Types of Wills
What happens if your will was not executed properly under the Wills Act? Maybe it was not properly witnessed, for example. If a court can be satisfied beyond reasonable doubt that the document was intended to be your will, or an alteration, or a revocation of your will (s10 Wills Act 2008), it can make the will valid.
The court can have regard to any evidence, in addition to the document itself, that shows your testamentary intentions. This would include evidence such as statements made by you, verbally or in writing.
Statutory wills are a particular type of will. They are wills that are made, (or altered, revoked or rectified) under the authorisation of the Supreme Court (Division 2, Wills Act 2008), or the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT) (Division 3, Wills Act 2008). In other words, the Court can make a will for you if you cannot.
They are made for people who don’t have the testamentary capacity to make a will. Lacking testamentary capacity usually refers to the mental state of the person (e.g. they have dementia). But a person may be in a coma, or they may lack the necessary level of understanding to execute a will. You need to apply to the Court or the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT) to ask it to order that a statutory will be made.
Remember, ‘testamentary capacity’ for a living, conscious person mean 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 your assets (such as family members); and
- Are able to recall the disposition of your will.
A foreign will is a will made overseas. It will be accepted in Tasmania (s60 Wills Act 2008), if it is valid according to the law of:
- the place 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.