Wills Bill — In Committee 
Wills Bill — In Committee 
[Volume:639;Page:9797] 
Wills Bill 
In Committee 
Part 1 Preliminary provisions 
CHARLES CHAUVEL (Labour) 
: 
 I rise to take a brief call on Part 1 of the Wills Bill. The purposes of the bill are set out in clause 3 which comprises three paragraphs. Paragraph (a) replaces the Wills Act 1837 of the United Kingdom Parliament with an Act in plain language paragraph (b) changes some aspects of the law set out in that legislation and paragraph (c) provides for other matters relating to wills. It is significant that this is the first piece of legislation in which this Parliament has properly and comprehensively dealt with the law relating to wills and I hope that it will be thought the Justice and Electoral Committee has made a reasonable breast of that job. 
I want to deal with some of the general drafting changes in particular the attempts by the select committee to introduce plain language into the legislation. First we thought that “natural person” was a cumbersome and unnecessary term—unnecessary because clause 8(1) had already defined a “will” as a document made by a natural person. So references to “natural person” in clauses 4 8(5) 10 and 33 have been omitted and replaced with “person”. 
The word “testator” is an archaic term that has also been done away with. I do not think it is a term that really means anything to the person in the street so we have changed that term to “will-maker” in clause 6. We have defined it as “a person who makes changes revokes or revives a will;” and we have made it clear that it is the equivalent of the old Latin terms “testator” or “testatrix”. The consequential changes appear throughout the legislation. 
We have also done away with the cumbersome term “testamentary document” in clause 6 and have suggested the use of the far more commonly used term “will”. The definition of “will” in clause 8 has been extended to cover what was previously also included in the definition of testamentary document including documents like codicils that change wills or documents that revoke or revive wills and consequential changes have been made throughout. 
“Testamentary action” is another clumsy term that we have done away with. We recommend substituting it for a slightly longer definition but one that hopefully will mean more to the layperson: making changing revoking and/or reviving a will. I hope that the public in dealing with the legislation will find it more comprehensible because of the changes recommended. 
I also draw the attention of the Committee of the whole House to clause 6 generally. We have made some other changes. For example in relation to the definition of “de facto relationship” we have provided simply that the definition of de facto relationship in the Interpretation Act 1999 will apply. We have tried to do away with the need for the reader of the legislation to go to the Interpretation Act to work out what that definition is. We have actually just incorporated the definition of “de facto relationship” from the Interpretation Act into the Wills Bill directly and it ought to make it a much easier thing to refer to. 
Probably the other pertinent comment to make is that I understand that a Supplementary Order Paper will be moved to change the commencement date of the legislation from 1 July to 1 September this year. That is to allow for consequential amendments to be made to the probate rules and forms in the High Court Rules. Obviously a 2-month extension will make parliamentary counsel’s job easier and will allow the drafting to occur in a timely and non-hurried fashion. 
Those are my comments on Part 1. I think that some sensible changes are certainly set out in the report back from the committee and I would commend them. 
CHRISTOPHER FINLAYSON (National) 
: 
 I think that the previous speaker dealt very adequately with the key issues that arise in Part 1. I have not heard a much more adequate address than that in a very long time and I do commend him for it. But the one critical thing he did not do was to ask the Committee whether the Justice and Electoral Committee actually succeeded in what it was seeking to do. I hope that the opportunity will be afforded to one of the competent and intelligent lay people on the other side of the Chamber—for example Maryan Street or the member for Rotorua—to comment exactly on whether from a layperson’s point of view the terminology has been simplified. [ 
Interruption 
] Oh even the chief whip may want to say something as an intelligent layperson. 
Although a lot of legislation is necessarily technical and complicated we were determined that with this legislation every endeavour would be made to express it in clear simple English. Indeed I had an idea that I was very fond of but the hard-line chair of the committee Lynne Pillay the MP for Waitakere overruled me on it. I thought it would be very useful to engage probably one of New Zealand’s most eminent exponents of the English language Owen Marshall to look at the legislation from an intelligent layperson’s point of view to say whether we have expressed what we are wanting to say in clear unambiguous simple English. That is because a lot of people want to write their own wills; they do not want to go to a lawyer or to the Public Trust to write their wills for them. I covered some of those situations in my first reading speech on this bill some time ago. 
So the terminology is extremely important and we have made an endeavour to simplify it. Along with Mr Chauvel I would ask what a natural person is as opposed to an unnatural person. It makes no sense. 
Hon Clayton Cosgrove 
: Ask “Barmy Bob”. 
CHRISTOPHER FINLAYSON 
: Yes. Doing a testamentary action is ambiguous and possibly offensive. Certainly making a will seems to be a lot clearer. I am not quite so clear—picking up on what the member for Tauranga said—about whether there is such a problem with the term “testator” or “testatrix” as opposed to ”will-maker” but every endeavour has been made to simplify it. No one uses the term “testatrix” these days; I think it is considered sexist—and those proponents of political correctness on the other side will be able to assist in relation to that. “Testamentary document” is an awfully pompous term for a will so every endeavour has been made to simplify it. 
However when I read through the legislation it does at times seem to be somewhat dense and unnecessarily verbose. That is why I like to use the terminology that in the old days—when Mr Chauvel was doing law—the reasonable man on the Clapham omnibus would have used; these days it would be the terminology that the reasonable person on the Kilbirnie bus would use. Perhaps one of the members whom I have nominated may care to stand cast his or her eyes over the bill and tell members whether the select committee has succeeded. 
The other key aspect of Part 1 deals with the meaning of “will” and although it does seem to take an eternity to state the definition I think that all contingencies are covered. It means that a “will” will also mean a document that changes a will revokes a will revives a will and is a codicil to a will. The only thing that I would say about clause 8(1B) is that there seems to be a tendency to use the word “that” rather than “which”. I think that is an unfortunate tendency in written English these days but there we have it. 
So Part 1 deals with the preliminary provisions. As Mr Chauvel said it is really the first time probably in the history of New Zealand that there has been an opportunity to take a good look at legislation governing wills because the principle Act is still the 1837 legislation. There have of course been some amendments to the Act and they are referred to in the schedules to this legislation. But this is the first time that we are to do it. Presumably it will be another 150 years—or more than 150 years—before Parliament looks at it again so let us get it right this time. That is why clarity and simplicity in the area of wills is really the name of the game. Thank you. 
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. 
Hon CLAYTON COSGROVE (Associate Minister of Justice) 
: 
 I rise to put the previous speaker Richard Worth at his ease. It is— 
Hon Rick Barker 
: No! We like to see his soul tortured! 
Hon CLAYTON COSGROVE 
: I think he is a tortured soul; I do not think he needs our help. Mr Worth purports— 
Dr Richard Worth 
: From the eminent lawyer Mr Cosgrove! 
Hon CLAYTON COSGROVE 
: No I do not in any way purport to be a lawyer neither eminent nor otherwise; I leave it to the “member for Monaco” to take up that. 
Mr Worth in his words has identified a mistake. Sadly that is not true. A “will” as defined in clause 8(1) is a document “made by a natural person;”—correct. Because it is already defined as that it is unnecessary and clumsy to refer to natural persons elsewhere. So the reference to natural persons was deliberately retained. It is the reason why the phrase “natural person” is not needed elsewhere. So to simplify it for the simple mind of Mr Worth I say that it becomes the starting point for that definition and it is not required right through. 
I suggest that the test Mr Finlayson suggested which was a very good suggestion is that laypeople—and I assume that by “laypeople” he meant non-lawyers—actually apprise themselves of the simple language in this bill. I suggest to other people that to do so might be helpful. Mr Worth might like to take some legal lessons from the learned Mr Finlayson in respect of definitions in legislation. 
 I also suggest a person who would be very apt—primevally—to test whether the language is appropriate in this legislation would of course be Bob Clarkson. If Bob understands it I think anyone will understand it. That is the acid test and I invite Mr Clarkson to stand up and advise us—in big print small words or pictures—whether he understands this legislation. If it works for him I think it will work for us all. 
KATE WILKINSON (National) 
: 
 It is my pleasure to take a call on the Wills Bill. I will try to bring it back to some sort of common sense— 
Chris Auchinvole 
: And decency. 
KATE WILKINSON 
: —and decency because it is important. At the end of the day it is the last wish of a person. Once that person has died of course it is far too late. 
I take the point that the language has been simplified but I also make the point that the old language which I must admit I have used for 27 years has been tested over the years by all the cases. Some of this new language may need to be tested. As a young law graduate I learned how to write a will in situations such as sitting next to a hospital bed or even dining in a restaurant. I think that one of the wills I wrote on a table napkin is still as valid as it ever was. 
The old language is comfortable I must admit but that is not to say we cannot move on. It is a challenge. As I understand it the law is not written so that we can understand it; it is written so that we cannot misunderstand it. There is a big difference in that. Under this bill though whereas previously we used to “give devise and bequeath all our real and personal estate of whatsoever nature and wheresoever situate” now we just “give our property”. In a sense the language is becoming more accessible to the ordinary person on the street. 
I would like to draw the Committee’s attention to the meaning of “will” because I do not believe it is totally sufficient. Although the bill tries to simplify the language and perhaps it uses better language than that used in 1837 all it states under clause 8(1) is that a will is a document that is made by a natural person and 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 … or (iii) appoints a testamentary guardian.” 
Wills do more than that in this day and age. Wills appoint trustees and executors. Under this bill these wills do not apparently. Wills can appoint trustees of existing trusts. Wills can provide directions as to how someone wants his or her funeral service or cremation to be conducted. One might laugh at that but I have had the situation where a family disputed where the mother’s ashes should be laid to rest and the three children of the family divided the mother’s ashes three ways. That is a true story. 
So wills do more than just dispose of property; they can avoid a lot of family disagreements at a later stage. In the very nature of wills it is too late when there is found to be an uncertainty in the will to argue about it at that stage because the testator—in the old days it was the testator or the testatrix; I did not mind which one it was—or in this day and age the will-maker is not there to clarify exactly what his or her intentions were. 
I ask the Minister to take a call on the definition of a will because not every natural person person natural or otherwise has property to dispose of but that does not preclude those persons from making a will. I suggest that this is depriving some people of having their last say—of being able to rest in peace knowing that they have properly documented their last wishes and knowing that their directions for disposal of their ashes their burial directions or their funeral directions will be complied with. 
Under this bill I believe that there is an omission and I believe that it would be very simple to fix. I believe it should be fixed. I think it will avoid some misunderstandings and some family disagreements at a later stage when it comes perhaps to dividing the ashes of someone’s dearly loved one. Wills are very important. 
MARYAN STREET (Labour) 
: 
 I am a testatrix and have definitely and deliberately created a testamentary document in order that I should not die intestate and be thereafter known as an intestacy. I have had cause in my life also to do a testamentary action in order to refine and improve my testamentary document so the Wills Bill is of some interest to me as well as to many other New Zealanders. In response to Mr Finlayson’s challenge earlier I do indeed as an intelligent layperson consider this bill to be quite accessible. Like Mr Finlayson I do lament the replacement of “which” with “that” but I recognise the limitations of legislators. As a former teacher of English I say there is much to lament about the movement and evolution of modern English but move and evolve it does. This Wills Bill will fit the bill for modern New Zealanders so I welcome it. 
CHRIS AUCHINVOLE (National) 
: 
 It is a great pleasure to stand to speak after my parliamentary colleague who has just spoken so well. “the statement made by a will-maker— 
Hon Member 
: And so briefly. 
CHRIS AUCHINVOLE 
: —indeed it was brief and I liked the points she made—“of how they want their property to be dealt with once they have died” was the definition of a will just given by my colleague Dr Richard Worth. I thought he spoke singularly well—indeed all people have. They speak of course from a legal perspective and I welcome the invitation of my colleague Chris Finlayson to give a layperson’s point of view. 
Hon Clayton Cosgrove 
: Oh this will be good. 
Hon Member 
: Intelligent! 
CHRIS AUCHINVOLE 
: I thank the member. Intelligent—I do not know if I would fit the category but I will just give an opinion anyway. 
Wills become a fixation for some people. As Dr Worth said and it is worth repeating this is in fact an arcane law that is of great significance and one that has been a huge earner for sections of the legal profession. 
I note that the Minister has a tendency to make light of the points made by Dr Worth and he was I thought slightly demeaning in the way he reflected on the ability of laypeople to voice their understanding of the technicalities of this bill. Well I am a layperson and the Minister can choose to snigger if he so chooses at my interpretation and understanding of this bill but I thoroughly enjoyed being part of the Justice and Electoral Committee to work through it. 
I would like to pay tribute—and I have mentioned this to my colleague Mr Finlayson—to the explanations that were given to us by the officials who attended the select committee because it was an incredibly technical bill to a layperson. It was incredibly technical but it was made very very plain. I am happy to say that I am very pleased with the result. I think it will make things far easier for people to understand. 
It is not uncommon for me to have people come to me in Greymouth and in Motueka in the ever-increasingly marginal seat of West Coast - Tasman. They come in to see me because they cannot understand their position in a will. I suggest that they best see a solicitor but they are people of incredibly tight means and they do not even know how to go about doing that. So it is very important that wills be straightforward. 
I remember taking an overseas client who owned property in New Zealand to see a member of the legal profession—who was my own solicitor and a really good one—in Auckland. I said that my friend wished to make a will for his New Zealand property that would have effect in New Zealand. He started to detail all the things that he wanted in it and I remember the lawyer asking “How much of your life do you wish to control from the grave?”. 
Bob Clarkson 
: Did you say “good lawyer”? 
CHRIS AUCHINVOLE 
: Yes he was; they do exist. They do exist I say to Mr Clarkson. If wills get too complex and if people try to control too much from the grave wills are not going to work. So straightforward wills in straightforward language are a great advantage to the people of New Zealand and I certainly support this bill. Thank you. 
Hon CLAYTON COSGROVE (Associate Minister of Justice) 
: 
 I rise to make just two points. First again in an attempt to assist Mr “Arkinvarl” in his misguided interpretation that somehow I was not supporting Mr Finlayson’s honourable and eminent suggestion— 
Dr Richard Worth 
: I raise a point of order Mr Chairperson. It is quite unacceptable for the Minister to deliberately mispronounce the name of the last speaker and I would ask him to desist from that. It is a form of pettiness that should not be encouraged in the Chamber at all. 
The CHAIRPERSON (Hon Clem Simich) 
: Yes if the member is concerned about it that is fair enough but I thought how the Minister had pronounced the name was close enough. 
Chris Auchinvole 
: I did not take offence but it is a difficult name to pronounce. It is difficult to pronounce perhaps but easy to remember. It is a three-syllable Scottish name of Gaelic origin and for the Minister’s guidance I say that it is pronounced “Ok-in-vole” and members can rhyme that with whatever they choose. 
The CHAIRPERSON (Hon Clem Simich) 
: I am sure the Minister will take note of that. 
Hon CLAYTON COSGROVE 
: I am indebted to the member for his Celtic history lesson. I want to correct any misconception he had that I was not supporting Mr Finlayson’s eminent suggestion that laypeople—that is non-lawyers—should actually look at this bill and give it a health check as it were for the simple nature of its language. So if he took that impression he is wrong. 
I would address one thing— 
Chris Auchinvole 
: I feel reassured. 
Hon CLAYTON COSGROVE 
: Thank goodness! We are all happy for that. I would address Ms Wilkinson’s point in respect of clause 8(1). It describes the two basic requirements that make a will. I think the point was raised in respect of the disposal of ashes and other requirements the deceased may have. I am advised that a will of course can do other things. It is not necessary within the definition of a will in legislation that they be prescribed. Indeed if an executor is appointed in a will I understand that the executor is charged with the disposal of remains and can indeed I am advised dispose of them in any manner regardless of the requirements laid out in a will. But it is not necessary I am advised that every aspect of every wish of a deceased person be prescribed in the legislation. There is nothing in this legislation that stops that level of prescription being placed in there by deceased persons themselves. 
The question was put that the amendment set out on Supplementary Order Paper 108 in the name of the Hon Clayton Cosgrove to Part 1 be agreed to. 
Amendment agreed to. 
Part 1 as amended agreed to. 
Part 2 Wills 
CHARLES CHAUVEL (Labour) 
: 
 I rise to speak to the changes recommended by the Justice and Electoral Committee to Part 2. I really want to address only three of them substantively but I will just run through all the changes recommended. 
It is recommended that clause 9 be omitted in favour of clause 10 and new clause 10A. There are some minor amendments to clause 15 which deals with changes to wills by the obliteration of words. Likewise in clause 16 there are some cross-references to clause 18 which contains the rules relating to wills where age capacity the making of a civil union or the entry into marriage are issues. Clause 19 provides that the dissolution of a civil union or a marriage is not to void the will if the clear intent of the will is that it ought to survive the dissolution of the civil union or marriage. Clause 25(3)(c) has a minor change in language from “doing the roles” to “doing the duties”. Clause 33 deals with the rules for the making of informal wills. Clause 40 concerns wills made before the commencement date of the legislation and the schedule contains some consequential changes to clauses 10 and 18 and deals with the insertion of clause 10A. So there are substantive changes in all those recommended amendments which in my view ought to be drawn to the attention of this Committee. 
The first concerns clause 10A. This clause combines the original subclause (3) in clause 10 and subclause (4) in clause 18. Together those subclauses would have provided that a minor could make a will validly in contemplation of a marriage or a civil union but that the will would not be effective until the marriage or the civil union contemplated actually took place. It is more logical to combine those two subclauses. So clause 10A introduces a new provision to expressly state what evidence is required to demonstrate that a will was made in contemplation of marriage or a civil union. This reflects a change to clause 18. The Supplementary Order Paper which the Minister has tabled will also correct a typographical error in clause 10A. 
I move to the substantive amendments recommended to clause 18. Currently wills are revoked when the will-maker marries or enters a civil union. 
Progress to be reported presently. 
House resumed. 
The Chairperson reported the Arbitration Amendment Bill without amendment the Succession (Homicide) Bill without amendment and progress on the Wills Bill. 
Report adopted.