Wills Act 2008

The Act defines a will broadly to include a codicil and any other testamentary disposition (section 4). A person may dispose by will of property to which they are entitled at death, including property acquired after execution and property that comes to the personal representative by virtue of the office (section 6). A trustee’s own property cannot be disposed of by will (section 6(4)). The minimum age for making a will is 18, but a minor may make a will in contemplation of marriage (which is void if the marriage does not take place) and a married minor may make, alter or revoke a will (section 7). Formal execution requires writing, the testator’s signature (or signature by another at the testator’s direction in the testator’s presence), the signature made or acknowledged in the presence of two or more witnesses present at the same time, and at least two witnesses attesting and signing in the testator’s presence (section 8). The signature need not be at the foot of the will, and an attestation clause is not essential. A witness need not know the document is a will (section 9). The court may dispense with these formalities under section 10 if satisfied beyond reasonable doubt that the deceased person intended the document to constitute their will, an alteration or a revocation. In that section, “document” takes the broader meaning from the Acts Interpretation Act 1931, encompassing any material on which writing appears (section 10(4)). A person who cannot see and attest that a testator has signed may not act as a witness (section 11). An interested witness (a beneficiary who attests) causes the disposition to be void unless saved by the presence of at least two other disinterested witnesses or by consent of all persons who would benefit from the avoidance (section 12). The court may validate such a disposition on application (sections 13-14). Revocation can occur by a later will, a writing executed like a will, physical destruction with intention, or by writing on the will such that the court is satisfied the testator intended to revoke (section 15). Marriage or registration of a deed of relationship under the Relationships Act 2003 revokes a will, except for dispositions to the spouse or registered partner, appointments of them as executor or guardian, and wills made in contemplation of that marriage or registration (section 16). Divorce or revocation of a deed of relationship revokes beneficial dispositions and appointments of the spouse, but not trusts for children (section 17). Alterations must be executed in the same manner as a will (section 18). A revoked will may be revived by re-execution or by a later will showing intention to revive (section 19). Statutory wills made under court or tribunal authorisation operate as if the person were capable and had executed a valid will (section 39). Rectification under section 42 is available for clerical error or failure to give effect to the testator’s instructions, but only within three months of death unless extended by the court.

The Act directly affects testators who die in Tasmania or whose wills are governed by Tasmanian law, but its reach extends to a wider circle. Minors cannot make a valid will unless married or in contemplation of marriage, and they may apply to the Supreme Court for an order authorising a will under section 20. Persons who lack testamentary capacity are affected by Part 3, which allows the Supreme Court (Division 2) and the Tasmanian Civil and Administrative Tribunal (Division 3) to make statutory wills on their behalf. Anyone may apply for such an order, but the applicant must satisfy the court or tribunal that they are an appropriate person and that adequate steps have been taken to allow representation of all persons with a legitimate interest (sections 24(a) and 33(d)). Personal representatives have duties under section 63 to allow inspection and copying of the will (including revoked wills) by a broad class: any person named or referred to in the will, the surviving spouse, parents, guardians, issue, anyone entitled on intestacy, creditors, beneficiaries of prior wills, and parents or guardians of minors. Personal representatives also have the power under section 64 to make maintenance distributions within 30 days of death to a surviving person who is wholly or substantially dependent on the testator, even if they know of a pending Testator’s Family Maintenance application. Beneficiaries under a will are affected by the survivorship rule in section 49: they must survive the testator for 30 days or the disposition takes effect as if they died before the testator. This rule does not apply if a contrary intention appears, but a general requirement to survive does not constitute a contrary intention (section 49(3)). The anti-lapse rule in section 55 applies only when the original beneficiary is issue of the testator and does not survive for 30 days; the issue’s issue take in place of the original beneficiary. Spouses and registered partners under the Relationships Act 2003 are affected by sections 16 and 17: marriage or registration of a deed of relationship revokes a will unless it is made in contemplation of that event; divorce or revocation of the deed revokes dispositions and appointments to the spouse but not trusts for children. Creditors and other claimants against the estate have a right under section 63 to inspect the will. Unincorporated associations that are not charities are affected by section 57: a disposition to them takes effect as a legacy in augmentation of their general funds, and the receipt of the treasurer or like officer is an absolute discharge. Foreign-resident testators and those with assets or connections outside Tasmania are affected by Part 5 (foreign wills) and Part 5A (international wills).

The Act imposes several duties and confers corresponding rights. A personal representative or any person having possession or control of a will of a deceased person must allow inspection and copying by the persons listed in section 63(1). This duty extends to revoked wills and copies, and includes a duty to produce the will in court if required (section 63(2)). The right to inspect does not arise while the testator is alive (section 63(3)). A personal representative may make maintenance distributions within 30 days of death to a dependent person, even with knowledge of a pending Testator’s Family Maintenance claim, and is not liable for distributions made in good faith (section 64(1)-(3)). Any sum distributed is deducted from the person’s eventual share; if the person does not survive 30 days, the distribution is treated as an administration expense (section 64(4)). The court has the right to dispense with formal execution requirements under section 10, but only if satisfied beyond reasonable doubt of the testator’s intention. The court also has the power to rectify a will under section 42 on application within three months of death, but cannot affect distributions made before the application (section 42(3)-(4)). A person who would benefit from a disposition but for the interested witness rule (section 12) may apply to the court for an order validating the disposition if the testator knew and approved of it and there was no fraud, duress or undue influence (sections 13-14). The applicant cannot rely on an evidentiary presumption to prove knowledge and approval (section 14(3)). A minor may apply to the court for an order authorising the making, alteration or revocation of a will (section 20). Any person may apply for an order to make a statutory will for a person lacking testamentary capacity, but must first obtain leave of the court (section 23) and furnish extensive evidence about the proposed testator’s capacity, estate, wishes, and the interests of potential beneficiaries and intestate successors (section 23(2)). The tribunal has a similar power but cannot make a statutory will if the person already has a non-statutory will (section 31) and must be satisfied that the person has not made a will or purported will (section 30(4)). The tribunal may alter or revoke a statutory will it has made (sections 36-37). A person who acquires or regains capacity after a statutory will has been made may revoke it in the ordinary manner (section 37(2)).

The Wills Act 2008 does not prescribe criminal penalties or fines for non-compliance. Its enforcement mechanisms operate through the legal effect of non-compliance and through court orders. A will that does not meet the execution requirements of section 8 is not valid unless the court dispenses with those requirements under section 10. A disposition to an interested witness is void unless saved by section 12(2) or validated by court order under sections 13 and 14. An alteration not executed in accordance with Division 2 or Division 2 of Part 3 is not valid except where the original words are no longer apparent (section 18(1)). A revocation that does not comply with section 15 is ineffective. A will made by a minor is not valid unless one of the exceptions in section 7(2) applies. A statutory will made by the tribunal is invalid if the person had a prior non-statutory will (section 31). A will made under a court authorisation for a minor must be witnessed by the Registrar and retained by the Registrar; failure to comply with conditions in the order renders the will not valid (section 20(4)(c)). A statutory will made under court order must be signed by the Registrar and sealed with the seal of the court (section 27). The tribunal’s statutory will must be signed by the President or Deputy President in the presence of two witnesses (section 35). Failure to follow these execution requirements would likely render the will invalid. A personal representative who makes a distribution to a beneficiary is not liable if the distribution is made under section 64 (maintenance distributions) or after three months from death without knowledge of a rectification or Testator’s Family Maintenance application (section 42(4)). However, a personal representative who fails to allow inspection of a will as required by section 63 could face an order from the court compelling production; the Act does not specify a penalty, but the court’s inherent jurisdiction and the Rules of Court (section 65) provide enforcement avenues. The court may extend time for applications under sections 13 and 42, but only if final distribution of the estate has not occurred. This creates a practical risk for personal representatives who distribute without due regard to pending applications: once distribution is complete, the court cannot affect it (sections 13(3), 42(3)). The Act does not create a right of appeal, but court orders are subject to usual appeal processes under the Supreme Court Civil Procedure Act 1932.

The Act interacts with several other Tasmanian and Commonwealth statutes. Section 4 defines “spouse” to include a person in a significant relationship within the meaning of the Relationships Act 2003, and sections 16 and 17 tie revocation and exception rules to marriage and to the registration or revocation of a deed of relationship under Part 2 of that Act. The definition of “law practice” adopts that in the Legal Profession Act 2007. The Public Trustee is defined by reference to the Public Trustee Act 1930. The term “trustee company” in sections 28 and 38 refers to the Trustee Companies Act 1953. Section 65 empowers the judges of the Supreme Court to make Rules of Court under the Supreme Court Civil Procedure Act 1932 for applications under the Act. The Acts Interpretation Act 1931 is referenced in section 10(4) to give a broader meaning to “document” for the dispensation power. The Tasmanian Civil and Administrative Tribunal is given jurisdiction in Part 3 Division 3 under the Tasmanian Civil and Administrative Tribunal Act 2020 (as amended in 2021). The Guardianship and Administration Act 1995 is mentioned in relation to statutory wills made by the former Guardianship and Administration Board (sections 36, 37). The Testator’s Family Maintenance Act 1912 is explicitly referenced in several provisions: an applicant for leave to make a statutory will must disclose evidence indicating the likelihood of an application under that Act (sections 23(1)(i) and 32(1)(h)); a personal representative may distribute for maintenance even knowing of a pending TFM application (section 64(3)); and rectification cannot affect distributions after 3 months, with a specific reference to TFM applications (section 42(4)(b)(i)). Part 5 (sections 59A-62) deals with the formal validity of wills under foreign law, adopting the common law choice-of-law rules: a will is properly executed if it conforms to the internal law of the place of execution, the testator’s domicile or habitual residence at execution or death, or the testator’s nationality at execution or death. It also provides for wills executed on vessels or aircraft, and for immovable property. Section 59A provides that Part 5 does not limit Part 5A, which incorporates the Convention Providing a Uniform Law on the Form of an International Will 1973. Schedule 5 sets out the Annex to that Convention, which includes detailed formal requirements and a certificate to be completed by an authorised person (defined in section 62C as an Australian legal practitioner or public notary of any Australian jurisdiction). The Act also partly replaces and partly retains the Wills Act 1992: the earlier Act continues to apply to wills made before commencement except as otherwise provided (section 5(2)), and many sections apply to all wills if the testator dies on or after commencement (section 5(3)).

The Act has been amended twice since its enactment. Originally passed as the Wills Act 2008 (No. 58 of 2008), it commenced on a day to be proclaimed. The first amendment was by the Justice and Related Legislation (Miscellaneous Amendments) Act 2012 (No. 37 of 2012), which inserted Part 5A (International Wills) comprising sections 62A to 62E, and inserted Schedule 5 (the Annex to the Convention). This amendment took effect on 11 March 2015. The second and more substantial amendment was by the Tasmanian Civil and Administrative Tribunal (Miscellaneous Amendments) Act 2021 (No. 18 of 2021), which came into force on 5 November 2021. That Act amended numerous provisions to replace references to the Guardianship and Administration Board with references to the Tasmanian Civil and Administrative Tribunal. Specifically, section 355 amended the definition of “Tribunal” in section 4; section 356 amended the heading of Part 3; sections 357-366 amended various sections within Part 3 Division 3 (the Tribunal’s power to make statutory wills), including substituting new sections 30, 31, 32, 33, 35, 36, 37 and 38 to reflect the Tribunal’s jurisdiction and procedure. Section 34 was repealed by section 362 of the amending Act. The amendment also inserted the note references to the Tasmanian Civil and Administrative Tribunal Act 2020 in the relevant provisions. The Act itself repealed the Wills Act 1992 (No. 29 of 1992), rescinded the Wills Regulations 1997 (No. 124 of 1997), and revoked the Proclamation under the Wills Act 1992 (No. 52 of 1995) via Schedules 2, 3 and 4. Consequential amendments to the Testator’s Family Maintenance Act 1912 were made by Schedule 1.

The text of the Wills Act 2008 as provided does not contain any case citations, judicial interpretations, or references to litigation history. The Act itself is a legislative instrument that establishes the legal framework, and any litigation that has arisen under it would be recorded in court judgments rather than in the Act’s provisions. Common areas of litigation might include applications for dispensation under section 10, rectification under section 42, validation of dispositions to interested witnesses under sections 13 and 14, and applications for statutory wills for persons lacking capacity under sections 22 and 30. The high standard of proof for dispensation and rectification (beyond reasonable doubt) is likely to generate contested applications. The survivorship rule in section 49 and the anti-lapse rule in section 55 may also give rise to disputes about whether a contrary intention appears. Because the Act is relatively recent (enacted in 2008, with significant amendments in 2021), the body of case law may still be developing. Earlier case law under the repealed Wills Act 1992 may be relevant for provisions that are substantially re-enacted, but section 5 carefully delineates which provisions apply retrospectively and which do not, so the transition between the two Acts could itself be a source of litigation. Researchers should consult the Supreme Court of Tasmania’s judgments and the Tasmanian Civil and Administrative Tribunal’s decisions for authoritative interpretations of the Act’s provisions.

Several provisions in the Act contain traps for the unwary practitioner or personal representative. The dispensation power in section 10(1) requires proof beyond reasonable doubt of the deceased person’s testamentary intention, a very high standard that may defeat many informal documents. The definition of “document” for that section is broadened by reference to the Acts Interpretation Act 1931, but the court must still be satisfied to the criminal standard. The survivorship rule in section 49 requires a beneficiary to survive the testator for 30 days; if they die within that period, the disposition takes effect as if they died first. Crucially, a general requirement or condition that the beneficiary survive the testator does not indicate a contrary intention (section 49(3)), so a will that simply says “if my son survives me” will not override the 30-day rule. Only an express contrary intention such as “whether or not he survives me for 30 days” will avoid the rule. The anti-lapse rule for issue in section 55 similarly imposes a 30-day survival requirement, and again a general survival condition is not enough to show contrary intention (section 55(4)). Section 16 provides that marriage or registration of a deed of relationship revokes a will, unless the will is made in contemplation of that marriage or registration. The contemplation need not be expressed in the will (section 16(3)), but the will must actually be made in contemplation of the specific marriage or relationship, not in contemplation of marriage generally (section 16(4) allows general contemplation only if expressed). A will that is not expressed to be in contemplation of marriage generally will be revoked by a subsequent marriage even if the testator intended otherwise. Section 17(1)(c) revokes a grant of a power of appointment exercisable by or in favour of the spouse upon divorce, but subsection (2) preserves a power exercisable exclusively in favour of children of both spouses. This distinction is easy to overlook when drafting. The interested witness rule in section 12 voids a beneficial disposition to a witness unless at least two other witnesses are not beneficiaries or their spouses, or unless all persons who would benefit from the avoidance consent in writing and have capacity. The court may validate the disposition under sections 13 and 14, but the applicant cannot rely on any evidentiary presumption to prove the testator knew and approved the contents (section 14(3)), making it significantly harder to succeed. The rectification power under section 42 is limited to clerical error or failure to give effect to the testator’s instructions; it does not allow the court to rewrite a will simply because it is ambiguous or does not reflect what the testator would have wanted. The three-month limitation period is strict, and the court can only extend if no final distribution has occurred (section 42(3)). A personal representative who distributes after three months without knowledge of a pending application is protected from liability (section 42(4)(b)). For statutory wills, the tribunal cannot make one if the person already has a non-statutory will (section 31), and even if they have no will, the tribunal must be satisfied that the proposed will is reasonably likely to be one the person would have made themselves (section 33(f)). The tribunal’s lack of power to alter or revoke a non-statutory will means that if a person with capacity later loses it, only the Supreme Court can make a statutory will (Division 2) and the tribunal must in appropriate cases direct the matter to the court (section 30(7)). Additionally, section 20(4) requires that for a minor’s will made under court authorisation, one of the attesting witnesses must be the Registrar of the Supreme Court, and the will must be retained by the Registrar. Failure to comply with any condition in the order renders the will not valid (section 20(4)(c)). Finally, section 57 dispositions to unincorporated associations that are not charities take effect in augmentation of general funds, and the association does not need to have members who can divide assets among themselves. But a practitioner drafting such a gift must be careful: if the association is a charity, this section does not apply, and different rules may apply.

Practitioners should follow a structured approach when advising clients or administering estates under the Act. For drafting a will, ensure strict compliance with section 8: the will must be in writing, signed by the testator (or by another at the testator’s direction in the testator’s presence), the signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and at least two witnesses must attest and sign in the testator’s presence. The signature may be anywhere, but it must be made with the intention of executing the will. An attestation clause is not required but is strongly recommended to prove due execution. Avoid using a witness who is a beneficiary or the spouse of a beneficiary; if that cannot be avoided, ensure at least two other witnesses are disinterested, or obtain the consent in writing of all persons who would benefit from the avoidance (section 12(2)). If a will is already executed with an interested witness, apply to the court under sections 13 and 14 within six months of grant of probate, but be aware of the limitation on evidentiary presumptions. Advise clients about the effect of marriage and divorce: a will should be reviewed and often re-executed after marriage or before divorce. If a testator intends to marry, the will should state it is made in contemplation of that marriage (sections 16(3)-(4)). After divorce, consider revoking and remaking the will to avoid the automatic revocation of spouse dispositions and appointments. For clients with property in multiple jurisdictions, consider executing an international will under Part 5A, using a qualified Australian legal practitioner or notary to complete the certificate in Schedule 5. For administration of estates, the personal representative must allow inspection of the will to the persons listed in section 63 upon request, and should keep a record of who has inspected. The 30-day survival rule in section 49 must be applied before distributing to beneficiaries; if a beneficiary dies within 30 days, the estate passes as if that beneficiary predeceased the testator. For maintenance distributions under section 64, the personal representative may make payments to a dependent person within 30 days even if a Testator’s Family Maintenance application is pending, but should document the good faith basis for the distribution and later deduct it from the person’s share. For estates involving unincorporated associations, pay the legacy to the treasurer or like officer and obtain a receipt (section 57(3)-(4)). If a will appears informally executed or ambiguous, consider a dispensation application under section 10 (beyond reasonable doubt standard) or a rectification application under section 42 (within 3 months of death). For clients who lack testamentary capacity, seek advice on applying to the Supreme Court (Division 2) or the Tribunal (Division 3) for a statutory will; gather the extensive evidence required by sections 23 and 32, including medical evidence of incapacity, details of the estate, wishes of the person (if ascertainable), and information about potential beneficiaries and intestate successors. The applicant must obtain leave of the court for a Supreme Court application (section 23(1)). For minors who wish to make a will, they may do so if married or in contemplation of marriage; otherwise, apply to the Supreme Court under section 20, which requires the minor to understand the nature and effect of the will and for the will to reflect their intentions. The executed will must be witnessed by the Registrar of the Court. Finally, keep abreast of any Rules of Court made under section 65 and any regulations made under section 66 (though regulations cannot cover court procedure). Compliance with the Act’s formal requirements and awareness of the default rules (survivorship, anti-lapse, revocation by marriage) will minimise the risk of litigation and ensure the testator’s intentions are carried out.