Worth Richard: Wills Bill — First Reading 
Worth Richard: Wills Bill — First Reading 
[Volume:634;Page:5558] 
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.