Worth Richard: Wills Bill — In Committee 
Worth Richard: Wills Bill — In Committee 
[Volume:639;Page:9799] 
Dr RICHARD WORTH (National) 
: 
 What a splendid speech we have just heard. In supporting National’s stance in respect of the Wills Bill  I would like to draw the Hon Clayton Cosgrove into the debate by pointing out to him a drafting error that occurs in Part 1 and that will I believe require immediate action by those who sit behind him. The error—and this should have been picked up before—is that if one looks at the commentary one sees under the heading “Terminology simplified”: “Our recommendations in this respect include omitting the word ‘natural’ from ‘natural person’;”. If we look through the bill we find that there are a number of amendments that excise the word “natural”. So in clause 4 in the part we are dealing with at the moment we see that word “natural” has been excised. But if one looks at clause 8 “Meaning of will” where there is a newly inserted provision one sees in clause 8(1): “Will means a document that—(a) is made by a natural person;”. So an error has crept into the work of Mr Cosgrove and his team and now presumably the opportunity exists as a result of the invitation that I make to him and his team for a correction to be made. 
Christopher Finlayson 
: Well spotted. 
Dr RICHARD WORTH 
: Well some might say that but some might also say it is an obvious error by people who have not looked at this legislation properly or sufficiently. 
I would like to start by just for a moment contemplating what a will is. A will is a statement made by a will-maker of how the will-maker wants his or her property to be dealt with when he or she dies. There are two basic governing principles in the law of wills. The first is that a will-maker’s ascertainable intentions should be upheld. The second is that great care should be taken in determining whether what is claimed to be an expression of the will-maker’s wishes is genuinely so because when a will operates upon a will-maker’s death he or she is no longer present to speak for himself or herself. 
Others have noted that what we are doing here is revamping old law contained in 1837 legislation. But of course as Mr Cosgrove would know wills go back way before 1837. In fact one looks at the early development of both the English common law and ecclesiastical law before the Wills Act to see that the English law was shaped by a very sharp divide between the rules relating to land and the rules governing other types of property. There is a distinction resulting from the importance of land tenure in the feudal system. So issues relating to succession to real property were the concern of the common law courts and succession to personal property was dealt with by the ecclesiastical courts. The ecclesiastical courts had their day and from the 17th century the Court of Chancery supplanted the role of the ecclesiastical courts in supervising the administration of deceased estates of personalty. 
Much has been said about the simplification of the legislation. That is in itself a fine aspiration but we also need to reflect that changes are not being made substantively to the law in any real or meaningful way by this legislation. One should not be trapped into thinking that this is a simple area of the law. It is not. It is in fact quite arcane and I am certain that many lawyers have made many millions of dollars in the course of their professional careers from dealing with the type of issues that arise in connection with the validity of wills the interpretation of wills and the administration of estates. 
In 1837 uniform rules governing the execution of wills of realty and personalty were imposed by the Wills Act. This is one of those rare illustrations of old English law that still sits on our statute book by dint of the Imperial Laws Application Act. As others have said the Law Commission appropriately considered that there should be a new Wills Act. Why? Because it thought that it was appropriate to restate the law in language that is more contemporary and plain. It was thought that the law of wills should be as Mr Finlayson has said obvious to the intelligent layman. That was surely a worthy precept and in some minor respects the substantive law of wills can usefully be modified. 
So we see in Part 1 a definition of a will which is in clause 8—I have already noted the drafting error that is there. “Will means a document that—(a) is made by a natural person; and (b) does any or all of the following: (i) disposes of property to which the person is entitled when he or she dies; or (ii) disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or”—finally—“(iii) appoints a testamentary guardian.” 
One looks at that definition in the context of what was in the Wills Act 1837 and sees immediately what the process of simplification has wrought. In the 1837 legislation “will” was defined in this way: “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;”. Is it not amazing that we have had that definition on our statute books since New Zealand came of age in 1840? 
There are other illustrations for those who are interested in these issues and want to compare and contrast what was in the Wills Act of 1837 and what now emerges in this legislation. 
I commend to the Committee subject to the error that I have identified Part 1 of this bill and I certainly look forward to making substantial and continuing contributions as we look at the further errors to be found in Part 2.