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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Wills Amendment Bill 2006
CONTENTS
1. Short title 2
2. Commencement 2
3. The Act amended 2
4. Section 4 amended 2
5. Section 6 replaced 2
6. Provision that may be made by will 2
6. Section 7 amended 3
7. Section 8 amended 3
8. Section 9 amended 3
9. Section 10 replaced 4
10. Alterations after execution 4
10. Section 11 inserted 5
11. Situation in which a person cannot be a
witness 5
11. Part IV repealed 5
12. Section 14 amended 5
13. Section 14A inserted 6
14A. Ending of marriage 6
14. Section 15 replaced 7
15. When will revoked 7
15. Section 16 amended 8
16. Sections 17, 18 and 19 replaced by section 17 8
17. Saving for wills and revocations made
under former provisions 8
17. Sections 20, 21, 22 and 23 replaced by
sections 20 and 21 9
20. General rules as to formal validity 9
21. Ascertainment of system of internal law 10
18. Section 25 replaced 11
25. Disposition of interest in property after
making of will 11
19. Section 26 amended 12
20. Section 27 amended 13
125--1B page i
Wills Amendment Bill 2006
Contents
21. Section 28 amended 13
22. Section 28A inserted 14
28A. Use of extrinsic evidence to clarify a will 14
23. Sections 32, 33, 34, 35, 36 and 37 replaced by
sections 32 and 33 15
32. Court may dispense with formal
requirements 15
33. Application of section 32 16
24. Parts XI and XII inserted 16
Part XI -- Wills of persons who lack testamentary
capacity
Division 1 -- Jurisdiction of Supreme Court to
authorise the making, alteration and
revocation of wills
39. Interpretation 16
40. Jurisdiction of Court to make, alter or
revoke will 17
41. Content of application under section 40 18
42. Certain criteria to be applied by Court 19
43. Further powers of Court 20
44. Deposit of wills made under this Part with
Principal Registrar 21
45. Court may allow access to will 21
46. Alteration or revocation of will authorised
under this Part 22
47. Protection of privacy of persons to whom
applications relate 23
Division 2 -- Wills of persons who lack testamentary
capacity made under the law of another place
48. Recognition of wills 23
Part XII -- Rectification of wills by Supreme Court
49. Definition 24
50. Court may rectify a will 24
25. Consequential amendments to other Acts 25
Schedule 1 -- Consequential
amendments to other Acts
1. Guardianship and Administration Act 1990
amended 26
111A. Applications under section 40 of the Wills
Act 1970 26
2. Inheritance (Family and Dependants Provision)
Act 1972 amended 27
3. Life Assurance Companies Act 1889 amended 27
page ii
Wills Amendment Bill 2006
Contents
4. Property Law Act 1969 amended 27
5. Public Trustee Act 1941 amended 28
6. Stamp Act 1921 amended 28
7. Supreme Court Act 1935 amended 28
8. Trustee Companies Act 1987 amended 29
page iii
Western Australia
LEGISLATIVE ASSEMBLY
Wills Amendment Bill 2006
A Bill for
An Act to amend the Wills Act 1970 and to consequentially amend
certain other Acts.
The Parliament of Western Australia enacts as follows:
page 1
Wills Amendment Bill 2006
s. 1
1. Short title
This is the Wills Amendment Act 2006.
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
5 (2) Different days may be fixed under subsection (1) for different
provisions.
3. The Act amended
The amendments in this Act are to the Wills Act 1970*.
[* Reprint 3 as at 17 October 2003.]
10 4. Section 4 amended
Section 4 is amended as follows:
(a) by inserting in the appropriate alphabetical position --
"
"marriage" has the meaning given to that term in the
15 Marriage Act 1961 of the Commonwealth;
";
(b) in the definition of "will" by inserting after
"instrument" --
" or disposition ".
20 5. Section 6 replaced
Section 6 is repealed and the following section is inserted
instead --
"
6. Provision that may be made by will
25 A person may, by a will executed or made in a manner
required or permitted by this Act --
(a) dispose of property (whether acquired before or
after the making of the will) to which at the
page 2
Wills Amendment Bill 2006
s. 6
time of the person's death the person is entitled
either at law or in equity;
(b) dispose of property that in exercise of a power
of appointment the person is entitled or able to
5 dispose of by will; and
(c) appoint a guardian of any infant child of the
person.
".
6. Section 7 amended
10 Section 7 is amended by deleting "the provisions of Part VI,"
and inserting instead --
" section 17, ".
7. Section 8 amended
Section 8 is amended as follows:
15 (a) by deleting "the provisions of Part VI and section 34,"
and inserting instead --
" sections 17 and 20 and Parts X and XI, ";
(b) in paragraph (b) by deleting "his" in each place where it
occurs and inserting instead --
20 " the testator's ".
8. Section 9 amended
(1) Section 9(1) is repealed and the following subsection is inserted
instead --
"
25 (1) If a power is conferred on a person to make an
appointment by a will which power 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 a manner required or permitted by
page 3
Wills Amendment Bill 2006
s. 9
this Act, but is not executed in that particular manner
or with that particular solemnity.
".
(2) Section 9(2) is amended by deleting "this Act." and inserting
5 instead --
" section 8. ".
9. Section 10 replaced
Section 10 is repealed and the following section is inserted
instead --
10 "
10. Alterations after execution
(1) In subsection (3) --
"apparent" means legible by the unaided eye or with
the help of a magnifying lens but not otherwise.
15 (2) Subject to Part X, an alteration to a will after it has
been executed is not effective unless the alteration is
executed in a manner in which a will is required or
permitted to be executed by this Act.
(3) Subsection (2) does not apply to an alteration to a will
20 made by, or at the direction of, the testator if the words
or effect of the will are no longer apparent because of
the alteration.
(4) If a will is altered, it is sufficient compliance with the
requirements for execution if the signatures of the
25 testator and of the witnesses to the alteration, or in the
case of a will referred to in section 17 the signature of
the testator, are or is made --
(a) in the margin, or on some other part of the will
beside, near or otherwise relating to the
30 alteration; or
page 4
Wills Amendment Bill 2006
s. 10
(b) as authentication of a memorandum referring to
the alteration and written on the will.
".
10. Section 11 inserted
5 After section 10 the following section is inserted in Part III --
"
11. Situation in which a person cannot be a witness
A person who is unable to see and attest that a testator
has signed a document cannot act as a witness to a will.
10 ".
11. Part IV repealed
Part IV is repealed.
12. Section 14 amended
(1) Section 14(1)(a) is amended by deleting "there is a declaration
15 in the will that".
(2) Section 14(2) is amended by deleting "expressed to be".
(3) After section 14(2) the following subsections are inserted --
"
(3) For the purposes of this section, a will is made in
20 contemplation of a marriage if --
(a) it is expressed to be made in contemplation of
the marriage; or
(b) there is other evidence establishing that the will
was made in contemplation of the marriage.
25 (4) Subsection (3)(b) applies to the will of a person dying
on or after the day on which section 12 of the Wills
Amendment Act 2006 comes into operation, whether
the will was executed or made before, on or after that
day, and the will of a person who died before that day
page 5
Wills Amendment Bill 2006
s. 13
is to be construed as if that section had not come into
operation.
".
13. Section 14A inserted
5 After section 14 the following section is inserted --
"
14A. Ending of marriage
(1) In this section --
"Family Court of Australia" means the Family Court
10 of Australia created by the Family Law Act;
"Family Law Act" means the Family Law Act 1975 of
the Commonwealth.
(2) A will is revoked by the ending of the testator's
marriage except where --
15 (a) a contrary intention appears in the will; or
(b) there is other evidence establishing such an
intention.
(3) For the purposes of subsection (2), a marriage ends --
(a) when a divorce order terminating the marriage
20 takes effect under the Family Law Act;
(b) on the granting of a decree of nullity in respect
of the marriage by the Family Court of
Australia or the Family Court of Western
Australia; or
25 (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.
page 6
Wills Amendment Bill 2006
s. 14
(4) Subsection (2) --
(a) applies where a marriage ends on or after the
day on which section 13 of the Wills
Amendment Act 2006 comes into operation,
5 whether the will was executed or made before,
on or after that day; and
(b) does not apply where a marriage ends before
that day.
".
10 14. Section 15 replaced
Section 15 is repealed and the following section is inserted
instead --
"
15. When will revoked
15 Without limiting sections 14(1) and 14A(2), the whole
or any part of a will may be revoked only --
(a) by a later will, including a document that is a
will by operation of Part X;
(b) subject to Part X, by some writing declaring an
20 intention to revoke it, executed in the manner in
which a will is required or permitted to be
executed by this Act; or
(c) by the testator, or some person in the testator's
presence and by the testator's direction,
25 burning, tearing or otherwise destroying it to
give effect to the intention of the testator of
revoking it.
".
page 7
Wills Amendment Bill 2006
s. 15
15. Section 16 amended
(1) Section 16(1) is repealed and the following subsection is
inserted instead --
"
5 (1) Subject to Part X, a will or any part of a will that has
been revoked is revived only by the re-execution of
that will or by execution of a later will, including a
document that is a will by operation of Part X, showing
an intention to revive that will or part.
10 ".
(2) Section 16(2) is amended by deleting "revoked," and inserting
instead --
" revoked ".
(3) After section 16(2) the following subsection is inserted --
15 "
(3) A will that has been revoked and later revived, either
wholly or partly, is taken to have been executed on the
day on which the will is revived.
".
20 16. Sections 17, 18 and 19 replaced by section 17
Sections 17, 18 and 19 are repealed and the following section is
inserted instead --
"
17. Saving for wills and revocations made under former
25 provisions
(1) The repeal of sections 17, 18 and 19 of this Act by
section 16 of the Wills Amendment Act 2006 ("the
repeal") does not affect --
(a) a will made under section 18 before the repeal;
30 or
page 8
Wills Amendment Bill 2006
s. 17
(b) the revocation of such a will under section 19
before the repeal.
(2) A will referred to in subsection (1)(a), or part of such a
will, that was not revoked before the repeal has effect
5 as if the repeal had not occurred, but may only be
revoked after the repeal in accordance with section 15.
".
17. Sections 20, 21, 22 and 23 replaced by sections 20 and 21
Sections 20, 21, 22 and 23 are repealed and the following
10 sections are inserted instead --
"
20. General rules as to formal validity
(1) A will is taken to be properly executed if its execution
conforms to the internal law in force in the place --
15 (a) where it was executed;
(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
20 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
25 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;
30 (b) a will, so far as it disposes of immovable
property, if it has been executed in conformity
page 9
Wills Amendment Bill 2006
s. 17
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
5 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;
10 (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.
21. Ascertainment of system of internal law
15 (1) 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 --
20 (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
25 connected either --
(i) at the time of the testator's death, if the
matter is to be determined by reference
to circumstances prevailing at the
testator's death; or
30 (ii) in any other case, at the time of
execution of the will.
page 10
Wills Amendment Bill 2006
s. 18
(2) In determining whether a will has been executed in
conformity with a particular internal 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
5 alteration of the law affecting wills executed at that
time, if the alteration enables the will to be treated as
properly executed.
(3) If a law in force outside this State is applied to a will, a
requirement of that law that special formalities must be
10 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.
15 ".
18. Section 25 replaced
Section 25 is repealed and the following section is inserted
instead --
"
20 25. Disposition of interest in property after making
of will
If --
(a) a testator has made a will disposing of property;
and
25 (b) after the making of the will and before the
testator's 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.
30 ".
page 11
Wills Amendment Bill 2006
s. 19
19. Section 26 amended
(1) Section 26 is amended as follows:
(a) by inserting before "Unless the contrary" the subsection
designation "(1)";
5 (b) in paragraph (b), by inserting after "of a disposition" --
"
, other than the exercise of a power of
appointment,
";
10 (c) in paragraph (d) --
(i) by deleting "his" and inserting instead --
" the testator's "; and
(ii) by deleting "he" and inserting instead --
" the testator ";
15 (d) at the end of paragraph (e), by deleting the full stop and
inserting a semicolon instead;
(e) after paragraph (e), by inserting the following
paragraphs --
"
20 (f) 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 --
(i) the real estate of the testator; or
(ii) the personal estate of the testator,
25 is to be construed to include both the real and
personal estate of the testator;
(g) 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 accrues to the
30 part that does not fail, and, if there is more than
one part that does not fail, to all those parts
proportionately.
".
page 12
Wills Amendment Bill 2006
s. 20
(2) At the end of section 26 the following subsection is inserted --
"
(2) Subsection (1)(f) and (g) apply to the will of a person
dying on or after the day on which section 19(1)(e) of
5 the Wills Amendment Act 2006 comes into operation,
whether the will was executed or made before, on or
after that day, and the will of a person who died before
that day is to be construed as if section 19(1)(e) of that
Act had not come into operation.
10 ".
20. Section 27 amended
Section 27(1) is repealed and the following subsection is
inserted instead --
"
15 (1) Unless the contrary intention appears by the will,
where --
(a) there is a disposition in a will to a person who
is a child or other issue of the testator, for an
estate or interest not determinable at or before
20 the death of that person; and
(b) that person dies in the lifetime of the testator
leaving a child or children who survive the
testator,
the disposition does not lapse but takes effect as a
25 substitutional disposition to such of the children of that
person as survive the testator and if more than one in
equal shares.
".
21. Section 28 amended
30 Section 28 is amended as follows:
(a) in subsection (1) --
(i) by deleting "his will" and inserting instead --
" will "; and
page 13
Wills Amendment Bill 2006
s. 22
(ii) by deleting "his death" and inserting instead --
" the testator's death ";
(b) in subsection (2)(a) by deleting "his" in each place
where it occurs and inserting instead --
5 " the testator's ".
22. Section 28A inserted
After section 28 the following section is inserted in Part VIII --
"
28A. Use of extrinsic evidence to clarify a will
10 (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, or other content of, the
will renders the will or any part of the will --
(a) meaningless;
15 (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
20 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.
(4) This section applies to the will of any person dying on
25 or after the day on which section 22 of the Wills
Amendment Act 2006 comes into operation, whether
the will was made or executed before, on or after that
day, but does not apply to the will of a person who died
before that day.
30 ".
page 14
Wills Amendment Bill 2006
s. 23
23. Sections 32, 33, 34, 35, 36 and 37 replaced by sections 32
and 33
Sections 32, 33, 34, 35, 36 and 37 are repealed and the
following sections are inserted instead --
5 "
32. Court may dispense with formal requirements
(1) In this section and section 33 --
"document" means any record of information
including --
10 (a) anything on which there is writing;
(b) anything on which there are marks, figures,
symbols or perforations having a meaning
for persons qualified to interpret them;
(c) anything from which sounds, images or
15 writings can be reproduced with or without
the aid of anything else; or
(d) a map, plan, drawing or photograph,
and includes any part of a document within the
meaning given by this subsection.
20 (2) 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) a will of the person;
25 (b) an alteration to a will of the person;
(c) the revocation of a will of the person; or
(d) the revival of a will or part of a will of the
person,
if the Supreme Court is satisfied that the person
30 intended the document to constitute the person's will,
an alteration to the person's will, the revocation of the
page 15
Wills Amendment Bill 2006
s. 24
person's will or the revival of a will or part of a will of
the person, as the case may be.
(3) In forming its view, the Supreme Court may have
regard (in addition to the document) to any evidence
5 relating to the manner of execution or testamentary
intentions of the person, including evidence (whether
admissible before the commencement of this section or
otherwise) of statements made by the person.
(4) This section applies to a document whether it came into
10 existence within or outside the State.
33. Application of section 32
(1) Section 32 applies only to persons dying on or after the
day on which section 23 of the Wills Amendment
Act 2006 comes into operation, but in respect of
15 persons so dying extends to any document that came
into existence before that day.
(2) For persons dying before the day referred to in
subsection (1), this Part has effect as if section 23 of
the Wills Amendment Act 2006 had not come into
20 operation.
".
24. Parts XI and XII inserted
After section 38 the following Parts are inserted --
"
25 Part XI -- Wills of persons who lack
testamentary capacity
Division 1 -- Jurisdiction of Supreme Court to
authorise the making, alteration and revocation of wills
39. Interpretation
30 (1) In this Part --
"Court" means the Supreme Court;
page 16
Wills Amendment Bill 2006
s. 24
"person concerned" has the meaning given by
section 40(1);
"Principal Registrar" means the person for the time
being holding or acting in the office designated
5 under the Supreme Court Act 1935 as the
"Principal Registrar of the Supreme Court".
(2) For the purposes of sections 6, 9(1), 10(2) and 15(b), a
will or instrument signed in accordance with
section 40(4) is to be taken to be executed by the
10 person concerned in a manner permitted by this Act.
40. Jurisdiction of Court to make, alter or revoke will
(1) The Court may, on application made by any person,
make an order authorising --
(a) the making or alteration of a will in specific
15 terms approved by the Court; or
(b) the revocation of the whole or any part of a
will,
on behalf of a person who lacks testamentary capacity
(the "person concerned").
20 (2) The Court is not to make an order under subsection (1)
unless, at the time when the order is made, the person
concerned --
(a) is living; and
(b) has reached the age of 18 years.
25 (3) An order under subsection (1) may authorise --
(a) the making or alteration of a will that deals with
the whole, or with only part, of the property of
the person concerned; or
(b) the alteration of only part of the person's will.
page 17
Wills Amendment Bill 2006
s. 24
(4) A will or instrument authorised under subsection (1)
must be signed by the Principal Registrar and sealed
with the seal of the Court.
41. Content of application under section 40
5 (1) In an application under section 40, the applicant must
furnish the following to the Court, except to the extent
that the Court otherwise allows --
(a) a written statement of the nature of the
application and the reasons for it;
10 (b) an estimate of the nature and value of the assets
of the person concerned and of the nature and
amount of the person's liabilities, so far as that
information is known to the applicant;
(c) a suggested draft of the proposed will or
15 alteration or of the instrument of revocation;
(d) any evidence available to the applicant as to the
wishes of the person concerned;
(e) evidence as to the likelihood of the person
concerned having testamentary capacity at a
20 later time;
(f) any will, or a copy of any will, of the person
concerned in the possession of the applicant, or
details known to the applicant of the contents of
any will of the person concerned, and evidence
25 that the applicant has made reasonable enquiry
to locate such wills, or details of the contents of
such wills, as may have been made by the
person concerned;
(g) evidence that the applicant has made reasonable
30 enquiry concerning the interests of any person
who would be entitled to receive any part of the
estate of the person concerned either under a
previous will or if the person were to die
intestate, and any evidence of those interests so
35 far as they are known to the applicant;
page 18
Wills Amendment Bill 2006
s. 24
(h) evidence that the applicant has made reasonable
enquiry concerning the likelihood of an
application being made under the Inheritance
(Family and Dependants Provision) Act 1972,
5 and evidence of any facts known to the
applicant indicating such a likelihood;
(i) evidence that the applicant has made reasonable
enquiry concerning the circumstances of any
person for whom the person concerned might
10 reasonably be expected to make provision
under a will, and any evidence of those
circumstances so far as they are known to the
applicant;
(j) a reference to any gift to a body, whether
15 charitable or not, or for a charitable purpose,
that the person concerned might reasonably be
expected to make by will;
(k) evidence of any other facts that the applicant
considers to be relevant to the application.
20 (2) In subsection (1) --
"previous will", in paragraph (g), means a will made
before a will furnished to the Court, or details of
which are furnished to the Court, in accordance
with paragraph (f);
25 "will", in paragraphs (f) and (g), includes a document
that is a will by operation of Part X.
42. Certain criteria to be applied by Court
(1) In exercising its powers under section 40 the Court
must refuse an application if it is not satisfied that --
30 (a) the person concerned is incapable of making a
valid will or of altering or revoking the
person's will, as the case may be;
page 19
Wills Amendment Bill 2006
s. 24
(b) the suggested will, alteration or revocation, or
that will, alteration or revocation as revised
under section 43(1)(b), is one which could be
made by the person concerned if the person
5 were not lacking testamentary capacity;
(c) the applicant is an appropriate person to make
the application; and
(d) adequate steps have been taken to allow all
persons with a legitimate interest in the
10 application, including persons who have reason
to expect any benefit from the estate of the
person concerned, to be represented in the
proceedings.
(2) Subsection (1) does not prevent the Court from
15 refusing an application for any other reason.
43. Further powers of Court
(1) In proceedings under section 40 the Court may --
(a) give directions, including directions about the
attendance of any person as a witness and, if it
20 thinks fit, the attendance of the person
concerned;
(b) revise the terms of the suggested draft of the
proposed will, alteration or revocation
furnished to the Court under section 41(1)(c);
25 (c) inform itself as to any matter in any manner it
thinks fit; and
(d) make any order it thinks fit as to the costs of
and incidental to the proceedings.
(2) The Court is not bound by the rules of evidence in
30 proceedings under section 40.
page 20
Wills Amendment Bill 2006
s. 24
44. Deposit of wills made under this Part with Principal
Registrar
(1) After a will or instrument has been signed by the
Principal Registrar under section 40(4) --
5 (a) it must be deposited in the office of the
Principal Registrar; and
(b) the fee prescribed under section 171(1)(c) of
the Supreme Court Act 1935 must be paid by
the person who made the relevant application
10 under section 40.
(2) A will or instrument deposited in the office of the
Principal Registrar under subsection (1) must be in a
sealed envelope that has written on it --
(a) the name and address of the person concerned,
15 as they appear in the will or instrument;
(b) the name and address of any executor as they
appear in the will or instrument; and
(c) the date of the will or instrument.
(3) If the Court has made an order authorising the
20 revocation of a will deposited under subsection (1), the
Principal Registrar must release the will to the person
who made the relevant application under section 40.
(4) If the person concerned has acquired or regained
testamentary capacity to the satisfaction of the Court,
25 the Principal Registrar must release to that person a
will deposited under subsection (1).
45. Court may allow access to will
(1) A person may, with the leave of the Court and in
accordance with the terms of the leave, request the
30 Principal Registrar to provide the person with a copy of
a will deposited in the office of the Principal Registrar
page 21
Wills Amendment Bill 2006
s. 24
under section 44, and the Principal Registrar must
comply with a request so made.
(2) The Court may, on the application of any person, grant
leave to the person for the purposes of subsection (1)
5 on such terms as it thinks fit, but only if --
(a) the Court is satisfied that adequate steps have
been taken to allow all persons with a
legitimate interest in the application to be
represented in the proceedings; and
10 (b) it appears to the Court to be necessary or
desirable for the proper carrying out of the
provisions of the will that leave be granted.
46. Alteration or revocation of will authorised under
this Part
15 (1) This section applies if --
(a) a will has been made on behalf of a person
under this Part; and
(b) the person acquires or regains testamentary
capacity.
20 (2) The will --
(a) may be altered by the person in accordance
with section 10 or by a document that has effect
under Part X;
(b) may be revoked in whole or in part by the
25 person in accordance with section 15 or by a
document that has effect under Part X; and
(c) is subject to revocation under section 14(1) or
14A(2),
as if it were a will executed in accordance with
30 section 8.
page 22
Wills Amendment Bill 2006
s. 24
47. Protection of privacy of persons to whom
applications relate
(1) In proceedings under section 40, the Court may do any
or all of the following, either on its own initiative or on
5 the application of a party to the proceedings --
(a) order that the whole or any part of the
proceedings be heard in closed court;
(b) order that only persons or classes of persons
specified by the Court may be present during
10 the whole or any part of the proceedings;
(c) make an order prohibiting the publication of a
report of --
(i) the whole or any part of the
proceedings; or
15 (ii) any information derived from or relating
to the proceedings,
including any order made by the Court.
(2) Instead of making an order described in
subsection (1)(c), the Court may make such an order
20 but with exceptions allowing the publication, in the
manner or to the persons specified in the order, of
particulars or information, or particulars or information
of a kind, so specified.
Division 2 -- Wills of persons who lack testamentary
25 capacity made under the law of another place
48. Recognition of wills
(1) In this section --
"statutory will" means a will executed by virtue of a
statutory provision on behalf of a person who, at
30 the time of execution, lacked testamentary
capacity, and includes an alteration to and a
revocation of a statutory or other will.
page 23
Wills Amendment Bill 2006
s. 24
(2) 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 or a valid alteration or revocation of a will, as
5 the case may be, for the purposes of the law of this
State.
(3) The application of subsection (2) extends to a statutory
will made before the commencement of section 24 of
the Wills Amendment Act 2006.
10 Part XII -- Rectification of wills by
Supreme Court
49. Definition
In this Part --
"Court" means the Supreme Court.
15 50. Court may rectify a will
(1) The Court may make an order rectifying a will to carry
out the intentions of a deceased testator if the Court is
satisfied that the will does not carry out the testator's
intentions because --
20 (a) a clerical error was made; or
(b) the will does not give effect to the testator's
instructions.
(2) Any application for an order under this section must be
made within 6 months after the death of the testator.
25 (3) The Court may extend the period of time for making an
application, even if the original period has expired, but
not if the final distribution of the estate has been made.
(4) A certified copy of an order under this section must be
attached to the original will and to the probated copy of
30 the will.
page 24
Wills Amendment Bill 2006
s. 25
(5) Subject to subsection (2), the power conferred by
subsection (1) extends to the will of a person who died
before the commencement of section 24 of the Wills
Amendment Act 2006.
5 ".
25. Consequential amendments to other Acts
Schedule 1 has effect.
page 25
Wills Amendment Bill 2006
Schedule 1 Consequential amendments to other Acts
cl. 1
Schedule 1 -- Consequential amendments to other Acts
[s. 25]
1. Guardianship and Administration Act 1990 amended
(1) The amendments in this clause are to the Guardianship and
5 Administration Act 1990*.
[* Reprint 3 as at 1 April 2005.
For subsequent amendments see Acts Nos. 34, 59 and 84 of 2004.]
(2) Section 45 is amended as follows:
(a) by deleting subsection (3)(b);
10 (b) by inserting after subsection (3) the following subsection --
"
(4) A plenary guardian may not make a will or other
testamentary disposition on behalf of a represented
person but this subsection does not affect the operation
15 of section 111A.
".
(3) After section 71(2) the following subsection is inserted --
"
(2a) Despite subsection (2), a plenary administrator may not
20 make a will or other testamentary disposition on behalf
of a represented person, but this subsection does not
affect the operation of section 111A.
".
(4) After section 111 the following section is inserted --
25 "
111A. Applications under section 40 of the Wills Act 1970
Subject to sections 43(3) and 64(3)(a), a plenary
guardian or a plenary administrator may, in accordance
with Part XI of the Wills Act 1970, make an application
30 to the Supreme Court for an order under section 40 of
that Act if the plenary guardian or the plenary
page 26
Wills Amendment Bill 2006
Consequential amendments to other Acts Schedule 1
cl. 2
administrator considers that the represented person
lacks testamentary capacity.
".
2. Inheritance (Family and Dependants Provision) Act 1972 amended
5 (1) The amendments in this clause are to the Inheritance (Family and
Dependants Provision) Act 1972*.
[* Reprint 1 as at 5 September 2003.]
(2) Section 4(1) is amended in the definition of "will" by deleting
"instrument." and inserting instead --
10 " disposition. ".
3. Life Assurance Companies Act 1889 amended
(1) The amendments in this clause are to the Life Assurance Companies
Act 1889*.
[* Act 1889 (53 Vict. No. 12).
15 For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 252.]
(2) Section 33 is amended in the second paragraph by deleting
"testamentary instrument executed by him," and inserting instead --
"
20 instrument having testamentary effect in respect of
his estate,
".
4. Property Law Act 1969 amended
(1) The amendments in this clause are to the Property Law Act 1969*.
25 [* Reprinted as at 21 May 1999.
For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 361 and Act No. 38 of
2005.]
(2) Section 120(g) is amended by deleting "instrument" and inserting
30 instead --
" disposition ".
page 27
Wills Amendment Bill 2006
Schedule 1 Consequential amendments to other Acts
cl. 5
5. Public Trustee Act 1941 amended
(1) The amendments in this clause are to the Public Trustee Act 1941*.
[* Reprinted as at 4 May 2001.
For subsequent amendments see Western Australian Legislation
5 Information Tables for 2004, Table 1, p. 370.]
(2) Section 32 is amended as follows:
(a) by inserting before "The Public Trustee" the subsection
designation "(1)";
(b) by inserting at the end of the section the following
10 subsection --
"
(2) In subsection (1) --
"document" has the meaning given to that term by
section 32(1) of the Wills Act 1970.
15 ".
6. Stamp Act 1921 amended
(1) The amendments in this clause are to the Stamp Act 1921*.
[* Reprint 15 as at 3 June 2005.
For subsequent amendments see Acts Nos. 11, 12, 34, 35, 36 and
20 38 of 2005.]
(2) Section 76D(2)(a) is amended by deleting "instrument" in both places
where it occurs and inserting instead --
" disposition ".
7. Supreme Court Act 1935 amended
25 (1) The amendment in this clause is to the Supreme Court Act 1935*.
[* Reprint 7 as at 19 August 2005.
For subsequent amendments see Acts Nos. 20 and 24 of 2005.]
page 28
Wills Amendment Bill 2006
Consequential amendments to other Acts Schedule 1
cl. 8
(2) Section 171(1)(c) is amended by inserting after "Court" --
"
or depositing a will or instrument under
section 44 of the Wills Act 1970
5 ".
8. Trustee Companies Act 1987 amended
(1) The amendments in this clause are to the Trustee Companies
Act 1987*.
[* Reprint 2 as at 6 February 2004.
10 For subsequent amendments see Western Australian Legislation
Information Tables for 2004, Table 1, p. 466 and Gazette dated
21 March 2006 p. 1082-3.]
(2) Section 3(1) is amended by deleting the definition of "will" and
inserting instead --
15 "
"will" includes a codicil and any other testamentary
instrument or disposition.
".
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