Wills Bill

CHRISTOPHER FINLAYSON (National) Link to this

I am very happy to take a call and deal with various aspects of Part 2, and in particular with the Minister’s Supplementary Order Paper, which relates to omitting any reference in the schedule to the Evidence Amendment Act 1980 (No 2) and not substituting any reference to the Evidence Act 2006. I raised this matter when the House was in Committee on 19 June. I queried the reference to the Evidence Amendment Act (No 2), and I said that I had difficulty finding any particular reference to an equivalent provision in the Evidence Act 2006, which, as the Committee knows, the House passed a few months ago. So National has no problem with the proposed amendments that are made in the Minister’s Supplementary Order Paper. They make a lot of sense.

A couple of other points arise from the Minister’s Supplementary Order Paper 129, dated 24 July. There are a number of consequential amendments, and, as I understand it, there will be a need at some stage to go back and deal with clauses 2 and 4, but I am particularly focusing on clause 33 and then following on from the Minister’s Supplementary Order Paper. National has no problem with the proposed change to clause 33, which seeks to insert a more appropriate definition of “military or seagoing person”. The changes are very minor, but they do clarify the matter, so National has no problem with that.

Then there are a couple of references to the commencement date of the legislation. The Minister really should have dealt with this matter in June, but he did not. It provided that the legislation was to commence on 1 July 2007. Instead, the Minister is proposing that the date of 1 November 2007 be substituted. Again, that seems to make a lot of sense, although one hopes that for the benefit of testators and testatrixes, and also for the profession, we would be able to get this legislation through before 1 November. The only thing I would say, bearing in mind that 1 November is All Saints’ Day, is that I would have thought a more appropriate date would have been 2 November, which is—as the Minister knows, as an old boy of St Bede’s College—All Souls’ Day, when we commemorate the dead. Given that we are dealing with wills legislation, I would have thought that was a more appropriate date. But that having been said, I say that the proposed changes outlined in the Minister’s Supplementary Order Paper 129 make sense and National will support the legislation.

Dr WAYNE MAPP (National—North Shore) Link to this

I am very grateful to my learned colleague Chris Finlayson for setting out the reasons why 2 November might be a more appropriate date for the commencement date of this legislation. I would have to say to the Minister, given the relatively light legislative agenda that the House is faced with these days, and given that so much of the work of the House seems merely to be implementing Law Commission reports—which, of course, is why National is tending to vote for such measures—this kind of legislation is non-contentious.

It is an irony, is it not, that we have had a Government voted into office with an agenda, and it has ended up in its eighth year with the best it can do being merely to have a programme of law reform with its directions and orders coming from Sir Geoffrey Palmer of the Law Commission. I thought that Governments were elected with a plan and programme that they would carefully implement, but this year, truthfully, we have been doing—effectively—a legal toolkit repair job. That is valuable work, and I can see the importance of it, but it is not actually why Governments are elected.

Governments are elected on the basis of fundamental platforms that they have put before the public. Was this legislation ever really put to the public? Would Government members have been elected if they had gone out to the people and said: “Do you know what we will be doing in the next 3 years? We will be implementing Law Commission reports, because we are a thoughtful Government that is concerned all about law reform. Give us your vote on that basis.” Well, I think that the public might have told those members that they do not really vote for Governments for that purpose.

Even in the context of implementing a programme of law reform as directed by the Law Commission, the Government has still managed to muck it up. Today we are debating the Government’s Supplementary Order Paper 129. Even more remarkably, we are debating Supplementary Order Paper 132, dated 7 August, because the Minister just forgot something—do members know that? He forgot that the Government had repealed the Evidence Amendment Act 1980 (No 2), so he thought that he had better go around and check the rest of the Government’s legislation to see whether it was up to speed on this matter. Finally, in the dead of night and on the last possible day one could make such amendments, this ad hoc repair job is now being undertaken. Finally there is a recognition that the Evidence Amendment Act 1980 (No 2) was, in fact, repealed some time ago and was replaced by the new Evidence Act 2006. I say to the Minister that it was 2006 we were talking about.

As for the other point raised by my colleague, to do with the amendment on Supplementary Order Paper 129 omitting the commencement date of 1 July and substituting 1 November 2007, that is also something of a repair job. I have another Supplementary Order Paper, Supplementary Order Paper 118, dated Tuesday, 19 June, and I have to ask the Minister why his repair job was not done in that Supplementary Order Paper. Why was the date not corrected and properly put into place in the Supplementary Order Paper dated 19 June 2007, when it was blindingly obvious by that point that the 1 July date could not be achieved and that the legislation would not be in force on 1 July 2007? So here we have the situation where we are debating, by way of a repair job, three Supplementary Order Papers, whereas a competent Minister and Government would have had a single Supplementary Order Paper dated 19 June and covering all three items, because they were all entirely predictable back in June 2007.

This Minister prides himself on being one of the success stories of this Government. He likes to see himself as an up-and-coming thruster in the Labour Government, and I guess he will be a thrusting front-bencher in the future Labour Opposition from 2008. I guess I will see Mr Cosgrove sitting on the front benches in 2008, in the Opposition. But if he had been really on top of his game, then he would have fixed this matter up with a single Supplementary Order Paper. He has a whole department, for heavens’ sake! It is supposed to look at these things. Instead he is reliant on colleagues on the Opposition side of the Chamber pointing out the problems. Her Majesty’s loyal Opposition, mindful of the importance of good-quality law reform, has had to point out to the Government that what it was doing was simply inadequate and that it ought to be correcting this kind of situation properly. I see this as being a symbol of the decay of this Government, a symbol of the declining levels of competence, and, in a sense, a symbol of failure—failure in the most basic ways that Governments are measured.

Are Government members competent to do ordinary jobs of law reform? This bill is kind of important to individuals but, let us be honest, it is low-level stuff in terms of this Parliament. Yet even on non-controversial legislation, and even on legislation that the entire Parliament is supporting, Government members have still managed to muck it up. They still do not reach that minimal level of competence that the country has a right to expect of its Government. I would say to members opposite that they should be embarrassed. They should be embarrassed by the fact of this failure, because it is a symbol of a deeper malaise and a deeper failure that has occurred in this Government. It is a symbol of a lack of ability to govern any longer. That is what it really says.

I have to say to Government members that if this is as good as it gets, then frankly it is about time that they surrendered their offices and said that they had failed the public of New Zealand and were no longer up to the job of governing in the way that the public have a right to expect. There is a sense that we are seeing the last of this Government, because even the simple things it can no longer get right.

Dr RICHARD WORTH (National) Link to this

This is probably a day for St Bede’s College old boys, because I join with others in condemning why it is necessary so late in the piece to have these last-minute changes. If one looks at the legislative history of the Wills Bill, it is to be seen that it was first introduced on 8 September 2006, it had its first reading and was referred to the Justice and Electoral Committee on 10 October 2006, and those who have charge of this legislation and those who are responsible for the process of parliamentary business in the House came to the clear view that the legislation should take effect from a date described in clause 4 as 1 July 2007.

I do not doubt—as Dr Mapp has wisely said to members of the Committee—that it is grossly unsatisfactory that we should be presented with three Supplementary Order Papers, some of which are of major significance. For a moment, I dwell on Supplementary Order Paper 129. Now these are not minor issues at all. There are typographical errors in this legislation. I would have thought that a careful and conscientious Associate Minister of Justice would have read carefully through the Wills Bill and identified where these gross spelling and grammar errors have occurred. It is not as if the Associate Minister carries a substantial bunch of responsibilities. He is a Minister who has time on his hands to carefully survey legislation and identify points of difficulty and difference. Has he done that? No, he has not. That is just one change that we are confronted with in Supplementary Order Paper 129, a document that is short but not without substance.

The second change is an important change in the context of those who take an interest in military issues, which is that an amendment in the Supplementary Order Paper allows members of the armed forces to make informal wills, even if they are under 18 years, if they are on active operations or if they are at sea. This is something which has been very much treasured by the military; it is a part of the history of the military aspect in will-making that there has existed—from time immemorial, almost—this opportunity of such informal wills.

But I want to focus on the third point, which is the point that Christopher Finlayson, shadow Attorney-General, has raised with members of the Committee, and that is the commencement date. I just wonder why those who are so much of the St Bede’s College persuasion who have time on their hands did not have a bit of a think about why 2 November would not be a better date than 1 November. So I would just like to dwell for a moment on that, and extend the arguments that Christopher Finlayson has made about the importance of All Souls’ Day, 2 November, and to suggest not that date but another date. All Fools’ Day might be a better date for seeing this legislation in place, given the delays that occurred.

All Souls’ Day is 2 November, as the Minister well knows, and that is the day that Roman Catholics devote to prayer and alms-giving on behalf of the faithful and the departed. My understanding—and I am not a Catholic—is that according to tradition, a pilgrim returning from the Holy Land took refuge on a rocky island during a storm. There he met a hermit who told him that among the cliffs was an opening to the infernal regions, through which flames ascended, and where the groans of the tormented were distinctly audible. The pilgrim—and I see the member and the Minister acknowledging their knowledge of the history of this matter—told Odilo, the abbot of Cluny, who appointed the day following, 2 November, to be set aside for the benefit of those souls in purgatory.

I think we need, just for a moment, to reflect on what the importance of this legislation is. Not many statutes go way, way back to 1837. We are talking about imperial law here. I believe that the Minister owed it to this Parliament to get the commencement date right. He had that opportunity when he carefully nominated the date, which he did, and now I would suggest that 2 November, All Souls’ Day, is, on any view of it, a much better date.

KATE WILKINSON (National) Link to this

This is a bill to simplify wills, and although it is to simplify wills, one must not underestimate the importance of it. I suppose, giving due importance to the legislation, it is disappointing—as has been noted by my colleagues who have spoken beforehand—that some of the small details seem to have been overlooked. In the context of wills, it is very important that the words are correct. After all, when we are dealing with wills, if the testator has used the wrong words, then it is too late. In this bill, it seems that the Minister has also used some wrong words, which, thankfully, we now have the opportunity to rectify by Supplementary Order Paper.

But one would have thought—and it has been mentioned—that when this Wills Bill, which is not very long and had a commencement date of 1 July, was being drafted, the legislative agenda was known at that stage. One has to wonder why the time it would take to pass the bill was not accurately assessed in the first place. The bill is not contentious. Opposition members are not actually contradicting anything. We are not even making any amendments to it. We are agreeing to the bill. But we have a Wills Bill that had an original date of 1 July, the date then was purported to be amended to 1 September by a Supplementary Order Paper, and now it is extended even further, to 1 November.

It would be an interesting exercise to see how much taxpayers’ money has been wasted on this movable feast. What sort of competence is displayed when a bill has to have its commencement date—a simple, simple clause in a bill that is not contentious—altered not once, not twice, but three times?

CHRIS AUCHINVOLE (National) Link to this

Are we surprised on this side of the Chamber? Are we surprised to find that this legislation now needs a change of date? This is from a Government that seems to be pushing legislation into the House as if there were no real requirement to get it right the first time. We have Supplementary Order Papers 129 and 132, and a further Supplementary Order Paper, as we have already heard from other speakers. Why were these things not put right in the first instance? Instead, we are finding ourselves doing repair jobs on things that should never have been wrong in the first place.

I think that this is an indication of a Government in a difficult spot. The New Zealand public must be so pleased that they at least have a sense of security they can draw from the quality of service they get from the National Party benches. It is no wonder that all members on this side of the Chamber are regularly stopped in the street by passers-by who identify them as a National Party politicians and wish them well in the next election. It is a frequent event. Thank goodness for the likes of my colleague Mr Chris Finlayson, the shadow Attorney-General, who can apply not only his knowledge of the law but also his knowledge of the Church calendar to proposing an appropriate future date for this legislation: 2 November, All Souls’ Day—a good choice.

This legislation was introduced in 1837; it was originally brought in then. I recall speaking in this debate before, and I recall saying then that I was pleased to be a layperson involved in a debate on a legal matter—a debate designed to simplify the process, to make legal terms into more common speech. I think it is important that laypeople understand these matters. Well, here I am in this debate, finding that even the finest legal minds in the Chamber—and one could say they are all on this side—are unable to keep up with something that changes its date not once, not twice, but three times. I guess it is tied up with the way this Government is caught up with the past, rather than the future—let alone the present.

Let us dwell on that just for a moment. One has to listen only to the responses at question time in the House. I say “responses” because there is no way that the mealy-mouthed mumblings of mediocre Ministers could be described as answers. The responses to the questions inevitably draw the Ministers back to the 1990s, because that is how they answer almost every question that is put to them. Oh, the happy time when they were in Opposition—that is where they were comfortable, that is where they were confident, and that is where they will go back to. But let us hope that they get this sort of bill correct before they go.

Hon CLAYTON COSGROVE (Associate Minister of Justice) Link to this

I will just take a very short call. There was one item of significance in those eminent dissertations—those fine speeches, dealing with the date change, that have dragged this out for some time. I often wonder when listening to those speeches whether members would prefer us not to correct things—and I exclude Mr Finlayson from this, because I acknowledge some very relevant points of his throughout the debates on the bill. I thank him for his biblical history, which reminded me a little bit of my Sunday school lessons that I am rusty on. I appreciate that. But sometimes when listening to the speeches of Opposition members I wonder whether they would prefer us not to correct these things, and to send the bill out as it is.

Ms Wilkinson raised one point when she alluded to the meaning of the word “signed”. I am not a lawyer, and she is, but I will make this point. She somehow felt there was danger because the word “signed” had not really been defined, and she was not sure whether this would cause uncertainty. I am advised that the same word, the word “signed”, is used in the current legislation, and that it is well understood. I am also advised, as a layman and not as a lawyer, that there is legal interpretation going back to 1837. I would argue—and my officials have advised me of this—that there is sufficient legal interpretation on the books in case law to determine, if one puts a squiggle across a circle, or other symbol, that the courts would interpret it as they have done in case law and precedent since 1837. I think that that creates a large amount of certainty—around 170 years of it.

Hon CLAYTON COSGROVE (Associate Minister of Justice) Link to this

I seek leave to reconsider Part 1 for the purposes of considering the amendment to clause 4, set out on Supplementary Order Paper 129.

CHRISTOPHER FINLAYSON (National) Link to this

Although I absolutely and totally endorse the comments of my good friend the member for North Shore about the Government’s rather lackadaisical and shallow legislative agenda, I for one am pleased that the Wills Bill is shortly to be passed because, as the commentary states, it restates the existing law governing wills. Some of that law—almost unbelievably, I am sure listeners will say—is incorporated in several statutes that go back to 1837. In my opinion it is high time that this Parliament looked at the legislation governing wills and made some necessary changes, in particular to bring the law together in one single statute and to express the law relating to wills in plain modern language that is clear and accessible.

There are very few certainties in life, and as the cliché goes, two of those certainties are death and taxes. We are all going to die. I am not simply referring to this Labour Government that is going to die. I am referring to those mere mortals who make up this House of Representatives from time to time. Whether or not we like it, we are all going to die. Therefore, it is necessary and indeed desirable that we have up-to-date wills that express in clear and accessible terms for our loved ones, and for the trustees who will administer estates, just what exactly it is that we want to be done with our property after death. That is why we need clear legislation in this area, above all.

I think the Law Commission is to be commended, because by and large it has done a very good job in this area. It came up with some good reports and, notwithstanding the valid criticisms made from this side of the Chamber about the legislative programme, as I said, the Minister is to be commended for getting this legislation into the House and getting it through its stages.

The changes proposed in the Supplementary Order Papers are, by and large, pretty minor fare and I am not going to quibble too much over them. But I do think I raised a very incisive point that the Minister has not addressed, and I want to dwell on it a little bit more because of the outstanding contribution—as, indeed, all his contributions are—of Dr Richard Worth, who picked up the point I made that 1 November is not the right day for the commencement of this legislation. It should be 2 November, because 1 November is All Saints Day or, I think as some Anglicans call it, All Hallows Day. Hallows comes from the old English halig, meaning a holy man or a saint. Of course in these modern and non-sexist times we would of course say “a holy person”. The Festival of All Saints was originally held on 1 May and was changed to 1 November in 834. Those of us who know about these things will know that Halloween—which also has that term hallows, coming from All Hallows Day—is held on 31 October.

But the important point, and this is why it is so exquisitely appropriate that we have 2 November as the commencement date, is that All Souls Day, certainly in Roman Catholic traditions—I do not know what the Protestants do—is the day one devotes to prayer and alms-giving on behalf of the faithful departed, who presumably and hopefully had signed wills before they went to meet their maker. I am not going to go into the detail of what Dr Worth said about how All Souls Day came to pass, but the fact of the matter is that it is an appropriate day for the commencement of this legislation, which as I said amounts to the first substantive reform of the law of wills since 1837.

So there we have it. The Justice and Electoral Committee worked hard on this legislation. There were not a great many submissions, but the two people I want to mention in particular who made a great contribution are Professor Bill Atkin from Victoria University and Professor Tony Angelo. They are examples of great submitters who not only went through the legislation in policy terms but, as it were, undertook a detailed exegetical analysis of the legislation to point out various faults, as a result of which some useful changes were made. The bill is a good piece of work by the hard-working and diligent Justice and Electoral Committee, some of whose members are enjoying a junket to Melbourne this week and some of whom are working hard in the Parliament dealing with this legislation. But putting that all to one side, it is good legislation. Let us move on and get it passed into law as quickly as possible, but hopefully bringing it into law on 2 November not 1 November.