Wills Bill — First Reading 
Wills Bill — First Reading 
[Volume:634;Page:5557] 
Wills Bill 
First Reading 
Hon CLAYTON COSGROVE (Associate Minister of Justice) 
: 
 I move  
That the Wills Bill be now read a first time. 
 At the appropriate time I intend to move that the Wills Bill be referred to the Justice and Electoral Committee for consideration. 
Wills legislation is relevant to all New Zealanders. It is important to anyone who wants to make arrangements for family and property when he or she dies. The Law Commission reviewed the current 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 one restating the existing legislation in a single statute in plain contemporary language and two modernising certain aspects of it. I am grateful to the Law Commission for its assistance in preparing the Wills Bill for introduction. 
As the Prime Minister explained in her formal statement to Parliament on 14 February this year the Government is committed to giving priority to a number of Law Commission proposals that update key statutes. The Succession (Homicide) Bill and the Arbitration Amendment Bill were introduced into the House at the same time as the Wills Bill and we are also working on property law reform. These bills will improve the operation of the existing law and make it easier to understand. 
The intention of the Wills Bill is to make the law clearer ensure that better effect can be given to will-makers’ intentions and make it easier for people to make wills. The current wills legislation is set out in six statutes. The principal Act is an Imperial Act dating back to 1837. It is written in the language and style of its time and must be read in conjunction with the five Wills Amendment Acts. The language is now archaic and the legislation is not easily accessible. The Wills Bill therefore seeks to restate the law in a single statute in plain modern language. 
The Law Commission also highlighted various ways in which the current legislation could usefully be modernised. I will outline some of the key reforms proposed in the bill. Firstly a will-maker will still have to sign the will and have it witnessed. Those requirements protect against fraud but non-compliance can invalidate the will and thwart the will-maker’s intentions. That can be upsetting for the will-maker’s family and difficult to resolve so the bill includes a number of new provisions to mitigate this risk. For example the bill proposes that it will no longer be necessary to sign at the end of the will. It will be valid regardless of where it is signed provided that other formalities are also complied with. 
The court will also be able to validate an otherwise invalid will if it is satisfied it expresses the deceased’s testamentary intentions. Similarly a disposition to a witness or his or her partner is ordinarily void but it will now be saved if all other parties agree or if the court is satisfied the will-maker made the disposition freely. A further problem is that wills are not always as clearly drafted as one might hope and errors can slip in unnoticed. The court will be able to correct errors in certain cases and make greater use of external evidence to interpret wills. Overall these changes will operate to ensure that will-makers’ intentions are upheld and not frustrated by technicalities. 
The bill retains and improves existing provisions that allow young people to make wills. Minors aged under 18 who are or have been married in a civil union or in a de facto relationship will continue to be able to make wills. The bill will also allow minors to make a will in contemplation of entering into a marriage or a civil union although it will take effect only when the marriage or civil union actually takes place. Existing rules that allow other minors to seek approval to make wills will be retained and enhanced. There will no longer be a minimum age—currently 16—for seeking approval and the court will be able to grant general approvals to minors to make and revoke wills if it is satisfied the minor understands his or her actions. At present these minors must reapply to the court every time they want to make or revoke a will. 
Currently a pre-existing will is revoked by marriage unless the will was expressly made in contemplation of that marriage and divorce revokes dispositions to a former spouse unless a contrary intention is expressed in the will. Both of these provisions will be extended to civil unions and formal separation orders. 
The Wills Bill also makes it easier to dispose of property in some situations. For example at present a gift to an unincorporated society that is not a charity or does not have a charitable function will fail. The Law Commission noted that there are some unincorporated societies with no or only doubtful charitable status such as iwi or hapu. The bill gives will-makers broader powers to make dispositions to unincorporated societies. 
Wills are of practical day-to-day significance for all New Zealanders. A will is an instrument that expresses a person’s wishes after he or she dies and enables that person to take care of his or her loved ones and property and assets. The proposed reforms will improve the legal framework for will-making. They will make the law easier for people to understand and reduce the risk of a will-maker’s wishes being defeated by a badly drafted or incorrectly executed will and will also allow better effect to be given to a will-maker’s intentions. I commend this bill to the House. 
Dr RICHARD WORTH (National) 
: 
 The Minister in his customary way has given an enlightening view of what this legislation is all about. It is significant certainly in some dimensions. I can remember as a young lawyer taking wills up to the then Supreme Court in Auckland and having to explain why there were pin marks on the face of a will which suggested there might have been some document attached to it at an earlier stage that was relevant to the wishes of the testator. 
I guess there is a very basic starting point in looking at this legislation and that is just to reflect for a moment on what a will is. It is a statement by a will-maker—a testator or a testatrix—of how the will-maker wants his or her property to be dealt with when he or she dies. It has traditionally been the legal position that two governing principles hold sway in the area of wills. The first is that it is important that the ascertainable intentions of the will-maker be upheld. That of course has been eroded by a number of statutes of which the Family Protection Act and the Law Reform (Testamentary Promises) Act are two examples. The second is that great care should be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so because of course a will operates once the testator or the testatrix is dead and he or she is no longer present to be able to speak as to what those particular intentions were. 
As a matter of history and as the previous speaker has noted the current law is contained in the Wills Act 1837. Of course we did not have a Parliament in 1837 so the position is that this is old imperial legislation that by dint of the Imperial Laws Act passed into force in New Zealand. If one looks at the Wills Act 1837 one can see that over time there have been desultory amendments. There was an imperial amendment in 1852 a further amendment by the New Zealand Parliament in 1955 and subsequent amendments in 1969 and 1977. So this is hugely old law on any view of it. Prior to 1837—in fact until early in the 17th century—the English law was pretty much shaped by a sharp divide between the rules relating to land and those governing other types of property and that was a reflection of the importance of land tenure in the feudal system. But of course the Wills Act 1837 made major changes in that area and tried to align the rules governing realty with those of personalty. 
I believe that the Law Commission was right in its view that there was no need to radically change the substantive law. This bill is very closely patterned on work of the Law Commission that was done some years back—in fact in October 1997. There is a clear case for updating the law: firstly it does need to be restated in language that is more contemporary and plain; and secondly there are some minor respects in which the substantive law of wills can be modernised. If one looks at the Wills Act 1837 on that first point which is concerned with plain English and ready understanding of the law one can see some good examples in that old legislation of why change is required. The first one I pick up is the actual definition of “will” which is in section 1: “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;”. I doubt that even lawyers of today would clearly understand the scope of that particular definition. So we see in clause 8 in the new legislation simply recorded that a will includes a codicil and any other testamentary disposition.  
One can find a second example in section 13 “Publication of will not requisite” of the Wills Act 1837. That section simply reads: “Every will executed in manner hereinbefore required shall be valid without any other publication thereof.” Before one can even begin to understand what might lie behind that section one needs to know that the term “publication” was intended to mean a declaration by the testator to witnesses that the document shown to them was the testator’s will. We now have in clause 12(2) a more simple statement that a will that is executed in accordance with the Act is validly executed even if a witness to the will did not know that it was a will. 
I would now like to talk very briefly about the formalities for making and revoking a will and how they are changed by this legislation. The law has been very clear that for a will to be valid it should be signed in the presence of two witnesses together at the same time each of whom signs in the presence of the testator. If one looks at a will today one will actually see that formal obligation in the attestation clause. The reasons for requiring the three players—the testator and the two attesting witnesses—to be together are really these: the first reason is cautionary so as to help the will-maker appreciate that the document is being solemnly signed; the other reason is probative so as to ensure that what is put forward after the death of the will-maker is in fact a genuine expression of the testator’s testamentary intention. 
When it comes to the testator’s need to sign the will there are all sorts of subtleties in terms of the law. Words such as “amanuensis” have relevance when for example a testator may be illiterate blind or under some other form of disability. Those who propound this bill would wish to see some changes there but these changes are quite limited. It seems to me that there is no reason why the formalities should not be dispensed with if the testator’s intention that the document should operate as a will can be established by other means. Similarly the court should be able to uphold a disposition to an interested witness if satisfied that the testator intended the provision freely and voluntarily. It was always a trap for young players that if a person who signed the will as a witness was named in the will as a potential beneficiary then the fact that he or she had acted as a witness disentitled him or her from the benefits the will provided and there is to be a change in that regard. Finally if the testator had the necessary will-making intention it should no longer be essential that his or her signature be at the foot or end of the will. 
I finish on two points. The first point the Minister similarly noted and that is that one of the areas of major change in this bill relates to young people and the making revoking or changing of a will. There is no longer a minimum age at which a person may make a will and persons aged under 18 may make a will if they are intending to marry or enter into a civil union. There are though control measures and that is clearly appropriate because the jurisdiction for approving wills made by young persons has moved from the District Courts and the Public Trust to the Family Courts. The Family Courts have power to give young persons a general rather than only a specific approval to make changes. 
Finally I finish with the point that there are provisions for informal wills particularly those touching servicemen and women. National supports this bill going to a select committee. 
LYNNE PILLAY (Labour—Waitakere) 
: 
 It is a pleasure to stand in support of this bill. The bill is important—it recognises the necessity the rights and in fact the responsibilities of people to make arrangements for their family friends and property when they die. The Wills Bill is not a radical bill at all. It does not radically reform existing law relating to wills but makes it easier for people to understand. The aim of the bill is to restate the existing law into a single statute in plain modern language that is both clear and accessible. 
I know that the Law Commission has been acknowledged but I want to do that again. The background is that in 1997 the Law Commission reviewed the wills legislation which currently comprises six statutes as part of a wider review of general succession law. It recommended restating and modernising the law into a single statute and modernising the law of wills in certain minor respects. The changes to the legislation that have been made from the recommendations bring it up to date with modern New Zealand—if I can use that term—and take into account certain developments such as de facto and civil union relationships that have occurred since the report was published in 1997. As the previous speaker said the bill also removes the minimum age at which a person may make a will and those aged under 18 will be able to make a will if they are intending to marry or enter a civil union. 
I commend the Minister Clayton Cosgrove for bringing this bill to the House and the Law Commission for the work it did. As chair of the Justice and Electoral Committee I look forward to working with the committee and hearing submissions in order to make sure that we return the bill to the House with recommendations so that it is in the best order possible. Thank you. 
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. 
R DOUG WOOLERTON (NZ First) 
: 
 New Zealand First supports the Wills Bill going to a select committee. I am pleased to be following Chris Finlayson. I thought that if anybody could give some elucidation to this matter and find something of interest it would be him and so it proved to be. For a thumbnail sketch of the history of wills I do not think we could have done better and I congratulate him on his speech. I thought he stretched the point a bit when he said that some people would find it boring. I do not know how he could possibly say that. At times during his speech I actually thought I saw the Minister in charge Clayton Cosgrove getting overly excited and that is not a pretty sight. 
New Zealand First is in favour of anything that makes the law simpler more modern and easier to understand. It comes as much as a surprise to me as it does to anybody else but I actually have a daughter who is a lawyer—God bless her soul. She is taking a year off at the present time but returning to the law in the new year. She gave me less confidence in the profession when we were talking about a relative’s will where it may go and what may happen to it. She said: “Never mind dad there’s probably not a will that I couldn’t overturn with a half reasonable excuse.” So my faith in the solemn activity of making out a will just went right down the drain at that point. But at least this bill does something about making wills more modern. It brings into play the new marriage laws and that sort of thing and New Zealand First is in favour of that. 
NANDOR TANCZOS (Green) 
: 
 On behalf of the Green Party I rise to also express our support for the Wills Bill. As has been said by previous speakers the bill will not excite a great deal of controversy or argument I think although there may be issues in the bill that I have missed and I would be interested to hear about them if any do arise. Of course during the select committee process the bill will be combed through and looked at for unforeseen fish-hooks. As a member of the Justice and Electoral Committee I have to say I do not face this matter with the same degree of excitement and anticipation as some of the lawyer members of the committee. Nevertheless I expect it will be quite interesting to get into it and to look at how the rules currently work and how they should best be enacted in the 21st century. 
Certainly the recommendation of the Law Commission that there was a need to restate the law in plain language in a single statute is worth heeding. I note that there is an international campaign really for the redrafting of legislation in plain language and for there to be something that is easy to understand and that is accessible to the ordinary person. I think that that is useful particularly in the law relating to wills because a lot of people will make use of it. Wills are an important consideration for a lot of people and they need to have simple and easy access to the law in a single piece of legislation and in plain language. I am very supportive of the intention of the bill to make the law relating to wills accessible to ordinary people. 
I will not go on at great length about the bill because I think previous speakers have quite thoroughly canvassed the various provisions of the bill some of the reasons for them and some of the colourful history of wills internationally. I will draw a couple of items which have already been mentioned to the attention of House. The first concerns clause 10 “Persons who may do testamentary actions”. Subclause (1) states: “A natural person of 18 years or over may do all the testamentary actions.” Subclause (2) states: “A natural person under 18 years may do all the testamentary actions if he or she—(a) is married in a civil union or in a de facto relationship; or (b) has been married in a civil union or in a de facto relationship.” Subclause (3) then states: “A natural person under 18 years may make a will if he or she and another person have agreed to marry each other or enter a civil union with each other.” If none of those conditions apply then people under the age of 18 need to get the approval of the Family Court. 
The issue of age limits is something I have found quite curious in legislation. I remember when we were going through the Civil Union Bill finding the quite anomalous age restrictions that apply in different legislation. I am very strongly of the view that legislation should as far as possible be consistent particularly in matters such as age limits. The laws around age limits are widely varied and this bill is a good example of that. I for the life of me cannot think why someone who is married in a de facto relationship or in a civil union can make a will but someone who is not in such a relationship has to go to the court to get approval. That seems to be kind of bizarre. If I have shacked up with someone does that mean that I have suddenly become more mature and more in control of my financial affairs? I do not think so. I think that we should look at that issue during the select committee process. As I say that provision does mirror provisions in other legislation whereby people who are married in civil unions or in de facto relationships are somehow seen to be more mature than other young people. I think we will want to consider and address that. 
The other item is in response to Mr Finlayson’s point that wills will no longer need to have a signature at the end. He thought that was a curious measure. Well it seems to me to be fairly sensible actually. The idea is that a person can sign anywhere on the document as long as the signature is that person’s signature and clearly indicates his or her will. A signature at the end clearly indicates the end of the will so that someone cannot add little bits at the end. I do not see any reason why one should be required to sign a will just at the end and I do not see why that provision should be viewed as a curious measure. 
Apart from that as I have said I cannot see any particularly difficult fish-hooks in the first reading of this bill other than the issue I mentioned in relation to age. We do support the referral of the bill to the select committee and we look forward to going through the finer details of the bill during that process and coming back to the House for the report back. 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
 One of the most memorable moments in the last few months was the formal raising-up ceremony for Te Arikinui Tuheitia Paki the Maori King. Cloaked in the kiwi-feathered korowai of the second Maori King Tawhiao the new king was tapped on his head with a Bible by a descendant of Wiremu Tamihana the first kingmaker. It was the same Bible that had been used to crown the six previous Maori monarchs since the first coronation in 1858. Moments before his ascension senior Tainui kaumatua Tui Adams turned to the people and asked whether Tuheitia should be king. “He kingi?” he asked. “Ae.” they replied. “He kingi?” “Ae.” they repeated. “He kingi?” “Ae.” and so it was to be. 
With that the will of the people the declaration confirming the transfer of political leadership was complete. It was a formalised and highly public ritual which enabled effect to be given to the intention of the will-maker the late Queen Te Atairangikaahu in a language that was plain and that simplified the process. It provides an excellent precedent in which to understand the reform of the Wills Act 1837. 
According to the Law Commission’s 1997 report the two key principles governing the law of wills are that a will-maker’s intentions should be upheld and also 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. The process of the performed will or ohaki as I have outlined above is clearly relevant in understanding how tangata whenua—Maori—view the execution of wills. Whilst the Wills Act 1837 from the United Kingdom remains the foundation of New Zealand’s law of wills for Maori the ohaki or the dying declaration of the will-maker has established a robust model that could assist New Zealand lawmaking. 
 It is a tradition that has been carefully passed down through generations. For example in the days leading up to his death in 1894 Tawhiao the second Maori King announced his successor with these words: “Papa te whatitiri ka puta Uenuku ka puta Matariki ko Mahuta te Kingi—the thunder crashes Uenuku the rainbow god appears the constellation of Matariki heralding the start of a new year is present and in its midst we welcome Mahuta the new king.” Tawhiao’s dying declaration performed the function of a written will. His intentions are manifest in a public performance of which there are sufficient witnesses to both confirm the event as well as gain tribal support. The action was easily understood the dying king’s intentions were transparent and the record shows it to be highly successful despite the absence of lawyers or the Public Trust Office. 
In his 1960 text  
Maori Land Law 
 Smith explains that the strong Maori tradition of ohaki would be acted on without question by the relatives after death. In 1895 the Maori Appellate Court recognised the custom of ohaki in respect of Maori customary land but the Native Land Laws Amendment Act of that same year 1895 was passed to abrogate by statue what had been passed in law. 
I have taken the time to share our customs of ohaki with this House because in many ways I think tangata whenua had a model to authorise the genuine expression of will-makers’ testamentary intentions which could well have been useful in this Wills Bill. The customary practice of ohaki of providing for a bequest escaped the rigidity of turgid legalese of existing laws of wills derived from the 1837 Imperial Act. It was acknowledged and recognised by the people as having great meaning in informing Maori decisions about succession to ancestral property. It was a custom that has been carried out over the generations and over centuries and still holds value. 
Indeed in 1913 Frank Acheson judge of the Whanganui—and later the Tai Tokerau divisions of the Native Land Court—analysed in detail Maori land law including that relating to wills. His work has been described as being marked by “a detailed knowledge of Native Land Court practice and by a sophisticated understanding of jurisprudence and international law.” And importantly for modern-day Parliament almost a century later the process of ohaki still has currency amongst tangata whenua. Members of the House may recall the acknowledgment given to Sir Graham Latimer by the late Dame Whina Cooper not long before her death in 1995. In her last days she recognised Sir Graham as the person to whom she bequeathed the responsibility to continue the work that she had begun. Sir Graham took this ohaki and honoured it in a way that was befitting of the person from whom he received this bequest. 
The Maori Party believes the existence of the formalised and mostly oral tradition of ohaki has great interest alongside the bill currently before the House to make the law clearer and more accessible. It makes one wonder at the wisdom of the law-making process that a perfectly appropriate procedure for bequeaths is accepted into law yet rejected a few months later and to this day it still has meaning and relevance for a significant group within our population. 
I contrast our customary processes of ohaki with that of the New Zealand Defence Force and the provision for informal will-making that presently exists in the armed forces. The Wills Bill restates the existing law that allows soldiers and sailors to make informal wills in plain language. There are currently provisions for what is described as a “privileged person” within the armed forces seafarers at sea and prisoners of war for informal will-making. In the circumstances of dangerous active service these persons of privilege are able to make amend and revoke a will urgently without satisfying the usual formalities. The question the Maori Party inevitably asks is how tangata whenua achieve the status of a privileged person in order to have our processes recognised as those personnel are. 
Finally I refer to the disposal of Maori land under a will. Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Succession to Maori land is dealt with under section 108 of that Act. Maori land interests or Maori incorporation shares can only be left to children or descendants brothers and sisters anyone else entitled to receive interests by whakapapa or related to the testator by blood who is a member of the hapu associated with the land other owners of the land who are members of the hapu associated with the land whangai—adopted—of the testators or trustees of the above. If Maori land is willed to someone who does not qualify that part of the will is invalid. The court will then determine who should succeed to the land on the basis of law. 
I conclude with one case that puts these principles into practice. The case of Tukua and Maketu C2 B Block heard in the Maori Land Court and Maori Appellate Court in March 2000 tells the case of a declaration from George Tukua in a will made in 1993 to leave Maketu C2 B block to his whangai adopted son from a de facto relationship Te Kahuhui in “recognition of his love and support for me.” There was no question that the will was subject to Te Ture Whenua Maori Act. Section 108 of that Act limits the persons to whom Maori freehold land may be left by will. The court was not satisfied that Te Kahuhui possessed a blood or whakapapa relationship with the deceased. It did however consider his eligibility to the bequest as a whangai which section 3 defines as a person adopted in accordance with tikanga Maori. The court concluded that although custom generally favours a kin-based whangai relationship in this specific case the relationship was compounded by another customary practice—the practice of ohaki or bequest. Furthermore there was evidence of a long and close relationship between the deceased and Te Kahuhui which was the key factor in this case. The court upheld the bequest. 
The issues associated with land with succession with bequests and with death are of huge importance to our whanau. The Maori Party will support the bill to select committee as we support the progress it has made in eliminating the anomalies and anachronisms of the existing laws on wills. We are also pleased that in expressing the law in language that is more contemporary and plain the legislation should inevitably assist whanau hapu and iwi in gaining access to due justice. However we hope that during the select committee consideration the important issues of whakapapa right to succession ohaki the status of whangai and informal will-making are given due consideration. 
NICKY WAGNER (National) 
: 
 The Wills Bill as we have heard is designed to replace very old and foreign legislation—the Wills Act which dates back to 1837 in the UK. Like anything from that distant past the terminology is rather archaic. That makes it difficult for present day will-makers to create a will that clearly gives effect to their intentions. Although the provisions of the legislation are largely still effective there are also some anomalies that need to be addressed so it makes sense to simplify and modernise both the language and some of the law. But let me make it clear that this bill is not a wide-ranging reform. It is a tweaking of the law and the language to make the law more accessible and easy to administer and that has to be a good thing. I believe that it is comforting to all of us to know that others will conscientiously interpret our intentions accurately when we have passed on and are no longer here to defend our own interests. 
Changes in the nature of modern relationships and lifestyles are also recognised in this new bill with the existing rules being extended to include couples who have entered into civil unions. A few anomalies are also ironed out. Under current legislation formally separated spouses or civil union partners cannot inherit their estranged spouse’s estate if there is no will but if there is a valid will at the time of death they can inherit. Under the new bill spouses will be unable to inherit if a separation order is in force regardless of the status of a will. That seems to be a common-sense change. 
The Wills Bill reinforces the present law around who can make a will which is anyone as of right who is over 18. It also increases the flexibility for those who are under 18 and want to make a will. Anyone under 18 years can make a will if he or she is or has been married in a civil union or in a de facto relationship. I refer to the comment made by Nandor Tanczos—I agree with him that just because people are married or in a civil union does not mean that they can manage their financial affairs any better. It is common sense that we have a further provision allowing people under 18 years who want to make a will to go to the Family Court. As long as they understand the nature and effect of their actions they can get the court’s approval to make a will. That is a substantial change because previously people had to be 16 before they could even get permission to make a will. The provision is also much more detailed because it allows the will-maker the flexibility of getting a general exemption rather than having to return to the court every time any change has to be made. 
People who have current wills and are still alive to consider the options can rest easy that they will not need to change their wills unless those wills are particularly badly drafted or full of errors—and let us face it if that is the case they might be wise to make changes any way. Under the new bill the High Court has the ability to correct errors. It has a much higher power to correct errors and to use internal evidence to interpret wills for the prime reason of making sure that the will-makers are getting what was intended. 
It has already been mentioned by several speakers tonight but I think it is important to understand that it is no longer necessary for the testator actually to sign the will. Another person may do that under instruction as long as it is witnessed by two witnesses who need to be present when the will is made. That also applies to any kind of change or amendment made to the will. Also some flexibility is allowed for the High Court to validate a will even if it does not meet these formalities. 
So National supports the Wills Bill. Simplified and streamlined language and legislation concerning wills can only give the public more certainty and clarity in the writing of wills and that will mean for them generally a feeling of security that their intentions will be honoured which has to be a good thing. 
Bill read a first time. 
Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee