Worth Richard: Wills Bill — In Committee 
Worth Richard: Wills Bill — In Committee 
[Volume:640;Page:10009] 
Dr RICHARD WORTH (National) 
: 
 Part 2 of the Wills Act has a number of subparts. The subpart I want to deal with in particular is Subpart 1 “Making changing revoking and reviving wills”. This particular subpart which deals with formal issues was the subject of detailed comment by the Law Commission. It is the Law Commission’s report of October 1997 that finds expression in this legislation that is currently before us. 
The requirements for the validity of wills are set in clause 11. In summary they are that a will must be in writing; a will must be signed and witnessed; and the will-maker must sign the document or acknowledge that a person directed by the will-maker signed the document in the will-maker’s presence. That latter possibility deals with the issue of amanuensis when there is a blind testator—a blind will-maker. At least two witnesses must be together in the will-maker’s presence when the will-maker signs the will. Each of those witnesses must state on the document in the will-maker’s presence that the witness was present when the will-maker complied with the provisions. Each witness must sign the document in the will-maker’s presence. These are very strict formal requirements; they are very old requirements. They are requirements that originally had a basis in seeking to limit to the greatest extent possible the fraudulent execution of wills. 
It is one of the few areas of the law where many people who are not lawyers feel confident in making their own wills. Indeed there is a flourishing business in selling home-made wills. A number of legal stationers will provide—on payment of a small fee—an appropriate form for a will and then leave it to the will-maker to do what he or she thinks appropriate. These documents often create significant problems when the testator dies and the will is considered in the harsh light of the legal requirements. 
There was a discussion by the Law Commission on these formal issues. The Commission saw it as critical that the provisions I have just touched on be maintained—that is that a will should be signed or acknowledged in the presence of two witnesses together at the same time each of whom signs in the presence of the testator. There were two main purposes behind that requirement. One was cautionary: to help the will-maker appreciate that the document being solemnly signed if left unchanged will when the will-maker dies determine who gets the will-maker’s property. The other main purpose was probative as I have said to ensure that what is put forward after the death of the will-maker is in fact a genuine expression of the testator’s testamentary intentions. 
There were many traps associated with the execution of wills. Probably the most common was a circumstance where the will provided for a particular person to take an asset under the estate of the deceased and that person had witnessed the will. In that circumstance the disposition was void. So a witness seeking to be helpful to a will-maker might well find himself or herself cut out of the bounty that would otherwise have flowed to him or her by dint of being a witness to the particular will. 
The legislation does make some changes to the strict formal requirements. They are basically premised in this way: first there does not seem to be a reason why the formalities should not be dispensed with if the testator’s intention that the document should operate as a will can be established by other means. That is directly relevant to the issue of home-made wills. Similarly the court should be able to uphold a disposition to an interested witness—that is a person who would take under the will—if satisfied that the testator intended the provision freely and voluntarily. Finally if the testator had the necessary will-making intention it should no longer be essential that his or her signature be at the foot or the end of the will. That is why running on from clause 11 there are these specific provisions relating to witnesses and witnesses affected by dispositions made to them.