WILLS ACT, 1970.ARRANGEMENT OF ACT.

PART I.—PRELIMINARY.

Section.1. Short Title.2. Commencement.3. Repeals.4. Definitions.5. Application of Act.

PART IL—DISPOSITIONS AND APPOINTMENTS BY WILL.

6. Property disposable by will.7. Age of capacity to make will.

PART III—EXECUTION OF WILLS.

8. Execution generally.9. Execution of will exercising a power of appointment.

10. Alterations after execution.

PART IV.—WITNESSES TO WMT,S.

11. Executor or creditor not incompetent witness.12. Beneficiary not incompetent witness.13. Dispositions to witnesses.

PART V.—REVOCATION OF WILLS

14. Subsequent marriage.15. When will revoked.16. How revoked will revived.

PART VI.—PRIVILEGED WILLS

17. Persons entitled to make privileged wills.18. Making of a privileged will.19. Revocation of privileged will.

PART VII.—RULES AS TO FORMAL VALIDITY OF WILLS.

20. Application and effect of this Part.21. General rules as to formal validity.22. Additional rules.23. Ascertainment of system of internal law.

PART VIII.—THE CONSTRUCTION OF WILLS.

24. Change of domicile.25. Disposition not revoked by an alteration of the estate or Interest of

the testator.26. General rules of construction.27. Statutory substitutional gift.28. Charges on property to be paid primarily out of property charged.

No. 12.] Wills. [1970.

WILLS.

Short title.

Commence-ment.

Repeals.

No. 12 of 1970.

AN ACT to Consolidate and Amend the Lawrelating to Wills.

[Assented to 29th April, 1970.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent

of the Legislative Council and the LegislativeAssembly of Western Australia, in this presentParliament assembled, and by the authority of thesame, as follows:—

PART I.-PRELIMINARY.

1. This Act may be cited as the Wills Act, 1970.

2. This Act shall come into operation on a dateto be fixed by proclamation.

3. On the coming into operation of this Act theActs specified in the Schedule to this Act arerepealed to the extent mentioned in that Schedule

1970. Wills. [No. 12.

and the Acts of the United Kingdom specified inthat Schedule cease to have effect in the State.

4. In this Act, unless the contrary intention Definitions.appears

"country" means any place or group of places gidmiActhaving its own law of nationality, including 1964 s. 3.

the Commonwealth and its territories;Cf. U.K."disposition" includes a gift, devise, bequest or Will. 17 and1 Viet.an appointment of property contained in a C. 26 s. 1.

will; and

"dispose of" has a corresponding meaning;

"internal law" in relation to any country orplace means the law that would apply in acase where no question of the law in forcein any other country or place arose;

"place" means any territory including a Stateor Territory of the Commonwealth;

"property" includes real and personal propertyor any interest therein and any thing orchose in action;

"will" includes a codicil and any testamentaryinstrument.

5. This Act applies to the will of any person yingationdying on or after the date of the coming into

C4 Act

operation of this Act, whether the will was executed 764,114).or made before, on or after that date but does notapply to the will of any person who died before thatdate.

PART II.-DISPOSITIONS AND APPOINTMENTS BY WILL.

6. A person may, by a will executed or made inmanner required or permitted by this Act, disposeof all his property (whether acquired before or aftermaking his will) to which at the time of his deathhe is entitled either at law or in equity and of all

Property dis-posable bywill.Cf. U.K.7 Will.IV and 1Viet. C. 26,s.3

No. 12.] Wills. [1970.

property that in exercise of a power of appointmenthe is entitled or able to dispose of by his will, andmay also by his will appoint a guardian of hisinfant children.

Age ofcapacity tomake will.Cf. U.K.7 Will. IVand 1 Vict.C. 26, s. 7.

7. Subject to the provisions of Part VI of thisAct, a will made by a person under the age ofeighteen years is not valid.

PART III.-EXECUTION OF WILLS.

Executiongenerally.Cf. U.K.7 Will. IVand 1 Vict.C. 26, s. 9.W.A. Act 18,Viet. No. 13.

Executionof willexercisinga power ofappointment.Cf. U.K.7 Will. IVand 1 Vict.C. 26, s. 10.

Alterationsafterexecution.Cf. U.IC.7 Will. IVand 1 Viet.C. 26, S. 21.

8. Subject to the provisions of Part VI of thisAct, a will is not valid unless

(a) it is in writing;

(b) it is signed by the testator or signed in hisname by some other person in his presenceand by his direction, in such place on thewill so that it is apparent on the face ofthe will that the testator intended to giveeffect by the signature to the writing signedas his will;

(c) the testator makes or acknowledges thesignature in the presence of at least twowitnesses present at the same time; and

(d) the witnesses attest and subscribe the willin the presence of the testator but nopublication or form of attestation isnecessary.

9. A will executed in the manner required by thisAct is, so far as respects the execution and attesta-tion thereof, a valid exercise of a power of appoint-ment by will, notwithstanding it has been expresslyrequired that a will made in exercise of such powershould be executed or attested with some additionalor other form of execution or attestation or solemn-ity.

10. (1) Subject to subsection (2) of this section,unless an alteration made to a will after itsexecution is made in accordance with the provisions

1970.] Wills. [No. 12.

of this Act governing the making of a will, thealteration has no effect except to invalidate words ormeanings that it renders no longer apparent.

(2) An alteration that is made in a will after thewill has been made is validly made when the signa-ture of the testator and subscription of witnesses tothe signature of the testator to the alteration, or inthe case of a will that was made under Part VI ofthis Act, the signature of the testator, are or ismade

(a) in the margin or in some other part of thewill opposite or near the alteration; or

(b) at the foot or end of, or opposite to, amemorandum referring to the alterationand written in some part of the will.

(3) In this section "apparent" means legible bythe unaided eye or with the help of a magnifyinglens but not otherwise.

PART IV-WITNESSES TO WILLS.

11. An executor of the will or a creditor of theestate to which the will relates is not on thataccount incompetent as a witness to prove theexecution of the will or its validity or invalidity.

12. A person to whom a disposition is made by awill or the spouse of such person is not on thataccount incompetent as a witness to prove theexecution of the will or its validity or invalidity.

13. (1) A disposition, other than a charge forpayment of a debt, to a person or the spouse of aperson who is an attesting witness to the will isvoid.

(2) Where the will is attested by at least twopersons other than the person to whom subsection(1) of this section applies or where no attestation isnecessary, the disposition is not void under thatsubsection.

Executor orcreditor notincompetentwitness.Cf. U.S. 7Will. Iv and1 Viet. C. 26ss. 16 and 17.

Beneficiarynotincompetentwitness.Cf. U.K. Will.IV and 1 VietC. 26 s. 15.

Dispositionsto witnesses.

Subsequentmarriage.Cf. WA. ActNo. 83 of1962, S. 20.U.N. Will. IVand 1 Viet.C. 26 a. 18.

When willrevoked.Cf. O.K.7 Will. IVand 1 Viet.C. 26. ss. 18and 20.

No. 12.] Wills. [1970.

PART V-REVOCATION OF WILLS.

14. (1) A will is revoked by the marriage of thetestator except where

(a) there is a declaration in the will that it ismade in contemplation of the marriage; or

(b) the will is made in exercise of a power ofappointment where the property therebyappointed would not in default of appoint-ment pass to the testator's personal repre-sentatives as such.

(2) A will expressed to be made in contemplationof the marriage of the testator is void if themarriage is not solemnised, unless the will providesto the contrary.

15. A will or a part of a will is revoked only by

(a) marriage, subject to section 14 of this Act;

(b) a later will executed in manner provided bythis Act that expressly or impliedly revokesthe earlier will;

(c) a writing declaring an intention to revokeit that is executed in the manner in which awill is required by this Act to be executed;or

(d) burning, tearing or otherwise destroying itby the testator or by some person in hispresence and by his direction with theintention of revoking it.

How revokedwill revived.Cf. U.K.7 Will. IVand 1 Viet.C. 26, S. 22.

16. (1) A will or any part of a will that has beenin any manner revoked is revived only by the re-execution thereof or by a later will executed inmanner required by this Act and showing an inten-tion to revive the will or part.

(2) When a will that has been partly revoked andafterwards wholly revoked, is revived, the revivaldoes not, unless the contrary intention appears bythe will, extend to the part that was revoked beforethe revocation of the whole.

1970.1 Wills. [No. 12.

PART VI.-PRIVILEGED WILLS.

17. Any of the following persons irrespective of Mritl% tohis age may make a valid will and may also validly IZI:nriltrevoke a will with or without making a new will:— gv.Yinv

and 1 Viet.(a) any person, whether as a member or not,

serving with the armed forces of the Com-monwealth or its allies while in actualmilitary, naval or air service in connectionwith operations that are, or have beentaking place, or are believed to be imminentin relation to a war declared or undeclaredor other armed conflict in which membersof such armed forces are, or have been orare likely to be engaged;

(b) any mariner or seaman being at sea.

18. A will made by a person to whom the provi- ftitiggsions of section 17 of this Act apply need not be will.executed in the manner required by section 8 ofthis Act but may be made, without any formality,by any form of words, whether written or spoken, ifit is clear that he thereby intended to dispose of hisproperty after his death.

19. A person who has made a will at a time whenthe provisions of section 17 of this Act applied tohim may, after those provisions cease to apply tohim and while under the age of eighteen years,revoke such will by any manner of revocation pro-vided in this Act other than by the making of a laterwill.

PART VII-RULES AS TO FORMAL VALIDITY OFWILLS.

20. The provisions of this Part of this Act takeeffect notwithstanding any other provisions of thisAct.

Revocationof privi-leged will.

Effect ofthis Part.

21. A will shall be treated as properly executed etioargitTaie

if its execution conformed to the internal law in vcail. livditit .. Act

force in the place where it was executed, or in the 79842,1°I.

No. 12.] Wills. [1970.

place where, at the time of its execution or of thetestator's death, he was domiciled or had hishabitual residence, or in a country of which, ateither of those times, he was a national.

Additionalrules.Cf. WA. ActNo. 24 of1964, E. 2.

22. Without prejudice to the provisions of section21 of this Act the following wills shall be treated asproperly executed:

(a) a will executed on board a vessel or aircraftof any description, if the execution of thewill conformed to the internal law in forcein the place with which, having regard toits registration, if any, and other relevantcircumstances, the vessel or aircraft maybe taken to have been most closely con-nected;

(b) a will so far as it disposes of immovableproperty if its execution conformed to theinternal law in force in the place where theproperty was situated;

(c) a will so far as it revokes a will which underthis Part of this Act would be treated asproperly executed or revokes a provisionwhich under this Part of this Act wouldbe treated as comprised in a properlyexecuted will, if the execution of the laterwill conformed to any law by reference towhich the revoked will or provision wouldbe so treated;

(d) a will so far as it exercises a power ofappointment if the execution of the willconformed to the law governing theessential validity of the power.

Ascertain-ment ofsystem ofinternal law.Cf. W.A. ActNo. 24 of1964, s. 3(2).

23. (1) Where under this Part of this Act theinternal law in force in any country or place is tobe applied in the case of a will, but there are in forcein that country or place two or more systems ofinternal law relating to the formal validity of wills,

1970.] Wills. [No. 12.

the system to be applied shall be ascertained asfollows:—

(a) if there is in force throughout the countryor place a rule indicating which of thosesystems can properly be applied in the casein question, that rule shall be followed; or

(b) if there is no such rule, the system shallbe that with which the testator was mostclosely connected at the relevant time andfor this purpose the relevant time is thetime of the testator's death where thematter is to be determined by reference tocircumstances prevailing at his death andat the time of execution of the will in anyother case.

(2) In determining for the purpose of this Partof this Act whether or not the execution of a willconformed to a particular law, regard shall be hadto the formal requirements of that law at the timeof execution of the will, but this does not preventaccount being taken of an alteration of law affectingwills executed at that time, if the alteration enablesthe will to be treated as properly executed.

(3) Where a law in force outside this State falls,whether in pursuance of this Part of this Act or not,to be applied in relation to a will, any requirementof that law whereby special formalities are to beobserved by testators answering a particulardescription or witnesses to the execution of a willare to possess certain qualifications, shall betreated, notwithstanding any rule of that law to thecontrary, as a formal requirement only.

PART VIII.-THE CONSTRUCTION OF WILLS.

24. The construction of a will shall not bealtered by reason of any change in the testator'sdomicile after the execution of the will.

Change ofdomicile.Cf. W.A. ActNo. 24 of1964, 5. 6.

Dispositionnot revokedby an altera-tion of theestate orinterest ofthe testator.Cf. U.K.7 Will IVand 1 Vict.C. 26, s. 23.

Genera/ rulesof construc-tion.Cf. U.K.7 Will. IVand I Wet.C. 26, ss. 24,25, 26, 27,28, 30 and 31.

No. 12.] Wills. [1970.

25. A transfer of or other act relating to anyproperty comprised in a disposition, not being anact by which the will is revoked as provided in thisAct, made or done after the making of the will,does not prevent the operation of the will withrespect to any estate or interest in the propertythat the testator had power to dispose of by will atthe time of his death.

26. Unless the contrary intention appears by thewill

(a) the will is to be construed, with referenceto the property comprised in it, to speakand take effect as if it has been executedimmediately before the death of thetestator;

(b) property that is the subject of a dispositionthat is void or fails to take effect is to beincluded in any residuary dispositioncontained in the will;

(c) a general disposition of land or of the landin a particular area includes leasehold landwhether or not the testator owns freeholdland;

(d) a general disposition of all the testator'sproperty or of all his property of aparticular kind includes property overwhich he had a general power of appoint-ment exercisable by will and operates asan execution of the power;

(e) a disposition of property without words oflimitation whether to a person beneficiallyor as executor or trustee is to be construedas passing the whole estate or interest ofthe testator therein.

Statutory 27. (1) Unless the contrary intention appearssubstitu-tional gift• by the will, where there is a disposition therein toCf. WA.No. 83 of

Act a person who is a child or other issue of the testator,N.Z.1962,

Ws. 21sWins for an estate or interest not determinable at or

3AmendmentAct, 1958, s. before the death of that person and that person

dies in the lifetime of the testator leaving a childor children who survive the testator, the disposition

1970.] Wills. [No. 12.

does not lapse but takes effect as a substitutionaldisposition to such of the c i-sildren of that personwho survive the testator and if more than one inequal shares.

(2) This section applies whether the dispositionreferred to in subsection (1) of this section is to aperson as a named or designated person or as amember of a class.

(3) This section does not apply to a dispositionto a person as one of two or more joint tenants.

28. (1) Where by his will a testator disposes of Cpoargets otn

any property that at the time of his death is Ur: ° tcharged with the payment of money whether by kffokeirtrway of mortgage, charge, lien (including a lien for Cf .

charged.

unpaid purchase money) or otherwise and the r. ma,Net.

testator has not by the will or by a deed or other g.e835735.vidocument signified a contrary or other intention et: No u4•the property so charged is, as between the different its.rd fA et

persons claiming through the testator, primarily 1919.5.145•

liable for payment of the money secured by thecharge, and every part of such property accordingto its value shall bear a proportionate part of thecharge on the whole.

(2) Such contrary or other intention is notdeemed to be signified

(a) by a general direction for the payment ofthe debts, or of all the debts of the testatorout of his personal estate, or out of hisresiduary real and personal estate, or outof his residuary real estate; or

(b) by a charge of debts on any such estates,unless such intention is further signifiedby words expressly or by necessaryimplication referring to all or some part ofthe charge.

(3) Nothing in this section affects the right ofthe person entitled to the charge to obtain paymentor satisfaction thereof either out of the other assetsof the testator's estate or otherwise.

No. 12.] [1970.

SCHEDULE.

Number of Act. Title of Act. Extent ofRepeal.

7 Will. IV and An Act for the Amendment of The whole.1 Vict. C. 26. the Laws with respect to Wills

adopted in the State by Act No.2 Vict. No. 1.

18 Vict. No. 13. An Ordinance for the amendment The whole.of the Laws with respect to Wills.

17 and 18 Vict. An Act to amend the Law relat- The whole.C. 113. ing to the Administration of the

Estates of deceased personsadopted in the State by Ordi-nance 31 Vict. No. 8.

34 Vict. No. 1. An Act further to amend the Law The whole.relating to the administration ofthe estates of deceased persons.

43 Vict. No. 11. An Act to declare the application The whole.of the Acts relating to the admin-istration of the estates of de-ceased persons.

No. 20 of 1941. Wills (Soldiers, Sailors and Air- The whole.men) Act, 1941.

No. 24 of 1964. Wills (Formal Validity) Act, 1964. The whole.

No. 32 of 1969. Property Law Act, 1969. Sections 116and 117.