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Wills Act 1975

CONSOLIDATED ACTS OF SAMOA 2008

WILLS ACT 1975

Arrangement of Provisions

TITLE
1. Short title
2. Interpretation

PART I
GENERAL PROVISIONS
AS TO WILLS

3. Property which may be disposed of by will
4. Wills of minors
5. Form of will
6. Attesting witness may not benefit
7. Revocation of wills by marriage
8. Manner of revocation of will
9. Alteration in a will after execution
10. Revival of revoked will
11. Wills to speak from death of testator
12. Residuary devises include estates comprised in lapsed and void devises
13. General devise of land to include leasehold as well as freehold land
14. Devise of real estate without any words of limitation
15. Statutory substitutional gift
16. Execution of wills made abroad

PART II
WILLS OF SERVICEMEN
AND SAILORS

17. Interpretation
18. Persons privileged under this Part in respect of making wills
19. Privileged persons may make informal wills
20. Wills of minors who are privileged persons
21. Modifications of Act in relation to wills of privileged persons
22. Will by oral declaration to become void unless testator dies within 12 months
23. Repeals
Schedule

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THE WILLS ACT 1975

1975 No. 12

AN ACT for the amendment and consolidation of the law with respect to wills.

(23 December 1975)
(Commencement date 23 December 1975)

1. Short title - This Act may be cited as the Wills Act 1975.

2. Interpretation - In this Act, unless the context otherwise requires:

"Personal estate" shall include any interest in personal property and things which in law or according to custom and usage, are movable.

"Real estate" shall include any interest in land, except that with respect to customary land it shall extend only to interests in leases or licences granted under the authority of the Alienation of Customary Land Act 1965.

"Will" means any instrument by which a person makes a disposition of his or her property to take effect after his or her death, and includes a codicil, an appointment by will in exercise of a power, and any other testamentary disposition.

PART I
GENERAL PROVISIONS
AS TO WILLS

3. Property which may be disposed of by will - Every person may devise, bequeath, or dispose of, by his or her will executed in manner hereinafter required, all real estate and all personal estate which the person shall be entitled to, either at law or in equity, at the time of his or her death.

4. Wills of minors - (1) Every minor who is of or over the age of 18 years, may make a valid will or revoke a will as if he or she were of full age.

(2) No will made by any person under the age of 18 years shall be valid.

5. Form of will - Every will must be in writing and signed by the testator or some other person in the testator’s presence and by his or her direction and such signature shall be made or acknowledged by the testator in the presence of at least 2 witnesses as his or her will and the witnesses shall sign their names to the will in the presence of the testator and in the presence of each other at the same time

6. Attesting witness may not benefit - Where the execution of a will is attested by any person to whom or to whose spouse any gift is made under the will such gift so far as it concerns such person or the spouse of such person or any person claiming under them shall be null and void but such person so attesting shall be admitted as a witness to prove the will.

7. Revocation of wills by marriage - Every will made by a man or woman (except a will expressed to be in contemplation of marriage) shall be revoked by his or her marriage.

8. Manner of revocation of will - (1) No will or codicil, or any part thereof, shall be revoked otherwise than as provided in this section.

(2) A will or codicil, or any part thereof may be revoked by:

(a) Another will or codicil executed in the manner set forth in this Act; or

(b) Some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed by this Act; or

(c) The burning, tearing, or otherwise destroying the same by the testator, or by some person in his or her presence and by his or her direction, with the intention of revoking the same.

9. Alteration in a will after execution - No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be authenticated by the signature or initials of the testator and the witnesses in the margin or on some other part of the will opposite or near to such alteration or by a memorandum referring to such alteration written at the end or some other part of the will and duly signed by the testator and the witnesses.

10. Revival of revoked will - No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil executed in manner hereinbefore required and showing an intention to revive the same.

11. Wills to speak from death of testator - Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

12. Residuary devises include estates comprised in lapsed and void devises - Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise contained in such will, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.

13. General devise of land to include leasehold as well as freehold land - A devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his or her will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or his or her leasehold estate, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will.

14. Devise of real estate without any words of limitation - Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.

15. Statutory substitutional gift - (1) Unless a contrary intention appears by the will, where any person is a child of the testator to whom (whether as a named or designated person or as a member of a class) any property is devised or bequeathed in terms that would enable that person to take the property for any estate or interest not determinable at or before the death of that person if that person survived the testator, and that person dies in the lifetime of the testator (whether before or after the testator makes the will) leaving any child or children living at the time of the death of the testator, the devise or bequest shall take effect as if the will had contained a substitutional gift devising or bequeathing the property to such of the children of that person as are living at the time of the testator's death and if more than one of them then in equal shares among them.

(2) In this section, "child" means any child, whether legitimate or illegitimate, provided that an illegitimate relationship between a father and his child shall not be recognised unless there is proof that the paternity of the father has been acknowledged by or established against the father while both the father and child were living.

16. Execution of wills made abroad - Every will made out of Samoa shall be held to be well executed for the purpose of being admitted in Samoa to probate if made as required by the law of the place where the same was made, or by the law of the place where the person was ordinarily resident when the same was made.

PART II
WILLS OF SERVICEMEN AND SAILORS

17. Interpretation - In this Part, unless the context otherwise requires:

"Formal will" means a will made in accordance with section 5.

"Informal will" means a will which is expressed in any form of words whether written or spoken and which is not made in accordance with section 5.

"Privileged person" means a person who is declared by section 18 to be a privileged person.

18. Privileged persons may make informal wills - (1) Subject to the provisions of this Part, any privileged person may make an informal will.

(2) Any privileged person may revoke any previous formal or informal will by any words whether written or spoken declaring an intention to revoke the same.

(3) Subject to the provisions of this Part, all the provisions of this Act (except section 5) shall apply to informal wills.

(4) Notwithstanding anything to the contrary in any other enactment, an informal will may be proved upon such evidence as the Court may consider sufficient.

20. Wills of minors who are privileged persons - Notwithstanding anything to the contrary in section 4(2), an informal will made by a privileged person who is under the age of 18 years shall be as valid as it would have been if the testator had been over that age.

21. Modifications of Act in relation to wills of privileged persons - (1) Nothing in section 6 shall cause to be null and void any gift to any person who attests the execution of any will or to the spouse of any such person, if at the date of the execution of the will the testator was a privileged person.

(2) Notwithstanding anything to the contrary in section 8, where any testator who is a privileged person directs or authorises (either in writing or orally) any other person to burn or tear or otherwise destroy any will of the testator with the intention of revoking the same, any burning, tearing or other destruction effected pursuant to the direction or authority shall (notwithstanding that it does not take place in the testator's presence) be as effective to revoke the will as it would have been if it had taken place in his presence.

(3) Nothing in section 9 shall require any obliteration, interlineation, or alteration made in any formal or informal will to be executed in accordance with that section if the obliteration, interlineation, or alteration was made by the testator or by some person in his presence and by his direction, and while the testator was a privileged person.

22. Will by oral declaration to become void unless testator dies within 12 months - (1) Where any testator who dies after the commencement of this Act has (whether before or after the commencement of this Act) made a valid informal will which has not been validly revoked and which was not either expressed in writing and signed by the testator, or wholly written by the testator, at a time when he or she could make a valid informal will, the will shall not have any force or effect unless the testator dies within 12 months after he or she made the will.

(2) In this section the term "will" includes any words declaring an intention to revoke a will.

23. Repeals - The enactments specified in the Schedule are repealed as part of the law of Samoa.

SCHEDULE

Section 23

The Wills Act 1837 (United Kingdom)
The Wills Amendment Act 1852 (United Kingdom)
The Wills Amendment Act 1955 (New Zealand)
The Wills Amendment Act 1958 (New Zealand)
The Wills Amendment Act 1960 (New Zealand)
Part VIII of the Samoan Land and Titles Ordinance (No.2) 1934
Section 368 of the Samoa Act 1921 (New Zealand)

The reference to the Samoan Land and Titles Protection Ordinance (No.2) 1934 has been substituted for a reference to the Land and Titles Protection Ordinance (No.2) 1934 pursuant to s.3 (f) of the Reprint of Statutes Act 1972.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) All references to the male gender have been made gender neutral.

(c) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(d) Amendments have been made to up-date references to offices, officers and statutes.

(e) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

There were no amendments made to this law since the publication of the Western Samoa Statutes Reprint 1978-1996.

Revised and consolidated by Graham Bruce Powell
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2008 No. 2

The commencement date is inserted under the assent date - under the Attorney Generals powers in the Publication and Revision of Laws Act 2008. By virtue of section 8 of the Acts Interpretation Act 1974, in the absence of an expressed commencement date, the date of assent is the commencement date. There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

The Wills Act 1975 is administered
in the Ministry of Justice and Courts Administration.