The Wills Act 2008 restates and updates Tasmanian wills law, replacing the 1992 Act, and governs how wills are made, altered, interpreted and revoked. It preserves formal execution rules but gives courts and the Tasmanian Civil and Administrative Tribunal power to validate, authorise or rectify wills, and to make statutory wills for minors or people lacking capacity.
That creates clearer legal pathways but adds evidentiary and administrative requirements affecting testators, personal representatives, applicants, courts, tribunals and legal practitioners—and likely increases demand for professional assistance.
This Act reforms the law governing the making, alteration, rectification, construction and revocation of wills in Tasmania, and creates statutory mechanisms for wills made on behalf of minors and persons lacking testamentary capacity. The statutory statement of purpose is in s 3: the Act addresses formalities for making, altering, rectifying and revoking wills (and dispensation of those formalities in appropriate cases), the making of wills by minors and others lacking testamentary capacity, and the effect of marriage and divorce on wills (s 3). Mechanically, the Act:
Prescribes formal execution requirements for ordinary wills (s 8) , writing, testator signature (or signature by another at the testator’s direction), testator acknowledgement in presence of two or more witnesses, and attestation and signature by at least two witnesses (s 8(1)(a)-(c); s 8(2)-(3)). It clarifies that witnesses need not know the contents of the document (s 9).
Enables courts to dispense with formal execution requirements where the Court is satisfied beyond reasonable doubt that a document embodies the deceased’s testamentary intentions (s 10).
Sets out who may and may not act as witnesses (s 11) and the consequences when a beneficiary attests a will (s 12-14).
Maintains the traditional grounds and methods of revocation (s 15) and specifies effects of marriage, registration of relationships, divorce and revocation of relationships on wills (ss 16-17).
Provides for alteration and revival of wills, including when alterations must themselves meet formalities (ss 18-19).
Establishes Court powers to authorise the making, alteration or revocation of wills on behalf of minors (s 20) and on behalf of persons lacking testamentary capacity (Division 2, ss 21-28). It requires leave before applications under the incapacity pathway and lists the information the applicant must supply (ss 23-24).
Current sections
Direct links to the current provisions in Wills Act 2008.
The purpose of this Act is to reform the law relating to the making, alteration, rectification, construction and revocation of wills and to make particular provision for –
(a) the formalities required for the making, alteration, rectification and revocation of wills and the dispensation of those requirements in appropriate cases; and
(b) the making of wills by minors and other persons lacking testamentary capacity; and
(a) any gift, devise or bequest of property under a will; and
(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, except in section 10(4) , means any paper or other material on which there is writing;
grant of probate includes grant of administration with the will annexed;
internal law, used in relation to a country or place, means the law that would apply in a case where no question of the law in force in any other country or place arose;
Rules means Rules of Court made and in force under section 65 ;
spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;
statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity;
will includes a codicil and any other testamentary disposition.
5
Application of Act
5 Application of Act
(1) This Act, except as provided in this section applies only to wills made on or after the commencement of this Act.
(2) The Wills Act 1992 , as in force immediately before the commencement of this Act, continues to apply to wills made before that commencement, in so far as those wills do not come under the operation of subsection (4) , (5) , (6) or (7) or under the operation of the sections specified in subsections (3) and (9) .
(3) Sections 9 , 10 , 42 , 43 , 44 , 45 , 47 , 48 , 50 , 51 , 52 , 54 , 57 , 58 , 59 , 60 , 61 , 62 and 63 apply to wills whether or not they are executed before, on or after the commencement of this Act, where the testator dies on or after that commencement.
(4) Sections 7 , 15 , 18 and 19 apply to the alteration, revocation or renewal of a will on or after the commencement of this Act even if the will was made before that commencement.
(5) Section 11 applies to a document that alters or revokes a will and that is made on or after the commencement of this Act even if the will was made before that commencement.
(6) Section 16 applies to a will made before the commencement of this Act in relation to a marriage solemnised, or the registration under Part 2 of theRelationships Act 2003 of a deed of relationship, on or after that commencement.
(7) Section 17 applies to a will made before the commencement of this Act, if the granting of the decree absolute of the dissolution of the marriage or the annulment of the marriage has taken place, or the revocation under Part 2 of theRelationships Act 2003 of a deed of relationships registered under that Part has occurred, on or after the commencement of this Act.
(8) The Court may make an order under section 20 or 22 with respect to the alteration or revocation of a will or part of a will even if the will was made before the commencement of this Act.
(9) Despite subsection (1) , section 55 applies to a will made before the commencement of this Act if the testator has died on or after the death of the issue and the deaths occurred on or after that commencement.
Part 2
Capacity and Formal Requirements
Part 2 Capacity and Formal Requirements
Division 1
Capacity
Division 1 Capacity
6
Property that may be disposed of by will
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) It does not matter if the entitlement of the person or of the personal representative did not exist at the date of the making of 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 was trustee at the time of the death of the person.
(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place; and
(b) a minor who is married may make, alter or revoke a will; and
(c) a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.
Division 2
Execution of a will
Division 2 Execution of a will
8
How a will should be executed
8 How a will 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; and
(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 (but not necessarily in the presence of each other).
(2) The signature of the testator must be made with the intention of executing the will, but it is not essential that the signature be made at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) 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.
(5) If 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, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
(6) If a person who attests the execution of a will is, at the time of the execution of the will or at any time afterwards, incompetent to be admitted as a witness to prove the execution of the will, the will is not on that account invalid.
(7) A person who is an executor of a will is not on that account incompetent to be admitted as a witness to prove the execution of that will or its validity or invalidity.
9
Witnesses need not know contents of what they are signing
9 Witnesses need not know contents of what they are signing
A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that it was a will.
10
When Court may dispense with requirements for execution of wills
10 When Court may dispense with requirements for execution of wills
(1) A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will or the revocation of such a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his or her will, an alteration of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this Act or otherwise) of statements made by the deceased person.
(3) This section applies to a document whether it came into existence within or outside Tasmania.
A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
12
Can interested witness benefit from disposition under a will?
12 Can interested witness benefit from disposition under a will?
(1) Except as provided by subsection (2) , where a beneficial disposition is made by a will to a person who attests the execution of the will, the disposition is void so far only as concerns that person or any person claiming under that person.
(2) A beneficial disposition made by a will is not made void by subsection (1) if –
(a) more than 2 persons have attested the execution of the will and at least 2 of them are not persons to whom any such disposition is made or the spouses of any such persons; or
(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 and they all have capacity at law to do so.
(3) Notwithstanding anything contained in this section, a person who attests the execution of a will is a competent witness to prove the execution of the will or its validity or invalidity.
13
Application to Court to validate dispositions to interested witnesses
13 Application to Court to validate dispositions to interested witnesses
(1) Where, but for the operation of section 12 , a person would be entitled to a beneficial disposition, that person may, subject to and in accordance with the Rules, apply to the Court for an order that that person is to be entitled under the will as if that section did not apply in relation to him or her.
(2) An application under this section may be made before the grant of probate of the will but, subject to subsection (3) , is not to be made more than 6 months after that date.
(3) The Court may extend the time for the making of an application under this section, whether or not the time appointed under subsection (2) has expired, but no application may be made after the final distribution of the estate and no order under this section affects the distribution of any part of the estate made before the making of the application.
14
Declaration by Court as to non-application of section 12
14 Declaration by Court as to non-application of section 12
(1) Where the Court is satisfied that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of fraud, duress or the exercise of undue influence by any person, the Court may, by order, declare that section 12 does not apply in relation to the applicant in respect of the will in respect of which the application was made.
(2) On a copy of an order under subsection (1) being served on the personal representative of the testator, the will of the testator has effect as if section 12 does not apply in relation to the applicant in respect of the will of the testator.
(3) In an application under section 13 , the applicant is not entitled to rely on any evidentiary presumption to prove or assist in proving that the testator knew and approved the contents of the will.
Division 3
Revocation, alteration and revival of wills
Division 3 Revocation, alteration and revival of wills
15
How a will may be revoked
15 How a will may be revoked
(1) The whole or any part of a will may be revoked only –
(c) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or
(d) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying it with the intention of the testator of revoking it; or
(e) by the testator, or some person in his or her presence and by his or her 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.
(2) A will is not revoked by a presumption of intention on the ground of an alteration in circumstances.
16
Effect of marriage or registration of deed of relationship on a will
16 Effect of marriage or registration of deed of relationship on a will
(2) However, the following are not revoked by the marriage of the testator or the registration of a deed of relationship under Part 2 of theRelationships Act 2003 to which the testator is a party:
(a) a disposition to the person to whom the testator is married or with whom the testator is in a registered relationship at the time of his or her death;
(b) any appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married or with whom the testator is in a registered relationship at the time of his or her death;
(c) a will made in exercise of a power of appointment, if the property so appointed would not pass to the executor of the will or the administrator of the deceased person's estate if the power of the appointment was not exercised.
(3) A will made in contemplation of a marriage or the registration of a deed of relationship under Part 2 of theRelationships Act 2003 , whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated or the registration of the deed of relationship contemplated.
(4) A will that is expressed to be made in contemplation of marriage generally or the registration of a deed of relationship under Part 2 of theRelationships Act 2003 is not revoked by the solemnisation of a marriage of the testator or the registration of a deed of relationship to which the testator is a party.
(5) In this section –
registered relationship means a personal relationship within the meaning of the Relationships Act 2003 registered under that Act.
17
Effect of divorce or revocation of deed of relationship on a will
17 Effect of divorce or revocation of deed of relationship on a will
(1) The ending of a testator's marriage or the revocation under Part 2 of theRelationships Act 2003 of a deed of relationship registered under that Part to which the testator is a party revokes –
(a) any beneficial disposition made by a testator to the testator's spouse in a will in existence at the time the marriage ends or the deed of relationship is revoked; and
(b) any appointment of the testator's spouse as an executor, trustee, advisory trustee or guardian made by the will; and
(c) any grant made by the will of a power of appointment exercisable by, or in favour of, the testator's spouse.
(2) However, the ending of a testator's marriage or the revocation under Part 2 of theRelationships Act 2003 of a deed of relationship registered under that Part to which the testator is a party does not revoke –
(a) the appointment of the testator's spouse as trustee of property left by the will on trust for beneficiaries that include the spouse's children; or
(b) the grant of a power of appointment exercisable by the testator's spouse exclusively in favour of the children of whom both the testator and spouse are parents.
(3) With respect to the revocation of any disposition, appointment or grant by this section, the will is to take effect as if the testator's spouse had died before the testator.
(4) Subsection (1) does not apply if a contrary intention appears in the will or can otherwise be established.
(5) For the purposes of this section, a marriage ends –
(a) when a decree of dissolution of the marriage becomes absolute under the Family Law Act 1975 of the Commonwealth; or
(b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; 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.
(6) In this section –
testator's spouse means the person who –
(a) was the testator's spouse immediately before the marriage ended and includes a party to a purported or void marriage; or
(b) was a party to a deed of relationship registered under Part 2 of theRelationships Act 2003 to which the testator was also a party immediately before a deed of relationship was revoked under that Part, and includes a party to a purported or void deed or relationship under that Part.
18
How a will may be altered
18 How a will may be altered
(1) An obliteration, interlineation or other alteration made in any will after the execution of the will is not valid, except so far as the words or effect of the will before the alteration are not apparent, unless the alteration is executed in accordance with Division 2 of this Part or Division 2 of Part 3 .
(2) A will, with an alteration as part of the will, is taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of, or opposite to, a memorandum referring to the alteration and written at the end or on some other part of the will.
19
How a revoked will may be revived
19 How a revoked will may be revived
(1) A will or 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 revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked.
(3) Subsection (2) does not apply if a contrary intention appears in the reviving will.
(4) A will that has been revoked and later revived, either wholly or partly, is taken to have been executed on the date on which the will is revived.
Part 3
Wills Made, Altered, Revoked or Rectified under Authorisation of Court or Made under Authorisation of Tribunal
Part 3 Wills Made, Altered, Revoked or Rectified under Authorisation of Court or Made under Authorisation of Tribunal
(1) The Court may, on application by or on behalf of a minor, make an order authorising the minor to make or alter a will in specific terms approved by the Court, or to revoke the whole or any part of a will of the minor.
(2) An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that –
(a) the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of the property disposed of by it; and
(b) the proposed will, alteration or revocation accurately reflects the intentions of the minor; and
(c) it is reasonable in all the circumstances that the order should be made.
(4) A will or instrument making or altering, or revoking the whole or any part of, a will made pursuant to an order under this section –
(a) must be executed as required by law and one of the attesting witnesses must be the Registrar; and
(b) must be retained by the Registrar; and
(c) is not valid if it is made in breach of any condition subject to which an authorisation under this section is granted.
(5) A will made by a deceased minor according to the law relating to wills of minors of the place where the deceased was resident at the time of execution is a valid will of the deceased.
(6) The Court may make an order under this section even if the will was made before the commencement of this Act.
21
Interpretation
21 Interpretation
In this Division –
proposed testator means the person on whose behalf authorisation for the making of a will or of any alteration or revocation of a will is sought under this Division.
22
Court may make certain orders
22 Court may make certain orders
(1) The Court may, on application by any person make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of the whole or any part of a will, on behalf of a person who lacks testamentary capacity.
(2) The Court may authorise the making or alteration of a will that deals with the whole of the property of a person, the making or alteration of a will that deals with part only of the property of a person or the alteration of part only of any will.
(3) The Court is not to make an order under this Division unless the person on whose behalf approval for the making of a will is sought is alive when the order is made.
(4) The Court may make an order under this Division in respect of a minor who lacks testamentary capacity by reason of disability or injury.
(5) The Court may make an order under this Division even if the will was made before the commencement of this Act.
23
Leave of Court required to make application
23 Leave of Court required to make application
(1) The leave of the Court must be obtained before an application for an order under this Division is made.
(2) In applying for leave to make an application for an order under this Division, the applicant for leave must, subject to the Court's discretion, furnish to the Court –
(a) a written statement of the general nature of the application and the reasons for making it; and
(b) satisfactory evidence of the lack of testamentary capacity of the proposed testator; and
(c) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the proposed testator; and
(d) an initial draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval; and
(e) any evidence, so far as it is available, relating to the wishes of the proposed testator; and
(f) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; and
(g) any will, or any copy of any will, in the possession of the applicant, or details known to the applicant of any will, of the proposed testator; and
(h) any evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the proposed testator if the proposed testator were to die intestate; and
(i) any evidence of any facts so far as they are known to the applicant, or can be discovered with reasonable diligence, indicating the likelihood of an application being made under the Testator's Family Maintenance Act 1912 ; and
(j) any evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the proposed testator might reasonably be expected to make provision under a will; and
(k) a reference to any disposition for a body, whether charitable or not, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and
(l) any other facts that the applicant considers to be relevant to the application.
24
Court must be satisfied as to certain matters
24 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) the applicant is an appropriate person to make an application; and
(b) there is reason to believe that the proposed testator is or may be incapable of making a will; and
(c) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a disposition or benefit from the estate of the proposed testator; and
(d) 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; and
(e) the proposed will, alteration or revocation is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity.
25
Hearing of application for leave
25 Hearing of application for leave
(1) On hearing an application for leave, the Court may –
(a) give leave and allow the application for leave to proceed as an application for an order under section 22 ; and
(b) if satisfied of the matters set out in section 24 , make the order.
(2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court's authorisation is sought.
26
Hearing of application for order
26 Hearing of application for order
In considering an application for an order 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 under section 23 ; and
(b) may inform itself of any other matter in any manner it sees fit; and
(c) is not bound by the rules of evidence.
27
Execution of a will
27 Execution of a will
A will, or instrument altering or revoking a will, made pursuant to an order under this Division, must be signed by the Registrar and must be sealed with the seal of the Court.
28
Will or instrument to be forwarded to certain persons
28 Will or instrument to be forwarded to certain persons
On the execution of a statutory will, or an instrument altering or revoking a will, made pursuant to an order under this Division the Registrar must forward –
(a) the will to the executor named in the will or, if the executor is not the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953 , to a law practice nominated by the executor; and
(b) the instrument to the executor named in the will which the instrument is altering or revoking and any executor named in the instrument or, if the executor is not the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953 , to a law practice nominated by the executor; and
(c) a copy of the will or instrument to the proposed testator.
29
Interpretation
29 Interpretation
In this Division –
proposed testator means the person on whose behalf an order authorising the making of a will is sought under this Division.
(2) For the purposes of this Division, a person does not lack testamentary capacity by reason only of the fact that he or she is a minor, but does lack testamentary capacity if he or she is a minor and lacks testamentary capacity by reason of disability or injury.
(a) a written statement of the general nature of the application and the reasons for making it, including the grounds on which it is alleged that the person for whom the will is proposed to be made lacks testamentary capacity; and
(b) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the proposed testator; and
(c) a proposal nominating the persons who should benefit under the proposed will and the extent to which each person nominated should share in the estate; and
(d) any evidence, so far as it is available, relating to the wishes of the proposed testator; and
(e) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; and
(f) a statutory declaration stating that it is the applicant's belief that the proposed testator has not made a will or any purported will and setting out the reasons for that belief; and
(g) any evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the proposed testator if the proposed testator were to die intestate; and
(h) any evidence of any facts indicating the likelihood, so far as they are known to the applicant, or can be discovered with reasonable diligence, of an application being made under the Testator's Family Maintenance Act 1912 ; and
(i) any evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the proposed testator might reasonably be expected to make provision under a will; and
(j) a reference to any disposition for a body, whether charitable or not, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and
(k) any other facts that the applicant considers to be relevant to the application.
(a) if there is an applicant, that the applicant is an appropriate person to make the application; and
(b) that there is reason to believe that the proposed testator is incapable of making a will; and
(c) following such enquiries as are reasonable, that the proposed testator has not made a will or any purported will; and
(d) that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a disposition or benefit from the estate of the proposed testator; and
(e) that it is appropriate to make an order for the execution of a will for a proposed testator; and
(f) that the proposed will, alteration of revocation is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity.
(b) attested and subscribed by those witnesses in the presence of the President or Deputy President.
36
Alteration of statutory will made by Tribunal
36 Alteration of statutory will made by Tribunal
[Section 36 Amended by No. 18 of 2021, s. 364, Applied:05 Nov 2021] The Tribunal may alter a statutory will made by the Tribunal, or by the Guardianship and Administration Board formerly established under the Guardianship and Administration Act 1995 , on application by a person in accordance with this Division as if references to the procedure for making a statutory will were read as references to the procedure for alteration of a statutory will.
(2) A person who acquires or regains capacity to make a will after a statutory will has been made on his or her behalf may revoke the statutory will in the same manner as a will may be revoked under Division 3 of Part 2 .
38
Statutory will made by Tribunal to be forwarded to executor
38 Statutory will made by Tribunal to be forwarded to executor
(a) the will to the executor named in the will or, if the executor is not the Public Trustee or a Trustee Company within the meaning of the Trustee Companies Act 1953 , to a law practice nominated by the executor; and
(b) a copy of the will to the proposed testator.
Division 4
Statutory wills generally
Division 4 Statutory wills generally
39
Effect of statutory will
39 Effect of statutory will
A statutory will has the same effect for all purposes as if –
(a) the person for whom it is made were capable of making a will; and
(b) the statutory will had been executed by him or her in the manner required by Division 2 of Part 2 .
40
Recognition of statutory wills
40 Recognition of statutory wills
A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased.
41
Application of common law and equity to statutory wills
41 Application of common law and equity to statutory wills
The principles and rules of the common law and of equity are, to the extent that they are not inconsistent with this Part, to apply to a valid statutory will in the same way as they apply to a will executed in accordance with Division 2 of Part 2 .
Division 5
Rectification of wills by Court
Division 5 Rectification of wills by Court
42
Court may rectify a will
42 Court may rectify a will
(1) The Court may make an order to rectify a will to carry out the intentions of the testator if the Court is satisfied beyond reasonable doubt that the will does not carry out the testator's intentions because –
(a) a clerical error was made; or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 3 months after the date of the death of the testator.
(3) The Court may extend the period of time for making the application if the Court thinks this is necessary, even if the original period of time has expired, but not if the final distribution of the estate has been made.
(4) A personal representative who makes a distribution to a beneficiary is not liable if –
(a) the distribution is made under section 64 ; or
(b) the distribution is made –
(i) at a time when the personal representative was not aware of any application for rectification or any application having been made under the Testator's Family Maintenance Act 1912 ; and
(ii) at least 3 months after the death of the testator.
(5) The Court may direct that a certified copy of an order made under this section be attached to a will to which it applies and must, if it so directs, retain the will until the copy of the order is attached.
Part 4
Construction of Wills
Part 4 Construction of Wills
43
What interest in property does a will dispose of?
43 What interest in property does a will dispose of?
If –
(a) a testator has made a will disposing of property; and
(b) after the making of the will and 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.
44
When a will takes effect
44 When a will takes effect
(1) A will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator.
(2) This section does not apply if a contrary intention appears in the will.
45
Effect of failure of disposition
45 Effect of failure of disposition
(1) To the extent that any disposition of property in a will, other than 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) This section does not apply if a contrary intention appears in the will.
46
Use of extrinsic evidence to clarify a will
46 Use of extrinsic evidence to clarify a will
(1) In proceedings to construe a will, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in the will renders the will, or any part of the will –
(a) meaningless; or
(b) ambiguous on the face of the will; or
(c) ambiguous in the light of the surrounding circumstances.
(2) Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c) .
(3) Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
47
Effect of change in testator's domicile
47 Effect of change in testator's domicile
The construction of a will is not altered because of any change in the testator's domicile after executing the will.
48
Income on contingent, future or deferred dispositions
48 Income on contingent, future or deferred dispositions
A contingent, future or deferred disposition of property, whether specific or residuary, in a will includes any intermediate income of the property that has not been disposed of by the will.
49
Beneficiaries must survive testator for 30 days
49 Beneficiaries must survive testator for 30 days
(1) If a disposition is made in a will to a person who dies within 30 days after the death of the testator, the will is to take effect as if the person had died immediately before the testator.
(2) This section does not apply if a contrary intention appears in the will.
(3) A general requirement or condition that a beneficiary survive the testator does not indicate a contrary intention for the purpose of this section.
50
What does general disposition of property include?
50 What does general disposition of property include?
A general disposition in a will of all or the residue of the testator's property, or of all or the residue of his or her property of a particular description, includes all the property of the relevant description over which he or she has a general power of appointment exercisable by will and operates as an exercise of the power.
51
What does general disposition of land include?
51 What does general disposition of land include?
A general disposition, in a will, of land or of land in a particular area includes leasehold land whether or not the testator owns freehold land.
52
Effect of devise of real property without words of limitation
52 Effect of devise of real property without words of limitation
(1) A disposition of real property, in a will, to a person without words of limitation is to be construed as passing the whole estate or interest of the testator in that property to that person.
(2) Where –
(a) any real estate is devised to a trustee, without any express limitation of the estate to be taken by the trustee; and
(b) the beneficial interest in that real estate, or in the surplus rents and profits of that real estate, is not given to a person for life, or that beneficial interest is given to a person for life, but the purposes of the trust may continue beyond the life of that person –
that devise is to be construed to vest in that trustee the whole legal estate (whether the fee simple or any other estate) which the testator had power to dispose of by will in that real estate, and not an estate determinable when the purposes of the trust are satisfied.
53
How dispositions to issue operate
53 How dispositions to issue operate
(1) A disposition to a person's issue without limitation as to remoteness must 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) This section does not apply if a contrary intention appears in the will.
54
How requirements to survive with issue are construed
54 How requirements to survive with issue are construed
(1) If there is a disposition to a person in a will that is expressed to fail if there is either –
(a) a want or a 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 –
those words must 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) This section does not apply if a contrary intention appears in the will except where the result would be to cause a failure of the disposition.
55
Dispositions not to fail because issue have died before testator
55 Dispositions not to fail because issue have died before testator
(1) This section applies if –
(a) a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator (in this section referred to as an original beneficiary); and
(b) under the will, the interest of the original beneficiary in the property does not come to an end at or before the original beneficiary's death; and
(c) the disposition is not a disposition of property to the testator's issue, without limitation as to remoteness; and
(d) the original beneficiary does not survive the testator for 30 days.
(2) The issue of the original beneficiary who survive the testator for 30 days take the original beneficiary's share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving.
(a) the original beneficiary did not fulfil a condition imposed on the original beneficiary in the will; or
(b) a contrary intention appears in the will.
(4) A general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for the purposes of subsection (3)(b) .
(5) A disposition of property to issue as joint tenants does not, of itself, show a contrary intention for the purposes of subsection (3)(b) .
56
Construction of dispositions
56 Construction of dispositions
(1) A disposition of the residue of the estate of a testator, or of the whole of the estate of a testator, that refers only to the real estate of the testator, or only to the personal estate of the testator, is to be construed to include both the real and personal estate of the testator.
(2) If any part of a disposition in fractional parts of the whole or of the residue of the estate of a testator fails, the part that fails 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.
57
Legacies to unincorporated associations of persons
57 Legacies to unincorporated associations of persons
(1) A disposition –
(a) to an unincorporated association of persons that is not a charity; or
(b) to or on trust for the aims, objects or purposes of an unincorporated association of persons that is not a charity; or
(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 that is to be taken to be, a disposition in augmentation of the general funds of an unincorporated association must be –
(a) paid in the general fund of the association; or
(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 the personal representative pays money to an association under a disposition, the receipt of the Treasurer or a like officer, if the officer is not so named, of the association is an absolute discharge for that payment.
(4) If the personal representative transfers property to an association under a disposition, the transfer of that 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, if those officers are not so named, is an absolute discharge to the personal representative for the transfer of that property.
(5) Subsections (3) and (4) do not apply if a contrary intention appears in the 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 the testator died cannot be compiled, or that the members of the association have no power to divide assets of the association beneficially among themselves.
58
Can a person, by a will, delegate the power to dispose of property?
58 Can a person, by a will, delegate the power to dispose of property?
A power or a trust to dispose of property, created by a will, 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 would be valid if made by the testator by instrument during his or her lifetime.
59
Effect of referring to valuation in a will
59 Effect of referring to valuation in a will
(1) Except to the extent that a method of valuation is at the relevant time required under a law of Tasmania or any other place, or is provided for in the 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 as at the date of the testator's death made by a competent valuer.
(2) This section does not apply if a contrary intention appears in the will.
(1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place –
(a) where it was executed; or
(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) The following wills are also taken to be properly executed:
(a) a will executed on board a vessel or aircraft, if the will has been executed 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;
(b) a will, so far as it disposes of immovable property, if it has been executed in conformity with the internal law in force in the place where the property is situated;
(c) a will, so far as it revokes a will or a provision of a will that has been executed in accordance with this Act, or that is taken to have been properly executed by this Act, if the later will has been executed in conformity with any law by which the earlier will or provision would be taken to have been validly executed;
(d) a will, so far as it exercises a power of appointment, if the will has been executed in conformity with the law governing the essential validity of the power.
(3) A will to which this section applies, so far as it exercises a power of appointment, is not taken to have been improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the power.
61
Ascertainment of system of internal law
61 Ascertainment of system of internal law
If the internal law in force in a place is to be applied to a will, but there is more than one system of internal law in force in the place that relates to the formal validity of wills, the system to be applied is determined as follows:
(a) if there is a rule in force throughout the place that indicates which system of internal law applies to the will, that rule must be followed;
(b) if there is no rule, the system of internal law is that with which the testator was most closely connected either –
(i) at the time of his or her death, if the matter is to be determined by reference to circumstances prevailing at his or her death; or
(ii) in any other case, at the time of execution of the will.
62
Construction of law applying to wills under foreign law
62 Construction of 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 had to the formal requirements of that law at the time of execution, but account may be taken of a later alteration of the law affecting wills executed at that time, if the alteration enables the will to be treated as properly executed.
(2) If a law in force outside Tasmania is applied to a will, a requirement of that law that special formalities must be observed by testators of a particular description, or that the witnesses to the execution of a will must have certain qualifications, is to be taken to be a formal requirement only, despite any rule of that law to the contrary.
(1) For the purposes of this Part, the following persons are authorised to act in connection with an international will:
(a) an Australian legal practitioner;
(b) a public notary of any Australian jurisdiction.
(2) For the purposes of this Part, 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 referred to in subsection (1) who is acting in Australia; or
(b) any other person who is acting as an authorised person under the law of a state (other than Australia) that is a party to the Convention.
Note
This section gives effect to Articles II and III of the Convention.
(1) Any person having the possession or control of a will (including a revoked will) or a copy of any such will and any part of such a will (including a purported will) of a deceased person must allow any or all of the following persons to inspect and, at their own expense, take copies of it:
(a) any person named or referred to in it, whether as beneficiary or not;
(b) the surviving spouse, any parent or guardian and any issue of the testator;
(c) any person who would be entitled to a share of the estate of the testator if the testator had died intestate;
(d) any creditor or other person having any claim at law or in equity against the estate of the deceased;
(e) any beneficiaries of prior wills of the deceased;
(f) a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
(2) Any person having the possession or control of a will (including a revoked will) or a copy of any such will and any part of such a will (including a purported will), of a deceased person must produce it in Court if required to do so.
(3) Nothing in this section authorises the inspection or production of a will, a revoked will, a copy of any such will or any part of such a will while the testator is alive.
(4) Nothing in this section limits the rights of a person under any other law.
64
Personal representatives may make maintenance distributions within 30 days
64 Personal representatives may make maintenance distributions within 30 days
(1) If a surviving person who is wholly or substantially dependent on the testator has an entitlement under a will that does not become absolute until 30 days after the testator's death, the personal representative may make a distribution for the maintenance, support or education of that person within that 30-day period.
(2) The personal representative is not liable for any such distribution that is made in good faith.
(3) The personal representative may make such a distribution even though the personal representative knew, at the time the distribution was made, of a pending application under the Testator's Family Maintenance Act 1912 .
(4) Any sum distributed is to be deducted from any share of the estate to which the person receiving the distribution becomes entitled, but, if any person to whom any distribution has been made does not survive the testator for 30 days, any such distribution is to be treated as an administration expense.
65
Rules of Court
65 Rules of Court
The judges of the Court or a majority of them, in the exercise of their powers under the Supreme Court Civil Procedure Act 1932 , may make Rules of Court regulating the procedure to be followed in making an application to the Court under, or for the purposes of, this Act.
66
Regulations
66 Regulations
(1) The Governor may make regulations for the purposes of this Act, except for the purpose of regulating the procedure to be followed in making an application to the Court under, or for the purposes of, this Act.
(2) The regulations may be made so as to apply differently according to such factors as are specified in the regulations.
(3) The regulations may authorise any matter to be from time to time determined, applied or regulated by any person or body specified in the regulations.
| ANNEX |
| UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL |
| Article 1 |
| 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 hereinafter. |
| 2. | 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 |
| 1. | The will shall be made in writing. |
| 2. | It need not be written by the testator himself. |
| 3. | It may be written in any language, by hand or by any other means. |
| Article 4 |
| 1. | 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. |
| 2. | The testator need not inform the witnesses, or the authorized person, of the contents of the will. |
| Article 5 |
| 1. | 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. |
| 2. | 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. |
| 3. | The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator. |
| Article 6 |
| 1. | The signatures shall be placed at the end of the will. |
| 2. | 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 |
| 1. | The date of the will shall be the date of its signature by the authorized person. |
| 2. | 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) |
| 1. | I, …………….………………………… (name, address and capacity), a person authorized to act in connection with international wills |
| 2. | Certify that on ……………………… (date) at ……….………………. (place) |
| 3. | (testator) ……………………………… (name, address, date and place of birth) in my presence and that of the witnesses |
| 4. | (a) ……………………………………… (name, address, date and place of birth) |
| | (b) ……………………………………… (name, address, date and place of birth) 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) |
| 7. | (b) the witnesses and I have signed the will; |
| 8. | *(c) each page of the will has been signed by ……………..……. and numbered; |
| 9. | (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; |
| 10. | *(e) the witnesses met the conditions requisite to act as such according to the law under which I am acting; |
| 11. | *(f) the testator has requested me to include the following statement concerning the safekeeping of his will ………………………………………………………. |
| 12. | PLACE |
| 13. | DATE |
| 14. | 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 the instrument as 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. |
| 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 |
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Wills Act 2008 .
2 Commencement
2 Commencement
This Act commences on a day to be proclaimed.
3 Purpose
3 Purpose
The purpose of this Act is to reform the law relating to the making, alteration, rectification, construction and revocation of wills and to make particular provision for –
(a) the formalities required for the making, alteration, rectification and revocation of wills and the dispensation of those requirements in appropriate cases; and
(b) the making of wills by minors and other persons lacking testamentary capacity; and
(c) the effect of marriage and divorce on wills.
4 Interpretation
4 Interpretation
In this Act, unless the contrary intention appears –[Section 4 Amended by No. 18 of 2021, s. 355, Applied:05 Nov 2021]
Court means the Supreme Court of Tasmania;
disposition includes –
(a) any gift, devise or bequest of property under a will; and
(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, except in section 10(4) , means any paper or other material on which there is writing;
grant of probate includes grant of administration with the will annexed;
internal law, used in relation to a country or place, means the law that would apply in a case where no question of the law in force in any other country or place arose;
Gives the Tasmanian Civil and Administrative Tribunal overlapping power to authorise statutory wills for persons who lack testamentary capacity (Part 3, Division 3, ss 29-38), including procedure and execution requirements for Tribunal-made statutory wills (ss 30, 35).
Confers on statutory wills the same legal effect as if executed by the person with capacity (s 39), and provides that statutory wills validly made elsewhere (where the person was resident) are to be treated as valid here (s 40).
Creates a rectification power in the Court to alter a will to carry out the testator’s intentions where clerical error or failure to give effect to instructions is shown beyond reasonable doubt (s 42).
Sets construction rules for wills (Part 4, ss 43-59), including survivorship rules (s 49), substitution to issue (ss 53, 55), treatment of general dispositions, real property, trusts and unincorporated associations (ss 50-57), and rules on valuation references (s 59).
Governs formal validity of foreign wills (Part 5, ss 60-62) and implements the 1973 Convention on the Form of an International Will by adopting the Convention Annex as law and specifying authorised persons and related provisions (Part 5A, ss 62A-62E; Schedule 5).
Prescribes inspection and production rights for persons with an interest in a deceased’s will (s 63), limited rights and protections for personal representatives making maintenance distributions within 30 days after death (s 64), and confers powers to make procedural Rules of Court (s 65) and regulations (s 66).
Mechanically, responsibility for administering the Act is assigned to the Minister for Justice and the Department of Justice until administrative arrangements are made (s 67). The Act also repeals the Wills Act 1992 (Schedule 2) and inserts new Schedules, including the Annex to the International Wills Convention (Schedule 5).
The Act thus changes the instruments lawyers, executors and tribunals use when a will is non-standard (minor, incapacity, foreign or international), establishes procedural entry points (leave, applications, Registrar/Tribunal execution), and sets substantive construction and survivorship rules. The Act confers broad discretionary powers on the Court and Tribunal to authorise, alter, revoke or rectify wills (ss 20, 22, 26, 30, 33, 42), and gives the Court power to dispense with execution formalities where it is satisfied beyond reasonable doubt of testamentary intention (s 10).
Main concepts
This Act frames several core legal concepts and institutional mechanics. Key definitions and structural concepts are in s 4 (interpretation) and are used throughout.
Court and Tribunal: “Court” is defined as the Supreme Court of Tasmania (s 4). The Tasmanian Civil and Administrative Tribunal is given parallel powers under the Act (s 4 definition of “Tribunal” and Part 3 Division 3). The Act therefore creates dual fora for some non-standard will matters: the Supreme Court and the Tribunal, each with particular procedural requirements (see ss 22-28 for Court and ss 29-38 for Tribunal).
Formal execution and dispensation: Part 2 Division 2 (ss 8-11) sets the default formalities (writing; signature or signature by another at direction; acknowledgement in presence of two or more witnesses; at least two witnesses must attest and sign in the presence of the testator). Section 10 creates a judicial dispensation power: the Court may treat a non-compliant document as a will if satisfied beyond reasonable doubt of testamentary intention (s 10(1)), and may have regard to any evidence including statements of the deceased (s 10(2)). Section 10 applies extra-territorially to documents created inside or outside Tasmania (s 10(3)).
Statutory wills: The Act distinguishes ordinary wills and “statutory wills”. A statutory will is a will executed by virtue of a statutory provision on behalf of a person who lacked testamentary capacity at the time of execution (s 4 definition). The Court (Division 2, ss 21-28) and the Tribunal (Division 3, ss 29-38) can authorise statutory wills, alter or revoke them, and impose conditions. Statutory wills have full legal effect (s 39). The Act also recognises statutory wills made according to the law of the place where the person was resident at the time of execution (s 40).
Capacity and minors: The Act keeps the general rule that a minor’s will is invalid (s 7(1)) but allows exceptions: minors may make wills in contemplation of marriage (s 7(2)(a)), and minors who are married or had been married may make, alter or revoke wills (s 7(2)(b)-(c)). The Court may authorise wills by minors under s 20 where the Court is satisfied on specified matters (s 20(3)).
Witness and interested-witness rules: The Act prohibits certain persons from acting as witnesses (s 11: a person unable to see and attest that the testator signed). Section 12 makes a disposition void to the extent it benefits a witness who attests the will, subject to exceptions in s 12(2) and the Court’s power to validate such dispositions on application (ss 13-14).
Rectification and construction: The Court can rectify wills (s 42) where a clerical error or failure to give effect to instructions is established beyond reasonable doubt. Construction rules (Part 4, ss 43-59) include time-of-death operation (s 44), residuary treatment of failed dispositions (s 45), admissibility of extrinsic evidence to resolve meaning or ambiguity (s 46), survivorship rules (s 49) and allocation rules for dispositions to issue (s 53, s 55).
Interaction with foreign and international law: Part 5 provides a general rule of formal validity for foreign wills (s 60) and rules for determining which internal law applies (s 61). Part 5A gives the Annex to the 1973 Convention the force of law in Tasmania (s 62B), prescribes who may act in connection with international wills in Australia (s 62C), and governs witnesses to international wills under the law of this jurisdiction (s 62D).
Administrative and procedural rules: The Act delegates procedural regulation to the judges via Rules of Court (s 65) and to the Governor by regulation, except it excludes regulating Court procedure from s 66(1). Administrative assignment to the Minister for Justice is temporary until an Administrative Arrangements order under s 67 is made.
These concepts interlock: formalities shape the default validity of wills (Part 2), while s 10 and the statutory will pathways (Part 3) allow non-standard documents or incapacitated persons to have wills put in place. Construction and rectification (Part 4) focus on giving effect to testator intention, and Part 5/5A deal with cross-border validity and international wills.
Who it affects
The Act affects a wide range of actors in estate planning, administration and dispute resolution. Naming the primary participants and their statutory roles clarifies who has standing, duties or procedural obligations.
Testators and proposed testators: All persons making wills are affected by the execution formalities in Part 2 (especially s 8). Minors and persons lacking testamentary capacity are specifically affected by Divisions in Part 3: minors may seek Court authorisation to make or alter wills (s 20); persons lacking capacity may have statutory wills made or altered by Court (ss 22-28) or by the Tribunal (ss 29-38).
Beneficiaries and potential beneficiaries: Persons named or referred to in a will, surviving spouses (including de facto/registered relationships under s 4 definition of “spouse”), parents, guardians and issue are affected by inspection rights (s 63) and survivorship/substitution rules (ss 49, 53, 55). The Act permits creditors and anyone with a claim against the estate to inspect a will (s 63(1)(d)).
Executors and personal representatives: Executors must observe the formalities when executing or administering wills. Special duties include receiving statutory wills forwarded by the Registrar or Tribunal (ss 28, 38) and confronting rectification applications (s 42(4)). Personal representatives have a permissive power to make maintenance distributions within 30 days (s 64(1)) and have specified protections from liability if distributions are made in good faith (s 64(2)). They also may be required to produce wills to Court on demand (s 63(2)).
The Supreme Court of Tasmania and the Registrar: The Court is the primary judicial body for dispensation (s 10), statutory wills for incapacity (ss 22-28), rectification (s 42), and declarations regarding interested witnesses (ss 13-14). The Registrar has registry duties: for Court-authorised statutory wills the Registrar must sign/seal (s 27) and retain and forward documents as required (s 20(4)(a)-(b); s 28).
Tasmanian Civil and Administrative Tribunal: The Tribunal is empowered to make statutory wills (ss 29-38), subject to procedural safeguards and the Tribunal’s own Act (s 30(3)). The Tribunal’s orders must follow the Division’s procedural requirements, and the Tribunal may direct matters be transferred to the Court (s 30(7)).
Law practices and Australian legal practitioners: The Act refers to law practices (s 4 definition), requires that if an executor named in a statutory will is not the Public Trustee or a trustee company the Registrar forward the will to a law practice nominated by the executor (s 28(a), s 38(a)). Part 5A designates authorised persons for international wills to include Australian legal practitioners and public notaries (s 62C).
Public Trustee and trustee companies: These institutions are specifically referenced (s 4 definition of Public Trustee; ss 28, 38 regarding forwarding statutory wills and alternatives where the executor is the Public Trustee or a trustee company). They are natural actors in estate administration where private executors are absent or where statutory wills are involved.
Persons in possession of wills and copies: Anyone in possession or control of a will or copy (including revoked wills) must allow inspection and production in Court when required (s 63). This affects legal practices, banks, solicitors’ files, registries, and private individuals holding documents.
Parties with potential claims: Persons who might apply under the Testator’s Family Maintenance Act 1912 are relevant to Court or Tribunal leave/application processes. Applicants for leave to apply for statutory wills must provide evidence indicating the likelihood of an application under the Testator’s Family Maintenance Act (s 23(2)(i); s 32(1)(h)).
The Act assigns procedural and administrative burdens to applicants seeking Court or Tribunal orders (lists of documents and evidence in ss 23, 32), to registrars (execution, sealing and forwarding of statutory wills, ss 27-28, 35, 38), and to persons holding wills (inspection obligations s 63). It affects attorneys, notaries and legal practitioners involved in international wills (s 62C), and places discretionary power in institutions (Court, Tribunal, Registrar) that will determine who may in practice secure statutory wills or rectification.
Key duties and rights
The Act establishes concrete duties and rights that govern execution, inspection, statutory authorisation, and administration of wills. Below are principal duties and rights with statutory references.
Execution duties and rights
Testator signature and witness formalities: A valid will must be in writing and signed by the testator or by another person in the testator’s presence and at the testator’s direction; the testator must make or acknowledge the signature in the presence of two or more witnesses present at the same time; and at least two witnesses must attest and sign the will in the presence of the testator (s 8(1)(a)-(c)). The signature must be with the intention of executing the will (s 8(2)). An attestation clause is not essential (s 8(3)).
Witness competence and limitations: A person who cannot see and attest that a testator has signed may not act as a witness (s 11). Witnesses need not know the contents of the document (s 9). A person who is an executor is competent to be a witness (s 8(7)).
Dispensation and rectification
Court dispensation: The Court may treat a document not executed in the required form as a will if satisfied beyond reasonable doubt that the deceased intended it to be a will, alteration or revocation (s 10(1)). The Court may consider any evidence, including statements made by the deceased (s 10(2)). The power extends to documents regardless of where they were created (s 10(3)).
Rectification: The Court may rectify a will to carry out the testator’s intentions if satisfied beyond reasonable doubt a clerical error was made or the will does not give effect to the testator’s instructions (s 42(1)). Timing constraints apply: applications must generally be made within three months of death, subject to extension but not after final distribution (s 42(2)-(3)). Personal representatives distributing under s 64 or where not aware of pending rectification are protected from liability in specified circumstances (s 42(4)).
Statutory wills and authorisation duties
Leave and information obligations: Leave of the Court is required before an application for a statutory will under Division 2 (s 23(1)). Applicants must, subject to the Court’s discretion, furnish a comprehensive list of materials and evidence (s 23(2)(a)-(l)), including evidence of lack of testamentary capacity, drafts, estate estimates, likely beneficiaries and potential claims under the Testator’s Family Maintenance Act (s 23(2)(b), (c), (d), (i)). The Tribunal has analogous application information requirements (s 32(1)(a)-(k)).
Substantive criteria for authorisation: The Court must be satisfied about the minor’s understanding and reasonableness to authorise a will for a minor (s 20(3)(a)-(c)). For persons lacking capacity, the Court must be satisfied that the proposed will is reasonably likely to be what the person would have made if they had capacity and that representation steps have been taken for all persons with a legitimate interest (s 24(a)-(e)). The Tribunal’s standards mirror these requirements (s 33(a)-(f)).
Execution and Registrar/Tribunal signatures: A Court-authorised will must be signed by the Registrar and sealed with the Court’s seal (s 27). A Tribunal statutory will must be signed by the President or Deputy President in the presence of two or more witnesses and attested by those witnesses (s 35(a)-(b)). Registrars and Tribunal officers thereby have execution duties.
Inspection, production and administrative duties
Inspection and copying: Any person having possession or control of a will, revoked will or copy must allow inspection and, at the inspector’s expense, the taking of copies by a broad class of persons (s 63(1)(a)-(f)), including persons named in the will, surviving spouse, parents, issue, intestacy claimants and creditors. This creates a right for interested persons to inspect and a duty on custodians to allow inspection.
Production to Court: Custodians must produce a will in Court if required (s 63(2)). The Act does not specify the sanctions, but establishes production as a judicial requirement.
Registrar and Tribunal forwarding: After executing a statutory will or instrument, the Registrar must forward the will to the named executor (or their nominated law practice) and a copy to the proposed testator (s 28(a), (c)). The Tribunal has similar forwarding obligations (s 38).
Personal representative powers and protections
Maintenance distributions: Personal representatives may make distributions for maintenance, support or education within 30 days to persons who are wholly or substantially dependent and whose entitlement does not become absolute until 30 days after death (s 64(1)). Such distributions are protected from liability if made in good faith (s 64(2)) and are deductible from the recipient’s eventual share (s 64(4)).
Liability and timing constraints: The Act protects personal representatives who distribute without knowledge of pending applications under the Testator’s Family Maintenance Act if made at least three months after death and they were not aware of the application (s 42(4)(b)). Rectification and interested-witness application time-limits (ss 13(2), 42(2)) affect when personal representatives may safely distribute.
Rights affecting disposition validity
Interested witness rule: A disposition to a person who attests a will is void as to that person and those claiming under them, subject to exceptions where more than two attesting witnesses exist and at least two are unrelated to beneficiaries, or where all persons who would benefit agree in writing and have capacity (s 12(1)-(2)). The Court can declare that s 12 does not apply where it is satisfied the testator knew and approved the entitlement and no fraud/undue influence is present (s 14).
Prior wills and statutory wills: A statutory will made by the Tribunal is invalid if a prior non-tribunal statutory will or ordinary will exists (s 31).
Rule-making and regulatory powers
Rules of Court and regulations: The judges may make Rules of Court regulating procedure for applications under the Act (s 65). The Governor may make regulations for the Act’s purposes, subject to specified limits (s 66).
These duties and rights allocate costs, evidence-gathering burdens and administrative steps to applicants, registrars, executors, custodians of documents and the Court/Tribunal. Many duties (for example, the comprehensive documentation required with leave applications, ss 23 and 32) impose evidentiary and logistical burdens on applicants seeking statutory authorisation; the Registrar and Tribunal have execution and forwarding duties that create administrative obligations at the registry level (ss 27-28, 35, 38). Rights to inspect (s 63) and protections for personal representatives making maintenance distributions (s 64) create operational choices for estate administrators.
Penalties and enforcement
The Act does not specify criminal penalties or detailed monetary fines for non-compliance with its substantive provisions. Enforcement is instead implemented through civil and procedural mechanisms centred on judicial and tribunal powers, statutory invalidity consequences, and procedural rules. The enforcement mechanisms and consequences are:
Invalidity as an enforcement mechanism: The Act makes dispositions void in particular situations. For example, a beneficial disposition made to a person who attests the will is void as to that person and those claiming under them, except where exceptions apply (s 12(1)-(2)). A statutory will made by the Tribunal is invalid if a prior will (not made by the Tribunal or the former Guardianship and Administration Board) exists (s 31). These provisions render a disposition without the need for a separate sanction: non-compliance can extinguish intended gifts.
Judicial dispensation and rectification: The Court holds powerful remedial discretion. Section 10 permits the Court to validate non-compliant documents where the Court is satisfied beyond reasonable doubt of the deceased’s testamentary intention; s 42 permits rectification where clerical error or failure to effect instructions is proved beyond reasonable doubt. These are enforcement,or corrective,mechanisms, exercised through litigation and application processes.
Court and Tribunal orders: The Court may make orders under ss 20 and 22, and the Tribunal under s 30, authorising wills, alterations or revocations. These orders create legal validity or effect and thereby enforce authorized dispositions. The Court can also declare s 12 inapplicable in a particular case where the testator knew and approved the disposition (s 14), which is a judicial validation that counters the presumed voidness under s 12.
Procedural compulsion: Section 63(2) requires custodians to produce wills in Court when required to do so. Failure to comply with a Court direction to produce documents would be enforced by the Court’s usual powers, although the Act does not itself list specific sanctions. Section 65 empowers the judges to make Rules of Court regulating procedure for applications under the Act; those Rules will prescribe procedural enforcement mechanisms such as orders for costs, contempt powers or other process-based sanctions consistent with the Supreme Court’s existing powers under the Supreme Court Civil Procedure Act 1932.
Application time-limits and consequences of delay: Several remedies have statutory time limits: applications to validate dispositions to interested witnesses (s 13(2)) must generally be made within six months of grant of probate but the Court may extend time (s 13(3)); rectification applications must be made within three months of death unless extended, and not after final distribution (s 42(2)-(3)). These time limits enforce the orderly administration of estates by constraining when challenges or remedial applications may be brought.
Administrative and execution duties: The Registrar and Tribunal officers have duties to sign and seal statutory wills (s 27) and to forward documents (ss 28, 38). Failure to perform administrative duties would be addressed through internal administrative oversight or Court remedies for non-performance; the Act does not create standalone penalties for registry staff.
No specified criminal offences in the text: The Act contains no express criminal offences, fines or civil penalties specified within the statutory text provided. Enforcement therefore falls back on civil and equitable remedies, judicial validation or invalidation, and the operation of court procedures and rules (s 65), rather than dedicated penalty provisions.
In practice, enforcement therefore operates through judicial processes (applications, orders, validations, rectifications), invalidity consequences for non-compliant dispositions, and procedural Rules of Court (s 65) and regulations (s 66). The Act relies on courts and the Tribunal to determine disputes, apply discretionary validation or invalidation, and to supervise registry and execution duties via orders rather than by setting out standalone statutory penalties.
How it interacts with other laws
The Act is drafted to operate alongside and reference a number of existing statutes and legal rules; several interactions are explicit.
Statutory cross-references and institutional interplay
Supreme Court Civil Procedure Act 1932: Section 65 gives judges power to make Rules of Court under the Supreme Court Civil Procedure Act 1932 to regulate procedure for applications under this Act. The Act therefore integrates with existing Supreme Court procedural architecture.
Tasmanian Civil and Administrative Tribunal Act 2020: The Tribunal’s powers under Part 3 Division 3 operate subject to that Act; s 30(3) requires a Tribunal hearing in accordance with the Tasmanian Civil and Administrative Tribunal Act 2020. The Tribunal may also direct a matter to the Court (s 30(7)), creating a procedural interface between the Tribunal and the Supreme Court.
Testator’s Family Maintenance Act 1912: Applicants for leave to apply for Court orders for statutory wills must provide evidence indicating the likelihood of an application under the Testator’s Family Maintenance Act (s 23(2)(i)). Similarly, Tribunal applicants must provide evidence indicating the likelihood of such an application (s 32(1)(h)). Thus the potential for family maintenance litigation is a material consideration in approving statutory wills.
Relationships Act 2003 and Family Law Act 1975: The Act defines “spouse” to include persons in a significant relationship as per the Relationships Act 2003 (s 4). Sections 16 and 17 treat the effect of marriage and registration of a deed of relationship (under the Relationships Act 2003) and the ending of marriage or relationships; subsection 17(5) references the Family Law Act 1975 for when a marriage ends (decree absolute, nullity or recognised foreign dissolution).
Public Trustee Act 1930 and Trustee Companies Act 1953: The Act defines “Public Trustee” by reference to s 4 of the Public Trustee Act 1930 (s 4), and contemplates forwarding statutory wills to an executor who may be the Public Trustee or a trustee company as defined under the Trustee Companies Act 1953 (ss 28, 38). These cross-references align statutory will administration with existing trustee institutions.
Legal Profession Act 2007: “Law practice” is given the same meaning as in the Legal Profession Act 2007 (s 4). The Act requires courts/registrars to forward statutory wills to a law practice nominated by the executor where the executor is not the Public Trustee or trustee company (ss 28, 38), linking professional practice regulation with will administration.
Acts Interpretation Act 1931: Section 10(4) adopts the Acts Interpretation Act 1931 definition of “document” (section 24(bb)) for the purposes of dispensing with formalities, ensuring consistency of interpretation with general statutory drafting rules.
Guardianship and Administration Act 1995 (former): The Act references statutory wills previously made by the Guardianship and Administration Board formerly established under the Guardianship and Administration Act 1995, particularly in s 31 and in relation to Tribunal powers (ss 36-37), thereby recognising legacy statutory wills and earlier institutional practice.
Conflict and primacy rules
The Act specifies where it applies to wills executed before the Act commenced (s 5). Several provisions apply to wills irrespective of the date of execution where the testator dies after commencement (s 5(3)), and specific sections apply to alterations or revocations after commencement (s 5(4)-(8)). This sequencing and transitional treatment sets temporal interaction rules with the earlier Wills Act 1992, which the Act repeals (Schedule 2).
Part 5 (foreign wills) sets rules for formal validity by reference to the internal law in force in other places (s 60). Sections 61-62 further prescribe how to ascertain which internal law applies and how to treat requirements of foreign law, such that a will conforming to foreign formalities may be valid here. This creates a direct statutory bridge to private international law principles.
Part 5A gives the Annex to the 1973 Convention the force of law in Tasmania (s 62B) and designates who may act in connection with international wills in Australia (s 62C). This implements an international treaty framework into domestic law and interacts with local administration requirements (s 62D on witnesses).
Procedure, powers and limits
Rules, regulations and administrative assignment: Section 65 enables Rules of Court under the Supreme Court Civil Procedure Act 1932 to regulate applications under this Act; section 66 permits the Governor to make regulations for the Act’s purposes, with the explicit exception of regulating Court procedure (s 66(1)). Section 67 assigns administration to the Minister for Justice and Department of Justice until an Administrative Arrangements order under the Administrative Arrangements Act 1990 is made. These provisions create administrative and regulatory interfaces with general procedural and executive instruments.
These explicit cross-references mean practitioners must consider the Act alongside procedural rules and other statutes: family law and relationships legislation when assessing revocation by marriage and divorce (ss 16-17); the Testator’s Family Maintenance Act when assessing likely challenges and documentary requirements for leave (ss 23, 32); trust and trustee company law for executor options (ss 28, 38); and international conventions for international wills (Part 5A and Schedule 5). The Act thus requires multi‑statutory analysis in many contested or non-standard will scenarios.
Amendment history
The text contains embedded amendment notes showing several post-enactment changes and insertions. The Act consolidates previous reforms and inserts the international-will framework. Key amendment entries shown in the text:
Repeal of earlier Act: The Wills Act 1992 (No. 29 of 1992) is expressly repealed by Schedule 2 (s 69 and Schedule 2). The Act replaces earlier Tasmanian wills legislation.
2012 international-wills amendments: Parts of the Act implementing the Convention providing a Uniform Law on the Form of an International Will 1973 were inserted by No. 37 of 2012, applied 11 March 2015. The insertion created s 59A (note that Part does not limit operation of Part 5A) and Part 5A (ss 62A-62E) and Schedule 5, the Annex setting out the Convention form and certificate (see notes next to ss 59A, 62A-62E and Schedule 5, all annotated as "Inserted by No. 37 of 2012, s. 5/6/7, Applied:11 Mar 2015").
2021 reforms affecting Court/Tribunal pathways and other sections: A number of provisions were amended by No. 18 of 2021, applied 05 Nov 2021. Examples include:
Section 4 (interpretation) amended to include the definition of "Tribunal" (No. 18 of 2021, s. 355, applied 05 Nov 2021).
Part 3 heading was amended by No. 18 of 2021, s. 356 (applied 05 Nov 2021).
Division 3 (Tribunal) and multiple sections in Part 3 carry amendment notes: s 30 subsections were amended by No. 18 of 2021 (s. 358), s 31 amended by No. 18 of 2021 s. 359, s 32 amended by No. 18 of 2021 s. 360, s 33 amended by No. 18 of 2021 s. 361, s 34 repealed by No. 18 of 2021 s. 362, s 35 amended by No. 18 of 2021 s. 363, s 36 by s. 364, s 37 by s. 365, s 38 by s. 366, and s 57-38 series show the same amendment umbrella. The textual notes indicate those amendments were applied 05 Nov 2021.
Repeal of earlier Tribunal/Board provisions: Section 31 refers to statutory wills previously made by the Guardianship and Administration Board established under the Guardianship and Administration Act 1995, indicating transitional recognition of legacy bodies and their statutory wills.
Schedules and consequential amendments: Schedule 1 is titled "Consequential Amendments" and references the Testator's Family Maintenance Act 1912 (s 68). Schedules 2-4 list repealed, rescinded or revoked instruments, including Wills Regulations 1997 and a proclamation under the Wills Act 1992.
The amendment notes in the copy provided are explicit and identify two principal reform waves: the 2012 insertion of international-wills machinery and the 2021 amendments that expanded or reshaped Tribunal powers and updated Part 3 processes. The repeal of the Wills Act 1992 and rescission/revocation of subordinate instruments are recorded in Schedules 2-4.
Practitioners should treat the amendment annotations as authoritative markers in this text: they indicate where new institutional mechanisms (particularly Tribunal competence and international-will implementation) were introduced, and where transitional arrangements (protection of legacy statutory wills) were preserved.
Litigation history
The statutory text provided contains no case law, judicial decisions, or litigation summaries. The Act itself references procedural interactions with the Supreme Court and the Tribunal and provides that the Court may exercise powers and make declarations (for example, ss 10, 13-14, 22, 42). However, there are no reported decisions, examples or named cases embedded in the text.
Accordingly, within the material supplied there is no litigation history to cite. Where the Act contemplates judicial determination,for example, the Court’s power to dispense with execution formalities (s 10), the Court’s power to validate dispositions to interested witnesses (s 14), or the rectification power (s 42),the text leaves the content and future interpretation of those powers to the Court and Tribunal. Practitioners must therefore look to Supreme Court and Tribunal decisions outside this statutory text for interpretive guidance, but such case law is not included in the document provided.
Gotchas
The Act contains a number of technical points and timing traps that will matter in practice. These are points where practitioners commonly need to check the statute carefully rather than assume common-law practice carries unchanged consequences.
Witness presence and attestation are asymmetric: Section 8(1)(b) requires the testator to make or acknowledge the signature in the presence of two or more witnesses present at the same time, but s 8(1)(c) only requires at least two witnesses to attest and sign "in the presence of the testator" and explicitly states they need not be in the presence of each other. The practical effect is that attestations can be sequential rather than simultaneous between witnesses, but both witnesses must witness the testator (s 8(1)(c)). Drafting and execution logistics should be checked against this precise phrasing.
Signature by another for the testator is permitted but must be in testator presence and at direction: Section 8(1)(a) allows a will to be signed by "some other person in the presence of and at the direction of the testator". The testator must have the intention to execute the will (s 8(2)). If a third party signs for a testator, evidence that it was at direction and intended as the testator’s signature will be material.
Witness incapacity: A person who cannot see and attest that a testator has signed may not act as a witness (s 11). This makes “blind” witnesses problematic; it contrasts with s 8(6) which allows the will to remain valid even if a person who attested becomes incompetent later. The distinction is time‑sensitive: competence at the time of attestation matters.
Interested witness rule exceptions are narrow: Section 12(1) renders dispositions to a person who attests the will void as to that person unless s 12(2) exceptions apply. One exception requires more than two attesting witnesses where at least two are not beneficiaries (s 12(2)(a)). The other exception depends on written consent of all persons who would benefit from the avoidance, and their capacity (s 12(2)(b)). Do not assume that merely having three witnesses suffices without checking who benefits and their relationships to the witnesses.
Court validation and evidentiary limits: An applicant to validate a disposition to an interested witness may apply under s 13, but the applicant "is not entitled to rely on any evidentiary presumption to prove or assist in proving that the testator knew and approved" (s 14(3)). The Court’s declaration under s 14 requires affirmative proof that the testator knew and approved and that the gift was not the product of fraud, duress or undue influence (s 14(1)). Do not rely on presumptions.
Timing constraints on applications: Applications to validate dispositions to interested witnesses are constrained procedurally: an application may be made before grant of probate but is not to be made more than six months after that date, unless the Court extends time; however no application may be made after final distribution and no order affects distribution already made (s 13(2)-(3)). Similarly, rectification applications generally must be made within three months of death (s 42(2)) with limited extension possibilities but not after final distribution (s 42(3)). These timing rules disincentivise late challenges and can create loss of remedy if not timely pursued.
Court dispensation threshold is high: Section 10 requires the Court to be satisfied "beyond reasonable doubt" that the deceased intended the document to be their will or revocation. That criminal‑standard phrase is a demanding evidentiary threshold and will be consequential in cases involving informal documents or electronic drafts.
Statutory wills are subject to prior wills: Section 31 states a statutory will made by the Tribunal is invalid if a prior will (that is not a statutory will made by the Tribunal or the former Guardianship Board) exists. Practitioners must therefore conduct diligent searches for prior wills before pursuing a Tribunal pathway; s 30(4) requires the Tribunal to be satisfied the person has not made a will (s 30(4)).
Registrar/Tribunal execution and forwarding obligations require coordination: Statutory wills authorised by the Court must be signed by the Registrar and sealed with Court seal (s 27). The Registrar must forward the will to the executor or nominated law practice and a copy to the proposed testator (s 28). Tribunal statutory wills have a similar forwarding requirement (s 38). Administrative steps are strictly prescribed; practitioners should account for these registry actions in planning.
International wills certificate and authorised persons: Schedule 5 (the Annex) gives a template certificate and provides that the authorised person must attach a certificate (Article 9 and 10) and keep a copy (Article 11). Section 62C limits authorised persons in Australia to Australian legal practitioners and public notaries (s 62C(1)). The Annex includes that the certificate is conclusive as to formal validity in absence of contrary evidence (Article 12). Do not assume any notary qualifies: check s 62C.
Survivorship and 30-day rule: The Act imposes a 30-day survivorship rule: if a beneficiary dies within 30 days after the testator, the will is to take effect as if the beneficiary had died immediately before the testator (s 49(1)). This 30-day rule also appears in s 55 regarding substitution to issue. Drafting that includes survivorship conditions must therefore specify a contrary intention if a different result is desired (ss 49(2), 55(3)).
Effect of marriage and divorce mechanics are specific: A will is revoked by the testator’s marriage or registration of a relationship (s 16(1)), but certain dispositions to the spouse or appointments may survive (s 16(2)). The ending of marriage revokes dispositions to the spouse (s 17(1)) generally treating the spouse as having predeceased the testator (s 17(3)), but s 17(4) permits a contrary intention to prevail. Practitioners must therefore check whether a will was made "in contemplation of marriage" (s 16(3)-(4)) and whether the will expresses a contrary intention (s 17(4)).
Production and inspection rights include revoked wills: Section 63(1) gives inspection rights to a broad class of persons and applies to wills "including a revoked will," which can surprise custodians who assume revoked wills are private or irrelevant. Custodians must also produce a will in Court if required (s 63(2)). Ensure custody and access arrangements accommodate these statutory inspection rights.
Maintenance distribution protections are conditional: Personal representatives may make maintenance distributions within 30 days (s 64(1)) and are protected from liability if made in good faith (s 64(2)). However, the Act requires that such distributions be deducted from any eventual share and treats them as administration expenses if the recipient fails to survive 30 days (s 64(4)). Account for these mechanics when making early distributions.
These are statutory traps that affect drafting, execution, contest strategy, registry procedure and estate administration. Each involves a clear statutory provision and practitioners should map client actions to the relevant provision before proceeding.
How to comply
This section sets out practical, statute-based steps and checklists for lawyers, executors and applicants to comply with the Act’s requirements. All references are to the Act’s provisions.
For drafting and executing ordinary wills (Part 2 Division 2)
Ensure writing and signature formalities (s 8(1)(a)): The will must be in writing and signed by the testator or by some other person in the presence of and at the direction of the testator. If someone signs on the testator’s behalf, document the testator’s direction and intention to execute.
Witnessing requirements (s 8(1)(b)-(c)): Make certain the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time, and at least two witnesses attest and sign in the presence of the testator. Although witnesses do not have to witness each other (s 8(1)(c)), each must witness the testator.
Intention to execute (s 8(2)): The signature must be made with the intention of executing the will. Consider documenting the testator’s state of mind or instructions contemporaneously, recognizing evidentiary limits.
Witness eligibility (s 11): Do not use a witness who is unable to see and attest that the testator has signed. Avoid beneficiaries acting as witnesses to eliminate s 12 issues (or plan for s 12 exceptions).
Attestation clause optional (s 8(3)): An attestation clause is not essential, but including one remains prudent as best practice.
If a witness is a beneficiary (interested witness) (ss 12-14)
Avoid the situation where possible. If unavoidable, ensure more than two witnesses and that at least two witnesses are not beneficiaries (s 12(2)(a)).
If all benefitting parties consent in writing and have capacity, record the written consent (s 12(2)(b)).
If an interested witness’s entitlement is challenged or needs validation, apply to the Court under s 13 and obtain an order/judicial declaration under s 14. Note s 13 timing rules (s 13(2)-(3)) and that the Court will require proof that the testator knew and approved (s 14(1)).
Dealing with minors and persons lacking capacity (Part 3)
For minors seeking to make/alter a will: Apply to the Supreme Court under s 20. The Court requires satisfaction that the minor understands the nature and effect, that the proposed will reflects the minor’s intentions, and that it is reasonable in all circumstances (s 20(3)). One attesting witness must be the Registrar and the will must be retained by the Registrar (s 20(4)(a)-(b)).
For persons lacking testamentary capacity: Secure leave before filing a substantive application in the Court pathway (s 23(1)). The applicant must provide a detailed list of materials (s 23(2)(a)-(l)), including evidence of lack of capacity, estate estimate, draft will, evidence of the proposed testator’s wishes, and evidence about potential Testator’s Family Maintenance Act applications (s 23(2)(b), (c), (d), (e), (i)). The Court will refuse leave unless satisfied the applicant is appropriate, incapacity exists or may exist, representation steps have been taken, and the proposed will is likely to be what the proposed testator would have made (s 24(a)-(e)).
Tribunal pathway: For the Tribunal, follow the application requirements in s 32(1)(a)-(k) and lodge with the Registrar under the Tasmanian Civil and Administrative Tribunal Act 2020 (s 32(2)). The Tribunal must make the enquiries in s 33 before authorising a statutory will.
Execution and registry steps for statutory wills
Court-authorised statutory wills must be signed by the Registrar and sealed with the seal of the Court (s 27). Coordinate with the Court registry to ensure proper execution and sealing.
After execution, the Registrar must forward the will to the named executor or to the nominee law practice and a copy to the proposed testator (s 28). For Tribunal-made statutory wills, the Tribunal must forward similarly (s 38). Confirm addresses and nominated law practices early.
For Tribunal execution, the statutory will must be signed by the President or Deputy President in the presence of two or more witnesses who attest in the President/Deputy President’s presence (s 35).
Dealing with non-standard documents or defective formalities
Consider applying to Court under s 10 if a document appears to embody testamentary intention but lacks formal execution. Prepare evidence to meet the “beyond reasonable doubt” standard s 10(1) requires; the Court may consider any evidence including statements of the deceased (s 10(2)).
If rectification is needed because of clerical error or failure to reflect instructions, apply under s 42 within three months of death unless an extension is granted; do not distribute final estate assets before resolving significant rectification questions (s 42(2)-(3)). Personal representatives distributing under s 64 or unaware of pending rectification may have protection (s 42(4)),but plan distributions with these constraints in mind.
Inspection, custody and production obligations
Custodians must allow inspection and copies at the inspector’s expense for persons specified in s 63(1). Maintain an orderly record and readiness to produce documents if required to do so by the Court (s 63(2)). Do not deny inspection of revoked wills when requested by eligible persons.
If a will is kept in a law practice file or bank safe-deposit, ensure procedures are in place to facilitate lawful inspection and prompt production when ordered.
Survivorship, substitution and valuations
Draft to anticipate the 30-day survivorship rule (s 49). If a different result is
law practice has the same meaning as in the Legal Profession Act 2007 ;
minor means a person under the age of 18 years;
property includes –
(a) any contingent, executory or future interest in property; and
(b) any right of entry or recovery of property or right to call for the transfer of title to property;
Public Trustee means The Public Trustee referred to in section 4 of thePublic Trustee Act 1930 ;
Registrar means the Registrar of the Court;
Rules means Rules of Court made and in force under section 65 ;
spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;
statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity;
[Section 4 Amended by No. 18 of 2021, s. 355, Applied:05 Nov 2021]Tribunal means the Tasmanian Civil and Administrative Tribunal;
will includes a codicil and any other testamentary disposition.
5 Application of Act
5 Application of Act
(1) This Act, except as provided in this section applies only to wills made on or after the commencement of this Act.
(2) The Wills Act 1992 , as in force immediately before the commencement of this Act, continues to apply to wills made before that commencement, in so far as those wills do not come under the operation of subsection (4) , (5) , (6) or (7) or under the operation of the sections specified in subsections (3) and (9) .
(3) Sections 9 , 10 , 42 , 43 , 44 , 45 , 47 , 48 , 50 , 51 , 52 , 54 , 57 , 58 , 59 , 60 , 61 , 62 and 63 apply to wills whether or not they are executed before, on or after the commencement of this Act, where the testator dies on or after that commencement.
(4) Sections 7 , 15 , 18 and 19 apply to the alteration, revocation or renewal of a will on or after the commencement of this Act even if the will was made before that commencement.
(5) Section 11 applies to a document that alters or revokes a will and that is made on or after the commencement of this Act even if the will was made before that commencement.
(6) Section 16 applies to a will made before the commencement of this Act in relation to a marriage solemnised, or the registration under Part 2 of theRelationships Act 2003 of a deed of relationship, on or after that commencement.
(7) Section 17 applies to a will made before the commencement of this Act, if the granting of the decree absolute of the dissolution of the marriage or the annulment of the marriage has taken place, or the revocation under Part 2 of theRelationships Act 2003 of a deed of relationships registered under that Part has occurred, on or after the commencement of this Act.
(8) The Court may make an order under section 20 or 22 with respect to the alteration or revocation of a will or part of a will even if the will was made before the commencement of this Act.
(9) Despite subsection (1) , section 55 applies to a will made before the commencement of this Act if the testator has died on or after the death of the issue and the deaths occurred on or after that commencement.
Part 2 Capacity and Formal Requirements
Part 2 Capacity and Formal Requirements
Division 1 Capacity
Division 1 Capacity
6 Property that may be disposed of by will
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) It does not matter if the entitlement of the person or of the personal representative did not exist at the date of the making of 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 was trustee at the time of the death of the person.
7 Minimum age for making a will
7 Minimum age for making a will
(1) A will made by a minor is not valid.
(2) Despite subsection (1) –
(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place; and
(b) a minor who is married may make, alter or revoke a will; and
(c) a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.
Division 2 Execution of a will
Division 2 Execution of a will
8 How a will should be executed
8 How a will 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; and
(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 (but not necessarily in the presence of each other).
(2) The signature of the testator must be made with the intention of executing the will, but it is not essential that the signature be made at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) 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.
(5) If 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, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
(6) If a person who attests the execution of a will is, at the time of the execution of the will or at any time afterwards, incompetent to be admitted as a witness to prove the execution of the will, the will is not on that account invalid.
(7) A person who is an executor of a will is not on that account incompetent to be admitted as a witness to prove the execution of that will or its validity or invalidity.
9 Witnesses need not know contents of what they are signing
9 Witnesses need not know contents of what they are signing
A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that it was a will.
10 When Court may dispense with requirements for execution of wills
10 When Court may dispense with requirements for execution of wills
(1) A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will or the revocation of such a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his or her will, an alteration of his or her will or the revocation of his or her will.
(2) In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this Act or otherwise) of statements made by the deceased person.
(3) This section applies to a document whether it came into existence within or outside Tasmania.
(4) For the purposes of this section –
document has the same meaning as in section 24(bb) of theActs Interpretation Act 1931 .
11 Persons who cannot act as witnesses to wills
11 Persons who cannot act as witnesses to wills
A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
12 Can interested witness benefit from disposition under a will?
12 Can interested witness benefit from disposition under a will?
(1) Except as provided by subsection (2) , where a beneficial disposition is made by a will to a person who attests the execution of the will, the disposition is void so far only as concerns that person or any person claiming under that person.
(2) A beneficial disposition made by a will is not made void by subsection (1) if –
(a) more than 2 persons have attested the execution of the will and at least 2 of them are not persons to whom any such disposition is made or the spouses of any such persons; or
(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 and they all have capacity at law to do so.
(3) Notwithstanding anything contained in this section, a person who attests the execution of a will is a competent witness to prove the execution of the will or its validity or invalidity.
13 Application to Court to validate dispositions to interested witnesses
13 Application to Court to validate dispositions to interested witnesses
(1) Where, but for the operation of section 12 , a person would be entitled to a beneficial disposition, that person may, subject to and in accordance with the Rules, apply to the Court for an order that that person is to be entitled under the will as if that section did not apply in relation to him or her.
(2) An application under this section may be made before the grant of probate of the will but, subject to subsection (3) , is not to be made more than 6 months after that date.
(3) The Court may extend the time for the making of an application under this section, whether or not the time appointed under subsection (2) has expired, but no application may be made after the final distribution of the estate and no order under this section affects the distribution of any part of the estate made before the making of the application.
14 Declaration by Court as to non-application of section 12
14 Declaration by Court as to non-application of section 12
(1) Where the Court is satisfied that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of fraud, duress or the exercise of undue influence by any person, the Court may, by order, declare that section 12 does not apply in relation to the applicant in respect of the will in respect of which the application was made.
(2) On a copy of an order under subsection (1) being served on the personal representative of the testator, the will of the testator has effect as if section 12 does not apply in relation to the applicant in respect of the will of the testator.
(3) In an application under section 13 , the applicant is not entitled to rely on any evidentiary presumption to prove or assist in proving that the testator knew and approved the contents of the will.
Division 3 Revocation, alteration and revival of wills
Division 3 Revocation, alteration and revival of wills
15 How a will may be revoked
15 How a will may be revoked
(1) The whole or any part of a will may be revoked only –
(a) in the circumstances mentioned in Division 1 or 2 of Part 3 or by the operation of section 16 or 17 ; or
(b) by a later will; or
(c) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act; or
(d) by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying it with the intention of the testator of revoking it; or
(e) by the testator, or some person in his or her presence and by his or her 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.
(2) A will is not revoked by a presumption of intention on the ground of an alteration in circumstances.
16 Effect of marriage or registration of deed of relationship on a will
16 Effect of marriage or registration of deed of relationship on a will
(1) A will is revoked by –
(a) the marriage of the testator; or
(b) the registration of a deed of rel
This is an opening excerpt, not the complete document.