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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 27 July 2017 at 03:27)
Part 78 Division 3 Subdivision 3
Subdivision 3 Proof of wills in non-contentious proceedings
25   Application of Division
This Subdivision applies to proceedings in which the plaintiff seeks to prove a will.
26   Will not sufficiently attested
(cf former Part 78, rule 15)
(1)  If the will contains either no attestation clause or an insufficient attestation clause, the plaintiff must file an affidavit by one or more of the attesting witnesses to the due execution of the will.
(2)  A plaintiff who is unable to comply with subrule (1) must file:
(a)  an affidavit as to the reason for the inability, and
(b)  a further affidavit by some other person who was present when the will was executed.
(3)  A plaintiff who is unable to comply with subrule (1) or (2) must file an affidavit as to:
(a)  the reason for the inability, and
(b)  either:
(i)  the signatures of the testator and the attesting witnesses, or
(ii)  other facts from which it may be inferred that the will was duly executed.
27   Blind or illiterate testator’s will or will at another’s direction
(cf former Part 78, rule 16)
If the will was or appears to have been signed by:
(a)  a blind or illiterate testator, or
(b)  some other person at the testator’s direction,
the affidavit in support must include all available evidence as to the manner in which the will was executed and as to whether the testator knew and approved its contents.
28   Date of execution
(cf former Part 78, rule 18)
If the will is undated, the affidavit in support must include evidence establishing the date of its execution.
29   Interlineations, obliterations and alterations
(cf former Part 78, rule 19)
If:
(a)  there is any interlineation, obliteration or alteration in the will, and
(b)  the interlineation, obliteration or alteration is not duly authenticated or otherwise validated,
the affidavit in support must include evidence establishing that the interlineation, obliteration or alteration was made before the will was executed.
30   Documents referred to or attached
(cf former Part 78, rule 20)
If:
(a)  the will contains a reference to a document that suggests that the document forms part of the will, or
(b)  there are marks on the will from which it appears that a document has been attached to it,
the affidavit in support must include all available evidence in regard to those circumstances.
31   Part of will paper torn off or cut off
(cf former Part 78, rule 21)
If it appears that any part of the material on which the will was written has been torn or cut off, the affidavit in support must include all available evidence (including the torn or cut-off part) in regard to those circumstances.
32   Burning, tearing or other sign of revocation
(cf former Part 78, rule 22)
If:
(a)  it appears that there may have been an attempt to destroy the will by burning, tearing or otherwise, or
(b)  there are other circumstances that suggest that the testator may have revoked the will,
the affidavit in support must include all available evidence in regard to those circumstances.
33   Inoperative will
(cf former Part 78, rule 23)
If it appears that the will is or may be wholly or partly inoperative, whether by reason of the executors and beneficiaries all predeceasing the testator or otherwise, the affidavit in support must include evidence as to what persons would be entitled to distribution of the estate on intestacy.