Worth Richard: Wills Bill — Third Reading 
Worth Richard: Wills Bill — Third Reading 
[Volume:641;Page:11456] 
Dr RICHARD WORTH (National) 
: 
 I thought I would start by talking for a moment about the purposes of the Wills Bill and by highlighting two of them. The first is to replace the Wills Act 1837 of the United Kingdom with an Act written in plain language and the second is to make some rather minor changes to the law contained in that legislation. 
It is fair to say that the Wills Act 1837 is written in turgid language. Indeed as law students I recall that when we were taught the law of wills it was done in the context of a topic called “Equity and the Law of Trusts”. It was a huge challenge for any of us as keen young students to stay awake as the intricacies of wills were explored at very great length. Let no one be mistaken there are huge complications around the law of wills. I will start by quoting a small section of the Wills Act 1837. Some would say that New Zealand was not around in those days but this is English legislation imperial legislation which in a curious way has persisted and will persist as part of the New Zealand law until the Royal assent is given to this brand new Wills Bill. 
I will read from section 6 of the Wills Act 1837 and I defy listeners to see what they make of it. The section is headed “Devolution of estates pur autre vie not disposed of by will” and reads in this way: “If no disposition by will shall be made of any estate pur autre vie of a freehold nature the same shall be chargeable in the hands of the heir if it shall come to him by reason of special occupancy as assets by descent as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie whether freehold or customary freehold tenant right customary or copyhold or of any other tenure and whether a corporeal or incorporeal hereditament it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act it shall be assets in his hands and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.” 
 So pity the young law student in year 2 of his or her study! 
One of the points about this legislation is that it is primarily procedure-based. It does not actually alter the law of wills in any significant way. 
I guess it is appropriate to reflect for a moment on some wills in history that have drawn comment. The first I would like to refer to is a will made by Charles Vance Millar. His will was notorious for offering the bulk of his estate to the Toronto woman who had the greatest number of children in the 10 years after his death. This particular issue was known as “The Great Stork Derby” in Toronto folklore. A number of attempts were made by would-be heirs to invalidate this will. They were all unsuccessful and the bulk of Millar’s fortune eventually went to four women. Another famous case—that of the estate of a Mr Kidd—involved a will found on a deceased Arizona prospector who left his entire $250000 estate “for research or some scientific proof of a soul of the human body which leaves at death”. He added in the will: “I think in time there can be a photograph of a soul leaving the human at death.” 
From my perspective the most significant points—and there are only two of them—that should be made about the Wills Bill are that first many of us have a view that there is a freedom of testamentary disposition. By that I mean that we have a clear right by will to dispose of property unrestrained by other third-party involvement. But it is important to say that over the years legislation has intervened and a testator no longer has complete testamentary freedom in New Zealand. 
Prior to 2002 the two most important pieces of legislation were the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. I do not want to get into the detail of those statutes but where it was shown that appropriate provision had not been made for a deserving relative the courts would intervene to deal with that perceived injustice. That is what happened under the Family Protection Act 1955. Then the Law Reform (Testamentary Promises) Act 1949 dealt with those cases where promises had been made in exchange for services rendered to the testator and allowed a rewriting of the will. 
As I have said that was the position prior to 2002. Then there was a substantial and significant further intervention because the Property (Relationships) Amendment Act 2001 came into force. That Act renamed the Matrimonial Property Act 1976 as the Property (Relationships) Act 1976 and extensively amended that legislation. So there are now huge inroads on testamentary freedom. There are also significant ramifications for lawyers working in the area of estates and estate planning. It is probably fair to say that in the 1970s and 1980s not much money could be made by lawyers in this area but all of that has now changed very significantly and estate planning is an art that occupies substantial legal effort and acumen. 
So that is the first substantive point I would like to make. The second is to comment on issues of formality touching wills. This is a reasonably arcane area of the law—and I will come to those formalities that are picked up now in the Wills Bill—but there is a class of will known as a holographic will. A holographic will is a will and testament that has been entirely handwritten and signed by the testator. The normal rule is that a will must be signed by witnesses who attest to the validity of the testator’s signature and intent. But in many jurisdictions unwitnessed holographic wills are treated as being as valid as witnessed wills. 
I will give one example. Holographic wills often show that the requirements for making a valid will are minimal. For example the  
Guinness Book of Records 
 lists the shortest will in the world as “All to wife” which met the minimum requirements. There was a very famous case in 1948 in the Canadian province of Saskatchewan where a farmer whose name was Harris trapped under his own tractor carved a will into the fender. The fender was probated and stood as his will. Apparently that fender is currently on display at the law library at the University of Saskatchewan. So I just say that sitting in behind this legislation is a raft of subtleties and complex substantive issues. 
Generally the requirement around the attestation—the signing of wills—has a substantial element of formality. It used to be the case that if one were a beneficiary under a will one would never witness the signing of that will because if one did one would not be able to take the bequest. All of that has been changed in the Wills Bill and is no longer so although the general proposition is that if one witnesses a will and is a beneficiary in the will one has a major problem in persuading the court that that disposition should be made in one’s favour. The requirement is that the will is signed by the testator or as it is said in this bill the will-maker in the presence of two witnesses who must sign at the same time. There are lots of subtleties around that which include the position of blind testators and blind witnesses. 
 I said something about holographic wills. The bill is also keen to protect the position of informal wills made by military personnel and by seafarers who may well not be in military service but may be in the mercantile marine. These may be oral wills—they may be made wholly orally—but they will nevertheless have binding impact. So it is that this legislation now proceeds to its final stage. It replaces old imperial legislation.