Wilkinson Kate: Wills Bill — Third Reading 
Wilkinson Kate: Wills Bill — Third Reading 
[Volume:641;Page:11460] 
KATE WILKINSON (National) 
: 
 In speaking in support of this Wills Bill at its third reading I must admit that I have some cautions regarding introducing new albeit plainer language that is previously untested in the courts. However I appreciate and recognise the advantage of restating the existing law relating to wills in a single statute and in plain modern language that is clear and accessible. It should be noted that although this may make the statute easier to understand it does not necessarily mean that the will itself will be easier to understand. 
The definition of a will is fairly simplistic. Clause 8 of the bill defines a will as a document that basically disposes of property. I think for the record that it is useful to compare this definition with that which is in the existing statute which is the Wills Act 1837 to illustrate just how much simpler this bill really is. The current Act states: “The word will shall extend to a testament and to a codicil and to an appointment by will or by writing in the nature of a will in exercise of a power and also to a disposition by will and testament or devise of the custody and tuition of any child by virtue of [the Tenures Abolition Act 1660] or by virtue of an Act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second intituled ‘An Act for taking away the Court of Wards and Liveries and tenures  
in capite 
 and by knight’s service’ and to any other testamentary disposition;”. That is what our current law states. In this bill a will is defined simply as a document that disposes of property. Without a doubt the definition is simpler.  
The Wills Bill also says that all property may be disposed of by will. If I may I beg the forbearance of the House and will for the history books remind the House what the previous wording of the Act was in respect of this provision. Section 3 of the Act entitled “All property may be disposed of by will” states: “It shall be lawful for every person to devise bequeath or dispose of by his will executed in manner hereinafter required all real estate and all personal estate which he shall be entitled to either at law or in equity at the time of his death and which if not so devised bequeathed or disposed of would devolve upon the heir at law or customary heir of him or if he became entitled by descent of his ancestor or upon his executor or administrator; and the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right or customary or copyhold notwithstanding that the testator may not have surrendered the same to the use of his will or notwithstanding that being entitled as heir devisee or otherwise to be admitted thereto he shall not have been admitted thereto or notwithstanding that the same in consequence of the want of a custom to devise or surrender to the use of a will or otherwise could not at law have been disposed of by will if this Act had not been made or notwithstanding that the same in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only or any other special custom could not have been disposed of by will according to the power contained in this Act if this Act had not been made; and also to estates  
pur autre vie 
 whether there shall or shall not be any special occupant thereof and whether the same shall be freehold customary freehold tenant right customary or copyhold or of any other tenure and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent executory or other future interests in any real or personal estate whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken and other rights of entry; and also to such of the same estates interests and rights respectively and other real and personal estate as the testator may be entitled to at the time of his death notwithstanding that he may become entitled to the same subsequently to the execution of his will.” That was one sentence; there were no full stops. Now the Wills Bill simply says that all property may be disposed of by will. National accepts that the bill makes the legislation simpler. Without a doubt the current bill is simpler. It may have been a long-winded point to make but the Wills Bill is simpler.  
It is also important to note that under the current legislation an appointment in the nature of a power can be a will. In other words under current wills law it is possible to appoint for example trustees of a trust—to give a person a power of appointment under a trust. Under this bill that may not necessarily be accorded the status of a will. Accordingly there may be some doubt as to how binding a document is that merely appoints a trustee without actually disposing of property. Under this bill a will is actually limited to a document that disposes of property to which a person is entitled or to which a person becomes entitled. I suppose that my point is that a will that merely appoints a trustee of a trust may not actually be a will under this new legislation. Therefore a question that may be asked is what status the courts will accord such an appointment. That is a question that hopefully will be resolved—and will be easy to resolve—without having to resort to lengthy and traumatic court proceedings at a time when families least need that extra trauma. Maybe common sense will prevail but I have to say that common sense does not always prevail.  
Be that as it may I accept that the interpretation of wills should not be the sole domain of qualified lawyers. It is important that wills are understood by all. It is important that a person’s last wishes are understood and complied with as simply and as easily as possible.  
National supports this bill. We note that its commencement date has been changed three times so far. We certainly hope that the bill will meet its objective of making the law relating to wills easier to understand and comprehend. In relation to the commencement date we hope that it is third time lucky. Despite the Minister’s motto of “Do it once; do it right” in this case it is “Do it thrice; do it right”. National supports the Wills Bill at its third reading. 
Bill read a third time.