Wills Bill

LYNNE PILLAY (Labour—Waitakere) Link to this

Indeed, it is a pleasure to speak to the third reading of the Wills Bill, which has enjoyed the support of the House. I acknowledge the work that the Law Commission and Sir Geoffrey Palmer did—the sterling work they did in reviewing the wills legislation. Some of the statutes involved actually went back to 1837, so this legislation is certainly well due. I also commend our members of the Justice and Electoral Committee, and indeed the staff and all the officials who helped us with the bill, on ensuring that the bill was in good condition to bring back to this House. I also acknowledge the submitters who came to the committee and gave good submissions on the bill.

In fact, if I reflect on Mr Finlayson’s speech last night, I think that that was an indication of why this bill is so good: because it is in plain English. When I listened to the waffle and pontificating that went on last night, I thought that it was very good to see a bill that is in plain English, is very easy to understand, and is clear and accessible to all people. There are some really important points in this bill. It reduces the chance of a will or gift failing, because there is certainly more clarity. It makes it easier for young people to make wills, and I think that that is a very, very good thing. It also brings us up to speed with the modern world that we live in, in that it recognises our de facto and civil union relationships, and it moves towards the interests of the will-maker’s intention when making a will, rather than being too pedantic. In fact, wills, in order to be recognised, will no longer need to be signed if the intention of the will-maker is very clear. So that is all very good, progressive stuff.

It is not frequently—but I suppose it is not infrequently—that we have legislation come before this House that is supported by the entire House. But it is very good, and it is common sense, to do so when a bill provides clarity, effectively cleans up a number of statutes, and makes very clear—

Dr RICHARD WORTH (National) Link to this

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 $250,000 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.

TARIANA TURIA (Co-Leader—Māori Party) Link to this

Tēnā koe, Mr Deputy Speaker. Tēnā tātou katoa. Once again the jagged juxtaposition of Māori customary traditions alongside Western practices has been played out in full drama in the media. For the whānau pani at Upokorehe marae at Kutarere, the commitment to their loved one required that they bring him home to his ancestral urupā, the resting place of the line of genealogy from which he descended. As the sister of the deceased was reported to have said: “His umbilical cord is here, we can’t stretch it to the South Island.” Yet in the South Island are also whānau, loved friends, and family of the man, who are now feeling cast adrift from the final rituals of his life.

The tragedy of losing this loved one has been that the loss has been intensified through the differing perspectives associated with death and the process of tangihanga. It brings home to us all the enduring significance of cultural traditions and the ever-dynamic need to ensure that everyone is able to discuss, debate, and learn from each other the range of views that are held. It is always best if such debates take place in life rather than in the immediate days following a death.

However, it is often not only a discussion across cultures but also a discussion across families, hapū, and iwi. Such discussions are core to our very being as tangata whenua, for they are about a return to the ūkaipō, the whenua. The importance of our stories, our experiences, and our wishes being heard long after we leave this earth is, therefore, extremely well-recognised by tangata whenua.

Earlier in the passage of this Wills Bill, we in the Māori Party raised the concept of ōhākī—the formal speech that was traditionally given by our people nearing the end of their lives. The practice of ōhākī would announce the wishes of that person to their assembled relatives regarding the disposal of personal property. We believe that our customary traditions to do with bequests are critical concepts in the understanding of Māori succession law, and we hope that there will be opportunities in future justice policy work to review and give respect to such concepts.

I was interested to note in the submissions to the Justice and Electoral Committee from the National Council of Women a view that in addition to having the safeguards in the bill, its members suggested that any witness to a will should declare his or her interest and have it recorded. Having different interpretations available to us on DVD or video recordings is another way to ensure that the ancient Wills Act of 1837 moves into this new century, some 170 years after it was introduced in the United Kingdom Parliament.

Given the passage of time that has passed since that first Wills Act, the Māori Party has been very pleased to support this Wills Bill. We are pleased that the changes will make it far easier for whānau to be able to receive the last word of their loved ones, in plain, modern language that is clear and accessible. We are pleased also that the legislation relating to wills is now to be as uncomplicated as possible and, as such, will be useful to both those who wish to make a will and those who are affected in any way by a will.

To demonstrate exactly how important these matters are, I want to bring to this debate an email that came into our office shortly after the second reading. It states: “I have a situation in my family I’d like to share. I am very grateful for the 1993 Maori Land Act. Succession in my view is the fairest and simplest means of keeping Tūrangawaewae tangata whenua and whakapapa safe for all whānau. In our situation there has been a lot of misinformation put about to confuse the meaning of succession when it should be a simple concept.”

The situation that this woman referred to followed the death of her mother, who had experienced dementia at the end of her life. She revoked her will and left more than half of her Māori land interests to one daughter—a decision that impacted severely on the seven siblings. As my correspondent continued: “Given that the land is the place where we all grew up and live it is very difficult to accept that the rest of us and our succeeding issue are forever alienated should our sister succeed solely.” This family was forced into a situation where it had no alternative but to go to the Māori Land Court to have the will overturned.

I have chosen to share this story because it illustrates the critical differences that must be considered when one considers the disposal of Māori land under a will. Section 108 of Te Ture Whenua Maori Act 1993 provides a specific description about how best to understand succession to Māori land. Section 108 of that Act also limits the persons to whom Māori freehold can be left by a will. Without having in place that protection of clear and specific guidelines around the disposal of land, the whānau concerned in my story would have been even more traumatised by the experience than they are now.

It reinforces to us all the importance of legislation and guidelines being accessible, and the importance of the law being free of ambiguity or confusion. It is also important to take great care to determine whether what is claimed to be an expression of a will-maker’s wishes is genuinely so, because when a will operates on the death of that will-maker, he or she is no longer present to speak for himself or herself.

This bill has raised a very complex set of issues around individual and collective rights. Although Te Ture Whenua Maori Act enables our tupuna practice of honouring collective rights to be followed, Western law is governed around the notion of an individual and his or her individual wishes being respected in the form of a will. This is where we run into difficulty in looking at the differences between succession of land and the bestowing of individual property.

There does, of course, appear to be similarities between our customary notion of an ōhākī, the dying wish of an individual, and the Western notion of a will. One is spoken, the other is written; both are witnessed in order to gain validity. Perhaps this could have been explored in greater depth in considering this bill.

Now more than ever the enduring significance of having a strong whānau to call on is paramount. We could not support legislation that might reduce the strength of those whānau bonds. We do, however, support the Wills Bill. We look forward to the changes that have been made in the legislation being of real benefit to both will-makers and whānau at very difficult times in the transition between life and death. Kia ora.

KATE WILKINSON (National) Link to this

In speaking in support of this Wills Bill at its third reading, I must admit that I have some cautions regarding introducing new, albeit plainer, language that is previously untested in the courts. However, I appreciate and recognise the advantage of restating the existing law relating to wills in a single statute and in plain modern language that is clear and accessible. It should be noted that although this may make the statute easier to understand, it does not necessarily mean that the will itself will be easier to understand.

The definition of a will is fairly simplistic. Clause 8 of the bill defines a will as a document that basically disposes of property. I think, for the record, that it is useful to compare this definition with that which is in the existing statute, which is the Wills Act 1837, to illustrate just how much simpler this bill really is. The current Act states: “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;”. That is what our current law states. In this bill a will is defined simply as a document that disposes of property. Without a doubt, the definition is simpler.

The Wills Bill also says that all property may be disposed of by will. If I may, I beg the forbearance of the House and will, for the history books, remind the House what the previous wording of the Act was in respect of this provision. Section 3 of the Act, entitled “All property may be disposed of by will”, states: “It shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this Act, if this Act had not been made; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.” That was one sentence; there were no full stops. Now the Wills Bill simply says that all property may be disposed of by will. National accepts that the bill makes the legislation simpler. Without a doubt the current bill is simpler. It may have been a long-winded point to make, but the Wills Bill is simpler.

It is also important to note that under the current legislation an appointment in the nature of a power can be a will. In other words, under current wills law it is possible to appoint, for example, trustees of a trust—to give a person a power of appointment under a trust. Under this bill, that may not necessarily be accorded the status of a will. Accordingly, there may be some doubt as to how binding a document is that merely appoints a trustee without actually disposing of property. Under this bill a will is actually limited to a document that disposes of property to which a person is entitled or to which a person becomes entitled. I suppose that my point is that a will that merely appoints a trustee of a trust may not actually be a will under this new legislation. Therefore, a question that may be asked is what status the courts will accord such an appointment. That is a question that, hopefully, will be resolved—and will be easy to resolve—without having to resort to lengthy and traumatic court proceedings at a time when families least need that extra trauma. Maybe common sense will prevail, but I have to say that common sense does not always prevail.

Be that as it may, I accept that the interpretation of wills should not be the sole domain of qualified lawyers. It is important that wills are understood by all. It is important that a person’s last wishes are understood and complied with as simply and as easily as possible.

National supports this bill. We note that its commencement date has been changed three times so far. We certainly hope that the bill will meet its objective of making the law relating to wills easier to understand and comprehend. In relation to the commencement date, we hope that it is third time lucky. Despite the Minister’s motto of “Do it once; do it right”, in this case it is “Do it thrice; do it right”. National supports the Wills Bill at its third reading.