Changes to Wills Legislation

Changes to Wills Legislation

SUCCESSION ACT 2006

The Succession Bill 2006 was assented by both houses of the New South Wales Parliament on 27 October 2006 and is now known as the Succession Act 2006 (Act).

The Act commenced on 1 March 2008.

Chapter 2 of the Act replaces Parts 1 and 1A of the Wills Probate and Administration Act 1898 (WPA Act) with the exception of two sections namely, sections 30 & 31. The remaining sections of the WPA Act which are not replaced by the Act, have been renamed the Probate and Administration Act 1898.

Wills that were validly made under the WPA Act will continue to be effective after the commencement of the Act.

The Act came about as a result of the implementation of the recommendations of the National Committee for Uniform Succession Laws. Other states have or are in the process of introducing corresponding legislation which incorporates the recommendations of the National Committee for Uniform Succession Laws.

Chapter 2 contains five Parts:

Part 2.1 – The making, alteration, revocation and revival of wills;

Part 2.2 – Wills made or rectified under Court authorisation;

Part 2.3 – Construction of wills;

Part 2.4 – Wills under foreign law; and

Part 2.5 – Deposit of and access to wills.

Parts 2.1, 2.2 and 2.3 contain various divisions. For example, Part 2.1 has five Divisions comprised as follows:-

Division 1 Making a WiIl, sets out what property may be disposed of by will and the minimum age for making a will;

Division 2 Executing a will, sets out how a will is to be signed and witnessed and whether the witnesses need to know they are witnessing the signing of a will;

Division 3 Dispensing with requirements for execution, alteration or revocation of a will, sets out in what circumstances the Court may dispense with these requirements;

Division 4 Witnessing a will, sets out who cannot witness a will and in what circumstances a witness to a will can benefit from a gift under the will to that witness; and

Division 5 Revocation, alteration and revival of a will, sets out when and how a will is revoked, the effect of marriage on a will, the effect of divorce or annulment on a will, how a will may be altered and how a revoked will may be revived.

Will makers should ensure that any will made by them after the commencement of the Act is made in accordance with the relevant provisions of the Act and with the assistance of a qualified professional advisor who has a good understanding of those provisions and in particular the changes to the law implemented by Act.

For more information regarding the Act or assistance with your Will, please contact Katelin Turner (Accredited Wills and Estates Specialist) on (02) 9018 6414 kturner@rbhm.com.au or David Buda on (02) 9018 6407 dbuda@rbhm.com.au