WILLS (INTERNATIONAL WILLS) AMENDMENT BILL

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:57): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill amends the Wills Act 1936 to adopt into the Act the uniform law contained in the UNIDROIT Convention providing a Uniform Law on the Form of an International Will 1973 (the Wills Convention). UNIDROIT, the International Institute for the Unification of Private Law, is an intergovernmental organisation that formulates uniform law instruments aimed at harmonising and coordinating private laws between countries. The Wills Convention is one such instrument.

The Wills Convention establishes an additional form of will, the 'international will'. The international will's use is optional and will not replace existing forms of wills. Its key benefit is to provide greater legal certainty for testators and beneficiaries where assets or beneficiaries are located in several foreign jurisdictions. The international will is valid as regards form, irrespective of the place where it is made, the location of the assets and of the nationality, domicile or residence of the testator, if it is made in compliance with the provisions set out in the Articles in the Annex to the Wills Convention.

Although Australia has been a member of UNIDROIT since 1973 it is not a signatory to the convention. The convention currently has 12 state parties including Canada, France and Italy and an additional eight signatories, including the United Kingdom and the USA. In July 2010 the Standing Committee of Attorneys-General agreed to adopt the uniform law into local legislation to allow Australia to formally accede to the convention. The Bill is based on a model bill which reproduces the text of the uniform law.

The formalities required for the international will are similar to the State requirements, for example, the will must be in writing and signed by the will maker in the presence of two witnesses. The main difference is that the uniform law contains an additional requirement that the will must be declared in the presence of an 'authorised person', who must attach to the will a certificate to the effect that the proper formalities have been performed. The certificate, in absence of contrary evidence, is conclusive evidence of the formal validity of the instrument as an international will. The convention allows contracting States to designate the authorised persons. Through SCAG, States and Territories agreed that authorised persons should be legal practitioners and public notaries—as persons who understand the local laws concerning wills and the uniform law's form requirements.

I stress that adopting the uniform law will not affect the State's laws, but simply allows a testator to choose to have an international will, and will eventually allow Australia's accession to the Wills Convention.

To date, Victoria, ACT and Tasmania have passed Bills to implement the model law and WA has introduced a Bill. Once all States and Territories have implemented the model Bill and have confirmed with the Commonwealth that implementation has occurred, the Commonwealth will commence the formal accession process. The convention provides for entry into force of the convention six months after accession.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause provides for the short title of the measure.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Wills Act 1936

4—Insertion of section 25E

Part 3 of the Act provides for the validity of wills made outside the State. New section 25E provides that Part 3 does not limit the operation of new Part 3A, which provides for international wills.

5—Insertion of Part 3A

This clause will insert a new Part in the Act which provides for international wills.

International wills are a separate form of will that will sit alongside existing forms of will recognised under the Act. New Part 3A of the Act will apply to international wills made in accordance with the requirements of the Convention's Uniform Law. Part 3 may continue to apply 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 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. A detailed explanation of the provisions to be included in this new Part is as follows.

Part 3A—International wills

25F—Interpretation

New section 25F sets out the definitions of key terms used in the new Part.

The section defines Convention to mean the Convention providing for a Uniform Law on the Form of an International Will 1973, which was signed in Washington D.C. on 26 October 1973. A copy of the Convention can be found at—

http://www.unidroit.org/english/conventions/1973wills/main.htm

The definition of the term international will refers to a will made in accordance with the requirements of the Annex to the Convention as set out in a new Schedule to the Act (inserted by clause 6 of the Bill). 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. The Annex to the Convention contains the Uniform Law.

25G—Application of Convention

New section 25G provides that the Annex to the Convention, which sets out the Uniform Law requirements for an international will, has the force of law in South Australia.

25H—Persons authorised to act in connection with international wills

New section 25H designates the persons authorised to act in connection with an international will for the purposes of the law of South 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 Uniform Law, an authorised person is required to certify that the proper formalities for an international will have been performed.

The section also 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.

25I—Witnesses to international wills

New section 25I provides that the requirements for acting as a witness to an international will in South Australia are governed by the law of South Australia. This new section gives effect to Article V of the Convention, which provides that the conditions requisite to acting as a witness to an international will are governed by local laws.

25J—Application of Act to international wills

For the avoidance of doubt, new section 25J provides that the provisions of the Act that apply to wills extend to international wills. While the new Schedule to the Act (the Uniform Law) sets out the specific form requirements for an international will and the process for its execution, the other provisions of the 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.

6—Insertion of Schedule 1

This clause inserts a Schedule at the end of the Act, which reproduces the Annex to the Convention. 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. The Annex to the Convention contains the Uniform Law.

In summary—

Article 1 provides that a will shall be valid as regards its form, irrespective of the place where the will 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 that complies with Articles 2 to 5 of the Uniform Law. If an international will is invalid because it does not comply with Articles 2 to 5 of the Uniform Law, it may still be valid as a will of another kind. For example, it may be a will to which foreign laws apply, the validity of which can be determined under Part 3 of the Act.

Article 2 provides that a joint will cannot be drawn up in the form of an international will.

Article 3 requires an international will to be in writing. It can be written in any language, by hand or by any other means and it need not be written by the testator.

Article 4 requires the testator to declare that a document is his or her will, and that he or she knows the contents of the will, before 2 witnesses and an authorised person. The testator does not have to inform the witnesses or authorised person of the contents of the will.

Article 5 requires the testator to sign the international will in the presence of the 2 witnesses and the authorised person, or to acknowledge his or her signature if signed previously. If the testator is unable to sign the will, the authorised person must note on the will the reason for the incapacity.

Article 6 requires the signatures of the testator, witnesses and authorised person to be placed at the end of the international will. If the will consists of several pages, each page of the will should be numbered and signed by the testator (or the person designated to sign on his or her behalf or the authorised person). However, an international will will not be rendered invalid if these requirements are not met.

Article 7 provides that the date of the international will will be the date on which it was signed by the authorised person. The date should be noted at the end of the will by the authorised person. The will will not be rendered invalid if these requirements are not met. If the will is undated or wrongly dated, the date will have to be proved by some other means.

In the absence of any mandatory rule about the safekeeping of a will, Article 8 requires the authorised person to ask the testator whether he or she wishes to make a declaration about the safekeeping of the international will. If the testator wishes to make such declaration, he or she can request that the certificate that the authorised person attaches to the will (under Article 9) mentions the place that he or she intends to have the will kept. The will will not be rendered invalid if this requirement is not met.

Article 9 requires the authorised person to attach a certificate to the international will certifying that the obligations of the Uniform Law have been complied with.

The form of the certificate is prescribed in Article 10. It is intended that the form allow small changes of detail to the certificate, for example where the form allows for the omission of particulars marked with an asterisk. However, the certificate must be in a substantially similar form to that set out in Article 10. In accordance with Article 13, an absence or irregularity of a certificate will not affect the formal validity of an international will.

Article 11 requires the authorised person to keep a copy of the certificate and deliver another copy to the testator. As another copy of the certificate is attached to the international will, this means that the authorised person must make out three signed certificates. In accordance with Article 13, an absence or irregularity of a certificate will not affect the formal validity of an international will.

Article 12 provides that in the absence of evidence to the contrary, the certificate will be conclusive of the formal validity of an international will. Any challenge to the validity of the will will be solved in accordance with the legal procedure applicable in the Contracting Party where the will and certificate are presented.

As noted above, Article 13 provides that the absence or irregularity of a certificate will not affect the validity of an international will.

Article 14 provides that an international will will be subject to the ordinary rules of revocation of wills under local laws.

Article 15 requires that, when interpreting and applying the provisions of the Uniform Law, regard must be had to its international origin and to the need for uniformity in it interpretation.

Debate adjourned on motion of the Hon. S.G. Wade.