327 TASMANIA.

THE WILLS AOT 1934,

ANALYSIS. ,,1. Short title. No alteration in a will shall 2. Amendment of 4 Vict. No. 9. have any effect unless executed Title. as a will. Preamble. No will revoked to be revived Section 1. otherwise than by re-execution New section 2. or a codicil to revive it. Commencement. A devise not to he rendered in­ New section 3. operative by any subsequent Repeal. conveyance, &c. New section 4. A will shall be construed to Short title. speak from death of testator. New schedule. A residuary devise shall include Provisions adopted. estates comprised in lapsed Section 1. and void devises. " WilL" A general devise of the testator's " Real estate." land shall include copyhold " Personal p.state." and leasehold as well as free­ Allproperty may be disposed of hold lands. bv will. A general gift shall include Est~tes pur autre vie. estates over which the testator Contingent interests. has a general power of Rights of entry; and property appointment. acquired after execution of A devise without any words the will. of limitation shall be con­ E~tates pur autre vie. strued to pass the fee. No will of a person under age The words" die without issue" in valid ; or of a feme covert; or "die without leaving is­ except! &c. sue" shall be construed to Every wIll shall be in writing, mean die without issue living and signed by the testator in at the death. the presence of two witnesees No devise to trustees or exe­ at one time. cutors except fc)r a term, &c. Appointment!! by will to be shall pass a chattel interest. executed like other wills, and Trustees under an unlimited to be valid, although, &c. devise, where the trust ma v Soldiers' & mariners' wills endure beyond, &c., to take excepted. the fee. Devises of estates tail shall not Publication not r@quisite. lapse. Will not void on account of Gifts to children or other issue incompetency of witnesses. who leave iSl!IUe living at the Gift to an attesting witnest'! to testator's death shall not be void. lapse. 3. Amendment of 16 Vict. No 4. Creditor attesting to be admitted Title. a witness. Preamble and enactment. Executor to be admitted a wit­ New section 4. lIess. Short title. Will to be revoked by marriage. 4. Amendment of 9 Geo. V. No. 56. New section 8. 110 will. to be revoked by pre- Persons OIl war service. sumptIOn. . New section 9. No will to be revoked but by Wills of mafl'ied infant... an?t~er will, &c., or by a New section 10. wrltmg executed like a will, Marriage not to avoid will in or by destruction. certain cases.

329 TA S M A NI A.

1934.

ANNO VICESIMO QUINTO

GEORGII v. REGIS~ No. 50.

A.D. AN AC~r to amend an Act passed in the fourth 1934. year of the Reign of Her Majesty Queen Victoria in relation to the law with respect to Wills; and to amend the Wills (Soldiers and Sailors) Act 1918. [13 December, 1934.J

BE it enacted by His Excellency the Governor of Tasmania. by and with the advice and consent of the LegislativE' Council and House of Assembly, in Parliament assembled. as follows:-

1 This Act may be cited as the Will, Act 1934. Short title. Amend­ 2 The Act passed in the fourth year of the reign of Her Majesty ment of4 Queen Victoria number nine for the purpose of adoptiug an Imperial Vict. No. Act intituled the Wills Act J 837 is hereby amended- 9. I. As to the title thereof.- 7 Wm. IV. &; 1 Vict •• Ca) By deleting the word "a" and inserting after the c.26. word "certain" in the first line the words Title. "provisions contained in an" ; and 330 25° GEORGII V No. 50

Wil18.

A.D.1934. (b) By deleting all the words after the word "intituled" in the third line and substituting therefor the words and figures" the Wills Act 1837 ": Preamble. If. By expunging the preamble thereto and deleting the word " therefore" in the enacting clause: Section 1. Ill. By deleting from section one thereof all the words from the word " with" at the beginning thereof to the words" are and" in the fourth line and substituting "therefor the figure and words" 1 So much of an Imperial Act intituled 7 Wm. IV. the Wills Act 1837 as is set forth in the schedule, and as & 1 Vict., therein amended" ; c.26. IV. By repealing section two thereof and snhstituting therefor the following new sections two, three, and four·- New sec­ Commence­ tion 2. "2 The said provisions hereby adopted shall not take ment. effect in this Island and its dependencies until the first day of April, one thousand eight hundred and forty-one. New sec­ Repeal. "3 After the date on which the said adopted provisions tion 3. take effect therein, the enactments enumerated in section two of the said recited Imperial Act shall cease to extend to this Island and its dependencies or to be applied therein. New sec­ Short title. "4-(1) This Act may be cited as the Wills Act tion 4. 1840. "(2) The several sections of the said J mperial Act set forth in the schedule may be cited as sections of the Wills Act 1837." : and New Sche­ V. By inserting therein the following schedule- dule. " SCHEDULE. Provisions PROVISIONS ADOPTED FROM THE WILLS ACT adopted. 1837 (1 J WM. IV. AND 1 VlCT. CAP. 26.) Section 1. " 1. The words and expressions hereinafter men tioned shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, he " WilL" interpreted as follows: (that is to say) the word " will " shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament 01' devise of the custody and tuition of any child, by virtue of an Act passed in the twelfth year of the 12 Car. 2, reign of King Charles the Second, intituled An A ct for c.24. taking away the Cf)urt of Wards and Liveries, and Tenures in capite and by Knights Service, and Purveyance, and for settling a Revenue upon Hi.~ Majesty in lieu thereof, and to any other testamentary disposition; and the " Reftl estate." words "real estate" shall extend to messuages, lands, rents, and hereditaments. whether freehold or of any other tenure, and whether corporeal, incorporeal, or personal, 250 GEORGII V No. 50 331.,

WillB. and to any undivided share thereof, and to any estate, A.D.1934. right, or interest (other than a chattel interest) therein; and the words" personal estate" shall extend to leasehold" Personal estates and other chattels real, and also to moneys, shares estate." of government and other funds, securities for moneys (not being real estates), debts, choses in action, rights, credits, goods, and all other propert.v whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein. "3. It shall be lawful for every person to devise, bequeath, All prQpe~ty or dispose of~ by his will executed in manner hereinafter may dbef ts- required, all real {'state and all personal estate which he ~~~f 0 y shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir at law, of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and also to estates pur autre Estates pur vie, whether there shall or shall not be any special occupant autre vie. thereof, and whether the same shall be freehold or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, Contingent executory, or other future interests in any real or personal interests. estate, whether the testator mayor may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for condi- Rights of tions broken and other rights of entry; and also to such of entry; and the same estates, interests, and rights respectively, and prop~rtYd acq Ulre ot h er rea I and persona I estate, as t h e testator may b e a.fter exe- entitled to at the time of his death, notwithstanding that cution of he may become entitled to the same subsequently to the the will. execution of his will. "6. If no disposition by will shall be made of any estate Estates pur pur autre vie of a freehold nature, the same shall be autre vie. chargeable in the hands of the heir, if it. shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act, it shall be assets in his bands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. 332 25° GEORGII V No 50

WillB.

A.D.19S4. No will of "7. No will made by any person under the age of a person twenty-one years shall be valid. under age valid; nor "8. No will made by any married woman shall be valid, of a feme except such a will as might have been made by a married covert, ex­ woman before the passing of this Act. cept, &c. "9. No will shall be valid unless it shall be in writing Every will and executed in manner hereinafter mentioned: (that iR to sha.ll be in say) it shall be signed at the foot or end thereof by the writing, and signed testator, or by some other rerson in his presence and by by the tes­ his direction; and such signature shall be made or tator in the acknowledged by the testator in the presence of two or presence of more witnesses present at the same time, and such witnesses two wit­ nesses a.t shall attest and shall subscribe the will in the presence of one time. the testator, but no form of attestation shall be necessary. Appoint­ "10. No appointment made by will, in exercise of any ments by power, shall be valid, unless the same be executed in man­ will to be ner herein before required; and every will executed in executed like other manner herein before required shall, so far as respects the wills, !ll1d to execution and attestation thereof, be a valid execution of a be valid, power of appointment by will, notwithstanding it shall although, have been expressly required that a will made in exercise &c. of such power should be executed with some additional 01' other form of execution or solemnity. Soldiers' "11. Provided always that any soldier being in actual & mariners' military service, or any mariner or seamall being at sea, wills ex­ cepted. may dispose of his personal estate as he might have done before the making of this Act. Publica­ tion 110t "13. Every will executed in manner herein before requisite. required shall be valid without any other publication thereof. Will not void on "14. If any person who shall attest the execution of a account of will shall at the time of the execution thereof or at any Incom­ time afterwards be incompetent to be admitted a witness petencyof to prove the execution thereof, such will shall 110t on that witnesses. account be invalid. Gift to an "15. If any person shall attest the execution of any will attesting to whom or to whose wife or husband any beneficial devise, witness to be void. legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, 8lUch devise, legacy, estate, intel est, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execu­ tion of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will. 25° GEORGII V. No. 50. 338

Wills.

"16. In case by any will any real or personal estate shall Creditor A.D.1934. be charged with any debt or debts, and any creditor, or the attestin~ to wife or husband of any creditor, whose debt is so charged, be.~dtmltted a WI ness. S h a 11 attest t h e executIOn. 0 f suc h WI'11 ,such cre d'Itor not- withstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. "17. No person shall, on account of his being an executor Execut~r to of a will, be incompetent to be admitted a witness to prove be ~dmltted th e executIOn. 0 f suc h WI'11' ,or a witness to prove th e va I'd'I Ity a witness. or invalidity thereof. "18. Every will made by a man or woman shall be Will to be revoked by his or her marriage (except a will made in revo~ed by . f f' h h I mal'rlaO"e. exercise 0 a power 0 appomtment, w en t e rea or " personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions). "19. No will shall be revoked by any presumption of No will to an intention on the ground of an alteration in circum- bbe revoked y pre- stan~es. sumption. "20. No will or codicil, or any part thereof, shall he No will to revoked otherwise than as aforesaid, or by another will or be revoked codicil executed in manner herein before required, or by but by ~n­ some writing declaring an intention to revoke the same, ~her w~l, and executed in the manner in which a will is herein before w~;ti~~ ya required to be executed, or by the burning, tearing, or executed otherwise destroying the same by the testator, or by some like a will, person in his presence and by his direction, with the or by.de­ intention of revoking the same. structlOn. "21. No obliteration, interlineation, or other alteration No altera­ made in any will after the execution thereof shall be valid tion in a or have any effect, except so far as the words or effect of wh ill shall t h e Wl'11 be.ore chI suc a teratlOn . s h a 11 not be apparent, un1 ess effectave anvu~le!!s such alteration shall be executed in like manner as herein- executed as before is required for the execution of the will; but the a will. will, with such alteration as part thereof, shall be deemeo to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memo- randum referring to such alteration, and written at the end or some other part of the will. "22. No will or codicil, or any part thereof, which shall No will re­ be in any manner revoked, shall be revived otherwise than vo~eddto be by t h ere-executIOn. t h ereo,f or by a co d'ICI '1 execute d'm otlreVIve er ise manner herein before required, and showing an intention th~n by to revive the same; and when anv will or codicil which re-execu­ shall be partly revoked, and afterwards wholly revoked, tio~ ?lr a COdlCl to revive it. 334 250 GEORGII V No. 50

Wills.

A.D.1934. shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. A devise not to be "23. No conveyance or other act made or done subse­ rendered quently to the execution of a will of or relating to any real inoperati ve 01' personal estate therein comprised, except an act by which by any ",ub­ sequent such will shall be revoked as aforesaid, shall prevent the conveyance, operation of the will with respect to such estate or interest &c. in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. A will shall "24. Every will shall be construed, with reference to the be con­ strued to real estate and personal estate comprised in it, to speak and speak from take effect as if it had been executed immediately before the death of death of the testator, unless a contrary intention shall appear testator. by the will. A residuary "25. Unless a contrary intention shall appear by the will, devise shall such real estate or interest therein as shall be comprised or include estates com­ intended to be comprised in any devise in such will con­ prised in tained, which shall fail or be void by reason of the death of lapsed and the devisee in the lifetime of the testator, or by reason of void such devise being contrary to law or otherwise incapable of deviseil. taking effect, shall be included in the residuary devise (if any) contained in such will. A general "26. A devise of the land of the testator, or of the land devise of of the testator in any place or in the occupation of any the testa­ tor's land person mentioned in his will, or otherwise described in a shall general manner, and any other general devise which would include describe a leasehold estate if the testator had no freehold copyhold estate which could be described by it, shall be construed to and lease­ hold as well include the leasehold estates of the testator, or his leasehold as freehold estates, or any of them, to which such description shall lands. extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. A general "27. A general devise of the real estate of the testator, gift shall or of the real estate of the testator in any place or in the include occupation of any person mentioned in his will, or other­ estates over which the wise described in a general manner, shall be construed to testator has include any real estate, or any real estate to which such a general description shall extend (as the case may be), which he power of may have power to appoint in any manner he may think appoint­ ment. proper, and shall operate as an execntion of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint 25° GEORGII V No 50. 935

Wills. in any manner he may think proper, and shall operate as A.D.1934. an execution of such power, unless a contrary intention shall appear by the will. "28. Where any real estate shall be devised to any A deviee person without any words of limitation, such devise shall without any be construed to pass the fee simple, or other the whole lw' o~ds?f estate or mterest, wh' lC h t h e testator h a d power to d'lspose 0 f Imltatwnh II b by will in sllch real estate, unless a eontrary intention ~o~str:ed shall appear by the will. to pass the "29, In any devise or bequest of real or personal estate fee, the words" die without issue," or "die without leaving Th? wO,rd/il issue" or " have no issue" or any other words which may" dl~ wIth- . ' , ' " . outIsBue" 01' Import eIther a wan t Of faIlure of Issue of any person m" die with. his lifetime or at the time of his death, or an indefinite fail- out leaving ure of his issue, shall be construed to mean a want or failure issue" shall of issue in the lifetime or at the time of the death of such be cor person, and not an indefinite failure of his issue, unless a ~:~: ;~ contrary intention shall appear by the will, by reason of without such persons having a prior estate tail, or of a preceding issue living gift, being, without any implication arising from such ~t .tl~ words, a limitation of an estate tail to such person or issue, eat • or otherwise: Provided that this Act shall not extend to cases where such words as aforesaid import if no iRsue described ill a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to mch issue. "30. Where any real estate shall be devised to any No devise trustee or executor, such devise shall be construed to pass to trustees the fee simple or other the whole estate or interest which or exetc~tors · f b '11' h I excep lOr a t h e testator h a d power to dIspose 0' y WI Ul suc rea term, &c. estate, unless a definite term of years, absolute or determin- shall pass' able, or an estate of freehold, shall thereby be given to ~ chattel him expressly or by implication. mterest. "31. Where any real estate shall be devised to a trustee, Trustees without any express limitation of the estate to be taken by un~er.an such trustee, and the beneficial interest in such real estate, unlI.mlted o~ in the surplus rent~ an~ profits thereof, sh~ll .not be ~e;~::'the given to any person for hfe, or such benefiCIal mterest trust may shall be given to any person for life, but the purposes of endure be­ the trust may continue beyond the life of such person, yond, &c., such .devise shall be construed to vest in such trus~ee the }~e:ake the fee SImple, or other the whole legal estate whICh the testator had power to dispose of by will in such real estate, am!-not an estate determinable when the purposes of the tru't shall be satisfied. "82. Where any person to whom any real estate shall Devises ~f be devised for an estate tailor an estate in quasi entail estates taIl 8 h a II cl"·Ie III t h e I'11etune f!' 0 f t 1le testator I"eavmg Issue w h 0 lapse,"hall not 386 2~O GEORGII V No. 50 waZs.

A.D.1934. would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. Gifts to "33. Where any person being a child or other i!Sue of children or the testator to whom any real or personal estate shall be other issue who leave devised or bequeathed for any estate or interest not issue living determinable at or before the death of such person shall at the tes­ die in the lifetime of the testator leaving issue, and any tator's death such issue of such person shall be living at the time of shall not la pSI>. the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of luch person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.".

Amend­ 3 The Wills Act Amendment Act 1852 is hereby amended- ment of 16 Vict. No. 4. I. By deleting from the title thereof all the words therein after Title. the word" Act," and substituting therefor the words "to amend the Wills Act 1840" : Preamble n. By expunging the preamble thereto", and deleting from the and enact­ enacting clause the word "therefore" : ment. Ill. By deleting from section one thereof the words- (a) "from and after the passing of this Act" and insert­ ing the figure" 1 " before the word' Every' ": and Cb) ,. said enactment as explained by thilil Act": and ( c) ., said recited Act of Parliament or this Act," and substituting for the words quoted in divisons (b) and (c) respectively of this paragraph the words " Principal Act " : IV. By deleting from section two thereof the words "and be it further enacted that" therein: and V. By repealing sections three and four thereof, and substituting for repealed section four the following new section:- New sec- Short title. ,. 4 This Act may be cited al the Wills A.ct 1852." tion 4. Amend- 4: The Wills ( Soldip,Ts and Sailors) Act 19 J 8 is hereby amended­ ment of 9 Gao. V. I. As to the title, by deleting the word "further" and all the No. 56. words after .• the" in the first line and inserting after the said word" the" the words" Wilts Act 1840"; lIe As to section onE', by deleting the words" for all purposes" and" (Soldiers and Sailors)" ; 250 GEORGII V. No 50. 337

Wills.

Ill. AI to section two, by deleting all the words from" Imperial .. A..D.1934. in the first line to " Act)" in the third line and substi­ tuting therefor the words" Wills Act 1837" and deleting the word" Imperial" in the fourth line: IV. As to sections three to seven, by substituting" Wilts Act 1837" for" said Imperial Act" wherever occurring: V. By repealing section eight and substituting the following New sec­ new sections eight, nine, and ten- tion 8. "8 Any person who, in connection with the war in Persona on which His Majesty was engaged and which commenced on war service. the fourth day of August, one thousand nine hundred and fourteen and terminated on the tenth day of January, one thousand nine hundred and twenty, was for any period between those dates- I. Engaged in this State or elsewhere on naval or military service with the naval or military forces of His Majesty or of the Commonwealth: 11. Engaged outside this State in any work for any Red Cross society or ambulance association or any other body having similar objects: or 111. A prisoner of war in an enemy country or interned in the country of a neutral power- shall be deemed to have been during such period a soldier on actual military service for the purposes of section eleven of the Wills Act 1837. "9-( 1) Notwithstanding the provisions of section Wills of YeWSf>C­ seven of the WiUs Act 1837, every male infant not under ~arried tion 9. the Hge of nineteen years, and every female infant not m£ants. 6 Ed. VII. under the age of eighteen years, shall be competent after No. 17. his or her marriage to make a valid will disposing of all or any part. of his or her property. (2) The provisions of this section shall apply to every will made by any such infant after the eighth day of November, one thousand nine hundred and six. "10 Notwithstanding the provisions of section eighteen Marriage New sec­ of the Wills Act 1837, a will expressed to be made in n~t t~ avoid tion 10. contemplation of marriage shall not be revoked by the wt ~nm cer- 15 and 16 ce Ie bratIOn· 0 f' t h' e marrIage so contemp Id"ate . am cases. G eo. V ., c. - 20, s. 177.

WALTER E. SHIMMINS, GOVERNMEN1 PRINTER, TASMANIA.