testator's intentions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 6 months after the date of the death of the testator. (3) The Court may, subject to subsection (4), extend the time within which an application may be made if the Court thinks it is just. (4) The Court may make an order extending the time for making the application either before or after the 6 month period referred to in subsection (2) expires but not if the final distribution of the estate has been made. (5) A personal representative who makes a distribution to a beneficiary is not liable if: (a) the distribution was made in accordance with section 55; or (b) the distribution was made at least 6 months after the death of the testator and at the time of making the distribution the personal representative was not aware of any application in respect of the estate having been made for rectification or under the Family Provision Act 1970. (6) If the Court makes an order for rectification under this section, the Court: (a) may direct that a certified copy of the order be attached to the will to which it applies; and (b) if it makes a direction under paragraph (a) – must retain the will until the copy of the order is attached to it.

Part 4 Construction of will Wills Act 2000 16 Part 4 Construction of will 28 What interests in property do wills dispose of? If: (a) a testator has made a will disposing of property; and (b) after making the will but before his or her death – the testator disposes of an interest in that property, the will operates to dispose of any remaining interest the testator has in that property. 29 When do wills take effect? (1) A will takes effect in respect of property disposed of in the will as if it had been executed immediately before the death of the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will or elsewhere. 30 Effect of failure of dispositions (1) If, and to the extent that, a disposition of property under a will (other than a disposition by the exercise of a power of appointment) is ineffective wholly or in part, the will takes effect as if the property or the undisposed part of the property were part of the residuary estate of the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will or elsewhere. 31 Use of extrinsic evidence to clarify wills (1) In proceedings to construe a will, evidence is admissible to determine the meaning of the language used in the will to the extent that the language used renders the will or a part of the will: (a) meaningless; (b) ambiguous on the face of the will; or (c) ambiguous in the light of the surrounding circumstances. (2) Except for the purposes of establishing the surrounding circumstances referred to in subsection (1)(c), evidence admissible under subsection (1) includes evidence of the testator's intention.

Part 4 Construction of will Wills Act 2000 17 (3) Nothing in this section prevents evidence that is otherwise admissible at law being admissible in proceedings to construe a will. 32 Effect of change in testator's domicile The construction of a will is not affected because of a change in the testator's domicile after executing the will. 33 Income on contingent, future or deferred dispositions A contingent, future or deferred disposition of property, whether specific or residuary, is to be construed as including a disposition of any intermediate income from the property that has not been disposed of by will. 34 Beneficiaries must survive testator by 30 days (1) If a testator makes a disposition to a person who dies within 30 days after the death of the testator, the testator's will is to take effect as if the person had died immediately before the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) For the avoidance of doubt, a general requirement or condition that a beneficiary survive the testator does not indicate a contrary intention for the purposes of this section. 35 What do general dispositions of property include? (1) A general disposition of all or the residue of the testator's property or all or the residue of his or her property of a particular description: (a) is a disposition of all such property over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of that power. (2) Subsection (1) does not apply if a contrary intention appears in the will or elsewhere. 36 What do general dispositions of land include? (1) A general disposition of land or of land in a particular area is to be construed as including a disposition of leasehold land (whether or not the testator owns freehold land). (2) Subsection (1) does not apply if a contrary intention appears in the will or elsewhere.

Part 4 Construction of will Wills Act 2000 18 37 Effect of devise 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 to the person the whole of the estate or interest of the testator in the property. (2) Subsection (1) does not apply if a contrary intention appears in the will or elsewhere. 38 How dispositions to issue operate (1) A disposition to a person's issue without limitation as to remoteness is to be distributed to that person's issue in the same way as that person's estate would be distributed if that person had died intestate leaving only issue surviving. (2) Subsection (1) does not apply if a contrary intention appears in the will. 39 How requirements to survive with issue are to be construed (1) If a disposition to a person is expressed to fail if there is: (a) a want or failure of issue of that person either in his or her lifetime or at his or her death; or (b) an indefinite failure of issue of that person, the words used are to 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 or her issue. (2) Subsection (1) does not apply if a contrary intention appears in the will unless the result would cause the disposition to fail. 40 Dispositions not to fail because issue have died before testator (1) Subject to this section, if: (a) a person makes a disposition to an issue of the person; (b) the disposition is not a disposition to which section 38 applies; (c) the interest in property disposed is not determinable at or before the death of the issue; and (d) the issue does not survive the testator for 30 days, the disposition is to be held on trust for the issue of the first- mentioned issue who survive the testator for 30 days in the shares

Part 4 Construction of will Wills Act 2000 19 they would have taken of the residuary estate of the first-mentioned issue if the first-mentioned issue had died intestate leaving only issue surviving. (2) Subsection (1) applies to dispositions that are to an issue as an individual or as a member of a class. (3) Subject to subsections (4) and (5), subsection (1) does not apply if a contrary intention appears in the will. (4) For the purposes of subsection (3): (a) a general requirement or condition that issue survive the testator or attain a specified age does not indicate a contrary intention; and (b) a gift of a joint tenancy does not alone indicate a contrary intention. (5) If a condition is imposed on an original beneficiary and the beneficiary fails to survive the testator for 30 days, the issue of the beneficiary may not take under this section unless the original beneficiary fulfilled the condition. 41 Construction of dispositions (1) A disposition of the whole of the estate of a testator or the residue of the estate of a testator that refers to only the real estate of the testator or only the personal estate of the testator is to be construed as including a disposition of both the real and personal estate of the testator. (2) If a part of a disposition in fractional parts of the whole or the residue of the estate of a testator fails, that part passes to the part that does not fail and, if there is more than one part that does not fail, to all those parts proportionately. (3) This section does not apply if a contrary intention appears in the will. 42 Legacies to unincorporated associations of persons (1) A disposition: (a) to an unincorporated association of persons that is not a charity; (b) to or on trust for the aims, objects or purposes of an unincorporated association of persons that is not a charity; or

Part 4 Construction of will Wills Act 2000 20 (c) to or on trust for the present and future members of an unincorporated association of persons that is not a charity, has effect as a legacy or devise in augmentation of the general funds of the association. (2) Property that is or is to be taken to be a disposition in augmentation of the general funds of an unincorporated association is to be: (a) paid into the general fund of the association; (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. (3) If a personal representative pays money to an unincorporated association under a disposition, the receipt of the Treasurer or like officer of the association (however described) is an absolute discharge for the payment. (4) If a personal representative transfers property to an unincorporated association under a disposition, the transfer of the property to a person or persons designated in writing by any 2 persons holding the offices of President, Chairperson, Treasurer or Secretary, or like officers of the association (however described), is an absolute discharge to the personal representative for the transfer of the property. (5) Subsections (3) and (4) do not apply if a contrary intention appears in a will. (6) It is not an objection to the validity of a disposition to an unincorporated association of persons that a list of persons who were members of the association at the time of the testator's death cannot be compiled or that the members of the association have no power to divide assets of the association beneficially among themselves. 43 Can persons delegate, by will, power to dispose of property? A power or trust created by will to dispose of property 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, having been made by the testator by instrument during his or her lifetime, would be valid. 44 Effect of referring to valuation in a will (1) Unless, and to the extent that, a method of valuation is at the relevant time required under a law in force in respect of a will

Part 5 Wills under foreign law Wills Act 2000 21 (whether a law of the Territory or of another place) or is provided for by a will, an express or implied requirement in a will that a valuation of property be made or accepted for any purpose is to be construed as if it were a reference to a valuation of the property: (a) as at the date of the testator's death; and (b) made by a competent valuer. (2) Subsection (1) does not apply if a contrary intention appears in a will. Part 5 Wills under foreign law 45 Definition of internal law In this Part, internal law, in relation to a place, means the law applying in a case where no question of the law in force in any other place arises. 46 General rule as to formal validity (1) A will is properly executed if its execution conforms to the internal law in force in the place: (a) where it was executed; (b) that was the testator's domicile or habitual residence either at the time the will was executed or at the testator's death; or (c) of which the testator was a national either at the date of execution of the will or at the testator's death. (2) A will executed on board a vessel or aircraft 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 having regard to its registration and other relevant circumstances is properly executed. (3) A will that disposes of immovable property is properly executed to the extent that it disposes of immovable property if it is executed in conformity with the internal law in force in the place where the property is situated. (4) A will that revokes a will or a part of a will valid under this Act is properly executed to the extent that it revokes the will or part if it is executed in conformity with a law under which the will or part being revoked is validly executed.

Part 5 Wills under foreign law Wills Act 2000 22 (5) A will exercising a power of appointment is properly executed to the extent that it exercises the power of appointment if it is executed in conformity with the law governing the essential validity of the power. (6) A will to which this section applies that exercises a power of appointment is not, to the extent that it exercises the power of appointment, to be taken to be improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the power of appointment. 47 Ascertainment of system of internal law If there is more than one system of internal law in force in a place that relates to the formal validity of a will, the system of internal law that applies to the will is: (a) if there is a rule in force throughout the place that indicates which system of internal law applies to the will – the system of law indicated by that rule; or (b) if there is no rule indicating which system of internal law applies – the system of internal law with which the testator was most closely connected either: (i) in the case where the matter is to be determined by reference to circumstances prevailing at the time of the death of the testator – at the time of his or her death; or (ii) in any other case – at the time of the execution of the will. 48 Construction of the law applying to wills under foreign law (1) In determining whether a will has been executed in conformity with a particular law, regard must be given to the formal requirements of that law at the time of execution and, if that law is later altered, account may be taken of that law as altered if it enables the will to be treated as properly executed. (2) If a law in force outside the Territory is applied to a will, a requirement of that law that special formalities must be observed by testators of a particular description or that witnesses to the execution of the will must have certain qualifications is to be taken to be a formal requirement only. (3) Subsection (2) applies despite any rule of a law referred to in that subsection to the contrary.

Part 5A International wills Wills Act 2000 23 48A Part does not limit international wills provisions This Part does not limit the operation of Part 5A. Part 5A International wills 48B Definitions In this Part: Convention means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington DC in the United States of America on 26 October 1973. international will means a will made in accordance with the requirements of the Annex to the Convention. 48C Application of Convention (1) The Annex to the Convention has the force of law in this jurisdiction. (2) A copy of the Annex to the Convention is set out in Schedule 2. 48D Persons authorised to act in connection with international wills (1) For this Part, the following persons are authorised to act in connection with an international will: (a) an Australian legal practitioner as defined in section 6(a) of the Legal Profession Act 2006; (b) a public notary of any Australian jurisdiction. (2) A reference in the Annex to the Convention to a person authorised to act in connection with international wills is a reference to: (a) a person mentioned in subsection (1) who is acting in Australia; or (b) any other person who is acting as an authorised person under a law of a state (other than Australia) that is a party to the Convention. Note for section 48D This section gives effect to Articles II and III of the Convention.

Part 6 Deposit of wills with prescribed person Wills Act 2000 24 48E Witnesses to international wills The conditions requisite to acting as a witness to an international will are governed by the law of this jurisdiction. Note for section 48E For the relevant provisions of this Act see Part 2, Division 2. 48F Application of Act to international wills To avoid doubt, the provisions of this Act that apply to wills extend to international wills. Part 6 Deposit of wills with prescribed person 49 Prescribed person (1) The Regulations may prescribe a person to be or more than one person each to be a person with whom a will may be deposited under this Part. (2) In prescribing a person under subsection (1), the Regulations may: (a) prescribe a person by name; (b) prescribe a person by reference to the office, designation or position held or occupied by the person; or (c) prescribe a person as the person from time to time holding, acting in or performing the duties of a named office, designation or position. (3) If, for whatever reason, there is no person prescribed under subsection (1), the Public Trustee is the person with whom a will may be deposited under this Part. 50 Will may be deposited with prescribed person (1) A person may deposit a will with a prescribed person. (2) A will is not to be deposited with a prescribed person unless it is in a sealed envelope that has written on it: (a) the testator's name and address (as they appear in the will); (b) the name and address (as they appear in the will) of each executor of the will; (c) the date of the will; and

Part 6 Deposit of wills with prescribed person Wills Act 2000 25 (d) the name of the person depositing the will. (3) Subject to subsection (4), a will deposited with a prescribed person must be accompanied by the prescribed fee. (4) A person depositing a will with a prescribed person must pay the prescribed fee unless: (a) the will is deposited with the prescribed person: (i) under Part 3; or (ii) because a lawyer has died or has ceased or is about to cease practising law in the Territory; or (b) the fee is waived by the prescribed person in accordance with the Regulations. 51 Delivery of will by prescribed person (1) If a will has been deposited with a prescribed person under this Act, the testator may at any time apply in writing to the prescribed person to be given the will or to have the will given to another person authorised in writing by the testator to receive it. (2) On receiving the application under subsection (1), the prescribed person must give the will to the testator or the person authorised by the testator unless the testator is a minor or a person who lacks testatmentary capacity. (3) If a will has been deposited with a prescribed person and the testator has died, an executor named in the will or a person who is entitled to apply for letters of administration with the will annexed may apply in writing to the prescribed person to be given the will. (4) On receiving the application under subsection (3), the prescribed person must give the will to the executor or other person or to a legal practitioner or a trustee company within the meaning of the Companies (Trustees and Personal Representatives) Act 1981 authorised in writing by the executor or other person. (5) A prescribed person must make and retain or cause to be made and retained an accurate copy of every will he or she gives to a person under this section. (6) If there is any doubt as to whom a prescribed person should give a will, the prescribed person or any other person may apply to the Court for directions as to whom the will should be given.

Part 7 Miscellaneous Wills Act 2000 26 52 Examination of will by prescribed person A prescribed person may examine a will to enable him or her to comply with this Part. 53 Failure to retain will does not affect validity of will If a prescribed person fails to retain a will as required by this Act, his or her failure to retain the will does not affect the validity of the will. Part 7 Miscellaneous 54 Persons who are entitled to see will (1) In this section, will includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will. (2) A person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect the will and make copies of the will at their own expense: (a) a person named or referred to in the will, whether as a beneficiary or otherwise; (b) the surviving spouse or issue of the deceased person; (c) a parent or a guardian of the deceased person; (d) a person who would be entitled to a share of the deceased person's estate if the deceased person had died intestate; (e) a creditor or other person having a claim at law or in equity against the deceased person's estate; (f) a beneficiary of a prior will of the deceased person; (g) a parent or guardian of a minor referred to in the will or a minor who would be entitled to a share of the deceased person's estate if the deceased person had died intestate. (3) A person who has possession or control of a will of a deceased person must produce it in a court if required to do so. 55 Personal representative may make maintenance distribution within 30 days (1) If a surviving person who is wholly or substantially dependent on a deceased person has an entitlement under the deceased person's will that does not become absolute until 30 days after his or her

Part 7 Miscellaneous Wills Act 2000 27 death, the deceased person's personal representative may make a distribution for the maintenance, support or education of the surviving person before the 30 day period expires. (2) A personal representative who makes a distribution under subsection (1) is not liable if the distribution was made in good faith. (3) The personal representative may make a distribution under subsection (1) even if he or she knows at the time of making the distribution of a pending application under the Family Provision Act 1970 in respect of the estate of the deceased person. (4) Subject to subsection (5), a sum distributed under subsection (1) is to be deducted from the share of the estate to which the person receiving the distribution becomes entitled. (5) If a person to whom a distribution is made under subsection (1) does not survive the deceased person for 30 days, the distribution is to be taken to be an administration expense. 56 Regulations (1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters that are: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting the generality of subsection (1), the Regulations may: (a) prescribe the manner of giving public notice of a person who is prescribed under section 49(1) to be a person with whom wills may be deposited; (b) prescribe the procedures for the transfer to a prescribed person of wills deposited under Part 6 with the Public Trustee or other person who is no longer a prescribed person; (c) prescribe the fee payable under section 50 in respect of a will or testator or a class of will or testator and may authorise a prescribed person to waive the payment of a fee payable in respect of a will or class of will; (d) provide for the keeping and maintenance of an index of wills deposited with a prescribed person and the making available of the index of wills for a member of the public to search; and

Part 7 Miscellaneous Wills Act 2000 28 (e) provide for the destruction of or other dealing with a will that remains deposited with a prescribed person after the death of the testator whose will it is. 57 Repeal The Acts specified in the Schedule are repealed. 58 Savings (1) In this section, repealed Act means the Wills Act 1938 in force before the commencement of this Act. (2) Subject to the appearance of a contrary intention, a reference in an Act, an instrument of a legal or administrative character or any other document to the repealed Act or a provision of the repealed Act is, on the commencement of this Act, to be taken to be and to have effect as if it were a reference to this Act or the provision of this Act (if any) that re-enacts, whether with or without modification, the provision of the repealed Act.

Schedule Repealed Acts Wills Act 2000 29 Schedule Repealed Acts section 57 ACTS OF THE NORTHERN TERRITORY Wills Ordinance 1938 Act No. 4, 1938 Wills Ordinance 1969 Act No. 16, 1969 Wills Amendment Act 1984 Act No. 43, 1984 Wills Amendment Act 1985 Act No. 16, 1985 Wills Amendment Act 1987 Act No. 13, 1987 IMPERIAL ACT An Act for the amendment of the 7 Will 4 and 1Vic., c.26 laws with respect to wills

Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Wills Act 2000 30 Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Section 48C(2) ANNEX UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL Article 1

A will shall be valid as regards form, irrespective particularly of the place where it 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 complying with the provisions set out in Articles 2 to 5 hereafter.
The invalidity of the will as an international will shall not affect its formal validity as a will of another kind. Article 2 This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument. Article 3
The will shall be made in writing.
It need not be written by the testator himself.
It may be written in any language, by hand or by any other means. Article 4
The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
The testator need not inform the witnesses, or the authorized person, of the contents of the will. Article 5
In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Wills Act 2000 31 3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator. Article 6

The signatures shall be placed at the end of the will.
If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered. Article 7
The date of the will shall be the date of its signature by the authorized person.
This date shall be noted at the end of the will by the authorized person. Article 8 In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9. Article 9 The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with. Article 10 The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form. CERTIFICATE (Convention of October 26, 1973)
I, ............................ (name, address and capacity), a person authorized to act in connection with international wills
Certify that on ......................... (date) at ......................... (place)
(testator) ............................. (name, address, date and place of birth) in my presence and that of the witnesses
(a)............................................ (name, address, date and place of birth) (b)............................................ (name, address, date and place of birth)

Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Wills Act 2000 32 has declared that the attached document is his will and that he knows the contents thereof. 5. I furthermore certify that: 6. (a) in my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed. *(2) following a declaration of the testator stating that he was unable to sign his will for the following reason ................................................................................................................. – I have mentioned this declaration on the will

– the signature has been affixed by ........................... (name, address)

(b) the witnesses and I have signed the will;
*(c) each page of the will has been signed by ................................. and numbered;
(d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;
(e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;
*(f) the testator has requested me to include the following statement concerning the safekeeping of his will: .................................................................................................................
PLACE
DATE
SIGNATURE and, if necessary, SEAL Article 11 The authorized person shall keep a copy of the certificate and deliver another to the testator. Article 12 In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of a will under this Law. Article 13 The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

Schedule 2 Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Wills Act 2000 33 Article 14 The international will shall be subject to the ordinary rules of revocation of wills. Article 15 In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

To be completed if appropriate

ENDNOTES Wills Act 2000 34 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Wills Act 2000 (Act No. 59, 2000) Assent date 14 November 2000 Commenced 1 March 2001 (Gaz G48, 6 December 2000, p 3) Statute Law Revision Act (No. 2) 2001 (Act No. 62, 2001) Assent date 11 December 2001 Commenced 11 December 2001 Statute Law Revision Act 2005 (Act No. 44, 2005) Assent date 14 December 2005 Commenced 1 March 2001 (s 2(1)) Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007) Assent date 17 May 2007 Commenced s 10: 1 July 2007 (Gaz G26, 27 June 2007, p 3); rem: 17 May 2007 Wills Amendment (International Wills) Act 2013 (Act No. 42, 2013) Assent date 19 December 2013 Commenced 10 March 2015 (Gaz G6, 11 February 2015, p 6) Interpretation Amendment Act 2021 (Act No. 28, 2021) Assent date 15 December 2021 Commenced 1 January 2022 (s 2) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 3, 5, 20, 27, 48D, 51, 55 and 58.

ENDNOTES Wills Act 2000 35 4 LIST OF AMENDMENTS s 3 amd No. 42, 2013, s 4 s 5 amd No. 62, 2001, s 14 s 15 amd No. 28, 2021, s 20 s 40 amd No. 44, 2005, s 33 s 48 ins No. 42, 2013, s 5 pt 5A hdg ins No. 42, 2013, s 5 ss 48B – 48F ins No. 42, 2013, s 5 s 50 amd No. 7, 2007, s 16 sch 1 hdg amd No. 42, 2013, s 6 sch 2 ins No. 42, 2013, s 7

1 Wills Act 2000

The statute organises a small set of recurring legal concepts and rules that govern how testamentary intentions are validated, executed, corrected and given legal effect.

Formal execution and attestation (s 8): The Act keeps the orthodox trio , writing, signature and two witnesses , but is precise about timing and presence. Two witnesses must be present at the same time when the testator makes or acknowledges the signature (s 8(1)(b)), but those two witnesses need not attest in one another’s presence (s 8(2)). The testator’s signature must be made with the intention of executing the will (s 8(3)(a)). The statute removes certain technicalities: no attestation clause is required (s 8(4)), and signature need not be at the foot (s 8(3)(b)).

Dispensation and informal wills (s 10): The Court can admit documents that do not comply with formal requirements provided it is satisfied the deceased intended the document or part of it to be testamentary (s 10(2)). The Court may consider any evidence, including statements made by the deceased, in making that assessment (s 10(3)). This is a remedial concept: formal non-compliance is not fatal where intention is clear.

Witness capacity and interested witnesses (ss 9, 11, 12): Witnesses need not know the contents to validly attest (s 9), but a witness must be able to see and attest the testator’s signature (s 11). Where a beneficiary is a witness, the disposition to that person is void to the extent it benefits the witness or those claiming under them, subject to specific exceptions (s 12).

Minors and capacity (ss 6-7; Part 3 Div 1 & 2): The Act defines the property a testator may dispose of (s 6). In default, minors under 18 cannot make a valid will (s 7(1)), with statutory exceptions for minors who are married or making a will in contemplation of marriage (s 7(2)). The Court may authorise wills or alterations for minors (s 18). For adults lacking testamentary capacity, there is a regulated Court procedure (ss 19-26) including leave to apply and evidentiary lists (s 20(2)).

Rectification and construction (ss 27, 28-44): The Court may correct clerical errors or give effect to testator instructions where the will does not reflect them (s 27). The Act provides detailed rules about the operation of dispositions , survivorship periods (s 34), treatment of contingent interests and income (s 33), constructions of general dispositions and land (ss 35-37), and the handling of gifts to unincorporated associations (s 42).

Foreign and international wills (Part 5; Part 5A): The Act adopts a connecting‑factor approach for formal validity (s 46) and gives force of law to the Annex of the 1973 Convention (s 48C), identifying who may act as an authorised person in Australia (s 48D) and confirming that international wills fall within the Act’s scope (s 48F).

Deposit, safekeeping and accessibility (Part 6; s 54): The Act creates a system for deposit with a prescribed person (s 49), sets envelope and recording requirements (s 50(2)), and provides rules on withdrawal, delivery to executors, and that failure to retain a will does not affect its validity (s 53). It sets out who is entitled to inspect a will after death (s 54).

Regulatory and procedural scaffolding (ss 24, 25, 56): Court-authorised wills must be signed by the Registrar and sealed (s 24); retained wills are treated as deposited (s 25); and the Administrator may make regulations about fees, indexes, transfer procedures and destruction of wills (s 56(2)).

These concepts create a framework balancing formal certainty with judicial flexibility, court oversight for vulnerable testators, and statutory clarity on key construction points. The Act embeds several procedural gatekeeping mechanisms , Court leave, Registrar certification, prescribed person retention and statutory witness rules , which convert the policy choices set out in the Act into enforceable steps and administrative burdens.

The Wills Act 2000 allocates rights, obligations and decision-making across identifiable actors. Key affected groups:

Testators: Individuals making wills must comply with the formal requirements in Part 2 to ensure validity (s 8). Minors and persons lacking testamentary capacity face special regimes: minors under 18 are generally precluded from making valid wills unless married, in contemplation of marriage (s 7), or authorised by the Supreme Court under s 18. Adults lacking capacity require a court-authorised process to have a statutory will made, altered or revoked on their behalf (Part 3 Div 2, ss 19-26). Testators who anticipate international assets or residence need to consider the Convention provisions (Part 5A, ss 48B-48F).

Witnesses and potential beneficiaries: Witnesses must be able to see and attest the signature (s 11). A witness who is also a beneficiary will, in most cases, lose the gift to the extent it benefits them or their claimants unless exceptions apply (s 12). This affects lawyers, family members and executors who might be asked to witness.

Personal representatives and executors: Executors and administrators interact with deposit, inspection and administration rules (Part 6; s 54). Personal representatives are given limited safe harbour to make maintenance distributions within 30 days for dependants (s 55), and they may be relieved of liability where distributions are made in good faith (s 55(2)). They must be aware of time limits for rectification applications (s 27(2)) and the consequences of distribution before any rectification application is resolved (s 27(5)).

The Supreme Court and Registrar: The Court is a central decision-maker under the Act. It may dispense with formalities (s 10), authorise wills for minors and persons lacking capacity (ss 18, 19), rectify wills (s 27), and give directions where depositors and prescribed persons have doubts (s 51(6)). The Registrar has a specified role as an attesting witness to Court-authorised wills (s 18(4)(b)) and must sign Court-authorised instruments, which are to be sealed with the Court seal (s 24).

Prescribed persons and the Public Trustee: The Regulations may prescribe persons with whom wills can be deposited (s 49). Where no person is prescribed, the Public Trustee is the default prescribed person (s 49(3)). Prescribed persons must retain deposited wills, disseminate them to authorised persons upon death and keep copies (ss 50-52). The Regulations can set fees and permit fee waivers (s 50(3)-(4); s 56(2)(c)) and may require the keeping of an index (s 56(2)(d)).

Legal practitioners and authorised persons for international wills: An Australian legal practitioner and a public notary are authorised to act under the Convention in Australia (s 48D). This affects the capacity of lawyers and notaries to prepare international wills and perform the certificate functions required by the Annex (Schedule 2).

Potential claimants and family members: The Act’s survivorship rules (s 34), the treatment of dispositions to issue (ss 38-40), and the interplay with Family Provision litigation (the Act requires evidence of the likelihood of such claims under s 20(2)(h)) mean relatives and potential claimants are affected by how wills are drafted, authorised and rectified.

Regulatory designers and administrators: The Administrator may make regulations about who is a prescribed person, fees, indexes and destruction of wills (s 56). The contents of those regulations affect administrative cost, compliance burdens on depositors and the practice of legal advisers.

In short: private individuals making and benefitting from wills, the judiciary and registrar, prescribed custodians (including the Public Trustee), legal practitioners (particularly for international wills), and possible successors or claimants are directly affected. The Act’s gatekeeping provisions concentrate decision rights in the Supreme Court and the Registrar for cases involving incapacity and rectification, while routine execution remains a largely private act subject to statutory formalities.

The Act creates discrete statutory duties for those involved in making, witnessing, depositing and administering wills, and confers corresponding rights on beneficiaries and interested persons.

Duties of testators and signatories:

Execute the will in writing and sign the will (or direct another to sign) with the intention of execution (s 8(1)(a); s 8(3)(a)). The testator must acknowledge the signature in the presence of two or more witnesses present at the same time (s 8(1)(b)), and two of those witnesses must attest and sign in the presence of the testator (s 8(1)(c)).
Where a power of appointment is to be exercised by will, the will must comply with s 8 (s 8(5)).

Duties of witnesses:

Be present at the same time when the testator signs or acknowledges the signature and attest and sign the will in the testator’s presence (s 8(1)(b)-(c)); they need not know the will’s content (s 9).
Be able to see and attest that the testator has signed; a person unable to do so cannot act as a witness (s 11).

Duties of the Registrar and Court for authorised wills:

The Registrar must act as one of the attesting witnesses where the Court authorises a will for a minor and must ensure such a will is executed as required by the Act (s 18(4)(b)).
Court-authorised wills are to be signed by the Registrar and sealed (s 24).
Prescribed persons must retain and treat Court-authorised wills as deposited under Part 6 (s 25(1)).

Duties of prescribed persons:

Accept deposit of a sealed will containing specified details (s 50(1)-(2)).
Charge prescribed fees unless exemptions apply (s 50(3)-(4)).
Deliver the will to the testator, authorised recipient, executor or entitled person following the statutory procedures (s 51(1)-(4)).
Make and retain accurate copies of any will given out (s 51(5)).
Examine wills where necessary to comply with Part 6 (s 52).
Note that failure to retain a will as required does not affect its validity (s 53).

Rights of beneficiaries and interested persons:

A person named or referred to in a will, immediate family (spouse, issue), certain guardians and creditors have a statutory right to inspect a will in the possession of another (s 54(2)).
Beneficiaries benefit from construction rules such as the 30-day survivorship default (s 34), and mechanisms addressing failed dispositions and inclusion of leasehold land, which affect distribution (ss 30, 36, 37, 41).
Where a witness benefits under the will, the disposition to the witness is void to the extent of the benefit unless conditions for exception are met (s 12).

Court’s powers and procedural duties:

The Court can dispense with formalities (s 10), authorise wills for minors and persons lacking capacity (ss 18-19), grant leave to apply (s 20), hear applications without strict adherence to the rules of evidence (s 23(1)(c)), rectify wills (s 27), and give directions to prescribed persons in delivery disputes (s 51(6)).
The Court must be satisfied on a list of matters before making orders for persons without testamentary capacity, including that the proposed testamentary instrument is one the person would have made if capable (s 21).

Regulatory duties:

The Administrator may make regulations prescribing fees, indexes, procedures for transfer of deposited wills, conditions for fee waivers and destruction of unclaimed wills (s 56). Those regulations are consequential and materially affect costs and record-keeping.

Rights of personal representatives:

A personal representative may make a maintenance distribution during the 30-day period where the beneficiary’s entitlement is not absolute, and is not liable if distribution was made in good faith (s 55(1)-(2)). The distribution is deductible from the recipient’s ultimate share subject to s 55(4).

These duties shift burdens to private actors (testators, witnesses) to comply with formalities, to prescribed persons to safekeep and furnish wills, and to the Court and Registrar to supervise non-standard wills. The regime creates statutory rights to inspection and limited provisional distributions, while concentrating gatekeeping on the Court for cases of incapacity and rectification.

The Wills Act 2000 is primarily regulatory and civil in nature; it does not create express criminal penalties within its text. Enforcement and consequences operate through civil invalidity, court orders and procedural controls.

Invalidity and exclusionary mechanisms:

Failure to comply with the formal execution requirements results in an invalid will unless the Court dispenses under s 10. The primary remedy for non-compliance is civil: the document will not be treated as a valid will unless the Court is satisfied it was intended to be testamentary (s 10(2)-(3)).
Witnesses who are beneficiaries risk the disposition being void to that extent (s 12(1)). The Act provides civil exceptions to avoid automatic invalidation where two witnesses are independent, where all persons who would benefit from avoidance consent in writing, or where the Court is satisfied the testator knew and approved and the disposition was freely given (s 12(2)(a)-(c)).

Court enforcement powers:

The Supreme Court exercises substantive and remedial powers: dispensing with formalities (s 10), authorising wills for minors and persons lacking capacity (ss 18-19), rectifying wills (s 27), and making directions about delivery or retention of wills (s 51(6)). These are orders enforceable by the Court’s ordinary powers (the Act does not spell out separate enforcement machinery; the Court’s general jurisdiction applies).

Administrative enforcement and obligations:

Prescribed persons have statutory duties to retain and deliver wills, keep copies, and follow procedures (ss 50-52). A prescribed person’s failure to retain a will does not impact the will’s validity (s 53), but such failure may expose the prescribed person to administrative consequences under regulations or contractual or statutory duties outside the Act. The Regulations may specify operational obligations, which can be enforced administratively (s 56).

Civil protection for executors:

Personal representatives making maintenance distributions under s 55 have limited protection: they are not liable if distributions are made in good faith (s 55(2)). The Act further offers a safe harbour where distributions are made at least six months after death and the personal representative was unaware of pending rectification or family provision applications (s 27(5)(b)).

No express criminal sanctions:

The Act does not create offences such as forgery or fraud; those matters remain within general criminal law and civil remedies. The Act’s approach to errors or irregularities is remedial , powers to admit documents (s 10) and to rectify (s 27) , rather than punitive.

Regulatory levers via the Regulations:

The Regulations (s 56) can prescribe fees, waivers, and procedural requirements; failure to comply with any statutory obligations under the Regulations could engage administrative or civil sanctions in other statutes or under contract, but the Wills Act itself does not set out monetary fines or criminal penalties.

Practical enforcement consequences are therefore contractual, administrative and civil: invalidity of instruments, Court-ordered rectification or authorisation, orders to deliver or retain documents, and judicial remedies in contested estates. Practitioners should approach the Act as creating civil-format controls and judicial gatekeeping, not criminal enforcement.

The Act cross-references and integrates with a number of other legal regimes and statutes, creating interaction points practitioners must monitor.

Family law and divorce: The Act treats the effect of divorce or annulment on wills in s 15. It defines “testator’s spouse” for this purpose and specifies that divorce or annulment revokes gifts or appointments to the former spouse unless a contrary intention appears in the will (s 15(3)-(4)). The statute relies on recognition under the Commonwealth Family Law Act 1975 to determine when foreign divorces are effective for this purpose (s 15(2)(c)), directly linking territorial succession rules with Commonwealth family law recognition.

Family Provision Act 1970 (NT): Applications under the Family Provision Act are a foreseeable interaction. The court-authorisation regime for persons lacking capacity requires evidence relating to the likelihood of an application under the Family Provision Act (s 20(2)(h)). Rectification provisions protect personal representatives who make distributions where a Family Provision application is pending if certain conditions are met (s 27(5)(b)). These links show the Act anticipates litigation under the Family Provision regime and requires the Court and applicants to take such claims into account.

Public Trustee and trustee statutes: The Act uses the Public Trustee concept as defined in the Public Trustee Act 1979 and makes the Public Trustee the default prescribed person for deposit if no other person is prescribed by regulation (s 49). It also contemplates trustee companies within the Companies (Trustees and Personal Representatives) Act 1981 as authorised recipients for deposited wills (s 51(4)). Those statutory relationships determine custodial and administrative practice.

Legal Profession Act and notaries: For international wills under the Convention, an "Australian legal practitioner" per the Legal Profession Act 2006 and public notaries are authorised persons to act (s 48D). The Wills Act therefore overlays convention obligations on top of legal practitioner regulation.

Convention and international law: The Annex to the Convention providing a Uniform Law on the Form of an International Will 1973 is given force in the Territory by s 48C and Schedule 2. That creates an international standard for certain wills, interacting with domestic formalities and cross-border estate planning.

Probate and civil procedure: The Act places some procedural duties on the Supreme Court and the Registrar (ss 10, 24, 27). Court discretion under s 10 to dispense with formalities is exercised within the Court’s civil jurisdiction. The rules governing execution and signature feed into probate practice and the Registrar’s functions for sealing and retention. The Act’s provision that the Registrar sign court-authorised wills (s 24) and retain Court orders under s 27 interacts with the Court’s probate and registry procedures.

Statutory saving and repeal: The Act repeals earlier Northern Territory wills legislation (s 57 and Schedule). It contains savings clauses to treat references to the repealed Wills Act 1938 as references to this Act (s 58), which affects interpretation of legacy instruments and statutory references in other instruments.

Regulations and administrative law: The Regulations under s 56 create practical obligations (fees, indexes, procedures) that will be enforced administratively and may interact with freedom-of-information, public records and administrative law processes.

General criminal and fraud law: While the Wills Act itself provides civil remedies, issues such as forgery, fraudulent execution, or dishonest dealings of prescribed persons will engage general criminal law and tort remedies outside this statute.

In sum, the Wills Act operates within a network of family law, trustee law, court procedure, practitioner regulation and international instruments. Practitioners must coordinate advice across these regimes: a testamentary disposition can be affected by divorce under the Family Law Act, by a Family Provision application, by deposit and custody rules tied to the Public Trustee, and by international formalities under the Convention.

The Act has been amended several times since enactment. The Endnotes and List of Amendments in the reprint record the following principal changes and instrument-level dates; when citing amendments below, the source is the Act’s Endnotes.

Enactment and commencement:

Wills Act 2000 (Act No. 59, 2000): assent 14 November 2000; the Act commenced 1 March 2001 (Gazette references in Endnotes).

Subsequent amendments of note:

Statute Law Revision Act (No. 2) 2001 (Act No. 62, 2001): amended s 5 and other formal references; assent 11 December 2001; commenced 11 December 2001 (Endnotes).
Statute Law Revision Act 2005 (Act No. 44, 2005): various formal amendments, with commencement recorded as 1 March 2001 for some provisions per the reprint (Endnotes).
Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007): amends s 50 among other provisions to reflect changes in legal profession regulation; s 10 of that amending Act commenced 1 July 2007 (Endnotes).
Wills Amendment (International Wills) Act 2013 (Act No. 42, 2013): introduced Part 5A (international wills), ss 48-48F and inserted Schedule 2 (the Annex to the Convention); assent 19 December 2013; the international wills amendments commenced 10 March 2015 (Endnotes & List of Amendments: s 48 ins No. 42, 2013, s 5; pt 5A hdg ins No. 42, 2013).
Interpretation Amendment Act 2021 (Act No. 28, 2021): amended s 15 among other provisions; assent 15 December 2021; commenced 1 January 2022 (Endnotes).
Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018): general formal amendments of a technical nature are recorded as affecting ss 1, 3, 5, 20, 27, 48D, 51, 55 and 58 (Endnotes, General Amendments note).

List of specific section amendments recorded in the reprint (non-exhaustive but reflecting key points):

s 3 amended by No. 42, 2013, s 4 (definitions related to Part 5A).
s 5 amended by No. 62, 2001, s 14 (transitional provisions).
s 15 amended by No. 28, 2021, s 20 (effect of divorce etc.).
s 40 amended by No. 44, 2005, s 33 (construction of dispositions to issue).
s 48 inserted by No. 42, 2013, s 5 (reference in Part 5).
Part 5A (ss 48B-48F) inserted by No. 42, 2013, s 5.
s 50 amended by No. 7, 2007, s 16 (deposit procedural changes).
Schedule 2 (the Annex) inserted by No. 42, 2013, s 7.

Consequential and technical amendments: The Endnotes note that general amendments of a formal nature were effected by the Interpretation Legislation Amendment Act 2018 to multiple sections. The reprint lists the Acts repealed by the Wills Act 2000 in its Schedule; the Wills Ordinance 1938 and later amendment Acts were repealed (s 57, Schedule).

Practical implication of the amendment history:

The 2013 insertion of the international wills provisions is a major policy addition, enabling the Convention regime to be used in the Territory (s 48C; Schedule 2).
The 2007 and subsequent technical amendments adjust procedural and administrative interfaces (for example fees, deposit rules and the role of legal practitioners).
The Interpretation Amendment Act 2021 updated cross-references and related provisions reflecting later interpretive practice and is especially relevant for the treatment of divorce and its effects on wills (s 15).

Always consult the current consolidated text and any regulations made under s 56 for up-to-date procedural requirements (fees, prescribed persons, indexes and waivers), since the Act delegates operational detail to regulation.

The reprinted Act provided contains no judicial decisions, case citations or litigation history. The source text does not name or summarise any cases. Therefore no litigation history is recorded in this reprint.

Practitioners seeking case law under these provisions should search NT Supreme Court and appellate databases for decisions addressing:

s 10 dispensations of formalities and the evidentiary approach courts adopt to determine testamentary intention when formalities are absent;
s 12 disputes about interested witnesses and the application of the exceptions in s 12(2);
s 18 and s 19 applications where courts have authorised wills for minors and persons without testamentary capacity, for procedurally instructive rulings on the adequacy of evidence required under s 20;
s 27 rectification applications, including interpretation of “does not carry out the intentions” and extensions of the six-month limit in s 27(3)-(4);
Part 5 and s 46 determinations about the application of foreign formalities and the choice of “internal law”; and
the international wills regime under Part 5A and the Annex, especially in cross-border fact patterns.

Because the text supplied contains no cases, this section records the absence of litigation entries in the source. Users should obtain reported and unreported NT Supreme Court decisions, and decisions from other Australian jurisdictions that interpret like provisions, for persuasive guidance on how the Court may exercise its discretions under ss 10, 18, 19 and 27, and how s 12’s exceptions are applied in practice.

The Act contains multiple provisions that create practical pitfalls and compliance traps if overlooked. Below are concrete risks and operational points, with section references.

Formalities and timing subtleties (s 8):
- Two witnesses must be present at the same time when the testator signs or acknowledges the signature (s 8(1)(b)). However, those two need not attest in each other’s presence (s 8(2)). Executing parties often misinterpret “presence” requirements , the Act’s formulation can allow sequential attestation in practice, but practitioners should ensure both witnesses are concurrently present at the signature or acknowledgement moment to avoid potential challenges.
Witness who is beneficiary (s 12):
- A disposition to a witness is void to the extent of benefit (s 12(1)). This can unintentionally void gifts to family members asked to attest. The Act permits three exceptions (s 12(2)), but establishing a Court waiver under s 12(2)(c) requires judicial proof that the testator knew and approved and the gift was freely given (s 12(2)(c)(i)-(ii)). Avoid using beneficiaries as witnesses unless independence is guaranteed.
Witness capacity limitation (s 11):
- Blind persons who cannot see and attest the signature may not be witnesses. That rules out certain carers or family members and requires alternative witness arrangements.
Court dispensation of formalities (s 10) is discretionary and evidentially demanding:
- s 10 allows a document not complying with formalities to be admitted if the Court is satisfied of testamentary intention (s 10(2)). The Court may consider “statements made by the deceased” (s 10(3)), but evidentiary load can be high and litigation costs significant. Do not rely on s 10 as a substitute for proper execution.
Minors and capacity pathways are constrained (s 7; s 18):
- Minors under 18 cannot generally make valid wills (s 7(1)). The Court can authorise wills for minors (s 18), but the authorised instrument must be executed with the Registrar as one attesting witness and then deposited with a prescribed person (s 18(4)-(5)). This adds procedural complexity and centralises custody with the Registrar/prescribed person.
Court-authorised wills: retention and withdrawal (s 25):
- A will made under Court authorisation must be retained by a prescribed person and may not be withdrawn except by Court order or when the person regains capacity (s 25(1)-(2)). This constrains testator autonomy (for persons without capacity) and may restrict subsequent informal changes.
Rectification time bar (s 27):
- Applications for rectification must be made within six months of the testator’s death (s 27(2)), with the Court having limited extension powers but not after final distribution (s 27(3)-(4)). Executors who distribute too quickly may forego the opportunity for the Court to rectify mistakes; personal representatives have limited protection where distributions are made at least six months after death and they were unaware of pending applications (s 27(5)(b)).
Survivorship default rule (s 34):
- The 30-day survivorship default can defeat immediate gifts to beneficiaries who die within 30 days of the testator unless the will provides a contrary intention (s 34(1)-(2)). General requirements to survive do not count as a contrary intention (s 34(3)). Drafters should expressly handle short survivorship contingencies.
Deposit formalities and fees (s 50):
- Deposited wills must be in sealed envelopes with specific information written on them (s 50(2)). Fees are generally payable (s 50(3)) unless the deposit is under Part 3 or because the lawyer dies/ceases practice, or a waiver is granted (s 50(4)). Regulations determine actual fees and waivers (s 56(2)(c)); failure to follow deposit formalities can delay access or custodian acceptance.
Interplay with family provision litigation (s 20(2)(h)):
- Applications authorising wills for persons lacking capacity must include evidence about the likelihood of family provision applications. Failure to address this can prevent leave or result in orders that do not reflect potential claimants’ interests.
International wills certification (Part 5A; Schedule 2):
- The Convention requires a certificate in a specified form (Schedule 2, Article 10). Practitioners acting as authorised persons (s 48D) must follow those form and safekeeping requirements; failure to attach the certificate does not necessarily defeat formal validity under Article 13, but it removes the evidentiary conclusive effect of the certificate (Schedule 2, Article 12-13).
Deposit transfer when prescribed persons change (s 56(2)(b)):
- Regulations govern transfer of deposited wills if the prescribed person changes; practitioners should track regulations to ensure continuity of custody.
No criminal penalties in the Act:
- The absence of express penalties in the Act means recourse for fraud or improper dealing with wills lies in general criminal law and civil remedies, not in the Wills Act’s text. Practitioners must therefore coordinate actions with other legal remedies where suspected malfeasance occurs.

These “gotchas” are concrete points where drafting, procedural steps or administrative oversight can change the legal consequences materially. Good practice: follow s 8 to the letter when executing, avoid beneficiary-witnesses, use the deposit system correctly, and for vulnerable testators use the Court‑authorisation pathway under Part 3 with full evidentiary preparation.

Practical, source-grounded steps for compliance, aimed at practitioners advising clients, trustees and executors.

Executing a valid will (Part 2, s 8):
- Ensure the will is in writing (s 8(1)(a)).
- The testator should sign the will or direct another to sign in their presence (s 8(1)(a)). Make a clear record that the signature was made with the intention of executing the will (s 8(3)(a)); contemporaneous notes or an attestation clause can help, although not required (s 8(4)).
- Have two or more witnesses present at the same time when the testator signs or acknowledges the signature (s 8(1)(b)). Confirm at least two of them attest and sign in the testator’s presence (s 8(1)(c)). Where practicable, ensure both witnesses sign each other’s presence to avoid technical objections, although s 8(2) does not require it.
- Do not use as witnesses persons who cannot see and attest the signature (s 11) or persons who are beneficiaries under the will unless the consequences under s 12 are acceptable and steps are taken to rely on an exception.
Avoiding interested-witness complications (s 12):
- Prefer independent witnesses not named in the will. If an interested witness cannot be avoided, obtain written consents from all persons who would benefit from the avoidance (s 12(2)(b)) or evidence the testator knew and approved and the gift was freely made to rely on s 12(2)(c).
Use the deposit system (Part 6, ss 49-52):
- Where appropriate, deposit the executed will with a prescribed person (s 50(1)). Ensure the will is in a sealed envelope with the testator’s name and address, executor details, the date of the will and the depositor’s name (s 50(2)).
- Pay the prescribed fee unless an exemption applies (s 50(3)-(4)). Check Regulations under s 56 for fees, waivers, and the identity of the prescribed person.
- Ensure the prescribed person keeps an accurate copy of any will given out (s 51(5)).
Dealing with minors and persons lacking capacity (Part 3):
- Minors: If the client is under 18, remember a will is invalid unless married, in contemplation of marriage, or authorised by the Court under s 18. For Court authorisation, prepare the evidence the Court requires under s 18(2) showing understanding, testamentary intention and reasonableness.
- Persons lacking capacity: Use the authorised process in ss 19-26. Before applying for an order, obtain leave (s 20(1)). Prepare the detailed documentary package required by s 20(2): draft will, estate estimate, evidence of the proposed testator’s wishes, likelihood of regaining capacity, family provision risk, and details of potential beneficiaries and claimants. The Court will require proof that the proposed instrument is or might be one the person would have made (s 21(b)). Orders authorising such a will must be followed exactly in execution and retention: the Registrar signs and the will is sealed with the Court seal (s 24), and the will must be retained by a prescribed person (s 25(1)).
Rectification procedures (s 27):
- If a will appears not to give effect to the testator’s intentions because of clerical error or failure to reflect instructions, apply for rectification within six months after death (s 27(2)). If necessary, apply to extend time before final distribution is made (s 27(3)-(4)). Executors should be cautious about distributing assets early; they are protected in certain circumstances (s 27(5)) but risk complicating rectification claims.
Draft for construction rules (Part 4):
- Address the 30-day survivorship rule explicitly in the will if a shorter or longer survivorship period is desired (s 34).
- If dispositions are to issue, clarify whether distribution is per stirpes or per capita and whether s 38 default rules are intended or a contrary intention exists (ss 38-40).
- If leaving land, be explicit about whether leasehold or freehold is intended; general dispositions include leasehold land by default unless a contrary intention appears (s 36).
- When devising real property, include words of limitation if a life estate or specific estate is intended; absent words of limitation the estate passes wholly (s 37).
International wills (Part 5A; Schedule 2):
- If an international will is desired, act as an authorised person (s 48D) only if qualified; prepare the required certificate in the Annex form and ensure attestation and safekeeping meet Article requirements (Schedule 2, Articles 3-12). Be aware that the Annex has the force of law in the Territory (s 48C(1)) and that the Act’s provisions otherwise apply to international wills (s 48F).
Handling disputes and non‑compliant documents (s 10):
- If a client has an informal document believed to be testamentary, consider an application under s 10. Assemble corroborating evidence of testamentary intention, including contemporaneous statements and execution context, because the Court will consider such evidence (s 10(3)).
Records and procedural compliance under Regulations (s 56):
- Check regulations for prescribed persons, fee schedules, index requirements and procedures for transfer of deposited wills (s 56(2)(a)-(d)). Maintain copies and records for audit and to satisfy procedural direction requests from prescribed persons.
Advising executors and beneficiaries on inspection and distributions (s 54; s 55):
- Ensure those entitled to inspect the will understand their statutory rights (s 54). For maintenance distributions, advise personal representatives of the limited power to advance funds within 30 days (s 55), the need to act in good faith, and the deduction rule (s 55(4)).

Following these steps aligns practice with the statute’s mandatory procedures and reduces litigation risk. When in doubt on capacity or unusual testamentary instruments, plan for Court involvement under Part 3 and prepare the comprehensive evidentiary bundle required by s 20(2). Keep abreast of regulations under s 56 that impose operational obligations on prescribed persons and may affect fees and custodial arrangements.

Wills Act 2000

Plain English Summary

Deep Dive

What it does

Current sections

Wills Act 2000

Source text: opening excerpt

1 Wills Act 2000

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply