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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Wills (International Wills) Amendment
Bill 2012
A BILL FOR
An Act to amend the Wills
Act 1936.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Wills
Act 1936
4Insertion of section
25E
25EPart does not limit
operation of international will provisions
5Insertion of Part
3A
Part 3A—International
wills
25FInterpretation
25GApplication of
Convention
25HPersons
authorised to act in connection with international
wills
25IWitnesses to
international wills
25JApplication of Act to international
wills
6Insertion of Schedule 1
Schedule 1—Annex to Convention providing
a Uniform Law on the Form of an International Will 1973
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Wills (International Wills) Amendment
Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Wills Act 1936
After section 25D insert:
25E—Part does not limit operation of international
will provisions
This Part does not limit the operation of Part 3A.
After Part 3 insert:
Part 3A—International wills
25F—Interpretation
In this Part—
Australian legal practitioner means a local legal
practitioner or an interstate legal practitioner within the meaning of the
Legal
Practitioners Act 1981;
Convention means the Convention providing a Uniform Law on
the Form of an International Will 1973 signed in Washington D.C.
on 26 October 1973;
international will means a will made in accordance with the
requirements of the Annex to the Convention as set out in
Schedule 1.
25G—Application of Convention
The Annex to the Convention has the force of law in this
jurisdiction.
Note—
The Annex to the Convention is set out in Schedule 1.
25H—Persons authorised to act in connection with
international wills
(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.
25I—Witnesses to international
wills
The conditions requisite to acting as a witness to an international will
are governed by the law of this jurisdiction.
25J—Application of Act to international
wills
To avoid doubt, the provisions of this Act that apply to wills extend to
international wills.
After section 38 insert:
Schedule 1—Annex to Convention providing a Uniform
Law on the Form of an International Will 1973
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.
This law shall not apply to the form of testamentary dispositions made by
two or more persons in one instrument.
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.
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.
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.
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.
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.
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.
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.
The certificate drawn up by the authorized person shall be in the following
form or in a substantially similar form:
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
The authorized person shall keep a copy of the certificate and deliver
another to the testator.
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.
The absence or irregularity of a certificate shall not affect the formal
validity of a will under this Law.
The international will shall be subject to the ordinary rules of revocation
of wills.