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CLAUSE NOTES
Wills Amendment (International Wills) Bill 2012
Clause 1: Short title
Clause 2: Commencement date - will be dependent upon the
accession and operational commencement of the
Convention (see cl 3)
Clause 3: Provides that a proclamation to commence this Act
cannot be made unless the relevant Convention
has entered into force in Australia. Article XI of the
Convention provides that the Convention will enter
into force six months after accession. The
Convention will therefore enter into force six
months after Australia accedes to the Convention.
Clause 4: Provides that the Wills Act 2008 is the Principal Act
Clause 5:Provides that the existing Part 5 (Wills Under
Foreign Law) does not limit the operation of the
new 5A. New Part 5A will apply to international
wills made in accordance with the requirements of
the Convention. Part 5 applies to a "foreign will"
that is not an international will, either because
there was no intention for it to be made in the
form of an international will or because, in spite of
any intentions, the will has not been validly made
as an international will. Article 1.2 of the Uniform
Law provides that the invalidity of an international
will does not affect its formal validity as a will of
another kind if it meets the local criteria.
Clause 6: Inserts a new Part 5A International Wills
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New section 62A defines terms used in the Part
New section 62B gives the Annex to the
Convention providing a Uniform Law on the
Form of an International Will 1973 the force of
law in Tasmania. The Annex is set out in
Schedule 5. In accordance with clauses 2 and 3 of
the Bill, the Annex will not have the force of law
in Tasmania until the Convention has entered
into force in Australia and the commencement of
this Act has been proclaimed.
New section 62C(1) sets out the who is an
"authorised person" in respect of an international
will in Australia. This gives effect to Article II of
the Convention, which requires a Contracting
Party to designate the persons who, in its
territory, shall be authorised to act in connection
with international wills. Under the Convention,
an authorised person is required to certify that
the proper formalities for an international will
have been performed.
New section 19C(2) provides for the recognition
of authorised persons who have been designated
and operate in other Convention jurisdictions.
This gives effect to Article III of the Convention,
which provides that the capacity of an authorised
person to act in connection with an international
will, if conferred in accordance with the law of a
Contracting Party, shall be recognised in the
territories of other Contracting Parties and who
is included in a reference to an "authorised
person" in the Annex.
New section 62D provides that determining who
may be a witness to an international will is
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governed by the law of Tasmania. For example
section 11 of the Principal Act provides that a
person who is unable to see and attest that a
testator has signed a document cannot act as a
witness.
For the avoidance of doubt, new section 62E
provides that the provisions of the Wills Act
extend to international wills. While the new
Schedule 5 sets out the specific form
requirements of an international will, the other
provisions of the Principal Act that apply to wills,
such as those dealing with revocation or the
construction of the terms of a will, also apply to
international wills.
Clause 7: Inserts the Annex to the Convention Providing a
Uniform Law on the Form of an International Will
as Schedule 5 to the Principal Act. This gives effect
to Article I of the Convention, which requires a
Contracting Party to reproduce the actual text of
the Annex to the Convention.
Clause 8: Provides for the automatic repeal of the Act ninety
days after it commences.
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