Wills Bill — Second Reading 
Wills Bill — Second Reading 
[Volume:639;Page:8997] 
Wills Bill 
Second Reading 
Hon LIANNE DALZIEL (Minister of Commerce) 
  
on behalf of the 
 Associate Minister of Justice 
: I move  
That the Wills Bill be now read a second time 
. The Law Commission reviewed the existing wills legislation in 1997 as part of a wider review of succession law. The commission concluded that the current law generally works well and that there is no need for radical change but it recommended restating the existing legislation in one statute in plain language and modernising certain aspects of the substantive law. This bill is based on the Law Commission’s report and was introduced alongside several other bills that give effect to Law Commission reports such as the Arbitration Amendment Bill the Property Law Bill and the bill that we have just previously dealt with the Succession (Homicide) Bill. That bill also arose out of the Law Commission’s broader review of succession law. 
This bill improves the legal framework for will-making. It makes the law on wills easier to understand ensures that better effect can be given to will-makers’ intentions and makes it easier for certain people to make wills. On behalf of my colleague Clayton Cosgrove I thank the Justice and Electoral Committee for its very careful consideration of the bill. I endorse the committee’s amendments to the bill which are entirely in keeping with the spirit of the bill and its objective of modernising the current legislation and making it more user-friendly. 
The Justice and Electoral Committee made a number of helpful changes to the bill. The majority of the committee’s changes relate to the drafting of the bill. One of the bill’s express purposes is to modernise the language of the Wills Act 1837—an old imperial statute—and its numerous amending Acts. The language of those Acts is often difficult for a modern-day reader and layperson to read and the committee’s changes make the bill easier to understand. Of course this will be very depressing for a lot of lawyers because they will not be able to rely on the fact that the language is completely dense and impossible for people to penetrate on their own ability. Tragically this will probably reduce reliance on the legal profession—which is very very sad. Seriously though— 
Darren Hughes 
: Does it include a compensation package? 
Hon LIANNE DALZIEL 
: It does not include a compensation package but it probably would have been nice if it did. It is probably appropriate that people do actually understand what the legislation means when they are trying to deal with what will happen to their property after they pass on. Of course if any mistakes are made in that particular provision there ain’t nothing they can do about it afterwards. 
I want to look at some of the examples in the legislation of language that has been changed. The word “testator” is now seen as an outdated term and I think that is fair enough. It has been replaced by the more commonly used term “will-maker”. At the same time references to doing a testamentary action have been removed and the bill now refers instead to making revoking changing and reviving a will as appropriate language that would be more readily understood by the average reader. I think that that is a good thing; to make the language a lot more accessible to the general public is a very good move indeed. 
Some provisions have been moved around to make the bill easier to navigate—another disappointing feature for the legal profession. That people will be able to find their way easily through legislation is a tragedy obviously for those who rely on the complexity of legislation as the basis for their legal practices. For example new clause 10A combines original clause 10(3) and clause 18(4) which relate to wills made by young persons who have agreed to marry or enter into a civil union with another person. Those two provisions had to be read together anyway. The amendment recognises that they are easier to understand if they are combined in a single clause and the reader does not have to work through the whole bill in order to understand the relevant rule. 
Another example of a change that makes the bill easier for laypersons to understand is the inclusion of an express statement that the definition of a de facto relationship for the purposes of the bill is the standard definition in the Interpretation Act 1999. I know that I sat on the select committee with my colleague Tim Barnett and we looked at the issue of statutory references. The Wills Bill was one of the ones that we left out because we knew that this particular provision was coming. So we are very pleased to be able to see this particular measure introduced and now proceed through the House. The change does not alter the effect of the bill in the absence of a specific definition in the bill—the default definition is the one set out in the Interpretation Act. However including an express cross-reference to the generic definition assists the layperson who may not be aware of the significance of that other Act. I endorse the committee’s improvements to the drafting of the bill. The bill is relevant— 
Chris Auchinvole 
: Thank you. 
Hon LIANNE DALZIEL 
: I say that to Mr Chris Auchinvole whom I think has shown tremendous focus and attention on matters of detail when he is not a lawyer himself. I think that that is fantastic and it shows members just how far we have come in making the language accessible to the layperson because Chris Auchinvole can understand it too. The bill is relevant to all New Zealanders and the changes make what is by necessity a set of very technical provisions much more user-friendly. 
The committee also amended the provisions in the bill that relate to wills made in contemplation of marriage and civil unions. The general rule is that an existing will is revoked by a subsequent marriage or civil union unless the will was in fact made to provide for that marriage or civil union. I remember learning these rules when I did my degree a million years ago; my friend Charles Chauvel will remember learning the rules about wills in contemplation of marriage as well. The original clause 18 followed the existing law. It required that to avoid being revoked by the marriage or civil union in question the will had to expressly state that it was made in contemplation of that marriage or civil union. Actually that is not quite correct because of course there was no such thing as a civil union when Charles and I did our law degrees. It is however readily conceivable that a will that did not expressly state that it was made in contemplation of marriage or civil union might nevertheless have deliberately been made to provide for that change of affairs. The committee has amended the bill so that even if the will does not expressly say that it was made in contemplation of the marriage or civil union it will not be revoked if the circumstances in which the will was made clearly show that it was nevertheless made in contemplation of that marriage or civil union. That change ensures that although a will should normally be revoked by a subsequent marriage or civil union—a significant change of circumstances for the will-maker—that is not the case where the will-maker deliberately made a will to provide for that anticipated change. Consistent with those changes the provisions relating to wills made by young persons in contemplation of marriage or civil union have also been amended. 
Finally I would like to note that the Government expects to introduce a Supplementary Order Paper that changes the commencement date to allow for time for the bill to proceed through the House and for a consequential amendment of the High Court Rules relating to probate. It will also amend a minor definition in the bill. Again I would like to thank the Justice and Electoral Committee for its work on this bill. The committee has approached this bill in an efficient and professional manner and has made a valuable contribution to its development. The committee’s changes serve to promote the laudable goal of creating a plain language bill that is so much more accessible to the average New Zealander. I commend this bill to the House. 
CHRISTOPHER FINLAYSON (National) 
: 
 I thank Minister Lianne Dalziel for her generous remarks about the hard work of the Justice and Electoral Committee but I have to say that they were a bit over the top because really it was not too much hard work at all. This is legislation that has been hanging around for an eternity. As I said a few minutes ago this bill was based on report No. 41 of the Law Commission which was published in about July 1997. So it has had a 10-year gestation period. 
The Minister rightly addressed the primary concern with the legislation and that is to simplify the language. What the bill does is restate the existing law which goes back to 1837—and there have been some amendments since then—in a single statute in plain modern language. I certainly hope that we have achieved that aim. That is really the point that I want to address tonight because some of the more technical material can await the Committee stage. 
 There is a real need to express this legislation in contemporary plain English. I would be very interested in hearing contributions from some of the lay members of the House—the non-lawyers—as to whether we have actually achieved that aim. In some respects that is open to debate. There is no doubt that we have improved on the definition of “will” from the 1837 Act. That definition stated: “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;”. 
The Law Commission proposed that that rather fulsome definition of will could be replaced by: “A will includes a codicil and any other testamentary disposition.” Members will note that clause 8 of the proposed legislation does not pick up what the Law Commission recommended but has a slightly lengthier definition of “will”. So I hope we have done our job to make the language simpler—I have my doubts in one or two circumstances. 
As to some of the other terms that were changed I tell members that we removed the word “natural” from “natural person” and we also replaced the term “doing a testamentary action” which is ambiguous at least with “making a will”. We replaced the term “testamentary document” with “will” which everyone understands and as the Minister said we certainly replaced the terms “testator” and “testatrix” with “will-maker”. So there has been a genuine attempt on the part of Parliament through the Justice and Electoral Committee to simplify the language. As the Minister correctly observed we really need to make this kind of legislation readily available to all people not just to lawyers. 
With those brief comments in mind I am happy to say that National will support this legislation based on this ancient report. We commend the bill to the House and we look forward to the Committee stage when some of the more technical material that was canvassed before the select committee can be properly discussed. 
CHARLES CHAUVEL (Labour) 
: 
 I rise to support the second reading of the Wills Bill. I just note that the bill is intended not to radically reform existing law relating to wills but rather to improve understanding of the laws that are relevant. Obviously the bill also repatriates New Zealand law given that the current legislation is as mentioned earlier an Act of the Imperial Parliament—the 1837 Wills Act of the United Kingdom. The Act was made part of our law—most recently for the avoidance of doubt—by the first schedule of the Imperial Laws Application Act 1988. It has often been commented that the current laws relating to wills are archaic verbose and often difficult to understand—clearly this is undesirable—to the extent that the law makes it difficult for the wishes of the will-maker to be carried out. 
So the first aim of the bill is to restate the existing law into a single statute in plain modern language that is clear and accessible. The second aim is to implement certain reforms to enhance and modernise the law relating to wills while also removing certain anomalies. It will also reduce the chances of a will or a gift failing or being set aside and make it easier for young people to make wills. With Youth Week coming up that in my view is an incredibly appropriate thing and a useful accident of timing. 
As has been said in 1997 the Law Commission reviewed wills legislation as part of a wider project. It recommended the restating and modernising of the law into a single statute and also dealing with modernising the law relating to the wills of minors. The bill is based on those recommendations but it takes into account certain developments such as the regularising of de facto and civil union relationships since the report was published in 1997. The bill also slightly shifts the legislation away from the benefits of what we used to call at law school “formalities” in will-making that prevent fraud and uncertainty towards the interest of carrying out the will-maker’s intentions. The bill removes a minimum age at which a person may make a will; those under 18 could make a will if intending to marry or enter into a civil union. A signature will no longer be required at the end of the will. Improperly signed or witnessed wills may be valid if the High Court determines that they ought to be treated as valid and if the court is satisfied that the will correctly expresses the will-maker’s intentions. 
It is interesting and instructive to look through the original Law Commission report. There is a very helpful history of the laws of England and New Zealand relating to the ways in which the formalities of wills have been dealt with by the law over the years. There is an interesting discussion for example of the emergence of the law of wills from the feudal system and the emergent role after the 17th century of the Court of Chancery in dealing with wills. There is a chronology of the amendments to the 1837 Act as far as New Zealand is concerned to start to deal with modern phenomena such as divorce. Clearly the current bill can be seen in the context of that set of changes dealing as it does as I have said with the regularisation of de facto and civil union relationships. 
There are also interests in terms of trans-Tasman harmonisation law that ought to be mentioned. In the foreword to the draft bill the Law Commission expressly acknowledges the work done by the Standing Committee of Attorneys-General of Australia in 1991 to try to harmonise the law in this area and it acknowledges the work of both the Queensland Law Reform Commission and the Victorian Parliamentary Law Reform Committee in 1994. The Law Commission acknowledges the debt owed to those two earlier pieces of work. So I think it is appropriate to acknowledge that part of the whakapapa of this legislation and also to acknowledge as I have done in previous speeches the hard work of the Law Commission and its advisers in bringing the bulk of this work forward to fruition and allowing us to fashion a bill out of it. 
I will turn finally to the recommendations from the Justice and Electoral Committee. We have recommended a number of further changes to improve the plain English drafting of the legislation. In clause 8 we recommend—and it is pleasing to hear Minister Dalziel tell us that the Government accepts the recommendation—that the definition of “will” should be further clarified and reordered into a more logical sequence thereby making it easier to understand. The deletion of clause 9 which is unnecessary and repetitive is also recommended and an amendment to clause 18(1) is recommended so as to remove the age restriction for preserving a will where a will-maker gets married. It is anomalous in the select committee’s view that a will made by a minor remains intact upon marriage but one made by an adult does not. The final amendment recommended that I would like to highlight and to express pleasure that the Government has accepted is the amendment to clause 18(2) which allows the law to be modernised in respect of wills made in contemplation of a marriage or civil union. That was a timely reform and as I have said it is pleasing to know that that recommendation of the select committee will be accepted. 
In conclusion I thank the officials and my colleagues on the select committee. My view is that this is a very good bill and I commend it to the House. 
CHRIS AUCHINVOLE (National) 
: 
 I too would like to stand to support the Wills Bill. As my colleague Mr Finlayson said its changes are not worthy of too much debate; they are pretty straightforward though technical in nature and they will affect only wills made after the new bill comes into force. There are two exceptions to that. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
CHRIS AUCHINVOLE 
: The changes will affect only wills made after the bill comes into force with two exceptions. The High Court can modify wills: it has the powers to correct errors in wills and it can also use external evidence to interpret wills made before the bill comes into force. There is my solicitor friends tell me some danger in this in that it gives the High Court the power to interpret the intention of the will-maker previously known as the testator. That will continue as a vulnerability under this legislation. 
Someone speaking earlier mentioned that this legislation will replace the Wills Act 1837 which is being modernised. Indeed if one could easily understand the 1837 Act then I guess one should immediately try to complete the  
Guardian 
 cryptic crossword because it would be a dolly. 
I am pleased to be cited by Minister Dalziel. I thought she was speaking from the heart and very sincerely when she said that on the select committee I was a person who strove to ensure that plain language was being used and that I did that without the benefit of a law degree. Our laws are designed for ordinary people and I am proud to be an ordinary person. 
The main thing I notice about the ever-increasing number of people who call into our little blue office in Greymouth in the increasingly marginal seat of West Coast - Tasman is the concern many of those people have in understanding legal and semi-legal documents. Wills are a case in point. The avenues for people in that region to obtain low-level legal assistance is extremely restricted—although we on this side of the House are working on that—so if anything can be done to make life’s complexities simpler so much the better. This bill does that and that is why we support it. 
Darren Hughes 
: It’s a great slogan—die easy under National. 
CHRIS AUCHINVOLE 
: I do not really have a great deal to say but I know that this bill will be of great use to the Labour junior whip. The Labour Government generally will benefit from the use of simple wording and writing as the junior whip prepares for the never-to-be-repeated last will and testament of the present Labour Government. One can imagine it—“I hereby bequeath to the National Party: to John Key a country desperate for leadership principles and vision; to Bill English a fiscally overheating and loose economy; to Gerry Brownlee a complete lack of energy planning and restructuring; to Simon Power prisons with a completely demoralised service but designed better than Crowne Plaza hotels and a failing legal aid system; to Tony Ryall record waiting lists and hospitals that are dangerous to enter if one can ever get into them; and to Katherine Rich 32000 truants and 92000 3 to 4-year-olds who were promised but who are not receiving 20 free hours. I could go on—the litany would go on forever—but I think we all know the circumstances in which Labour will leave the country and I do not wish to depress people who are listening by giving further details. 
National supports the Wills Bill. Thank you. 
Dr RICHARD WORTH (National) 
: 
 As the distinguished speaker before me Chris Auchinvole indicated National does support the Wills Bill which is a re-enactment of some very old law. If one were to reflect on what are probably the two most arcane areas of legal interest one would conclude they would be our rules relating to property and our rules relating to wills and estates. 
I would like to speak from the outset about the distinguishing feature of a will which is carried forward into this legislation. I would describe that distinguishing feature as being testamentary ambulatory and revocable because we all know that a will is a document that has no effect at all until the testator’s death. Until then it really remains just a mere declaration of intention and can be revoked or varied. So it is said to be ambulatory or changeable. The execution of a will still leaves the testator free to dispose of his or her property inter vivos and I will look at that inter vivos aspect in a moment. It is also the case that a will is capable of dealing with property acquired by the testator between the date of the will and the date of the death. So if a will executed in 1996 provides for a gift of “all my sports cars” that would include those sports cars owned by the testator at the time of the testator’s death in 1997 whether those cars were acquired before or after the date of the will. I will not talk about animus testandi but certainly that is an essential part of a testator’s capability to execute a will. 
Probably of greater significance is that we have seen significant legislative change that has intervened in and has denied to a significant extent the right that a testator had in the past of complete testamentary freedom. Prior to 2002 the two most important pieces of legislation were the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The first was concerned with circumstances whereby a testator had failed to fill a moral obligation that he or she might have owed to third parties including primarily children and the Law Reform (Testamentary Promises) Act dealt with situations where promises that had been made by the testator had not been honoured. But what happened in February 2002 was that the Property (Relationships) Amendment Act 2001 was enacted; it renamed the Matrimonial Property Act 1976 extensively amended that legislation and made huge inroads in the context of matrimonial property and property in a partnership setting in the testamentary freedom that those persons would otherwise have had. 
The last item I want to deal with briefly is to note the difference that wills have as distinguished from other transactions. I am particularly thinking of inter vivos transactions because a will may be distinguished from an inter vivos transaction by two features. An inter vivos gift takes effect immediately and a will of course takes effect only upon death. Another distinguishing mark in looking at wills and other transactions is the important class of gift called donatio mortis causa. All these matters are carefully covered in the Wills Bill and I do not doubt that the work the Justice and Electoral Committee has done in reporting this bill back to Parliament has been done carefully and well. 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
 Kia ora Mr Deputy Speaker. I was interested to hear the view of a lawyer working with Maori within my electorate TamakiMakaurau just last Friday. Andrew Lawson who has worked at the Mangere Community Law Centre for the past 10 years was reflecting on the experiences and perspectives of Maori regarding wills. It should perhaps be pointed out that the Mangere Community Law Centre has recently celebrated 20 years of service being one of the first law centres in Aotearoa to provide services to address the unmet legal needs of its community. It is a community law centre that is well supported by mana whenua by Tainui. So when Andrew Lawson described the view of Maori as dismissing the need for wills because they think they are tempting fate it made me sit up and listen. This is an organisation that knows what it is talking about. Mr Lawson went further and explained that although many Maori view writing a will as bad luck the misfortune actually occurs following the death in the whanau if deliberations about the inheritance of assets such as taonga and shares in Maori land assets are up for debate. 
So with the words from my electorate ringing in my ears I have taken a particular interest in this the second reading of the Wills Bill. Its purpose is all about modernisation and simplicity. It replaces the Wills Act 1837 of the UK Parliament with an Act in plain language that updates certain aspects of existing wills law and brings all matters relating to wills together in a single statute. It is to be written in straightforward modern language that is clear and accessible to all those who wish to make update or revoke their will. 
The need for a revamp of current legislation governing wills was recommended in the Law Commission’s 1997 publication  
Succession Law: A Succession (Wills) Act. 
 As we understand it the interest was a practical one because the legislation dating back to 1837 was archaic. So too were the words and the provisions. Thinking further about the suggestion that Maori are not interested in writing wills in the first place I wonder then whether the process of simplifying and clarifying the legislation may also have an educative function about the value of setting out directions in legal form for the distribution of one’s property after death. Some of the key areas one would think should be included are the answers to questions such as: can I leave my whangai some of my Maori land interest; how appropriate is it to defer property disposal provisions to the Maori Land Court to determine matters of succession; how are Acts such as the Family Protection Act 1955 the Matrimonial Property Act 1976 and the Administration Act 1969 able to comply with Maori cultural processes and laws; how are the succession rights of individuals whanau or hapu whose rights have been previously extinguished able to be considered; can I ensure my wishes will stand after I pass on and should I be able to make them stand; and is it time to consider a separate Maori law of succession? 
The Maori Party believes that the creation of a will can play a role in maintaining whakapapa links through the succession of resources and taonga to whanau and hapu. As such we are happy to support any amendments that assist this process. We are also of the opinion that the procedure of establishing wills is not one that applies just to contemporary times. Indeed Frank Acheson’s essay for the Jacob Joseph Scholarship of 1913 describes the process of ohaki—verbal wills—as a routine part of Maori custom. In 1914 a former student of the excellent Te Aute College Hoani Meihana Te RamaApakura was employed as a licensed interpreter and clerk of the Native Land Court. Through his work he would be called upon to witness wills and translate official documents from Maori to English. So clearly as tangata whenua we have had our own distinct process of establishing wills which may well be useful in any future wills education programme. 
The key issue for the Maori Party in looking at the creation of a bill in plain modern accessible language is ensuring that the reforms that take place are explained in such a way as to make it perfectly clear how the law works in relation to key elements of customary law. In 1996 the Law Commission requested that a working paper be written by Professor Pat Hohepa and Dr David Williams that could help to describe some of the intricacies of Maori law. The paper entitled  
The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession 
 noted that there had been legal recognition of Maori customary law in the past in the case of marriage or adoptions but that such provisions were removed at the convenience of legislators who were not of Maori descent. 
A key example of the impacts of this relate to the case of whangai. Under Maori customary law whangai are similar to legally adopted children in accordance with tikanga Maori yet the Adoption Act 1955 does not apply to whangai. In a precedent established in November 2002 in  
Keelan 
 v Peach 
 the Court of Appeal upheld a High Court decision stating that whangai cannot make claims under the Family Protection Act. As a consequence of this case if Maori want to make it clear that a whangai child is to be included in a will he or she has to be named or referred to by the term “whangai” to be a beneficiary. 
But we have been pleased that with the passage of Te Ture Whenua Maori Act on 1 July 1993 there are now clear legal protections with regard to succession to Maori land. It used to be that a person could leave interests to whomever they wished or be imposed upon to do so—as often happened—but now an owner of Maori land interests can leave those interests only as set out in the Act. In summary Maori land interests or Maori incorporation shares can now be left only to children or descendants; brothers and sisters; anyone else entitled to receive interest by whakapapa anyone else related to the testator by blood who is a member of the hapu associated with the land; other owners in the land who are members of the hapu associated with the land; whangai of the testator; trustees of any of the above; and the spouse for life or for a shorter period. If Maori land is willed to someone who does not qualify that part of the will is invalid. The idea is to continue the collective nature of whakapapa and the maintenance of land within the whenua tipuna bloodlines. Freedom of choice should not extend to being able to alienate one’s children grandchildren and great grandchildren from their whenua. 
Finally one of the issues referred to in a paper by Professor Hohepa and Dr Williams was the absolute importance of discussing with tangata whenua the context and criteria encompassed in wills. Their discussion paper was always intended as a basis only for going forward to consult with iwi and pan-Maori organisations. Their recommendation was that the consultation process would be crucial in providing answers to questions on the future direction of the law of succession as it affected Maori. It would appear from such a recommendation that what the author suggested was a wide-scale hui process. The Maori Party is more than happy to offer suggestions for and support such a nationwide consultation. 
It may well be timely to revisit a concept I first raised in my first reading speech—that of ohaki a formal speech given when dying that takes the form of an announcement of one’s wishes regarding personal property disposal to the assembled relatives. With regard to ohaki I say that the legal oral declaration of intention was at first recognised as legally binding but powers were removed by legislation last century. The Maori Party believes it is an important succession concept and we would welcome further debate about its application in a modern-day context. We in the Maori Party support the Wills Bill at its second reading. 
LYNNE PILLAY (Labour—Waitakere) 
: 
 It is a pleasure to stand again and speak in support of the second reading of the Wills Bill which was before the Justice and Electoral Committee. It was another bill that received unanimous support and very constructive work from the committee. 
The Wills Bill does not radically reform the existing laws relating to wills but instead aims to better those laws. The current laws relating to wills are verbose archaic and difficult for many people to understand. They can also make it difficult for the wishes of the will-maker to be carried out. The aims of this bill are firstly to restate the existing law in a single statute in plain modern language that is both clear and accessible. The bill improves the legal framework for will-making. It makes the law on wills easier to understand ensuring that better effect can be given to will-makers’ intentions and making that process easier. An example of the use of plain English is that the reference used previously of “doing a testamentary action’’ has been removed. The bill now refers instead to “making” “revoking” “changing” and “reviving” a will as appropriate. That language would be more readily understood by the average reader or as former speakers have said by ordinary people. I myself am quite proud to stand here and say I regard myself as being very much an ordinary person. 
Christopher Finlayson 
: But an extraordinary chair of the committee. 
LYNNE PILLAY 
: Thank you. Secondly the bill will implement certain reforms to enhance and modernise the law relating to wills while also removing certain differences. It will also reduce the chances of a will or a gift failing which does happen now and make it easier for younger people to make wills. 
Once again I want to thank the Law Commission which in 1997 reviewed the wills legislation— 
Christopher Finlayson 
: When? 
LYNNE PILLAY 
: —1997—which currently comprises six statutes the oldest of which goes back to 1837. That was done as part of a wider review of general succession law and we have seen a number of bills before this House that have come from the work of the Law Commission in that area. The commission recommended restating and modernising the law into a single statute and modernising the law of wills in certain minor aspects. This bill is based on those recommendations though it also takes into account certain developments. I refer to de facto and civil union relationships. Civil union relationships have come in as part of our legislation and are now recognised in it. They were not recognised in 1997 when the Law Commission did its work. 
The bill slightly shifts the wills legislation away from the benefits of the formalities in will-making which often prevent fraud and uncertainty towards the interest of carrying out the will-maker’s intentions. The bill will remove a minimum age at which a person can make a will. Those under 18 years of age can make a will if they are planning to marry or enter into a civil union. Also a signature will no longer be absolutely required at the end of a will. Improperly signed or witnessed wills may be made valid by the High Court if it is satisfied that the will expresses the will-maker’s intentions. 
The select committee heard a number of submissions. I commend the advice we were given during the select committee process; I am sure all members of the committee would agree it was most constructive and helpful. Further changes were brought in by the committee to make the language of the bill plainer and the English easier to understand—for example using the term “person” rather than “natural person”. Clause 8 was amended to further define the meaning of “will” and was reordered into a more logical sequence making it easier to understand. The main purpose of the bill is that ordinary people can get good advice from the legislation in a practical way and can read in plain English about how to make a will and how to ensure that it is valid and delivers exactly what the will-maker or person wants to see happen. The committee saw clause 9 to be unnecessary and repetitive and it was deleted. We also amended clause 18. As I said before that clause related to preserving a will when a will-maker gets married. It seemed ridiculous that a will made by a minor remains intact upon marriage but that a will made by an adult does not. So that inconsistency was corrected. Clause 18 was amended—as I spoke about before—so that the circumstances associated with making a will when in contemplation of marriage or a civil union can be taken into account. 
Indeed I thank the select committee. I do not think anyone would claim that this legislation will set the world on fire. It certainly has not engaged much debate in this House nor indeed at the select committee. But I will say that it will probably make quite a substantial change to a number of people’s lives—families’ lives in particular—when someone has passed away and they are looking at and considering what is in the will. The legislation actually ensures there is a fairness and a quality in will-making. I also think that using plain English which I have always been an advocate for will enhance wills in the future. There will not be a mystery around them. Will-making will become a simpler process and people will be able to rest in peace knowing that what they wanted to happen with regard to their will is going to happen because there is some common-sense plain language to ensure that it does. I think that is important. When I spoke before I thanked the select committee; I would like to do so again. It always helps when legislation is not particularly controversial and members apply themselves very well to it. We had good advice and support and we were able to bring the bill back before the House in quite a speedy time. 
It is with pleasure that I speak in support of this bill at its second reading and along with other speakers I commend it to the House. Thank you. 
DIANNE YATES (Labour) 
: 
 I rise to speak on the Wills Bill. It is interesting that the bill has a very very simple title. We have at times discussed what bills are called and said that bills before Parliament should be very explicit and obvious in what they are about. I think it is pretty obvious what the Wills Bill is about; it is about wills. I do not think there is any other bill that has such a short title. I thank the Justice and Electoral Committee for the work it did. It is pretty obvious—as has been said by other speakers—that this bill is not one that has caused a great deal of controversy. I am surprised that the committee received only 10 submissions—of which six were heard—given the amount of interest that people in this country have had about violence towards children. One of the most violent things concerning children is when they cannot inherit from a will or when people change their wills so that their family cannot inherit. I am surprised more people did not make submissions on this bill which is basically about what people can inherit and what many many people spend a great deal of time thinking about. 
So I was surprised there were only 10 submissions. That obviously indicates that the bill is not about changing the law in any dramatic way but is about making the law easier to understand. Having been an executor I think that that is something that is perhaps long overdue. As Dr Worth mentioned when he was speaking we look back to 1837 with this bill. It is not a bill that started off in New Zealand; it is one we inherited. It is a Wills Bill that was inherited by New Zealand. 
I am optimistic that the changes that have been made will enable people to more easily understand their rights. As has been mentioned by Lynne Pillay there was a particular anomaly about someone who marries when under age. This bill has dealt with the anomaly so that the will-making powers and legality of the will have been sorted out in that regard. 
I note that on the Justice and Electoral Committee which dealt with this bill there are a large number of lawyers—many of them practising lawyers. No doubt they put their minds to this legislation and ensured that this bill would become more workable and easily understood not only by the law profession but by the laypeople who wish to make their wills. 
It is interesting as we have said that there are some changes—for example for those entering into a civil union. There have been changes to other legislation that have this impact. Legislation such as the Civil Union Act contains clauses that change other legislation automatically. Those will no doubt have affected this legislation as well and ensured that there is fairness and that what applies to marriage applies also to civil unions and as we have heard to those under 18 who marry. 
 It does seem a little strange that the outdated terms are going. I actually quite like the word “testator” but I guess I am a little old-fashioned. We do understand that a will-maker is a will-maker and that the Wills Bill will make things much easier to understand and use. 
Once again we thank those who made submissions on the bill and who came before the select committee to give their opinions. Those whose opinions were taken into account and changes made will be especially pleased. I thank all of those who were on the Justice and Electoral Committee. I thank the staff and all of those who worked on this legislation. We look forward to its going through its other stages in the House and becoming law. Thank you Mr Deputy Speaker. 
TIM BARNETT (Labour—Christchurch Central) 
: 
 I felt moved to take a brief call on the second reading of the Wills Bill. 
Christopher Finlayson 
: Why? 
TIM BARNETT 
: I have three reasons which is always appropriate in these situations. My first reason is that for some time when talking to audiences in the rainbow community and explaining the process of civil union I have explained the fact that some legislation was left out of the very comprehensive law reform process that ran parallel to civil union. The statutory references legislation that effectively cleared up discrimination in over 150 New Zealand statutes left unamended and unreformed a range of legislation including the adoption legislation the Wills Bill and what was then the lawyers and conveyancers legislation because that legislation was undergoing a law reform process. 
The phrase “law reform process” is a somewhat mysterious one that probably means very little to the general public. Indeed if one looks at those different pieces of legislation one sees that the process was very very different in terms of adoption law. This House has through select committees—and notably through committees that my colleague Dianne Yates has been involved in—discussed the issue from time to time but it has never ever got to the point of being legislation and that remains one of the anomalies in our law in terms of who is and who is not allowed to adopt. 
Another piece of legislation that was then at a reasonably early stage was the wills legislation. That reform process as we have heard from colleagues was driven by the Law Commission. As we have heard from earlier discussion only a handful of submissions were received on this process when the bill got to the Justice and Electoral Committee. But I think one should always recognise that when the Law Commission engages in a law reform process it takes its time. It also receives public submissions. Really what it is doing which is a great service to this House is preparing legislation to the point that what we have to do is just make sure that it has been done properly then on that basis go ahead and get the legislation through. So not only did the select committee receive only a handful of submissions on the Wills Bill but also the changes the committee made were quite modest. 
My first point of interest was the fact that this law reform process which we have been talking about for at least 3 or 4 years has now finally culminated and secondly that this process highlights what law reform is all about. Today in discussions elsewhere in this place I heard that the income tax legislation is going through a similar reform process—reform not so much in terms of changing the law but in terms of really making sure it is written in consistent and modern English. Indeed it seems in looking at the report we have before us today from the Justice and Electoral Committee that the committee has adopted much the same approach. We have legislation relating to wills that goes back through 170 years. What will come out of this process when the bill goes through the Committee stage and the third reading will be a single Wills Act in plain modern language that is both clear and accessible. That was the essence of this process but at the same time there were reforms. 
Even though the area of wills is one where there probably are not dynamic changes from year to year over time changes do happen anomalies appear and the law needs to be modernised. What we have is what I think can best be described as modest reform—necessary quite low-level changes to ensure that this is effective and functioning legislation. 
I note from looking through the report of the select committee that it made changes in five areas. As I understand it those changes were made mainly in response to comments coming from public submitters and also from officials. The reality of our select committee process is that when officials start to put the heat of attention on legislation then a lot of minor detail starts to emerge. I say that it is minor detail but in the case of wills it could well be that what seems to be minor detail could be of fundamental importance to somebody faced with a conflict in terms of a will. 
The select committee looked at issues of terminology. It was gratifying to know that a committee of politicians could simplify the legislation beyond what the officials could produce. For example the committee has omitted the word “natural” from “natural person” and replaced the term “doing a testamentary action” with “making a will” and so forth. That was the first function that the committee undertook. Secondly it slightly amended the meaning of “will” so that documents that change revoke or revive a will are included in that umbrella term which makes perfect sense to me. Thirdly it deleted clause 9 which explained the relationship between the clause concerned with people who may change revoke or revive wills and clauses later on in the legislation. The committee did that because its members thought that the wording was unnecessary and repetitive. Fourthly the committee amended the clause concerning age restrictions for preserving a will. 
Fifthly the committee looked at the whole issue of the terms of the will and the surrounding circumstances. That was the amendment particularly relating to civil union. Obviously the bill already included civil union as all our legislation does now when it refers to relationships—marriage and civil union are effectively mentioned together—but this amendment talks about the revocation when a will-maker enters into a marriage or civil union. Those are all important points in what is detailed legislation that for most of our lives we will not have any contact with whatsoever. But on some occasions particularly when there is a death in our families and at the end of our lives those points will become extremely important. 
I commend the work of the Justice and Electoral Committee and the work of the Law Commission. I commend the fact that the select committee was able to working on a cross-party basis make good and useful changes to this legislation. I commend the bill to the House. 
RON MARK (NZ First) 
: 
 I rise on behalf of New Zealand First to say a few short words in support of the Wills Bill and to acknowledge a number of things. 
This bill has come on the tail of the Succession (Homicide) Bill which was debated prior to the dinner break. It is interesting when one compares the two bills to note the similarity between the concerns and issues in and possibly the conflicts that arise from the two bills. Specifically I know that the Succession (Homicide) Bill aims to codify the law that precludes a person who unlawfully kills another person from benefiting from the death of that person. That includes benefit from the proceeds of the victim’s estate or from any non-probate estates. It will be interesting to see how that bill goes on. If we look at the clauses relating to restriction of claims we see that that bill provides that a killer who has a valid claim against the estate of a victim is entitled to make an application in respect of that claim under the Law Reform (Testamentary Promises) Act 1949. However the bill does not allow such an application to be made where a testamentary promise is expressly provided for in the victim’s will. 
It is interesting to read on and note that the Justice and Electoral Committee recognised in the hearing of submissions on that bill and that the House recognised in its consideration of the bill that the purpose of the bill is to ensure that a person should not profit from the act of killing. Therefore we consider that killers under the bill should be deprived only of the rights they gained by virtue of the killing. A host of New Zealanders in reading that would say that killers should not get anything and that it did not matter whether they were entitled to it from a will or from preceding promises that had been made. The mere fact that a person who killed could profit in any way as a result of that killing would in the eyes of most New Zealanders be abhorrent. But I am trusting—and New Zealand First is hoping—that given that both of these bills were examined and considered by the Justice and Electoral Committee its members fully understand the consequences of one bill upon the other. 
Moving to the Wills Bill we note a number of things. We note the extraordinarily large number of MPs who sat on the select committee in the hearings on this bill. Quite clearly a bit of shuffling was going on with some members coming in from December and some from February and some members being there as non-voting members. The honourable Hone Harawira was there as a non-voting member. 
I can assure the House that I know the frustrations that can occur. New Zealand First and the Greens are parties that I tend to refer to as alternative parties not as minor parties. One cannot consider a party that has six or seven MPs—or one that represents four major constituency seats in this country—as being minor. But that is the view of an alternative party member. Alternative party views need to be heard in the hearings on these bills. It is frustrating to say the least that alternative parties are permitted on these select committees only at the behest or through the goodwill of the major parties and that the major parties still inflict their control by removing voting rights. It does not actually speak a lot for the functionality and the performance of MMP. 
I guess that is something that the alternative parties need to articulate more to the constituency and to the electorates so that the electorates understand that when members such as Hone Harawira sit on these committees they may have the opportunity to listen and to question but they are prevented from exercising a vote. They are prevented from exercising any capacity in terms of the decision-making process. That is something that in time we will have to deal with and it is something that must be dealt with if we are to have a truly mixed-member proportional Parliament in the full sense of that term. 
The other thing that strikes me is the number of submissions: 10 submissions of which only six were heard. This is curious. I am absolutely confident that all of the 121 MPs in this House at some stage in the performance of their duties end up advising citizens of this nation as to their rights responsibilities obligations limitations and restrictions in respect of the Act in terms of wills. One of the issues that may confront constituents in their lifetime that very often becomes a very personalised and vexed issue is that of wills—what Uncle Bloggs left or did not leave to nephews aunties sons and daughters. It absolutely amazes me that regardless of the degree of angst and dissatisfaction the numbers of disputes that arise and the level of sensitivity and emotion behind those issues only 10 submissions were received on this bill and only six of those submissions were actually heard. 
I am further puzzled by that when I reflect on my own experience as a citizen and as a member of Parliament. In my time I have acted as an executor of the estate of my sister who passed away with no will. I have personally dealt with the difficulties of trying to manage an estate in such a circumstance to the satisfaction of the wider whanaunga. I was left somewhat frustrated that my sister had not made the time found the time or seen the need to make a will. I know that she is not the only New Zealander who has passed away in such circumstances; there are many many more people out there without wills. As a Parliament we need to impress upon all New Zealanders the absolute importance and necessity of having a will. I accept the concern raised by Pita Sharples that a good number of—not most—Maori do not write wills for specific reasons. Some of those reasons are cultural some are superstitious and some are simply other reasons. There is a very definite need for the people of this nation to take on board the need to write a will and to have confidence in the wills process. 
The other thing I have to point out relates to Part 1 of this bill where it talks about the armed forces and dispositions. As a soldier nothing focuses the mind more than being told by one’s company sergeant major to sit down and write out a will. For most Defence Force personnel it brings the realisation that they will be deployed and that the chance they will be killed in action is a reality. I can assure the House that when I as a 17 or 18-year-old soldier was told to sit my butt down and write out a will what was being said crystallised very very clearly in my mind. At that time I was looking rightly or wrongly to go to Viet Nam. In the event thankfully it did not happen but as is the case for all defence forces personnel who are deployed all over the world right now I had to write out a will because I was being deployed operationally. It is good that the military does that and that these issues are taken care of in this bill. 
It is regrettable that the public as a whole in New Zealand have not taken on the importance and the significance of writing a will. The one fact that remains is we all will die. The condition in which we leave our estate the ease with which the executors and other whanau members can tidy up our affairs is often dictated by our ability to take on board that simple message. 
I gather that this bill is a good bill in the sense that if nothing else it simplifies the language using plain English. If I can make one plea it is that it seems that we in this House are forever telling officials to please write things in plain English. Shakespeare died a long time ago. Ordinary New Zealanders average New Zealanders even highly educated New Zealanders in this country prefer that laws be able to be read and interpreted swiftly. It does nobody any good—no matter what the legislation no matter what the issue—if we continue to tie up our legislation with archaic and secularised terminology that only certain people can understand. That only produces grey areas and grey areas lead to dissention. 
I finish by saying that I have taken on board the comments of Pita Sharples in respect of Maoridom. Specifically I think he said that ohaki which is a form of speech given when one is dying should have some legal recognition. I say that I am listening and that it is something I will discuss with my caucus and I look forward to further debate on it in the Committee stage of this bill. I know that many Maori people—particularly our elderly our kaumatua and our kuia—have lived a life where the oral word the spoken word has been the law. It does seem that sometimes we overlook such things. I am not quite sure—I have not had the opportunity to talk to my caucus about it—but the arguments that I heard put in this debate seem to me to have some sense and some grounds. 
We look forward to the debate in the Committee stage. Thank you. 
Bill read a second time.