Types of Wills
Sometimes it will transpire that a will has not been executed in accordance with the requirements of the Wills Act. This could be that the document purported to be the will has not been properly witnessed, for example. In such circumstances, a court can be satisfied beyond reasonable doubt that the document constituted the deceased person’s will, an alteration, or a revocation of their will (s10, Wills Act). The court can have regard to any evidence, in addition to the document itself, that attests to the testamentary intentions of the deceased. This would include evidence such as statements made by the deceased person, verbally or in writing.
Statutory wills are a particular type of will. It is one that has been made, altered, revoked or rectified under the authorisation of the Supreme Court, or the Guardianship and Administration Board (Part 3 of the Wills Act). A statutory will can only be made in situations where a person lacks legal majority – they are still a minor, or the person lacks the testamentary capacity to make a will. Lacking testamentary capacity usually refers to the mental state of the person. But a person may be in a coma, they may have died intestate, and so lack capacity by way of death, or they may lack the necessary level of understanding to execute a will.
What is testamentary capacity?
Testamentary capacity for a living, conscious person, requires that you:
- Understand that a will expresses your wishes for distribution of your property after your death;
- Know what assets you have, and know their general value for the purposes of disposing of them to a suitable beneficiary;
- Are able to decide who will receive your assets under your will, and who might also have a claim on them (such as family members); and
- Be able to recall the disposition of your will.
A lack of testamentary capacity will oftentimes see the creation of a statutory will either by the Supreme Court or by the Guardianship and Administration Board.
A foreign will (i.e. a will made overseas) will be accepted in Tasmania (s60, Wills Act), if it is valid according to the law of:
- the jurisdiction where it was executed (made);
- the testator’s usual domicile or habitual residence at the time of execution of will or death;
- the country of which the testator was a national at the time of execution or death.
So, a will made in Thailand according to Thai laws will be valid in Tasmania. But, a will made in another country contrary to their laws will not be accepted here, as it would not be accepted in that country either.