Wilkinson Kate: Wills Bill — In Committee 
Wilkinson Kate: Wills Bill — In Committee 
[Volume:640;Page:10010] 
KATE WILKINSON (National) 
: 
 I am pleased to take a call on Part 2. I would just like to preface what I have to say by saying I am mindful that perhaps this bill runs the risk while trying to simplify the law of wills of actually ending up making it much more complicated potentially more litigious and more uncertain. The bill has changed terms that have long since been interpreted defined and decided on by the courts and it introduces new terms that have yet to be tested which may appear simple but may also end up being ambiguous uncertain and the subject of litigation. 
With that in mind I would like to draw the attention of the Committee to just a couple of the clauses in the bill and I would ask the Minister to take a call to clarify what I think are reasonably valid queries. The first one is in relation to clause 12 “Witnesses”. Clause 12(1) states: “The person appointed as executor of a will may witness the will.” and that is fine but it does not actually say who can be a witness. So there is no age-limit for who can be a witness. A 16-year-old child with a child cannot make a will but that person can actually be a witness to a will and that seems to be something of an inconsistency. Under the old law—if one would like to call it that—the age used to be 18 and that seems to have been omitted from this provision. 
The other issue about witnesses and I know it seems trivial—I have been called a pedantic lawyer in the past—is that there are some dispositions that under clause 13 would be void if the disposition was to a witness but there is nothing about whether a trustee can be a witness. A trustee can have control of trust property for up to 80 years but there is certainly no exclusion from a trustee being a witness to a will and I wonder whether that might lead to some unintended consequence. I would like the Minister perhaps to take a call on that or seek some advice on the actual definition and the ability or capacity of witnesses. 
To go further I will make a comment in relation to how a will can be changed. I find it a bit demeaning that one’s last will and testament can be changed by describing something in a note. As long as it is in a note and witnessed then that can end up being one’s last will and testament. Perhaps I am old-fashioned but to me the formality of having a will or a codicil makes one think about what one’s last intentions are. To have it described as a note is I think a wee bit demeaning of the importance of what is being executed here. 
The final point I will make is in relation to the revocation of a will. Clause 16 provides how a valid will or part of a valid will may be revoked whether it is by a later will a document in which the will-maker “makes it clear his or her intention to revoke the will” or the “will-maker marries or enters a civil union”. The old law always used to be—and I used to have issues with this when I was in practice—that a will was not revoked on dissolution or divorce or whatever one wants to call it. Often one would find couples 2 years after their divorce or dissolution thinking their house was in order and suddenly realising that they still had a valid will that left all their worldly possessions to their estranged spouse who still was not on the Christmas card list. So it can actually lead to some consequences not necessarily intended by the testator or the will-maker. 
I notice that there is a provision in clause19 “Effect on will of will-maker’s marriage or civil union ending”. In a sense that covers a wee bit of that but it does not cover a situation where the estranged or divorced spouse were intended to inherit or if it were intended that that spouse still be the trustee—there is no provision for allowing that exclusion. I would appreciate the Minister taking a call on those two points which I think are important.