Revised Statutes of Newfoundland 1990 Chapter W-10

2. (1) A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by him or her, or, where not so written and signed, is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the will as witnesses, and where the will is made by a person who cannot write, it must first be read over to or by the testator in the presence of the witnesses.

(2) This Act does not affect the disposal of a sailor or fisher of his or her property while at sea.

RSN1970 c401 s2

3. A will is invalid where made by a person under the age of 17 years.

RSN1970 c401 s3

4. (1) An appointment made by will, in exercise of a power, is invalid unless it is executed in the manner required by section 2.

(2) A will executed in the manner required by section 2, with respect to the execution and certification of an appointment, is a valid execution of a power of appointment by will notwithstanding that it has been expressly required that a will made in exercise of that power is executed with some additional or other form of execution or solemnity.

RSN1970 c401 s4

5. A will executed in the manner required by section 2 is valid without a publication of it.

RSN1970 c401 s5

6. Where a person who certifies the execution of a will is, at the time of the execution of it, or afterwards, incompetent to be admitted as a witness to prove the execution of it, the will is not on that account invalid.

RSN1970 c401 s6

7. (1) A devise, bequest, legacy, estate, interest, gift or appointment, to a person or to the spouse of a person, who certifies the execution of a will, is not void where the will can be sufficiently proved, according to this Act without proof by the person of the execution of the will.

(2) Where a will cannot be sufficiently proved without the evidence of a beneficiary, he or she shall be admitted as a witness to prove the execution or the validity or invalidity of the will, and in that case the devise, bequest, legacy, estate, interest, gift or appointment in his or her favour is void.

RSN1970 c401 s7

8. An executor of a will may be admitted as a witness to prove the execution of the will, or to prove the validity or invalidity of the will.

RSN1970 c401 s8

9. A person's will shall be revoked by his or her marriage except where

(a) there is a declaration in the will that it is made in contemplation of that marriage; or

(b) the will is made in exercise of a power of appointment, when the property appointed by it would not, in default of the appointment, pass to his or her executor or administrator, or to the person entitled as his or her next-of-kin, under the Intestate Succession Act.

1971 No14 s2; 1971 No29 s2

10. A will is not revoked by a presumption of an intention on the ground of an alteration in circumstances.

RSN1970 c401 s10

11. A will or codicil, or a part of either, is not revoked otherwise than as previously stated, or by

(a) another will or codicil executed in the manner required by this Act;

(b) some writing declaring an intention to revoke it, and executed in the manner in which a will is required to be executed; or

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

RSN1970 c401 s11

12. (1) No obliteration, interlineation or other alteration, made in a will after the execution of it, is valid or has an effect except where the words or effect of the will before the alteration is not apparent, unless the alteration is made and executed in the manner required by this Act.

(2) A will with an alteration is considered to be executed where the signature of the testator, or the testator's signature and that of the witnesses, is made in the margin or on some part of the will opposite or near to the alteration, or at the foot or end of or opposite to a memorandum referring to the alteration, and written at the end or some other part of the will or attached to it.

RSN1970 c401 s12

13. (1) A will or codicil, or a part of it, which is revoked, is not revived otherwise than by the re-execution of it, or by a codicil which is executed in the manner required by this Act, and shows an intention to revive it.

(2) Where a will or codicil which is partly revoked, and afterwards wholly revoked, is revived, the revival does not extend to the part that has been revoked before the revocation of the whole of it, unless an intention to the contrary is shown.

RSN1970 c401 s13

14. A conveyance or other act made or done after the re-execution of a will, or relating to property comprised in the will, except an act by which the will is revoked as previously stated in this Act does not prevent the operation of the will with respect to the property that the testator has power to dispose of by will at the time of his or her death.

RSN1970 c401 s14

15. A will shall be construed with reference to the property comprised in it, to take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears by the will.

RSN1970 c401 s15

16. A general devise or bequest of the property of the testator, or of that property in a place or in the occupation of a person mentioned in the testator's will, or otherwise described in a general manner, shall be construed to include property to which the description extends which the testator may have power to appoint in a manner he or she considers appropriate, and shall operate as an execution of the power unless a contrary intention appears by the will.

RSN1970 c401 s16

17. (1) In a devise or bequest of property, the words "die without issue", "die without leaving issue", or "have no issue", or other words which may import either a lack or failure of issue of a person in his or her lifetime, or at the time of his or her death, or an indefinite failure of issue, is construed to mean a want or failure of issue in the lifetime or at the time of the death of the person, and not an indefinite failure of issue, unless a contrary intention appears by the will, because of the person having a prior quasi estate tail, or of a preceding gift being without implication arising from those words or limitation of quasi estate tail to the person or issue, or otherwise.

(2) This Act shall not extend to cases where words contained in subsection (1) stated import, where no issue described in a preceding gift is born, or where there is no issue who lives to reach the age, or otherwise answer the description required for obtaining a vested estate by a preceding gift to the issue.

RSN1970 c401 s17

18. (1) Except when a contrary intention appears by the will, where a person dies in the lifetime of a testator either before or after the testator makes the will and that person

(a) is a child or other issue of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before that person's death; and

(b) leaves issue who is living at the time of the death of the testator,

the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if he or she had died intestate and without debts immediately after the death of the testator.

(2) If the Intestate Succession Act is amended to the effect that where an intestate dies leaving a spouse and issue, the spouse receives a preferential share in respect of the intestate's estate, the spouse is not entitled to receive the preferential share under this section.

(3) In this section, a person is considered to be living at the time of the death of the testator if the person, having been conceived before the death of the testator, is born alive after the testator's death.

1971 No14 s2; 1971 No29 s3

19. (1) Except where a contrary intention appears by the will, where a person dies in the lifetime of a testator either before or after the testator makes the will and that person

(a) is a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before his or her death; and

(b) leaves a child or children living at the time of the death of the testator,

the devise or bequest does not lapse, but takes effect as if it had been made directly to

(d) those children, share and share alike,

and, in this section, a child is considered to be living at the time of the death of the testator if he or she, having been conceived before the death of the testator, is born alive after the death of the testator.

(2) This section applies to the will of a person who dies after March 31, 1969, whether the will was made before or after that date.

RSN1970 c401 s19

20. This Act shall not extend to a will made before October 13, 1864.

RSN1970 c401 s20

PART II
CONFLICT OF LAWS
Back to Top Interpretation

21. In this Part

(a) an interest in land includes a leasehold estate as well as a freehold estate in land, and another estate or interest in land whether the estate or interest is real property or is personal property;

(b) an interest in movables includes an interest in a tangible or intangible thing other than land and includes personal property other than an estate or interest in land; and

1975-76 No23 s1

22. This Part applies to a will made either in or out of this province.

1975-76 No23 s1

23. (1) The manner and formalities of making a will and its intrinsic validity and effect, where it relates to an interest in land, are governed by the internal law of the place where the land is situated.

(2) The manner and formalities of making a will, and its intrinsic validity and effect, where it relates to an interest in movables, are governed by the internal law of the place where the testator was living at the time of death.

1975-76 No23 s1

24. (1) As regards the manner and formalities of making a will of an interest in movables, a will is valid and admissible to probate if at the time of its making it complied with the internal law of the place where

(a) the will was made;

(b) the testator was then living;

(d) the testator then was a national if there was in that place 1 body of law governing the wills of nationals.

(2) As regards the manner and formality of making a will of an interest in movables, the following are properly made

(a) a will made on board a vessel or aircraft, where the making of the will conformed to the internal law in force in the place with which having regard to its registration and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected;

(b) a will where it revokes a will that under this Part would be treated as properly made or revokes a provision that under this Part would be treated as comprised in a properly made will, if the making of the later will conformed to a law by reference to which the revoked will or provision would be treated as properly made; and

(c) a will where it exercised a power of appointment, where the making of the will conforms to the law governing the essential validity of the power.

1975-76 No23 s1

25. A change of residence of the testator occurring after a will is made does not make it invalid as regards the manner and formalities of its making or alter its construction.

1975-76 No23 s1

26. Nothing in this Part precludes resort to the law of the place where the testator was living at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.

1975-76 No23 s1

27. Where the value of a thing that is movable consists mainly or entirely in its use in connection with a particular parcel of land by the owner or occupier of the land, succession to an interest in the thing under a will is governed by the law that governs succession to the interest in the land.

1975-76 No23 s1

28. (1) Where a law in force outside this province is to be applied in relation to a will, a requirement of that law that

(a) special formalities are to be observed by testators answering a particular description; or

(b) witnesses to the making of a will are to possess certain qualifications,

shall be treated, notwithstanding a rule of that law to the contrary, as a formal requirement only.

(2) In determining the purposes of this Part whether or not the making of a will conforms to a particular law, regard shall be had to the formal requirement of that law at the time the will was made but this does not prevent account being taken of an alteration of law affecting wills made at that time where the alteration enables the will to be treated as properly made.

1975-76 No23 s1

29. (1) This Part applies to the will of a testator made after December 31, 1976.

(2) Notwithstanding the repeal of Part II of the Wills Act, The Revised Statutes of Newfoundland, 1970, that Part II continues to apply to wills made after June 30, 1955 and before January 1, 1977.

1975-76 No23 s1

PART III
INTERNATIONAL WILLS
Back to Top Definitions

30. In this Part

(a) "convention" means the Convention Providing a Uniform Law on the Form of an International Will, a copy of which is set out in the Schedule;

(b) "effective date" means the latest of

(i) the day on which, in accordance with Article XI of the convention, the convention commences,

(ii) where, at the time of accession, the Government of Canada has declared that the convention extends to the province, the day that is 6 months after the date on which the Government of Canada deposits with the Government of the United States of America an instrument of accession of the convention, and

(iii) the day that is 6 months after the date on which the Government of Canada submits to the Government of the United States of America a declaration that the convention extends to the province;

(c) "international will" means a will that has been made in accordance with the rules regarding an international will set out in the Annex to the convention;

(d) "registrar" means the person responsible for the operation and management of the registration system; and

(e) "registration system" means a system for the registration, or the registration and safekeeping, of international wills established under section 37 or under an agreement entered into under section 38.

1975-76 No23 s2

31. On and after the effective date, the convention is in force in the province and applies to wills as law of the province.

1975-76 No23 s2

32. On and after the effective date, the rules regarding an international will set out in the Annex to the convention are law in the province.

1975-76 No23 s2

33. Nothing in this Part detracts from or affects the validity of a will that is valid under the laws in force within the province other than this Part.

1975-76 No23 s2

34. Members of the Law Society of Newfoundland are designated as persons authorized to act in connection with international wills.

1975-76 No23 s2

35. The Minister of Justice shall request the Government of Canada to accede to the convention and to submit a declaration to the Government of the United States of America declaring that the convention extends to the province.

1975-76 No23 s2

36. As soon as the effective date is determined, the Minister of Justice shall publish in the Gazette a notice indicating the date that is the effective date for the purposes of this Part.

1975-76 No23 s2

37. The Minister of Justice shall establish a system of registration or registration and safekeeping of international wills.

1975-76 No23 s2

38. With the approval of the Lieutenant-Governor in Council, the Minister of Justice for and on behalf of the Crown may enter into an agreement with the government of another province or a minister or official of the government of another province relating to the establishment of a system of registration or registration and safekeeping of international wills for this province and that other province, and for the joint operation of that system, or relating to the exchange of information contained in a system established under section 37 and a similar system established for that other province.

1975-76 No23 s2

39. Where a registration system is established under an agreement entered into under section 38, the Minister of Justice is relieved of his or her obligation under section 37.

1978 c35 s25

40. (1) Information contained in the registration system concerning the international will of a testator shall not be released from the system except in accordance with an agreement made under section 38 or except to a person who satisfies the registrar that he or she is the testator or that

(a) he or she is a person who is authorized by the testator to obtain the information; or

(b) the testator is dead and the person is an appropriate person to have access to the information.

(2) Where the registration system provides for the safekeeping of international wills, an international will of a testator deposited in the system shall not be released except to a person who satisfies the registrar that

(a) he or she is the testator;

(b) he or she is a person who is authorized by the testator to obtain the will; or

(c) the testator is dead and the person is an appropriate person to have custody of the will for the purposes of the administration of the estate of the testator or the agent of the person.

1975-76 No23 s2; 1978 c35 s25

41. (1) Where a member of the Law Society of Newfoundland has acted during a month in respect of 1 or more international wills in his or her capacity as a person authorized to act in connection with international wills, the member shall, on or before the 10th day of the next month, file with the registrar, in a sealed envelope, a list on a form prescribed under the regulations, certified by the member or his or her agent, setting out the name, address and description of the testator and the date of execution of each international will in respect of which he or she so acted, and the registrar shall enter the information in the registration system.

(2) The failure of a member of the Law Society of Newfoundland to comply with subsection (1) in respect of an international will does not affect the validity of the international will.

1975-76 No23 s2

42. The Lieutenant-Governor in Council may make regulations

(a) respecting the operation, maintenance and use of the registration system;

(b) prescribing forms for use in the system;

(d) generally, to give effect to the purpose of the registration system.

1975-76 No23 s2

Back to Top Commencement
43. Sections 37 - 41 come into force on a day to be proclaimed by the Lieutenant-Governor in Council.

RSN1990 cW-10 s43

SCHEDULE

Convention Providing a Uniform Law on the
Form of an International Will

The States signatory to the present Convention,

DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an "international will" which, if employed, would dispense to some extent with the search for the applicable law;

HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:

ARTICLE I

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.

ARTICLE II

1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

ARTICLE III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

ARTICLE IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

ARTICLE V

1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

ARTICLE VI

1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

ARTICLE VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

ARTICLE VIII

No reservation shall be admitted to this Convention or to its Annex.

ARTICLE IX

1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

ARTICLE X

1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

ARTICLE XI

1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.

ARTICLE XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has received the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

ARTICLE XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.

ARTICLE XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

ARTICLE XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

ARTICLE XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(d) any communication received in accordance with Article I, paragraph 4;

(e) any notice received in accordance with Article II, paragraph 2;

(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;

(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;

(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.

ANNEX

Uniform Law on the Form of an
International Will

ARTICLE 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

ARTICLE 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

ARTICLE 3

1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

ARTICLE 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

ARTICLE 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

ARTICLE 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

ARTICLE 7

1. The date of the will shall be the date of its signature by the authorized person.

2. This date shall be noted at the end of the will by the authorized person.

ARTICLE 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

ARTICLE 9

The authorized person shall attached to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

ARTICLE 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE (Convention of October 26, 1973)

1. I, .................................... (name, address and capacity), a person authorized to act in connection with international wills

2. Certify that on .................. (date) at ............. (place)

3. (testator) .................................(name, address, date and place of birth) in my presence and that of the witnesses

4. (a) ................................ (name, address, date and place of birth)

(b) ................................ (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6. (a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason ............................. - I have mentioned this declaration on the will - The signature has been affixed by ......................... (name and address)

7. (b) the witnesses and I have signed the will;

8. *(c) each page of the will has been signed by

..................... and numbered;

9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10. (e) the witnesses met the conditions requisite to act as such

according to the law under which I am acting;

11. *(f) the testator has requested me to include the following statement concerning the safekeeping of his will: _ _ _ _

12. PLACE

13. DATE
14. SIGNATURE and, if necessary, SEAL

*To be completed if appropriate.
ARTICLE 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.
ARTICLE 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.
ARTICLE 13

The absence or irregularly of a certificate shall not affect the formal validity of a will under this Law.
ARTICLE 14

The international will shall be subject to the ordinary rules of revocation of wills.
ARTICLE 15

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

1975-76 No23 s2
©Earl G. Tucker, Queen's Printer