Finlayson Christopher: Wills Bill — First Reading 
Finlayson Christopher: Wills Bill — First Reading 
[Volume:634;Page:5561] 
CHRISTOPHER FINLAYSON (National) 
: 
 I endorse what my friend Ms Pillay said. As deputy chair of the Justice and Electoral Committee I am looking forward to going through this bill very carefully. As Dr Worth said National supports the first reading. 
The bill in my opinion is well overdue; after all as Ms Pillay said the Law Commission presented its report on 23 October 1997. It was a very good report. It reviewed the current legislation as part of its work on succession law and later today a bill dealing with the effects of homicide on the rights of succession will be introduced which is another part of the Law Commission’s work. 
In my opinion there really does have to be a better way of dealing with reports of the Law Commission. Although it is very pleasing that several of its reports have been acted on this year—and I understand that the Property Law Reform Bill is shortly to be introduced—it really is in the public interest that the quality work of the Law Commission be acted on earlier. In my opinion a 9-year gestation period for legislation such as this is too long. Much of the Law Commission’s work could be called lawyers’ law. To the layperson it may appear to be unexciting or even boring but it is essential work. For example a functioning civil and criminal justice system requires up-to-date laws of evidence. 
Every person needs to have a will. Accordingly wills legislation which probably affects everyone as much as tax legislation needs to be simply and carefully drafted. I strongly endorse the aims of the Law Commission’s succession project the aim of which was to have new succession legislation drafted in plain language that provides for succession law in fewer statutes simplifies the law enables better effect to be given to the intentions of will-makers and takes into account the diversity of New Zealand’s families. 
So what is a will? The term is defined by clause 8 of the bill. It is a statement made by a person who is called either the testator or the testatrix and it explains how that person wants his or her estate to be dealt with after death. There are two fundamental principles to the law of wills. The first is that the will-maker’s ascertainable intentions should be upheld and the second is that great care should be taken to determine that what is claimed to be an expression of a will-maker’s wishes is genuinely so. The reason for that is obvious: a will comes into effect when a person can no longer speak for himself or herself. 
In preparation for my first reading speech I did quite a bit of research on the history of wills. It seems that wills have literally been with us since the time of Adam. It is said that Adam made a will and that 70 legions of angels brought sheets of paper and quill pens to Paradise and the Archangel Gabriel acted as a witness. However there is no credible evidence to justify that. I do not think it is even in Genesis and I am sure that the probate registrar would not have been impressed. 
Apparently the oldest will was an Egyptian will. The Greeks had wills and the Romans did as well. They developed the will as it is known today but they had a major problem with forged wills so Nero—of all people—introduced the practice of securely fastening them with tape and sealing them just as many of them are fastened and sealed today. 
Going through history I can tell members that Jonathan Swift’s will was apparently a cracker. It was so popular it was published in London shortly after his death and sold well. His will which was written in the Swift style but without the usual sarcasm includes a gift of a picture “To my dearest friend Alexander Pope” as well as the famous legacy for building St Patrick’s Hospital for idiots and lunatics. Then there was Nelson who gave the order that “England expects every man to do his duty” at Trafalgar. He went down below deck and made a codicil to his will then promptly came back on deck and was killed. Those were quite dramatic circumstances. The fact that England chose to ignore the wishes expressed in his codicil was also dramatic because he had included a special plea for the King and country to provide for his mistress Lady Hamilton. But they didn’t; instead they imprisoned her for debt and conspired to drive her out of England. 
Finally in this romp through history I can tell members that Napoleon made a will. Indeed there were seven codicils in which among other things he blamed everyone else for his failures. I am sure the Prime Minister’s will would be similar. And then there is the will of William Shakespeare—which was comparatively easy to find in the Public Record Office—written by himself and containing a clause that has mystified all those who have read it since. Why did he give only his second-best bed to his wife? So there we have it—wills have been with us for many years indeed. 
There are certain formal requirements for the making of a will. A will should be signed and acknowledged in the presence of two witnesses together at the same time and each of those witnesses must sign in the presence of the will-maker. But there are no formal requirements as to the form of the paper. Indeed I can go back to my trust and equity days and recall a case called Barnes and Barnes where 
the widow of the deceased arrived in court with a will written on an egg resting in a box filled with cotton wool. After the case started His Lordship pointed out that the egg had not been witnessed. Apparently the testator was a mariner at sea who was sick of lawyers’ bills so whilst at sea had drawn up that will in which he left everything to his wife. The evidence and the argument went on for 2 days and eventually His Lordship condemned the eggshell will. It was certainly a strange case but nothing as strange as the case where the bill of exchange was endorsed on the side of a living cow that was led into the bank by its owner. Apparently the owner had been having a fight with the inland revenue department in England. 
I can also recall reading cases about handwritten wills which though uncommon are actually perfectly valid. I note that clause 11 contains a minor change to the law of wills: the testator’s signature is no longer required to be placed at the end of the will. That does seem to be in my opinion a rather odd provision. 
Before making preliminary remarks about some of the detail of the bill I will briefly go through the history of wills legislation. Dr Worth has referred to the position before the 17th century and I will not repeat that. In 1837 the Wills Act was passed by the Westminster Parliament and as several speakers have remarked it remains in force in New Zealand. There have been the occasional amendments to it to accommodate changing social conditions but essentially the 1837 legislation has been the foundation stone of New Zealand’s law of wills. 
As the Law Commission’s report says the Wills Act sets out principles that are generally understood by people with no legal training and generally it has worked very well indeed. That must have been the case for it to have lasted this long with only minor amendments. It is for that reason that the Law Commission suggested that fundamental changes to the legislation would be neither necessary nor wise. So why make a change to the law if it is working well? There are two reasons and those are set out in the explanatory note of the bill. The first reason is to restate the existing law in a single statute that is expressed in plain common language. That means the law can be more readily understood and applied. Second the substantive law in a couple of respects can be usefully updated and modified. 
As to the first point—and this has been touched on by both the Minister and Dr Worth—I say that the general trend of legislation has been to make it as understandable and accessible as practicable. That has been a major aim of the work of the Law Commission over the last 20 years. Clause 8 as Dr Worth said provides a good illustration of simplification. The term “will” as it is defined in the bill is infinitely superior to the complex terminology of the 1837 Act. 
The second reason as I have said is to modernise aspects of the law of wills and some speakers have already referred to clause 10 which we will look at in detail later on. There is no longer a minimum age at which a person may make a will. Originally the minimum age was 21 years. I understand the age was reduced to 18 by a 1969 amendment and now persons under 18 years may make wills in the circumstances briefly elaborated on by Dr Worth. 
Part 1 deals with the preliminary provisions. There are a number of subparts in Part 2 that the select committee will want to pay a lot of attention to particularly those dealing with administering wills. I am going to take a good look at clauses 31 and 32. There are provisions about the wills of persons military or seagoing and there are certain transitional provisions. 
So as Ms Pillay said this is a piece of legislation that need not divide the House. It does however require careful analysis and I join with her and with other members of the Justice and Electoral Committee in looking forward to its coming to that committee so that we can take a good look at it and update the law. Hopefully that law will be able to stay in place for as long as the 1837 Act has.